General Limitation clause in the African Charter

The African Charter does not contain a general limitation clause unlike the ICESCR, the European Social Charter or the Protocol of San Salvador. This is problematic according to some

195 Evelyn A Ankumah, The African commission on human and peoples' rights: practice and procedures (Martinus Nijhoff Publishers 1996) 176.

196 Christof Heyns, ‘The African regional human rights system: In need of reform?’ (2001) 1/2 African Human Rights Law Journal 155 – 174, 160.

197 Richard Gittleman, ‘The African Charter on Human and Peoples' Rights: A Legal Analysis’ (1982) 22/4 Virginia Journal of International Law 667 – 714, 691. See Makau Wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ (1995) 35 Virginia Journal of International Law 339—380, 359; D’Sa (n 193) 75.

198 Gittleman (n 197) 691.

199 Gittleman (n 197) 692.

200 Bondzie-Simpson (n 194) 654, 660, 665.

201 Chidi Anselm Odinkalu, 'Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights under the African Charter on Human and Peoples' Rights' (2001) 23 Human Rights Quarterly 327—369, 348.

202 See Odinkalu (n 201) 340—341; Gittleman (n 197) 687.

203 Nairobi Principles, paras 51 – 55. The African Commission considers that the right to property falls under economic, social and cultural rights.

commentators.²⁰⁴ Heyns argues that the absence of a general limitation clause from the Charter

‘means that there are no general guidelines on how Charter rights should be limited.’²⁰⁵ According to Heyns, ‘[a] society in which rights cannot be limited will be ungovernable, but it is essential that appropriate human rights norms be set for the limitations.’²⁰⁶

The drafting history of the African Charter shows that the drafters considered including a general limitation clause into the Charter. This is evident from a document prepared for discussion by Kéba Mbaye, the Chairperson of the Group of African Experts convened to draft the African Charter.

Mbaye prepared a draft African Charter, which was largely drawn from the ICESCR and the American Convention on Human Rights.²⁰⁷ Mbaye’s draft provides for a separate provision on limitations of rights guaranteed in his draft African Charter.²⁰⁸ Article 36 of Mbaye’s draft stipulates that:

The restrictions that, pursuant to this Charter, may be placed on the enjoyment or exercise of the rights or freedoms recognised herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.²⁰⁹

As Mbaye indicated, this is a verbatim reproduction of Article 30 of the American Convention on Human Rights except for replacing the word ‘convention’ with the word ‘Charter’.²¹⁰ It seems that the Group of African Experts that Mbaye was chairing did not accept this proposal. This is clear from the preliminary draft of the African Charter that the Group of Experts produced at the end of their meeting in Dakar. The preliminary draft does not contain the general limitation clause proposed by Mbaye.²¹¹ However, the reason for dropping the proposed general limitation clause is not clear from the drafting history of the Charter.

One may also examine another provision in Mbaye’s Draft African Charter. Mbaye included a provision on the relationship between duties and rights in his draft. This provision states that: ‘The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.’²¹² Mbaye took the verbatim copy of Article 32(2) of the American Convention and reproduced it in his draft.²¹³ The Group of Experts that Mbaye was chairing did not drop Mbaye’s proposal altogether. It is clear from their preliminary draft of the African Charter that the Group of Experts adopted a modified version of this provision. Article 27(2) of the preliminary draft provides that: ‘[t]he rights and freedoms of each person shall be exercised

204 Heyns, In need of reform? (n 196) 160.

205 Christof Heyns, ‘The African Regional Human Rights System: The African Charter’ (2004)108 Penn State Law Review 679—702, 688.

206 Heyns, the African Charter, (n 205) 688.

207 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 (hereafter ‘Mbaye’s draft’), reproduced in C Heyns (ed), Human rights law in Africa 1999 (2002) 65 – 77, 65.

208 Ibid.

209 Mbaye’s draft African Charter, Art 36.

210 Art 30 of the American Convention provides that ‘The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.’

211 See Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979, CAB/LEG/67/3/Rev. 1, reproduced in Heyns (n 207) 81 - 91.

212 Mbaye’s draft African Charter, Art 37(2).

213 Art 32(2) of the American Convention provides that: ‘The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.’

with due respect to the rights of others, by collective security and by morals and common interest.’²¹⁴ With few editorial changes, this provision has become the present Article 27(2) of the African Charter, which stipulates that: ‘The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.’

Therefore, the origin of Article 27(2) of the African Charter is Article 32(2) of the American Convention. Although Article 32(2) of the American Convention deals with the relationship between rights and duties, it expressly deals with grounds for limiting individual rights. However, Article 27(2) of the African Charter does not use the language of limitation. Coupled with the rejection of the proposed general limitation clause, dropping the language of limitation from Article 27(2) may indicate the reluctance of the drafters to embrace limitations of a general application. From the foregoing, one may conclude that it was not the intention of the drafters to make Article 27(2) of the African Charter a general limitation clause.

Article 27(2) is in the part of the African Charter that provides for duties.²¹⁵ From its physical location under the Charter, one can tell that Article 27(2) deals with duties of individuals. It requires individuals to exercise their rights in a manner that does not affect the rights of other individuals, collective security, morality and common interest. From the cumulative reading of Articles 27(2) and 1 of the African Charter, one may argue for an indirect limitation clause. Under Article 1 of the African Charter, states have undertaken the obligation to give effect to the duties provided in the Charter. This obligation requires states to implement the duties of individuals to exercise their rights

‘with due regard to the rights of others, collective security, morality and common interest.’²¹⁶ As a result, states can limit the rights of individuals on these grounds to give effect to individual duties.

Some issues still arise even if one successfully establishes Article 27(2) as a general limitation clause.

One of the issues is whether Article 27(2) applies to all Charter rights, particularly to peoples’ rights.

The Charter deals with individual duties. It does not provide for peoples’ duties as opposed to peoples’ rights. In particular, the duties under Article 27(2) are with regard to exercising ‘the rights and freedoms of each individual’. It does not relate to the exercise of peoples’ rights. As a result, one may conclude, Article 27(2) can serve as a general limitation clause only with regard to individual rights (Articles 2 to 18 of the Charter). That is, a general limitation clause derived from Article 27(2) of the Charter cannot apply to people’s rights (Articles 19 to 24 of the Charter).

Another issue relates to some common elements of limitation clauses, whether general or specific.

Limitation clauses usually require that restrictions on human rights be provided by law; that they should be necessary; and that they should serve some interests or be based on some grounds. An evaluation of Article 27(2) of the Charter in light of these elements is worth considering. First, one of the elements common in the general limitation clauses is the requirement of legality. According to this requirement, limitations or restrictions should be provided by law. The general limitation clauses of the ICESCR and the European Social Charter expressly require that limitations or restrictions be determined or prescribed by law as discussed above.²¹⁷ This element is, however, missing from Article 27(2) of the African Charter. Since the drafters of the African Charter had no intention to

214 Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979, CAB/LEG/67/3/Rev. 1, reproduced in Heyns (n 207) 86.

215 African Charter, Chapter II.

216 African Charter, Art 1 cum Art 27(2).

217 See ICESCR, Art 4; European Social Charter (revised), Art G; European Social Charter, Art 31.

make Article 27(2) a general limitation clause, one may argue, the omission of the requirement of legality from this provision is logical. Besides, the drafters included that requirement in other provisions of the Charter when their intention was to limit the exercise of some other rights.²¹⁸ Second, limitation clauses usually require that restrictions on human rights be necessary. This element is also missing from Article 27(2) of the African Charter. The component of necessity is missing from this provision, but not from the Charter. For example, the Charter permits only necessary restrictions to the exercise of the right to freedom of assembly.²¹⁹ Therefore, it would be difficult to conclude that the omission of necessity is made inadvertently.

Third, limitation clauses usually specify legitimate goals, grounds for imposing restrictions on human rights. Limitation clauses identify interests to be served by restrictions on human rights. Such goals or interests, for example, include 'the protection of the rights and freedoms of others or the protection of public interest, national security, public health, or morals.’²²⁰ Article 27(2) of the Charter includes some elements, which can be regarded as grounds of limitations. These are ‘rights of others, collective security, morality and common interest.’ Of all elements common to limitation clauses, Article 27(2) provides for one element only – the legitimate goals.

Article 27(2) mentions four legitimate goals. The protection of the rights of others and morality are usually stated in the limitation clauses of other treaties.²²¹ One may also argue that ‘common interest’ carries a meaning similar to the meaning of ‘general welfare’ used under Article 4 of the ICESCR. The meaning of ‘collective security’, however, may be more ambiguous and worth considering more in depth. Article 27(2) of the African Charter refers to ‘collective security’ instead of

‘national security’. The latter phrase is common in limitation clauses permitting restrictions on the exercise of some rights, particularly the right to freedom of association, assembly, expression and movement.²²² The Charter itself refers to the protection of ‘national security’ with regard to restrictions on the exercise of the right to the freedom of assembly and movement.²²³ Therefore, one may automatically rule out the interpretation of ‘collective security’ to mean ‘national security’.

It is a trite rule of interpretation that the same word or phrase is expected to have the same meaning throughout a single legal document. Accordingly, the phrase ‘collective security’ under Article 27(2) of the Charter should have a meaning different from that of the phrase ‘national security’ under Articles 11 and 12(2) of the Charter.

The use of ‘collective security’ under Article 27(2) of the African Charter can be examined in light of general international law. In the law of use of force in particular, the concept of collective security is linked to the relationship among states as opposed to the relationship between states and their citizens. The concept ‘implies an arrangement by which states act collectively to guarantee one another’s security.’²²⁴ The preservation of international peace is central to the concept of collective

218 African Charter, Arts 11 & 12(2).

219 African Charter, Art 11.

220 cf European Social Charter (revised), Art G.

221 African Charter, Arts 11 & 12(2); European Social Charter (revised), Art G.

222 cf European Social Charter (revised), Art G.

223 African Charter, Arts 11 & 12(2).

224 Gary Wilson, The United Nations and Collective Security (Routledge 2014) 5.

security. It is one of the purposes of the United Nations to maintain international peace through collective security measures.²²⁵

Obviously, the African Charter is a human rights treaty. However, it provides for relationships among states. Article 23(1) of the Charter refers to the United Nations Charter with regard to peoples’ right to ‘national and international peace and security.’ It provides that the ‘principles of solidarity and friendly relations [...] shall govern relations between States.’²²⁶ It permits restrictions on the exercise of the right of asylum for ‘the purpose of strengthening peace, solidarity and friendly relations’

among states.²²⁷ Therefore, the African Charter deals with international peace, which is central to the concept of collective security. Moreover, the Charter specifically puts restrictions on the right of asylum to strengthen peace. Still, it would be difficult to conclude that ‘collective security’ under Article 27(2) refers to the collective security as understood in the law of use of force. This provision refers to the exercise of rights by individuals within the jurisdiction of states.

From its drafting history, one may conclude, Article 32(2) of the American Convention on Human Rights served as the basis for the formulation of Article 27(2) of the African Charter as discussed above. Article 32(2) of the American Convention provides that the rights of each person are limited

‘by the security of all’. This may mean that the exercise of individual rights must not endanger the security of other persons. One may therefore read Article 27(2) as imposing duties on individuals to exercise their rights in a manner that does not expose others to danger or threat of danger.

This reading of Article 27(2) of the Charter may apply to some of the Charter rights. The applicability of this reading to economic, social and cultural rights is still questionable. This is because the enjoyment of economic, social and cultural rights by some individuals does not affect the security of others. It is for this reason that Article 4 of the ICESCR does not provide for the protection of the security of others as a reason for imposing restrictions on the enjoyment of rights guaranteed therein.

In sum, the African Charter does not provide for a general limitation clause. Article 27(2) does not expressly permit states to restrict rights guaranteed under the African Charter. Moreover, this provision does not have some common elements of limitation clauses. However, the African Commission and the African Court have assigned the function of a general limitation clause to Article 27(2). In the next section, I will discuss the practice of the African Commission and the African Court in relation to Article 27(2) of the African Charter. I will demonstrate that this provision has evolved into a full-fledged general limitation clause, despite the original intention.