Proposed in 1979 and adopted in 1981, the African Charter on Human and Peoples’ Rights (ACHPR) finally came into effect on 21 October 1986 three months after a simple majority of OAU member states had deposited their instruments of ratification with the Organisation of African Unity (OAU) Secretary-General. With Africa essentially absent in 1948 when the Universal Declaration of Human Rights (UDHR) was adopted, the ACHPR thereby represented the first official statement of an African human rights perspective; and also the first non-Western declaration of human rights. It will become increasingly evident as the account of its origins unfolds that the ACHPR was quite deliberately intended as an explicit political and cultural reproach to the Western conception of universal human rights. For that reason alone, it is undoubtedly one of the most important documents in modern African history and a significant moment in Africa's relentless confrontation with neo-colonialism in all its forms and the assertion of an African self-identity and personality.

Although, therefore, it might be thought that an appreciation of the origins of the ACHPR was essential to even the most basic commentary on the ACHPR, it is an appreciation that most African human rights commentators, that is commentators on African human rights, have nonetheless been largely happy to sidestep. In the main, their preferred areas of focus have been legal and comparative analysis and critiques of the ACHPR's legal and operational effectiveness. As a result, notwithstanding several book-length treatments of the ACHPR by Bello, Jallow, Kufuor, Murray, Nmehielle, Ouguergouz, Umozurike and Yemet, and specific chapters on its origins by Baricako and Kannyo, more than thirty-five years after it came into force no comprehensive investigation aimed primarily at identifying a detailed narrative of how and why the ACHPR came into being has even been attempted.

To the extent that the origins of the ACHPR are described, an explanation of the ‘how’ is usually limited to a cursory outline of the political process.

The text of the ACHPR was the outcome of a drafting process that produced three primary drafts: The M’baye draft, which was presented as a working paper to the 1979 Dakar Meeting of Experts (M’baye draft); the draft produced by the 1979 Dakar Meeting of Experts (Dakar draft); and the draft as finalised after the June 1980 Banjul Ministerial Meeting, which reviewed the Preamble and the first eleven articles, and the January 1981 Banjul Ministerial Meeting, which reviewed the remaining articles and resolved the few outstanding points (Banjul draft). Although these were the primary drafts, in its English language form at least, a further four drafts, seven drafts in total, were produced: The M’baye draft, OAU CAB/LEG/67/3 and Rev. to Rev.5. The text adopted by the 1981 Nairobi AHSG was Rev.5. Over the years, the text has also been published by the OAU in various pamphlets but, unfortunately, they are not always reliable as, in comparison with Rev. and as between the pamphlets themselves, there are often textual and stylistic discrepancies, mainly minor but sometimes more material.

The non-primary drafts, with the possible exception of the initial OAU CAB/ LEG/67/3, seem to have been drawn up under the supervision of the OAU General Secretariat in the intervening period between the drafting and review meetings and indeed even after the Banjul draft had been finalised by the January 1981 Banjul Ministerial Meeting. They were not intended, it may be assumed, to alter the sense of an agreed text but only to clarify the intention or, more usually, to improve the translation and style of the agreed text. Nonetheless, in some cases, amendments were so extensive as to modify inescapably the meaning of the text – although in mitigation, the initial text frequently left much to be desired or just missed out the changes that had been agreed and therefore extensive editing was most appropriate. In other cases, though, the amendments amounted to little more than, say, altering ‘person’ to ‘individual’. Yet, despite these attempts to refine and improve the style of the drafts, in their English language form, they remain, in too many places, clumsy, convoluted, inconsistent and lacking in clarity with commas often appearing in strange places.

It is somewhat surprising that the 1977 UNGA resolution should come as a shock to international human rights activists. The African states had after all been fairly consistent in their approach to human rights on the international stage. An approach that cannot simply be reduced to the natural desire of dictators to evade outside scrutiny as, for example, suggested by Howard when posing the otherwise reasonable question: ‘Is the argument that civil/political liberties may be suspended in favour of economic rights in underdeveloped African countries a reflection of basic economic and human needs, or is it a self-serving justification for the centralized power of an elite? May civil and political rights ever justifiably be suspended?’

The answer is that African political leaders saw this question in altogether different binary terms and therefore largely rejected the UDHR. In the first instance, the UDHR had accommodated colonialism and apartheid and its application had not been extended to the colonial territories. It therefore played only a minor part in the decolonisation process, the preferred references being the Atlantic Charter and the self-determination clauses of the UN Charter. Thereafter, as the decolonisation process moved on, African political leaders repeatedly reminded the Western world that the African states had not contributed to the formulation of the UDHR's content. What had therefore emerged was an ethical playbook wholly at odds with the political and economic priorities of the newly independent but underdeveloped African states and the African way of life. It therefore followed that Africa could not accept that the current set-up of human rights was universal in any sense.

There was also a sentiment, as had been argued in the debate within the Christian church in Africa and in respect of African socialism, that Africans had always had a sense of human rights going back to pre-colonial African societies. It was therefore patronising to suggest that Africa needed to be taught human rights. Even Asante, despite his support of the UDHR, felt that: ‘The concept of human rights is by no means alien to indigenous African legal process. The African conception of human rights was an essential aspect of African humanism sustained by religious doctrine and the principle of accountability to the ancestral spirits.’

When the Second World War broke out in Europe in 1939 there were barely two independent countries in Africa – Egypt and Liberia. In both cases, though, it was an independence that was significantly circumscribed. In the case of Egypt, although the 1936 Anglo-Egyptian Treaty had nominally brought to an end the British occupation, it nevertheless also provided for a residual presence for a further period of twenty years of up to 10,000 British troops and 400 British airmen together with their ‘necessary ancillary staff’. Their residual presence was demanded on the basis that the strategic international waterway of the Suez Canal had to be protected. As for Liberia, it was independent de jure but otherwise heavily dependent on US economic support, in particular on the rubber plantations of the Firestone Company. Politically, too, it was also almost the exclusive preserve of the descendants of its mid-nineteenth century African-American founders, further diluting the practical significance of independence for the majority of its population.

A third country, Ethiopia, was also independent de jure. However, in 1935 it was occupied by Italy and, even after 1941, notwithstanding Emperor Haile Selassie's return, it was largely administered by its British ‘liberators’. Ethiopia would only regain its formal, though still limited, independence late in 1944. It could perhaps be argued that South Africa was also an independent country but, as the majority black population was under minority white rule, this independence, too, could hardly be regarded as anything more than a fiction.

The two main colonial powers were Britain, whose colonial territories ranged across the whole continent, and France, whose colonial territories were predominantly in North and West Africa but also included Madagascar and French Somaliland (Djibouti) in East Africa. Other colonial powers included Portugal, which controlled several colonial territories, notably Angola, Guinea-Bissau and Mozambique, Belgium, which controlled the colonial territories of the Congo and Rwanda/Burundi, and Spain, which controlled the colonial territories of the Spanish Western Sahara and Equatorial Guinea. As both Portugal and Spain were neutral throughout the Second World War, as regards the ACHPR, their historical significance only comes into play after the other African colonial territories had gained their independence in the late 1950s and early 1960s.

The text of the ACHPR was the outcome of a drafting process that produced three primary drafts: The M’baye draft, which was presented as a working paper to the 1979 Dakar Meeting of Experts (M’baye draft); the draft produced by the 1979 Dakar Meeting of Experts (Dakar draft); and the draft as finalised after the June 1980 Banjul Ministerial Meeting, which reviewed the Preamble and the first eleven articles, and the January 1981 Banjul Ministerial Meeting, which reviewed the remaining articles and resolved the few outstanding points (Banjul draft). Although these were the primary drafts, in its English language form at least, a further four drafts, seven drafts in total, were produced: The M’baye draft, OAU CAB/LEG/67/3 and Rev. to Rev.5. The text adopted by the 1981 Nairobi AHSG was Rev.5. Over the years, the text has also been published by the OAU in various pamphlets but, unfortunately, they are not always reliable as, in comparison with Rev. and as between the pamphlets themselves, there are often textual and stylistic discrepancies, mainly minor but sometimes more material.

The non-primary drafts, with the possible exception of the initial OAU CAB/ LEG/67/3, seem to have been drawn up under the supervision of the OAU General Secretariat in the intervening period between the drafting and review meetings and indeed even after the Banjul draft had been finalised by the January 1981 Banjul Ministerial Meeting. They were not intended, it may be assumed, to alter the sense of an agreed text but only to clarify the intention or, more usually, to improve the translation and style of the agreed text. Nonetheless, in some cases, amendments were so extensive as to modify inescapably the meaning of the text – although in mitigation, the initial text frequently left much to be desired or just missed out the changes that had been agreed and therefore extensive editing was most appropriate. In other cases, though, the amendments amounted to little more than, say, altering ‘person’ to ‘individual’. Yet, despite these attempts to refine and improve the style of the drafts, in their English language form, they remain, in too many places, clumsy, convoluted, inconsistent and lacking in clarity with commas often appearing in strange places.

Whereas the outlook of the OAU polity was unfailingly hostile towards a concept of human rights based on the UDHR, by the mid-1970s public opinion in the developed world had become equally and oppositely convinced of the moral imperative of human rights. Such was the ardour that Moyn would characterise this period as one in which ‘the moral world of Westerners shifted’ and Henkin would refer to ‘The Age of Rights’. The supreme validation would come with the award in 1977 of the Nobel Peace Prize to Amnesty International (AI). One measure of this ‘shift’ was the dramatic increase in the number of NGOs so that, by the end of the 1970s, it was estimated that in the United States and United Kingdom alone there were more than 200 human rights NGOs, fifty of which maintained a lobbying presence in Washington. Moreover, alongside this rise in the number of NGOs there was also an explosion in membership. The US section of AI, for example, saw its membership surge over the period 1970 to 1976 from around 3,000–6,000 to 35,000–50,000 members. As for the UN, as of 1979, the Economic and Social Council (ECOSOC) had granted consultative status to more than 700 NGOs.

As only a few NGOs had the capability to intercede directly with the governments they sought to accuse, the main recourse for NGOs was to apply such political pressure on Western governments as would compel them to accommodate a higher priority for human rights in their foreign policies than they had hitherto been minded to do. To that end, NGOs began to form coordinated lobby groups to direct that pressure: In the US, the Coalition for a New Foreign and Military Policy, which set up the Human Rights Working Group as its first task force, and in the UK, the Human Rights Network. Responding to these pressures, governments in the UK (the Labour Party) and US (President Carter) were elected in 1974 and 1976 on a manifesto pledge committing them to a human-rights-based foreign policy. Even France, now with few remaining colonial territories, ratified the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in 1974.

Source: OAU, Proceedings of the Summit Conference of Independent African States, Addis Ababa, May 1963 Vol.1, Section 1, XIV: Official Text of the Charter of the Organization of African Unity.

CHARTER OF THE ORGANIZATION OF AFRICAN UNITY

We, the Heads of African States and Governments assembled in the City of Addis Ababa, Ethiopia;

CONVINCED that it is the inalienable right of all people to control their own destiny;

CONSCIOUS of the fact that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples;

CONSCIOUS of our responsibility to harness the natural and human resources of our continent for the total advancement of our peoples in spheres of human endeavour;

INSPIRED by a common determination to promote understanding among our peoples and co-operation among our States in response to the aspirations of our peoples for brotherhood and solidarity, in a larger unity transcending ethnic and national differences;

CONVINCED that, in order to translate this determination into a dynamic force in the cause of human progress, conditions for peace and security must be established and maintained;

DETERMINED to safeguard and consolidate the hard-won independence as well as the sovereignty and territorial integrity of our States, and to fight against neo-colonialism in all its forms;

DEDICATED to the general progress of Africa;

PERSUADED that the Charter of the United Nations and the Universal Declaration of Human Rights, to the principles of which we reaffirm our adherence, provide a solid foundation for peaceful and positive co-operation among states;

DESIROUS that all African States should henceforth unite so that the welfare and well-being of their peoples can be assured;

RESOLVED to reinforce the links between our states by establishing and strengthening common institutions;

HAVE agreed to the present Charter.

ESTABLISHMENT

Article I

• 1. The High Contracting Parties do by the present Charter establish an Organization to be known as the ORGANIZATION OF AFRICAN UNITY.

• 2. The Organization shall include the Continental African States, Madagascar and other Islands surrounding Africa.

How then are the origins, political, intellectual and cultural, of the ACHPR to be explained? The starting point has to be an appreciation that the ACHPR process was a project of the OAU AHSG alone and therefore, in that it was at all times subject to the absolute discretion of African political leaders, it cannot simply be explained as a manifestation of an African desire to emulate the UDHR or to establish a regional human rights regime – either on the part of African leaders or African public opinion. On the contrary, African political leaders were consistently disdainful of the UDHR and, therefore, both pre- and post-independence, ignored, dismissed or limited the application of the UDHR in relation to Africa. This antipathy would have to be overcome or accommodated if the ACHPR were to have any chance of being adopted by the OAU AHSG.

There can be no doubt that appeals by the African colonial territories to the UDHR or to human rights as the basis of their right to independence, as in the curious incident of the dog in the night-time, were conspicuous by their absence. In the case of the French colonial territories, this absence ought perhaps to be regarded as possibly not so curious as, Algeria and, pre-dating the UDHR, Madagascar in 1947 apart, there was not so much of a struggle for independence as a step-by-step creeping negotiation over many years with deferential African leaders invariably anxious to maintain a mutually beneficial close relationship with France and alive to the consequences were they to rock the boat unduly. In such circumstances, there was little scope or need for appeals to the UDHR. However, even in the North African protectorates and the British colonial territories, where by the early 1950s independence was being pressed with far greater urgency, demands were rarely expressed in terms of the UDHR or human rights. If at all, the preferred references were the Atlantic Charter and the UN Charter. As for the Portuguese colonial territories, their prolonged and violent struggle for independence served only to alienate them from the UDHR which they perceived as hypocritical, self-serving and racist, and inappropriate for the new revolutionary society they sought to create.

In Volume 1 of The African Charter on Human and Peoples’ Rights, the political, intellectual and cultural context in which the ideas underlying the African Charter on Human and Peoples’ Rights (ACHPR) were conceived and nurtured, and the principles and politics upon which the Organisation of African Unity (OAU) was founded and functioned, were delineated. Without an appreciation of that context and of the nature of the OAU polity, it would be hardly possible to make sense of the political account of the ACHPR process or to grasp how the ACHPR should be understood. The essential, dominating, core of that context was a deep existential resentment against Western universalism and accordingly an attendant desire for a hitherto disregarded African perspective to be projected across the spectrum of the commanding heights of that Western universalism. It was a desire that would be symbiotically asserted not only in intellectual and cultural spheres of activity but also in the praxis of African political leaders in national, regional and international forums and declarations. Most especially at the UN and its agencies in opposition to the international post-war settlement, which, it was argued, had to be recalibrated so as to incorporate, for the first time, African interests and priorities.

Volume 1 also looked at the African states’ engagement with human rights domestically and on the international stage. Domestically, it was clear that the human rights declarations and commitments incorporated into African independence constitutions had evoked little enthusiasm at the time or any great expectation that they would prove effective, and, unsurprisingly, post-independence, they were therefore either ignored or simply removed. Indeed, African political leaders made little secret of their contempt for human rights, which, they argued, had little relevance to the circumstances of the newly independent African states or the traditional African way of life. They therefore not only refused to contemplate any constraint on their almost unrestrained authority but also, in most cases, amended constitutions so as to augment further that authority. It was also clear that, with few exceptions, a ‘modern’ civil society that might serve to temper or blunt the political power of African leaders or demand a human rights regime was as yet still in the process of formation.

The African states and the UDHR

It is particularly noticeable that the attachment to the UDHR proclaimed in African constitutions is largely absent from African pronouncements, conference declarations or UN resolutions. Indeed, whenever reference is made to the UDHR or to human or fundamental rights, it is invariably qualified or limited in context to self-determination, apartheid or racial prejudice, or simply referenced to the UN Charter. Such a qualified endorsement first emerges in the Final Communique of the 1955 Asian-African Conference which referenced human rights in three of its seven sections. In the section on ‘Human Rights and Self-Determination’, it declared

The other references affirmed ‘that the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation’; and that one of the principles upon which international relations should be founded was: ‘Respect for fundamental human rights and for the purposes and principles of the Charter of the United Nations.’ The conference also endorsed a ‘Basic Paper on Racial Discrimination’, which was not part of the Final Communique but was ‘considered … as being part of its decisions’, in which racial segregation and discrimination were deplored as ‘a gross violation of human rights’, but no reference was made to the UDHR. At best, therefore, the references to the UDHR are a qualified nod. Moreover, in its main reference, support is only extended to ‘the fundamental principles of human rights’ which in any event are said to derive from the UN Charter not the UDHR.

Human rights were also mentioned in the opening conference address of several delegation leaders.