Derogation from Constitutional Rights and Its Implication Under the African Charter on Human and Peoples’ Rights

Abstract

The African Charter on Human and Peoples’ Rights does not contain a clause permitting suspension of human rights during public emergency, while major human rights instruments allow state parties to suspend some rights. The African Commission on Human and Peoples’ Rights has repeatedly held that a declaration of a state of emergency cannot be invoked as a justification for violations or permitting violations of the African Charter. The silence of the African Charter and the position of the African Commission have not been welcomed by some scholars.

The African Charter enjoys universal ratification as all member states of the African Union are parties thereto. Upon ratification, state parties have undertaken to adopt legislative and other measures to give effect to the rights recognised therein. However, an examination of their constitutions reveals that state parties have not taken sufficient legislative measures to ensure compatibility of their laws with the African Charter. As a result, many African constitutions contain derogation clauses.

This article argues that the omission of a derogation clause from the African Charter was not a mistake. And it is not a defect in the Charter. Rather, it shows positive development of human rights norms in Africa and should not be seen as a defect. The arguments calling for incorporation of a derogation clause fail to consider factors that may justify its absence. The incorporation of a derogation clause in the African constitutions and consequently derogating from constitutional rights are violations of the African Charter and other international human rights treaties including the International Covenant on Civil and Political Rights.

Keywords: Derogation, State of Emergency, Constitutional rights, African Charter, African Commission