Evolution of minimum core obligations in the practice of the African Commission

The African Commission introduced the concept of minimum core around a decade later than the CESCR. The CESCR introduced the concept in 1990 as discussed above, whereas the African Commission began employing the concept in 2001. The concept first appeared in its decisions on individual communications. The African Commission expressly refers to ‘minimum core’ or minimum obligations in Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (Ogoniland case).¹⁸⁸ This was followed by an elaboration in other documents, namely the 2004 Pretoria Declaration on Economic, Social and Cultural Rights (Pretoria Declaration)¹⁸⁹ and the 2011 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Nairobi Principles). I discuss these in the following sections.

4.6.1.1 Minimum obligations: The Ogoniland case

Yeshanew argues that the concept of minimum core is traceable in earlier decisions of the African Commission.¹⁹⁰ One such case is Free Legal Assistance Group & Others v Zaire decided in 1995.¹⁹¹ In this case, the African Commission has found the respondent State in violation of the right to health under Article 16 of the African Charter because of the ‘failure of the Government to provide basic services such as safe drinking water and electricity and the shortage of medicine’.¹⁹² Here, the Commission uses the term ‘basic’. According to Yeshanew, this is a reference to basic elements of economic, social and cultural rights central to the minimum core concept.¹⁹³

The African Commission expressly introduced the concept of minimum core in its interpretation of the African Charter in the Ogoniland case decided in 2001.¹⁹⁴ In this case, the African Commission has examined alleged violations of the African Charter due to oil exploitation in areas where Ogoni people of Nigeria live. The oil development ‘poisoned much of the soil and water upon which Ogoni farming and fishing depended’.¹⁹⁵ The case involves collusion between oil companies and State security forces, which attacked and displaced villagers, rendering thousands homeless.¹⁹⁶ The security forces ‘destroyed crops and killed farm animals’ creating a state of terror and insecurity.¹⁹⁷ As a result, the Ogoni people were unable to return to their fields and animals. This led to malnutrition and starvation among the Ogoni people.¹⁹⁸ The African Commission has examined, among other things, the rights to housing and food in this case, although the African Charter does not expressly recognise either of those rights.¹⁹⁹

188 (2001) AHRLR 60 (ACHPR 2001).

189 Pretoria Declaration, available at <http://www.achpr.org/files/instruments/pretoria-declaration/achpr_instr_decla_pretoria_esc_rights_2004_eng.pdf> (accessed 3 June 2018).

190 Yeshanew, Approaches to justiciability, (n 6) 322-323.

191 (2000) AHRLR 74 (ACHPR 1995).

192 Free Legal Assistance Group & Others v Zaire, para 47.

193 Yeshanew, Approaches to justiciability, (n 6) 321.

194 (2001) AHRLR 60 (ACHPR 2001).

195 Ogoniland case, para 9.

196 Ogoniland case, paras 7 &8.

197 Ogoniland case, para 9.

198 Ogoniland case, para 9.

199 Ogoniland case, paras 60 & 64. The African Commission derives the right to housing from other rights expressly guaranteed in the Charter, namely, the right to property (Article 14), the right to health (Article 16) and the right to

The African Commission identified ‘two minimum obligations’ regarding the right to housing. It emphasised that: ‘At a very minimum, the right to shelter obliges the Nigerian Government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes’.²⁰⁰ The Commission held that

[T]he Government of Nigeria has failed to fulfil these two minimum obligations. The government has destroyed Ogoni houses and villages and then, through its security forces, obstructed, harassed, beaten and, in some cases, shot and killed innocent citizens who have attempted to return to rebuild their ruined homes. These actions constitute massive violations of the right to shelter, in violation of Articles 14, 16, and 18(1) of the African Charter.²⁰¹

One minimum obligation, according to the Commission, is to refrain from destroying the existing shelters. The other is to abstain from interfering with individual efforts of building shelters. Both involve acts of commission interfering with the exercise of the right to housing. In terms of the level of obligations involved, both acts are contrary to the obligation to respect. It appears that the Commission divides the obligation to respect with regard to the right to housing into two minimum obligations. In terms of terminological preference, it uses ‘minimum obligations’, not ‘minimum core obligations’.

In the same case, the African Commission has identified ‘three minimum duties’ of states corresponding to the right to food:

[T]the minimum core of the right to food requires that the Nigerian Government should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves. […] The government’s treatment of the Ogonis has violated all three minimum duties of the right to food. The government has destroyed food sources through its security forces and state oil company; has allowed private oil companies to destroy food sources; and, through terror, has created significant obstacles to Ogoni communities trying to feed themselves.²⁰²

As is the case with the right to housing, the African Commission divides the obligation to respect into two with regard to the right to food. One is violated by acts of security forces destroying food sources. The violation of the other minimum duty is due to acts of security forces preventing Ogoni people from obtaining their own food. Both acts of the security forces are acts of interference with the exercise of the right to food contrary to the respondent State’s obligation to respect. The Commission identifies one more obligation, which it has not identified with respect to the right to housing: the obligation to protect. The respondent State failed to prevent third parties from interfering with the enjoyment of the right to food. In the Commission’s words, the respondent

‘allowed private oil companies to destroy food sources’. Regarding the choice of terminologies, the Commission appears to use ‘minimum core’ to refer to core content of the right to food, while it uses

‘minimum duties’ instead of ‘minimum obligations’ regarding its holding on the right to housing.

Concerning the violation of the rights to food and housing, the Ogoniland case does not involve a violation due to the failure to carry out the sub-obligation to provide. The violations arise from the

protection of family (Article 18(1)). It drives the right to food from the cumulative reading of the right to life (Article 4), the right to health (Article 16) and the right to development (Article 22).

200 Ogoniland case, para 61.

201 Ogoniland case, para 62. Italics added.

202 Ogoniland case, paras 65 & 66. Italics added.

respondent State’s failure to perform its obligations to respect and protect. Thus, the Commission regards the obligations to respect and protect as minimum duties.

Surprisingly, however, the African Commission is not consistent, not even within one case. In the Ogoniland case, the rights to food and housing are not the only violations of economic, social and cultural rights; the Commission also found violations of the rights to health and property. It has found a violation of the right to health due to the respondent State’s conduct of directly ‘participating in the contamination of air, water and soil and thereby harming the health of the Ogoni population’.²⁰³ The Commission emphasised that Article 16 of the African Charter (right to health) requires states ‘to desist from directly threatening the health’ of their citizens.²⁰⁴ Further, it explained that the State is

‘under an obligation to respect the [right to health] and this entails largely non-interventionist conduct from the state for example, not [...] carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual’.²⁰⁵ Although the Commission identified the obligation to respect as a minimum obligation with regard to the rights to food and housing, it does not regard the obligation to respect as a minimum obligation when it comes to the right to health. In particular, the Commission has not attempted to identify minimum obligations despite the allegation of the complainants that the respondent State had failed to discharge its

‘minimum duties’.²⁰⁶ Similarly, the Commission has found a violation of the right to property (Article 14 of the African Charter) due to wanton destruction of shelter.²⁰⁷ As is the case with the right to housing, the destruction of shelters is contrary to the State’s obligation to respect, yet the Commission does not consider this a minimum obligation.

In the Ogoniland case, the African Commission has adopted inconsistent approaches. In Sudan Human Rights Organisation and Another v Sudan decided in 2009, the African Commission has found a violation of the rights to property and health.²⁰⁸ The facts of this case are similar to those in the Ogoniland case. The Commission found a violation of the right to property (Article 14 of the Charter) because the military forces of the respondent State and armed groups ‘acting on their own, or believed to be supported by the Respondent State’ destroyed the property.²⁰⁹ According to the Commission, ‘the Respondent State had failed to show that it refrained from the eviction, or demolition of victims' houses and other property. It did not take steps to protect the victims’.²¹⁰ With regard to the right to health, the Commission has held that ‘the destruction of homes, livestock and farms as well as the poisoning of water sources, such as wells exposed the victims to serious health risks and amounts to a violation of Article 16 of the Charter’.²¹¹ The violations of both rights are due to the failure of the respondent State to carry out its obligations to respect and protect. However, the Commission does not consider these obligations to be minimum obligations. In other words, the commission does not follow its holding in the Ogoniland case that the obligations to respect and protect are minimum obligations.

203 Ogoniland case, para 50.

204 Ogoniland case, para 52.

205 Ogoniland case, para 52. Italics added.

206 Ogoniland case, para 50.

207 Ogoniland case, paras 59-62.

208 (2009) AHRLR 153 (ACHPR 2009).

209 Sudan Human Rights Organisation and Another v Sudan, para 194.

210 Sudan Human Rights Organisation and Another v Sudan, para 205. The Commission has not found a violation of the right to housing.

211 Sudan Human Rights Organisation and Another v Sudan, para 212.

In the Nubian Community in Kenya v the Republic of Kenya (Nubian Community case) decided in 2015, the African Commission has found violations of Article 15 (right to work), Article 16 (right to health), and Article 17(1) (right to education).²¹² The violations occurred because the respondent State subjected members of the Nubian Community to discriminatory treatment in the process of issuing identity documents, which are required in the respondent State to obtain basic services related to health, education and employment in the public service.²¹³ While discriminatory treatment is interference with the enjoyment of the rights contrary to the duty to respect, the African Commission has not declared that such treatment constitutes a failure to discharge core obligations.

In contrast, the CESCR considers non-discrimination among core obligations as discussed above.

In the Ogoniland case, the African Commission does not tackle issues central to the concept of minimum core even with regard to the rights to food and housing. In principle, it has recognised the State obligation to fulfil,²¹⁴ yet it does not identify the obligation to provide minimum essential levels of the rights to food and housing. It could have stated the obligation to provide minimum essential levels of these rights as a matter of principle, but since it fails to state the principle, it is not clear whether states have minimum obligations, core or otherwise, with respect to their obligation to fulfil, especially their sub-obligation to provide. Unlike the CESCR, the Commission has limited itself to the obligations to respect and protect only. For this reason, Chirwa rightly observes that the Commission’s view in the Ogoniland case reflects ‘a misunderstanding of the concept of minimum core obligations’.²¹⁵

4.6.1.2 Core content: The Pretoria Declaration

The Pretoria Declaration on Economic, Social and Cultural Rights (Pretoria Declaration) was adopted after the African Commission’s decision in the Ogoniland case. The Commission considers the Declaration a soft law instrument.²¹⁶ The Declaration is the outcome of a seminar that the Commission organised in Pretoria from 13 to 17 September 2004.²¹⁷ One of the objectives of the seminar was to specify the nature of state obligations in relation to economic, social and cultural rights guaranteed in the African Charter.²¹⁸ Later, the African Commission passed a resolution adopting the ‘Declaration of the Pretoria Seminar on Economic, Social and Cultural Rights in Africa’.²¹⁹

212 The Nubian Community in Kenya v the Republic of Kenya, Communication 317/2006, adopted at 17th Extraordinary Session held from 19 – 28 February 2015.

213 Nubian Community case, para 168.

214 Ogoniland case, para 44.

215 Danwood Mzikenge Chirwa, ‘The Promise of Recent Jurisprudence on Social Rights’ in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (CUP 2008) 326.

216 Pretoria Declaration, available at <http://www.achpr.org/files/instruments/pretoria-declaration/achpr_instr_decla_pretoria_esc_rights_2004_eng.pdf> (accessed 3 June 2018).

217 Eighteenth Activity Report of the African Commission on Human and Peoples’ Rights, para 39 & 48, available at

<http://www.achpr.org/files/activity-reports/18/achpr36and37_actrep18_20042005_eng.pdf> (accessed on 3 June 2018). The Activity report was authorized for publication by the African Union Executive Council Decision, EX.CL/Dec. 220 (VII).

218 Sibonile Khoza ‘Promoting economic, social and cultural rights in Africa: The African Commission holds a seminar in Pretoria’ (2004) 4 African Human Rights Law Journal 334-343, 335.

219 Resolution on Economic, Social and Cultural Rights in Africa, ACHPR/Res.73(XXXVI)04, adopted at the 36th Ordinary Session in Dakar, Senegal, on 7 December 2004, available at

http://www.achpr.org/files/sessions/36th/resolutions/73/achpr_instr_decla_pretoria_esc_rights_2004_eng.pdf (accessed on 3 June 2018).

The Pretoria Declaration specifies that ‘States parties have an obligation to ensure the satisfaction of, at the very least, the minimum essential levels of each of the economic, social and cultural rights contained in the African Charter’.²²⁰ This requirement obviously comes from the CESCR’s general comment on state obligations.²²¹ While the Declaration uses the CESCR’s definition of ‘minimum core obligation’, it eschews using these terms. It puts more emphasis on the content of the rights rather than on the obligations of states. Thus, it identifies the core content of each economic, social and cultural right expressly guaranteed in the African Charter.²²² It recognises that some rights such as the rights to food, housing, and social security are implied from expressly guaranteed Charter rights.²²³ However, the Declaration does not specify the core content of such implied rights.

The Pretoria Declaration makes recommendations to states and other stakeholders.²²⁴ However, it is not clear if any of these recommendations correspond to the core content of rights specified in the Declaration. For example, states should adopt national action plans for the implementation of economic, social and cultural rights.²²⁵ According to the CESCR, adopting a national strategy or a plan of action is one of the core obligations corresponding to most rights as discussed above.

Nevertheless, the Declaration does not clearly identify the adoption of a national strategy as part of the core of any right or state obligation in regard to that right.

The Pretoria Declaration focuses on the core content of rights. In contrast, the general comments of the CESCR identify core obligations instead, except with respect to the right to food.²²⁶ A comparison of the Pretoria Declaration with the general comments of the CESCR reveals that there are some common elements. One may argue that the sources of the Pretoria Declaration include the general comments of the CESCR. For example, the Declaration provides that the right to health under Article 16 of the African Charter entails ‘[a]ccess to basic shelter, housing and sanitation and adequate supply of safe and potable water’.²²⁷ This is a verbatim reproduction of one of the core obligations from the CESCR’s general comment on the right to health.²²⁸ However, the Declaration as a whole is not a mere reproduction and consolidation of the content of the CESCR’s general comments in regard to core obligations. One may still submit that what the CESCR considers core obligations to a certain degree overlaps with what the African Commission considers core content, at least in the Pretoria Declaration.

In sum, the African Commission identified ‘minimum obligations’ or at least referred to ‘minimum core’ in passing in the Ogoniland case. However, it has not made such identification or reference in later cases where it found a violation of economic, social and cultural rights for similar reasons.

Likewise, the Commission does not seem to follow its Ogoniland rulings in developing the Pretoria Declaration. Since the Declaration does not deal with the obligation to respect as a core content of any particular right, one may argue that the Declaration has no seeds from the Ogoniland case. One may also wonder whether the Declaration has influenced later developments, particularly the Nairobi Principles. The Declaration deals with core content. Some core content in the Declaration corresponds to some core obligations in the CESCR’s general comments. From this perspective, one

220 Pretoria Declaration, para 2.

221 cf General Comment 3, para 10.

222 Pretoria Declaration, paras 5-9 &11.

223 Pretoria Declaration, para 10.

224 Pretoria Declaration, para 11.

225 Pretoria Declaration, para 11(a)(iv).

226 General Comment 12, para 8.

227 Pretoria Declaration, para 7.

228 General Comment 14, para 43.

may wonder how the minimum core obligations adopted in the Nairobi Principles are related to core content of the Pretoria Declaration and to core obligations identified by the CESCR. I will discuss minimum core obligations under the Nairobi Principles and examine their relationship with other instruments below.

4.6.1.3 Minimum core obligations: The Nairobi Principles

The Pretoria Declaration recommends that the African Commission elaborate ‘principles and guidelines on economic, social and cultural rights and establish a working group for this purpose’.²²⁹ According to this recommendation, the African Commission has developed the Nairobi Principles and launched them in 2011. The Nairobi Principles define the concept of minimum core obligations.

Moreover, the Principles identify and list minimum core obligations corresponding to each right expressly or impliedly guaranteed in the African Charter.

As noted above, a clear relationship between the rulings in the Ogoniland case and the Pretoria Declaration is not apparent. On the other hand, there are elements in the Nairobi Principles that are traceable in the Ogoniland case as well as in the Pretoria Declaration. The Ogoniland case identifies minimum duties to respect and protect citizens from the destruction and/or contamination of food sources.²³⁰ This obligation is affirmed as a minimum core obligation with regard to the right to food in the Nairobi Principles.²³¹ As a result, the Nairobi Principles incorporate rules laid down in the Ogoniland case. However, the Nairobi Principles diverge from the practice of the CESCR on this point.

As discussed above, the CESCR does not specify the obligation to respect as a core obligation with respect to the right to food.

The Nairobi Principles also incorporate elements of the Pretoria Declaration. They emphasise that

‘States parties have an obligation to ensure the satisfaction of, at the very least, the minimum essential levels of each of the economic, social and cultural rights contained in the African Charter’.²³² Some minimum core obligations under the Nairobi Principles are taken from the core content of

‘States parties have an obligation to ensure the satisfaction of, at the very least, the minimum essential levels of each of the economic, social and cultural rights contained in the African Charter’.²³² Some minimum core obligations under the Nairobi Principles are taken from the core content of