The African Commission on Human and Peoples’ Rights and its promotion and protection of the right to freedom from discrimination
| Date | 01 June 2017 |
| DOI | 10.1177/1358229117712828 |
| Published date | 01 June 2017 |
| Author | Jamil Ddamulira Mujuzi |
| Subject Matter | Articles |
Article
The African Commission
on Human and Peoples’
Rights and its promotion
and protection of the right
to freedom from discrimination
Jamil Ddamulira Mujuzi
Abstract
The African Commission on Human and Peoples’ Rights, the African Commission, was
established by the African Charter on Human and Peoples’ Rights, the African Charter,
with the mandate to promote and protect human and peoples’ rights in Africa. The right
to freedom from discrimination is one of the rights provided for in the African Charter.
In this article, the author examines the individual communications, state party reports,
concluding observations of the African Commission on state party reports and the
resolutions passed by the African Commission to highlight the ways in which the African
Commission has promoted and protected the right to freedom from discrimination.
Keywords
African commission, freedom from discrimination, right, African court, state reports,
resolutions
Introduction
The African Commission on Human and Peoples’ Rights, the African Commission, was
established by the African Charter on Human and Peoples’ Rights,
1
the African Charter,
with the mandate to promote and protect human and peoples’ rights in Africa. Article 45
Faculty of Law, University of the Western Cape, Cape Town, South Africa
Corresponding author:
Jamil Ddamulira Mujuzi, Faculty of Law, University of the Western Cape, Cape Town, South Africa.
Email: djmujuzi@gmail.com
International Journalof
Discrimination and theLaw
2017, Vol. 17(2) 86–136
ªThe Author(s) 2017
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DOI: 10.1177/1358229117712828
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of the African Charter provides that in order to execute its mandate, the African Com-
mission shall perform the following functions:
1. To promote Human and Peoples’ Rights and in particular: (a) To collect documents,
undertake studies and researches on African problems in the field of human and peoples’
rights, organize seminars, symposia and conferences, disseminate information, encourage
national and local institutions concerned with human and peoples’ rights, and should the
case arise, give its views or make recommendations to Governments. (b) To formulate and
lay down, principles and rules aimed a t solving legal problems relating t o human and
peoples’ rights and fundamental freedoms upon which African Governments may base their
legislations. (c) Co-operate with other African and international institutions concerned with
the promotion and protection of human and peoples’ rights. 2. Ensure the protection of
human and peoples’ rights under conditions laid down by the present Charter. 3. Interpret all
the provisions of the present Charter at the request of a State party, an institution of the OAU
[now AU] or an African Organization recognized by the OAU [now AU]. 4. Perform any
other tasks which may be entrusted to it by the Assembly of Heads of State and Government.
Apart from the above functions, the African Commission is also empowered to
receive individual
2
and interstate communications
3
alleging a violation or violations
of any human or peoples’ right or rights in the African Charter. The African Commission
also has the mandate to receive and examine reports from states on the measures they
have taken to implement the African Charter.
4
One of the rights provided for in the
African Charter is the right to freedom from discrimination. The purpose of this article is
to demonstrate how the African Commission has, since its establishment, promoted and
protected the right to freedom from discrimination. The article will start with a discus-
sion of the right to freedom from discrimination under the African Charter and how it has
been interpreted by the African Commission.
The right to freedom from discrimination
in the African Charter
One of the reasons for drafting and adopting the African Charter was to combat
discrimination. The preamble to the African Charter states, inter alia, that African
countries were:
Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still
struggling for their dignity and genuine independence, and undertaking to eliminate colo-
nialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military
bases and all forms of discrimination, particularly those based on race, ethnic group, color,
sex, language, religion or political opinions.
It is therefore not by accident that the African Charter, expressly a nd impliedly,
provides for the right to freedom from discrimination in different Articles. Indeed, the
African Commission held that ‘one of [the] ...g oals [of the African Charter] is the
elimination of all forms of discrimination and to ensure equality among all human
beings’.
5
Article 2 of the African Charter provides that
Mujuzi 87
[e]very individual shall be entitled to the enjoyment of the rights and freedoms recognized
and guaranteed in the present Charter without distinction of any kind such as race, ethnic
group, color, sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or other status.
It is important to note that Article 2 does not use the word ‘discrimination’ but rather
‘distinction’. However, the African Commission held that ‘Article 2 of the African
Charter stipulates the principle of non-discrimination, which is essential to the spirit
of the African Charter’.
6
Article 18(3) of the African Charter expressly refers to discrimination. It is to the
effect that ‘[t]he State shall ensure the elimination of every discrimination against
women and also ensure the prot ection of the rights of the woman and the child as
stipulated in international declarations and conventions’. Article 28 imposes a duty on
every individual ‘to respect and consider his fellow beings without discrimination, and to
maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and
tolerance’. Two points should be noted about Articles 2 and 18(3). First, Article 2 is
applicable to ‘every individual’, of course including women. Article 18(3) is applicable
to women only (on the issue of expressly imposing a duty on a state to eliminate every
form of discrimination). The African Commission has held that:
The non-discrimination principle gene rally ensures equal treatment of an individ ual or
group of persons irrespective of their particular characteristics, and the non-
discrimination principle within the context of Articles 2 and 18(3) of the African Charter
ensures the protection from discrimination against women by States Parties to the African
Charter.
7
Secondly, unlike Article 2 which uses the word ‘distinction’, Articles 18(3) and 28
use the word ‘discrimination’. The challenge is that both terms are not defined in the
African Charter. The fact that different terms are used in different parts of the African
Charter means that the drafters of the Charter could have intended these terms to have
different meanings. This argument is also supported by the fact that in the preamble to
the African Charter, as mentioned above, the word used is ‘discrimination’ as opposed to
‘distinction’. However, the African Commission has taken the view that both Articles 2
and 18(3) ‘have an element of discrimination’.
8
In its resolutions in which it has made
reference to Article 2, the African Commission has used the words ‘discrimination’ and
‘distinction’ interchangeably. In some instances, it has stated that Article 2 provides for
the right to freedom from ‘discrimination’
9
and in others that it provides for the enjoy-
ment of all the rights in the African Charter ‘without distinction of any kind’.
10
In one
resolution, the African Commission recalled
that Article 2 of the ...African Charter prohibits discrimination of the individual on the
basis of distinctions of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune, birth or any
status.
11
88 International Journal of Discrimination and the Law 17(2)
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