Article 66 of the Charter allows state parties to the Charter to make special protocols or agreements where necessary to supplement the provisions of the Charter. A number of protocols and conventions have been adopted to supplement the substance of the Charter.
1. African Charter on the Rights and Welfare of the Child
The African Charter on the Rights and Welfare of the Child was adopted in Addis Ababa, Ethiopia, on 11 July 1990, and entered into force on 29 November 1999. As of 21 October 2011, 46 member states of the AU have ratified the Children Charter.
The Charter defines a ‘child’ as every human being below the age of 18 years. Four principles underpin the Charter. These are: nondiscrimination, participation, the best interest of the child, and survival and development. More specifically, the Charter prohibits child marriage, child labour and child abuse. It also addressed such children rights-related themes as juvenile justice, armed conflict, adoption, drug abuse, sexual exploitation and human trafficking.
The African Children’s Charter established the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Rights Committee) to promote and protect the rights and welfare of the child. The Committee comprises 11 members elected by the AU Assembly for a term of 5 years. The seat of its Secretariat is in Addis Ababa, Ethiopia.
The Committee is mandated to promote and protect the rights stipulated in the Children’s Charter, monitor its implementation, and to interpret its provisions. State parties to the Children’s Charter are required to submit state reports setting out measures they have adopted to implement the provisions of the Charter. The Committee is also competent to receive communications from individuals, groups, NGOs and state parties to the Children’s Charter. The Committee’s first finding, in 2011, dealt with the failure of Kenya to register and provide nationality to children of Nubian descent in the country. The Committee held Kenya in violation of the African Children’s Charter.
‘ … although states maintain the sovereign right to regulate nationality, in
the African Committee’s view, state discretion must be and is indeed
limited by international human rights standards, in this particular case the
African Children’s Charter, as well as customary international law and
general principles of law that protect individuals against arbitrary state
actions. In particular, states are limited in their discretion to grant
nationality by their obligations to guarantee equal protection and to
prevent, avoid, and reduce statelessness.’
Children of Nubian Descent in Kenya case, para 48
For more information on the African Children’s Rights Committee, visit www.acerwc.org
2. Protocol on the African Human and Peoples’ Rights Court
The Protocol on the Establishment of an African Court on Human and Peoples’ Rights was adopted in Ouagadougou, Burkina Faso, on 9 June 1998 and entered into force on 25 January 2004. All member states of the AU except Eritrea and Cape Verde have signed the Protocol, but so far only 26 states have ratified it. Under article 34(6) of the Protocol, states may also make an optional declaration, accepting the competence of individuals and NGOs with observer status before the Commission to submit cases directly to the Court. By 21 October 2011, five states have made such a declaration: Burkina Faso, Ghana, Mali, Malawi and Tanzania.
3. Protocol to the African Charter on the Rights of Women in Africa
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol) was adopted in Maputo, Mozambique, in July 2003 and entered into force in November 2005. It was inspired by a recognised need to compensate for the inadequate protection afforded to women by the African Charter on Human and Peoples’ Rights. While the African Charter guarantees non-discrimination on the basis of sex, equality before the law, and the elimination of discrimination against women, it does not articulate specific violations of women’s rights which result from discrimination.
The Women’s Protocol is comprehensive with its inclusion of civil and political rights, economic, social and cultural rights, group rights and, for the first time in an international treaty, health and reproductive rights. It also contains innovative provisions that advance women’s rights further than any existing legally binding international treaty. For example, the legal prohibition of female genital mutilation is prescribed as well as the authorisation of abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus. Furthermore, the Protocol is the first international human rights treaty to explicitly refer to HIV/AIDS, in this case, in the context of sexual and reproductive health rights. Other provisions address violence against women, harmful traditional practices, child marriage, polygamy, inheritance, economic empowerment, women’s political participation, education, and women in armed conflict. Notably, the Women’s Protocol recognises that certain women suffer multiple forms of discrimination and accordingly, separate provisions for widows, elderly women, and disabled women are included.
Thirty countries have ratified the Women’s Protocol as of 21 October 2011.
4. Other relevant human rights standards subsequent to the Charter
In addition to the foregoing instruments, the African Union (AU) has also adopted a number of treaties relevant to the promotion and protection of human rights in Africa. These instruments include the Constitutive Act of the AU 2000, Protocol on the Pan-African Parliament 2001, Protocol on the Peace and Security Council 2002, Statute of the Economic, Social and Cultural Council 2004, Convention on the Prevention and Combating of Terrorism 1999, Convention on the Conservation of Nature and Natural Resources 2003, Convention on the Prevention and Combating Corruption 2003, African Charter on Democracy, Elections and Governance 2007, and the Convention for the Protection and Assistance of Internally Displaced Persons 2009. The AU, as well as the African Commission, has also adopted various declarations and resolutions relevant to the understanding and advancement of the African Charter provisions.
For more information on these human rights instruments, see Heyns C & Killander M (eds) (2010) Compendium of key human rights documents of the African Union.