1.3 Economic, social and cultural rights in the African Charter
1.3.4 Development of economic, social and cultural rights under the African Charter
The African Charter adopts a minimalist approach to economic, social and cultural rights as it omits some of the rights recognised in other treaties, particularly in the ICESCR.133 Among the omitted rights are the right to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing, and to the continuous improvement of living conditions—the right to be free from hunger, the right to social security, including social insurance.134 Other rights such as the right to work and the right to education are missing some elements.135 The Charter has been compared with the ICESCR and criticised as defective for these omissions.136 Yeshanew suggests amending the Charter and adopting an additional protocol among possible solutions, but considers
126 Yakaré-Oulé (Nani) Jansenreventlow & Rosa Curling, ‘The Unique Jurisdiction of the African Court on Human and Peoples' Rights: Protection of Human Rights beyond the African Charter’ (2019) 33 Emory International Law Review 203-222, 206.
127 African Court Protocol, Art 4(1).
128 The African Court Protocol entered into force in 2004 while the Optional Protocol to the ICESCR entered into force in 2013.
129 Adopted 27 June 2014 by the AU Assembly held in Malabo, Equatorial Guinea.
130 Protocol on the Statute of the African Court of Justice and Human Rights, adopted 1 July 2008 by the AU Assembly held in Sharm el-Sheikh, Egypt.
131 While 15 ratifications are required for the merger (ie, entry into force of the Protocol on the Statute of the African Court of Justice and Human Rights), only seven ratifications were made by 6 February 2019. See status list at
<https://au.int/sites/default/files/treaties/36396-sl-protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights.pdf> (accessed 17 May 2019).
132 Statute of the African Court of Justice and Human and Peoples’ Rights, Art 16(1).
133 Viljoen (n 41) 215.
134 cf ICESCR, Arts 9 & 11.
135 African Charter, Arts 15 & 17.
136 J Oloka-Onyango ‘Beyond the rhetoric: reinvigorating the struggle for economic and social rights in Africa’ (1995) 26 California Western International Law Journal 1 51; Sisay Alemahu Yeshanew, The Justiciability of economic, social and cultural rights in the African regional human rights system: Theory, practice and prospect (Intersentia 2013) 266.
interpretation a preferred way of fixing the defects.137 Interestingly, all of the rights that are now missing from the text of the Charter were included in the early draft of the Charter with sufficient details that rival the provisions of the ICESCR.138 Unfortunately, the final text of the Charter does not contain them.
The African Commission has implied the omitted rights from other rights guaranteed in the Charter.
In 1989, the Commission adopted the Guidelines for National Periodic Reports that heavily relied on international human rights law, including the ICESCR.139 These guidelines require states to report on the right to an adequate standard of living, such as the right to food and the right to adequate housing under the right to health (Article 16) and the rights related to the family (Article 18).140 The right to social security is also included under the right to health.141 The Commission also requires reports on elements of rights missing from the Charter. For example, states should report on trade union rights under the right to work although the Charter does not guarantee that aspect of the right.142
In the 2004 Pretoria Declaration, the Commission adopted the view that access to the minimum essential food and ‘to basic shelter, housing and sanitation and adequate supply of safe and potable water’ are part of the right to health.143 The Declaration provides that the African Charter implies recognition of the right to shelter, the right to basic nutrition and the right to social security when the economic, social and cultural rights expressly guaranteed are read together with the right to life and respect for human dignity.144 In the Pretoria Declaration, the Commission modified its position in the 1989 Guidelines. While it acknowledges that these rights are not expressly guaranteed under the Charter, it goes beyond the right to health and refers to the right to life and the right to inherent human dignity as the sources of other economic, social and cultural rights.
The Commission identified a combination of expressly guaranteed rights, from which it derived each right omitted from the Charter in the Nairobi Principles. For example, it derived the right to housing from a combination of the right to property, the right to health and the protection of the family.145 Similarly, the Commission implied other rights omitted from the Charter, including the right to food, the right to water, and the right to social security, from a range of expressly recognised rights.146 The content of the rights read into the Charter mirrors the content of the rights guaranteed under the ICESCR as developed by the CESCR.
The Commission’s decisions in individual complaints show a similar trend despite some inconsistencies. The Commission recognises economic, social and cultural rights that are not expressly guaranteed in the African Charter. In Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (Ogoniland case) decided in 2001, the Commission held that the Charter
137 Yeshanew (n 136) 270.
138 Draft African Charter on Human and Peoples' Rights, prepared for the Meeting of Experts in Dakar, Senegal from 28 November to 8 December 1979, by Kéba Mbaye, CAB/LEG/67/1, Arts 6 - 13, reproduced in Christof Heyns (ed), Human rights law in Africa 1999 (2002) 65 – 77.
139 Guidelines for National Periodic Reports, Introductory para 6.
140 Guidelines for National Periodic Reports, part II paras 31 - 33.
141 Guidelines for National Periodic Reports, part II paras 17 - 19.
142 Guidelines for National Periodic Reports, part II paras 10 - 14.
143 Resolution on Economic, Social and Cultural Rights in Africa, ACHPR/Res.73 (XXXVI) 2004 (Pretoria Declaration), para 7.
144 Pretoria Declaration, para 10.
145 Nairobi Principles, para 77.
146 Nairobi Principles, paras 81, 83, and 87.
recognises the right to housing and the right to food.147 It held that ‘the combined effect of articles 14, 16 and 18(1) reads into the Charter a right to shelter or housing.’148 The destruction of Ogoni houses and villages and the obstruction, harassment, beating, and killing of citizens trying to rebuild their ruined homes ‘constitute massive violations of the right to shelter.’149 In the same case, the Commission accepted the complainants’ argument that ‘the right to food is implicit in the African Charter, in such provisions as the right to life (Article 4), the right to health (Article 16) and the right to economic, social and cultural development (Article 22).’150 The Commission found Nigeria in violation of the right to food.151
In Sudan Human Rights Organisation and Another v Sudan (Darfur case) decided in 2009, the Commission examined an alleged violation of several Charter rights due to the conflict in Darfur.152 The Complainants relied on the Commission’s decision in the Ogoniland case and submitted that there was a violation of the right to housing. Instead, the Commission found that the eviction or demolition of victims’ houses violates the right to property; that the destruction of homes is a violation of the right to health; and that evicting the victims violates the right to family life.153 However, it did not find a violation of a separate right to housing. Similarly, it did not find a violation of a separate right to food, but it did find violations of the right to life, the right to health and the right to development from which it derived the right to food in the Ogoniland case.
In two cases decided in 2015, the Commission adopted different views on the right to housing, although the decisions were adopted in the same year.154 In Nubian Community v Kenya, the Commission examined discrimination against members of the Nubian Community in obtaining nationality and the consequence of such discrimination on the enjoyment of other rights including the right to work, the right to health, the right to education and protection of the family.155 It found a violation of the right to property due to an eviction without provision of alternative housing.156 In addition, it found a violation of the right to health and the right to protection of the family.157 However, it did not find a violation of a separate right to housing. On the other hand, the Commission found a violation of the right to housing in Mbiankeu Geneviève v Cameroon.158 The complainant, a French national of Cameroonian origin living and working in France, and her husband acquired a plot of land for building a residential house. As the development of the land began with the construction of a hut on it, another person who claimed the land destroyed the hut and assaulted and chased away the complainant’s husband. As the complainant’s husband had obtained the land from a fraudulent seller, he could not obtain another plot of land as a replacement nor be reimbursed for the monies invested in it. Although the family was not living in Cameroon, the Commission found a violation of the right to adequate housing.159
147 (2001) AHRLR 60 (ACHPR 2001).
148 Ogoniland case, para 60.
149 Ogoniland case, para 62.
150 Ogoniland case, para 64.
151 Ogoniland case, para 64.
152 (2009) AHRLR 153 (ACHPR 2009).
153 Darfur case, paras 205, 212, & 216.
154 Communication 317/2006, the Nubian Community in Kenya v the Republic of Kenya and Communication 389/10, Mbiankeu Geneviève v Cameroon, Thirty-eighth Annual Activity Report.
155 Nubian Community v Kenya, para 168.
156 Nubian Community v Kenya, para 165.
157 Nubian Community v Kenya, para 168.
158 Communication 389/10, Mbiankeu Geneviève v Cameroon, 38th Activity Report.
159 Mbiankeu Geneviève v Cameroon, para 124.
The African Commission has also contributed to the preparation of treaties that expanded economic, social and cultural rights under the African Charter. The Commission drafted three protocols to the Charter. The protocols relate to the rights of women, older persons and persons with disabilities.
These protocols expressly recognise economic, social and cultural rights omitted from the Charter.
The Maputo Protocol recognises the rights of women to food, water and housing.160 The Protocol on the rights of older persons guarantees the right to social security.161 The Protocol on the rights of persons with disabilities guarantees the right to an adequate standard of living, which includes
‘adequate food, access to safe drinking water, housing, sanitation and clothing.’162
In sum, economic, social and cultural rights under the African Charter have been expanded. The expansion has occurred in the practice of the African Commission. Human rights treaties developed after the African Charter have also added rights omitted from the African Charter. As a result, the rights recognised under the African Charter and its protocols evolved to match the list of rights recognised under the ICESCR.