By CHERYL L. DAYTEC
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.