Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights Under the African Charter on Human and Peoples' Rights

I. Introduction

Any meaningful discussion of economic, social, and cultural rights under the African Charter on Human and Peoples' Rights ¹ must overcome the triple barriers of pessimism, history, and ideology. The perception of the African regional human rights system generally has been significantly shaped to some degree by and filtered through a pessimism about Africa that often consigns the continent to a fate worse than making peace with both mediocrity and despondency. ² The treaty framework and institutional arrangements of the African Charter in particular thus have been beset from inception with doubts about their credibility, efficacy, and relevance to the continent. ³ Some early writers and commentators doubted "whether the Charter will ever come into force." ⁴ Subsequently, some others have questioned whether the African Commission on Human and Peoples' Rights, ⁵ the oversight and implementation mechanism created by the Charter, has the "power, resources and willingness" to fulfill its functions. ⁶ The power of the Commission to consider petitions alleging individual violations of human and peoples' rights, ⁷ to provide a remedy for such violations, ⁸ and to monitor through a public examination of periodic reports state parties' compliance with Charter obligations ⁹ have all at different times similarly been called into question. The perception of the African regional system that often is conveyed in much of the available literature is something of a juridical misfit, with a treaty basis that is dangerously inadequate and an institutional mechanism liable, ironically, to be slated as errant when it pushes the envelope of interpretation positively.

Pessimism and history come together in the opinion of a leading African scholar who once dismissed the entire Charter as "a façade, a yoke that African leaders have put around our necks" ¹⁰ and called on like-minded peoples and interests to "cast it off and reconstruct a system that we [Africans] can proudly proclaim as ours." ¹¹ This view was no doubt influenced by the peculiar circumstances of the adoption of the Charter, which happened during an era of particularly egregious human rights violations throughout Africa. ¹² Although it declared the pursuit of "freedom, equality, justice and dignity" to be the "legitimate aspirations of African peoples," the Charter of the Organization of African Unity (OAU) placed particular premium on the preservation of the independence and sovereign integrity of African States and the corollary principle of noninterference in the affairs of these States, ¹³ at the expense of protection of the citizens of the continent. As dictators in single-party or military states--and in some cases of both hues ¹⁴ --hardly any of the African leaders who participated in the negotiation and adoption of the Charter in Nairobi in 1981 could claim a democratic mandate. With a few exceptions such as the late Julius Nyerere of Tanzania and former President Kenneth Kaunda of Zambia, who did not enrich themselves through high political office, most of these rulers were also widely suspected of impoverishing their own peoples through a combination of wrong-headed policies and brazen corruption at a time when the priority of the leadership of the continent was not the protection of the individual but the preservation of their own personal power and influence in the territories inherited from the then recently departed metropolitan colonial powers. ¹⁵ The combined legacy of its checkered colonial and post-colonial history continues today to haunt Africa through the unacceptably rampant incidence of mass impoverishment, disease, unemployment, underdevelopment, political instability, conflict, and cyclic, gross, and massive violations of human rights. ¹⁶

Notwithstanding the early affirmation of the indivisibility of human rights in the Proclamation of Tehran in 1968, ¹⁷ the negotiation of the African Charter over a decade later would be riven with the traditional ideological disputes as to...