2.3 SOCIO-ECONOMIC RIGHTS IN THE AFRICAN CHARTER ON
HUMAN AND PEOPLES' RIGHTS (ACHPR or the African Charter) 50
Socio-economic rights recognised by the African Charter and the
monitoring system under the Charter are outlined in this part of the study.
2.3.1 BRIEF ANALYSIS OF SOME SOCIO-ECONOMIC RIGHTS UNDER THE
AFRICAN CHARTER
The African Charter contains a number of provisions pertaining
to socio-economic rights. Its Preamble reaffirms the commitment of African
states to adhere to the fundamental rights enshrined in the UDHR. The African
Charter does guarantee the right to work. Its Article 15 states that every
individual shall have the right to work under equitable and satisfactory
conditions and shall receive equal pay for equal work. Article 16(1) of the
African Charter on the other hand states that, every individual shall have the
right to enjoy the best attainable state of physical and mental health.
Subsection (2) of Article 16 places a duty on the state to take necessary
measures to protect the health of their people and to ensure that they receive
medical attention when they are sick. Article 17 of the African Charter
provides the right to education to every individual. The right to life is also
guaranteed by Article 4 of the African Charter.
50
The African Charter on Human and Peoples' Rights
(ACHPR) was adopted in Nairobi, Kenya on 27 June 1981 and entered into force on
21 October 1986. South Africa acceded to the charter on the 9 July 1996. Its
Preamble provides inter alia that: «The African states member of
the Organisation of African Unity, parties to the present Convention entitled
"African Charter on Human and Peoples' Rights...; Recalling Decision 115(XVI)
of the Assembly of Heads of State and Government at its Sixteenth Ordinary
Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation
of «a preliminary draft on an African Charter on Human and Peoples' Rights
providing inter alia for the establishment of bodies to promote and
protect human and peoples' rights»; Reaffirming their adherence to the
principles of human and peoples' rights and freedoms contained in the
declarations, Conventions and other instruments adopted by the Organisation of
African Unity, the Movement of Non-Aligned Countries and the United Nations...;
Recognising on the one hand, that fundamental human rights stem from
the attributes of human beings, which justifies their international protection
and on the other hand, that the reality and respect of peoples' rights should
necessarily guarantee human rights; Considering that the enjoyment of rights
and freedom also implies the performance of duties on the part of everyone;
Firmly convinced of their duty to promote and protect human and peoples' rights
and freedoms taking into account the importance traditionally attached to these
rights and freedoms in Africa...».
The African Charter further establishes the African Commission on
Human and Peoples' Rights (Commission).
2.3.2 ENFORCING SOCIO-ECONOMIC RIGHTS UNDER THE AFRICA
CHARTER
Unlike the CESCR which establishes a Committee on ESCR to
monitor the implementation of the Covenant, the African Charter vests in the
African Commission on Human and Peoples' Rights (Commission) the powers to hear
matters pertaining to violations of rights recognised in its provisions. The
main objective of the Commission is to monitor and protect the rights provided
in the African Charter. The functions of the Commission are, inter alia,
to51:
promote human and peoples? rights and in particular, to
collect documents, undertake studies and research on African problems in the
field of human and peoples? rights, organise seminars, symposia and
conferences, disseminate information, encourage national and local institutions
concerned with human and peoples? rights, and, should the case arise, give its
views or make recommendations to governments, to formulate and lay down
principles and rules aimed at solving legal problem relating to human and
peoples? rights and fundamental freedoms upon which African governments may
base their legislation, co-operate with other African and international
institutions concerned with the promotion and protection of human and peoples?
rights.
The African Commission had heard many cases with regard to the
violation of socioeconomic rights protected by the Charter. For instance, in
International Pen (pour le compte de Saro-Wiwa) c. Nigeria52,
a case involving a detainee who had been deprived of medical treatment,
the African Commission found that the state of Nigeria had violated Article 16
of the African Charter which guarantees the right of a detainee to medical
care. Another important case is that of Purohit and Moore v The
Gambia
51 Article 30 of African Charter states that:
«An African Commission on Human and Peoples' Rights,
hereinafter called "the Commission", shall be established
within the Organisation of African Unity to promote human and peoples' rights
and ensure their protection in Africa». Article 31 African Charter
provides that: «The Commission shall consist of
eleven members chosen from amongst African personalities of the highest
reputation, known for their high morality, integrity, impartiality and
competence in matters of human and peoples' rights; particular consideration
being given to persons having legal experience.».
52 RADH 2000 217 (CADHP 1998).
Communication53. The matter was brought
before the Commission to challenge the Mental Health Acts of the
Republic of the Gambia. The Commission made a finding that the right to health
includes the right to health facilities, access to goods and services to be
guaranteed to all without discrimination. The Commission said further that
mental health patients deserve special treatment because of their
disability.
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