By CHERYL L. DAYTEC
-Confucius
The Universal Declaration on Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) differ from the African
Charter on Human and Peoples’ Rights (ACHPR) on the matter of the duties they impose on
individual rights holders. The differences are:
1. Both the
UDHR and the ICCPR declare that
individuals have duties but opted to be silent on what these duties are, while
the African Charter enumerates them.
2. The UDHR
and ICCPR state that duties of individuals are owed to the community, and, under the latter, to other individuals, while the African Charter is specific that
individuals have duties to their “fellow
beings,” the family and specifically the parents, society, the State, other
legally recognized communities and the international community.
3. The UDHR
and ICCPR suggest that states impose on
human beings duties to others and
to the community to ensure an
environment conducive to the full enjoyment of individual human rights
indicative of an individualist view. The ACHPR creates individual duties to promote the interest of
peoples, states and societies evidencing a communitarian view.
What explains the
differences? To be very sure, the UDHR and the ICCPR are documents applicable
to the entirety of the globe, a conglomeration of states of diverse peoples and cultures. Thus the language on duties was deliberately
couched in general terms to grant
states room to determine those duties
appropriate or relevant to their contexts. On the other hand, the ACHPR is limited to
Africa, a region comprised of states whose respective political, economic and
cultural landscapes, though each distinct,
are similar. Logically, its
drafting was influenced by the region’s material circumstances. The strong emphasis on individuals’ duties to the state and society to foster national
and regional unity may be impelled by the imperative to consolidate power against any
form of colonial domination in either its old or new configuration, i.e.
neocolonialism. It is significant to note that the states parties were relatively
newly emergent from the cocoon of colonial bondage when they ratified the Charter. To advocates of realism,
this polemic is reasonable. States will
always act in their interest.
The question is
whether or not these differences suggest different understandings of the nature
of human right. There is a strong bedrock for the conclusion that the
UDHR and ICCPR, on one hand, and the ACHPR, on the other, understand the nature
of rights differently. For one thing, the
ICCPR and UDHR regard the individual as
the “be-all and end-all” of rights inherent in human nature, reflective of a
naturalist approach. This is clear from the rhetoric of ICCPR
which states that “(e)veryone has
duties to the community on which alone the free and full development of
his (sic) personality is possible.”[i] The
maintenance of a just society will guarantee the enjoyment of individual rights, as in the discourse of John Locke articulated by Shestack. Having emerged from a social compact, the state
now vested with police, eminent domain
and taxation powers must send its apparatuses working to cloister from any form of assault the rights to life, liberty and property which
human beings resolved not to alienate to it. In short, the state exists to
promote individual rights.
The ACHPR views collectives (e.g. states, societies and peoples) as the ultimate
beneficiaries of any rights regime. Individuals’ rights must be respected to
the extent that they result in the realization of a collective identity (e.g.
as a people, or as Africans) and of collective aspirations which may be
interpreted to mean the State’s interest. On this score, the approach resembles
the Marxist slant which subordinates individual
interests to the collective’s.
Also
worth noting is that the ICCPR and UDHR contain derogation and limitation clauses,[ii] while the ACHR has none which exposes human
rights to susceptibility of erosion by states as feared by Buergenthal. The
absence of provisions as to the extent
of derogation or limitation of rights demonstrates a positivist approach to human rights. Rights are
legal constructs that derive their breath and reason d’etre from states.
Necessarily, the power to grant carries with it the power to withhold. This approach consigns rights to the ideological
temperaments of those whose hands are hoisting
the power trident.
But the ACHPR may
be regarded as a bipolar document, or a knife that cuts both ways. After all, it has strong guarantees
for individual rights as much as it has strong orders for duties. At best, the protection or violation of human rights is left to the proclivities,
reason and/or sympathies of individuals given
the mandate to interpret its provisions. To the African peoples, it can be either a
blessing or a curse, or both.
