5 - The OAU Polity and the Domestic Praxis of Human Rights

Summary

In a eulogy to the UDHR on the occasion of its fiftieth anniversary, Hannum, with specific reference to Africa, triumphantly proclaimed that: ‘The Universal Declaration has served as a model or inspiration for numerous constitutional and legislative provisions … Many African constitutions in the immediate post-independence period made explicit reference to the Universal Declaration of Human Rights.’ It is a triumphalism that is widely shared within African human rights commentary. For example, Asante drew attention to the ‘Charters of Human Rights’ in the independence constitutions of the former British colonial territories and the commitment to the 1789 French Declaration of Rights in the independence constitutions of the former French colonial territories and thereby concluded that the UDHR ‘has been a powerful source of inspiration for the founding pattern of African nations … national independence in Africa … arrived in an era replete with concepts of human rights. In these circumstances entrenchment of human rights was virtually automatic.’

A similar conclusion was reached by Mahalu who argued that, although African independence was itself based on the issue of human rights, significantly, it had come about ‘at a time when the categories of human rights had expanded and internationalized. In the international atmosphere they had a compelling moral force and found legal interpretation in domestic legislation of various states’. More authoritative, in that he served on the African Court on Human and Peoples’ Rights for ten years, is the conclusion drawn by Ouguergouz that the incorporation into the independence constitutions of provisions relating to human rights, ‘with or without express reference to the Universal Declaration’, was

not a case of mere imitation but … the fruit of a sincere conviction inherited from the anti-colonial struggle. The systematic human rights violations inherent in the colonial system had given birth, in nationalist African circles, to humanitarian aspirations and ideals; once independence had been gained, it was logical for them to be incorporated into legislation. Thus, the first constitutions of the countries formerly under British domination almost all contained an impressive and detailed list of rights and freedoms.