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.

[i] Art. 29(1)

[ii] Arts. 4, 5,  8(2), 6(2,3,6), 10(2a),  12(3), 14(1), 18(3), 19(3), 21, 22(2,3),  and (29 (2) of ICCPR and  Art. 29(2) of UDHR.



The truth will set you free.
                       -Jesus Christ

The bedrock of viewpoint absolutism   is the principle of tolerance Strasbourg says is  necessary,  like  pluralism and  broadmindedness, to  democracy.[i] Not many disagree that tolerance  is indispensable in advancing individual and communal interests. 

Democracy thrives on the freest public discourse. When States create a free market of ideas, individuals’ thoughts evolve, and their interests, rights and abilities crystallize. This is not lost to Strasbourg which repeatedly declares that  freedom of  expression entails a public right to information.[ii] Its jurisprudence demonstrates that political speech[iii] and  expressions  on matters of public interest,[iv] demand fierce protection.

An open market of ideas liberates individuals. Armed with knowledge, they are able to resist manipulation. In an atmosphere of intolerance, thoughts are manipulated by those who wield the power of speech. Individuals  without thought are without  freedom.  People with manipulated thoughts are vulnerable  to eventually view their situation with their oppressor’s  eyes and co-author their oppression through silence and submission, a condition Freire calls internalized oppression.[v]  When they lose their personal consciousness,  they unwittingly install tyranny. In the ultimate analysis, these people live in a society afraid of its own truths, chained to falsehood, without freedom. Drawing from the naturalist theory that  human rights are a consequence of being human, intolerance  of speech may reduce  human dignity. As John Stuart Mill said,

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it.  If the opinion is right, they are deprived of the opportunity of exchanging error for truth:  if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.[vi] 

But the paradox of tolerance was well-stated by  Strasbourg: "(A)bsolute tolerance may lead to the tolerance of the  ideas promoting intolerance, and the latter could then destroy the tolerance."[vii]   American jurisprudence recognizes this. In one case, the US Supreme Court said:

"There are limits to the exercise of these liberties [of speech and of the press]. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish."[viii]                                                   

Tolerance of intolerance  is problematic because like a candle it can  self-destruct,  ultimately  negating tolerance. Unlimited tolerance and absence of tolerance, upon which hate speeches draw nourishment, are one and the same in consequences. They erect formidable structures of prejudice in the cultural as well as legal sphere  against individuals or groups of people targeted  on the basis of race, sex, nationality or religion. They become the unequal  “others” deprived of their  participation in the public discourse. And  “when people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization.[ix] Hate expressions alienate  targets  from their civil rights and political participation. They  lead to intolerance, hindering victims  from exercising their freedoms.

Viewpoint absolutists, like Heinze, propound  that speech prohibitions achieve nothing and perhaps  America’s experience validates this.   But the United States is supposedly the world’s oldest and strongest democracy. It presumably has  tested  bureaucratic, judicial and legislative  apparatuses that address social issues, like inequality and prejudice,  which hate speeches foment or exacerbate. In a strong democracy, censorship  may even create a more vibrant democracy. While it incarcerates people,  it sparks the flame for assertion. It is human nature to cling to what one is about to lose. For instance, humans never claimed a right to oxygen until climate change happened. But this operates in a legal space where conditions are equal for all.

Not all democracies are strong and old. Europe has democracies newly-emergent from totalitarianism, struggling to equalize local  conditions. Other continents have fledgling  democracies. If socio-political structures that address issues of inequality are still fragile, tolerance of intolerance may not augur well with  democracy and human rights.

 Where pronounced inequality is the norm of the day, a line must be drawn between  where  tolerable offensive  speech ends  and where legally intolerable hate speech begins if democracy and human rights must be secured. Hate speech must be proscribed.  As the Camden Principles suggest, the borders of tolerance must be  defined to achieve equality, that is  comparable conditions of existence for all. However, proscription should take the form of  subsequent punishment and not prior censorship. Prior censorship curtails human rights because  gags prohibits human beings from utilizing faculties nature endowed them with.

The problem however is the definition of hate speech.  What may be classified as hate speech in Europe may be protected speech in America. One individual’s vulgarity is another’s lyric[x] as one society’s freedom  may be another’s destruction.

What constitutes hate speech is  dependent on society’s  political and social context.  At the minimum, every society should accept that  freedom of expression is the freedom to  offend, shock and disturb[xi] and no one should claim a right against insult.    A comprehensive restriction  on any  offending, shocking or disturbing speech militates against democracy and human rights. It   consigns freedom of expression to  people’s sensitivities and adopts emotions which  vary  from individual to individual as the yardstick for determining whether an expression is hate speech or not. It imposes compulsory  courtesy which violates individual autonomy. Compulsory courtesy then metamorphoses into subjugation of thought breeding tyranny, democracy’s antithesis. Needless to reiterate, tyranny does not respect human rights.  

The European Convention on Human Rights allows restrictions on speech although textually, it contains no hate speech prohibition.[xii] Strasbourg jurisprudence gives  States prerogative to prohibit  hate speeches which, according to the Committee of Ministers of the Council of Europe, include “all  expressions spreading, inciting, promoting or justifying racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”[xiii]  But since  socio-political conditions vary from society to society, Strasbourg  granted States  a ’margin of appreciation’[xiv]  to determine those restrictions necessary  for democracy and the protections of others’ freedoms. Apparently, many European states adopted legislation to outlaw expressions classified as hate speech by Strasbourg.  Each of them has their own standards, which are presumably abstracted from their historical experiences and socio-political needs.

But what should be common  is that to qualify as hate speech,  expressions should be so virulently denigrating that they  expose  targets to public prejudice, contempt or intolerance.  Even debunking religious beliefs may be proscribed as hate speech when its effect is such that it inhibits  believers from exercising their faith,[xv] but members of a religious community must tolerate the rejection by others of their religious beliefs.[xvi]  

Some Strasbourg free speech decisions may not withstand American judicial scrutiny which has a restrictive case law on free speech limitations. In some Strasbourg decisions, prior censorship  was upheld[xvii] which is repugnant to democracy and individual autonomy as it kills ideas before they are even expressed.  Mere tendency to foster intolerance is already enough basis to limit speech for politicians[xviii] which is taking hate speech prohibition to far corners.

This passionate position against hate speech is perhaps explained by   the fact that ECHR which is at the core of Strasbourg’s judicial power was Europe’s moral response to Nazism, an ideology propagating racial hatred and therefore an assault on human dignity,  as much as Germany’s Basic Law was the constitutional  means to  “a democracy capable of defending itself”[xix] drawing  its lesson from the Weimar Constitution which fostered a tenacious  democracy and  made  Nazism’s  rise auspicious.  Thus in Garaudy v. France[xx] Strasbourg, finding that Garaudy’s rights were not violated when punished for publishing a Holocaust denial book held that the book’s true end was “to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history.”  It said,  “Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them.  And yet, Strasbourg has demonstrated  tolerance to what would amount to hate speech. In Jersild v. Denmark,[xxi] it  ruled that punishing a journalist who assisted in disseminating hate speech by a third party would curtail press freedom.

Not all individual freedoms are  boundless and unconditional. Some of them, like freedom of speech, should be  restricted as necessary to secure freedoms for others and communal objectives. Absolute tolerance of speech may water down the essence of freedom. As held by the Human Rights Committee in Faurisson v France,[xxii] restrictions on tolerance may  be necessary “to live from fear  of an atmosphere of anti-Semitism.”

To summarize, viewpoint absolutism breeds tyranny and negates individual autonomy. States must create an environment where democracy flourishes, that is people can participate in the public debate, and which promotes human rights, i.e. individuals are able to realize and exercise their fundamental rights.  While they should tolerate offensive speech, States  must proscribe virulent speech that isolates individuals from the rest of society and curtails their social  participation. However, the proscription should not abort ideas before they are expressed.


[i] Müslüm Gündüz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC), supra.; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.
[ii]Bowman v. The United Kingdom. Application number (141/1996/760/961); Orban v. France, Application No.  20985/05 (15 January 2009)
[iii]Incal v. Turkey, judgment of 9 June 1998
[iv]Jersild v. Denmark, ibid., para.31, Gündüz v. Turkey,

[v]Paulo Freire. Pedagogy of the Oppressed. Trans. by Myra Bergman Ramos. New York: Penguin Books, Ltd., 2002.

[vi] John Stuart Mill, On Liberty. Toronto: Dover Publication, 2002.
[vii] Kuhnen v. Federal Republic of Germany, Application  No. 12194/86), (1988)

[viii] Beauharnais v, Illinois, 343 U.S. 250 (1952)

[ix] Introductory Statement, The Camden Principles on Freedom of Expression and Equality
[x] Cohen v California,  403 U.S. 15 (1971)
[xi] Müslüm Gündüz v. Turkey, Application No. 35071/97 (4 December 2003); Karatas v Turkey (GC), 23168/94, ECHR 1999-IV; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.
[xii]On the other hand, the International Covenant on Civil and Political Rights in Article 20 (par. 2) expressly prohibits the advocacy of national, racial or religious hatred. The International Convention on the Elimination of All Forms of Racial Discrimination expressly prohibits propaganda promoting  racial discrimination.
[xiii] Scope, Recommendation No. R (97) of the Committee of Ministers to Member States on Hate Speech (30 October 1997)
[xiv]Although this is not written in the European  Convention on Human Rights, Strasbourg developed this in its jurisprudence to address the diversity of conceptions of issues such as morality and as a corollary of the principle of subsidiarity which states that supranational bodies are not substitutes for domestic mechanisms of human rights enforcement.  In Handyside v. UK, Strasbourg, rationalizing the grant to States of a margin of appreciation  said,  (B)y reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”
[xv] Otto-Preminger-Institut v. Austria, Application No. 13470/87 (20 September 1997)
[xvi] Aydin Tatlav  v Turkey (2 May 2002);  Otto Preminger v. Austria,  supra.
[xvii] For example,  in Observer, et alis v. UK, Application No.  13585/88 (26 November 1991), Strasbourg sustained the injunction of  press reports. The indorsement of prior censorship is clear from its decision in Gundaz (supra.) when it said that States may “sanction or even prevent” all forms of expression which spread, incite, promote or justify hatred based on intolerance. The word ’prevent’ refers to prior ban. In Đ. A. v Turkey, Strasbourg ruled that the prohibition of a publication, which contained abusive attacks on the Prophet Mohammed, by means of which believers legitimately felt themselves to be the object of unwarranted and offensive attacks, was justified.
[xviii]  Erbakan v. Turkey, Application No.  59405/00 (6  July 2006)
[xix] Vogt v Germany, Application No. 7/1994/454/535 (2 September 1995)
[xx]Application No.  65831/01 (24 June 2003)
[xxi] Application No. 15890/89 (23 September 1994)
[xxii] UN Doc. CCPR/C/58/D/550/1993 (1996)



        Litigation is fallible. As the satirist Ambrose Bierce defined it, it is “a machine which you go into as a pig and come out of as a sausage.” Yet, in dealing with difficult issues involving human rights  calling for political judgment, it is still the best adversarial process there is, short of a revolution or political upheaval. None superior or less inferior to it has been contrived yet.

The adoption by the Strasbourg organs of the doctrine of  margin of appreciation  is not so much  an acknowledgment that “litigation is not the best procedure for dealing with matters of political judgment”[1] as it is a recognition of the fact that it is vulnerable  to flaws. Supranational bodies concerned with international human rights adjudication are confronted with similar  issues  with similar if not identical factual backdrops involving various  states.  Yet, this does not mean that they will  resolve all  cases by the same token. It may happen that  the political, socio-economic or cultural substructures of  similar issues raised against states are  each peculiar on its own.  To treat these unequally circumstanced states equally  is to discriminate.

Having said this, I agree  that “decisions about human rights are not a technical exercise in interpreting texts, but judgments about political morality.”[2] As a general rule, in exercising judicial review, it is not the province of courts to inquire into the wisdom of acts of sovereignty, otherwise they end up supplanting it.  But to observe metes and bounds set by the   political question doctrine  which is a bar to interpretation in domestic settings  is to give states an argument with which to legitimize human rights abuses. The obvious compromise is the application of the  margin of appreciation doctrine under which  supranational courts will scrutinize the necessity of the use of  a coercive measure or the derogation from obligations  or limitation of fundamental rights by states on the basis of the political morality thereof.

If decisions were about legal hermeneutics, supranational bodies can just pull the wool over their  eyes and invoke the doctrine of stare decisis.  In principle,  this doctrine is not controlling but in practical terms, there is nothing that stops them from citing precedents. Considering the volume of decided cases,  texts of human rights conventions have  been  construed in every possible way. Interpretations that may appear conflicting  lend credence to the fact that human rights conventions are living instruments.  Their interpretations insofar as   balancing  polarities created by  divergent interests in  a political community is evolving   with  the socio-political milieu. They are much  larger   than their  texts. Beyond cavil then, international human rights adjudication is not about expertise in text interpretation  because expertise cannot  be achieved when the meaning of a text is  ambulant, i.e.,  it is never final. What may be mastered is the science or art of judging the political morality of acts of states involving the use of coercive power.

In deferring to a state’s political judgment on a matter involving sensitive cultural, religious or national issues, a supra-national human rights court must not compromise universal values of morality. This is the lowest level it should go to. Otherwise, it becomes  a toothless body, shaved of its relevance in humanity’s unending struggle  to protect inalienable rights.  As  foundationalists argue,   “political morality is derived from  universal, immutable first principles that can be apprehended by rational reflection,”[3] which is not a faint echo of Yash Ghai’s assertion that human nature is universal, knowable by reason.[4]

For example, a state with a debt-ridden economy needs to generate revenues. After resorting to taxation, the national treasury remains cash-strapped. It has “white elephant” assets, the maintenance of which is further eating a sizable chunk of the national budget. To pave the way for mining as  source of revenue, it  expropriates the remaining  ancestral domains of indigenous peoples over the latter’s objection. The said domains are their source of livelihood, culture base and sacred grounds. Most of indigenous territories have been taken over  by the state in the past for development projects in the name of national interest.   The expected revenues from mining will pay part of the state’s debt and provide the much needed funds for  the state’s operation.  The state offers compensation beyond the properties’  fair market value to the affected peoples.  Is the act of expropriating the indigenous territories  politically moral?

 If I were the supranational court, I would rule that the state’s action is indefensible. Under Art. 1 of the International Covenant on Civil and Political Rights, in no case may a people be deprived of their means of subsistence,  an immutable principle. The taking of ancestral lands deprives the indigenous peoples of their means of subsistence. The act is tantamount to  cultural genocide  as indigenous peoples are attached to their land, divorced from which they become culturally extinct. Balanced against the  national interest sought to be served, which may be addressed through the sale of idle assets, the  taking of these peoples’ ancestral domains has far more onerous consequences and is politically immoral, infringing on the non-derogable right to life.   

[1] A.H. Robertson and J.G. Merrils. Human Rights in Europe. Manchester-New York, Manchester University Press, 1966, p. 190
[2] Ibid., p. 204

[3] Amstutz, Mark. International Ethics: Concepts, Theories, and Cases in Global Politics. Lanham: Rowland and Littlefield Publishers, Inc.; p. 12

[4] Yash Gai. “Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims” in  21 Cardozo Law Review (1999-2000),  p.1096.