PART A: Background to the African Regional Human Rights System the deposit of Eritrea’s instrument of ratification.23 In other words, all 54 Member States of the AU are parties to the African Charter.24 The African Charter contains features that distinguish its contribution to the regional protection of human rights. An early commentator on the Charter observed that it was ‘modest in its objectives and flexible in its means’.25 Reflecting the challenges of the continent, the Charter integrates protection of civil, political, economic, social, and cultural rights in one document, without distinguishing the manner in which these rights are implemented. For example, the right to education and to the best attainable health are included on par with the right to freedom of speech and association. In an important finding, the Commission underlined that socio-economic rights form an integral part of the Charter and emphasised that they can be ‘made real’ in the same way as any other right.26 The civil and political rights guarantees in the Charter are mostly hedged in with claw-back clauses, which appear to subject their enjoyment to domestic laws. For example, freedom of association is granted if its exercise is allowed for by ‘law’. However, the Commission has made clear that the term ‘law’ is not equivalent to domestic law, finding that any limitation of Charter rights must be compatible with standards of international law.27 The Charter does not contain any provisions on derogation and the Commission has interpreted this silence to mean that derogation from the Charter is 23 24 25 26 27 Eritrea deposited its instrument of ratification on 15 March 1999, Thirteenth Activity Report AHG/222 (XXXVI) Annexes 1-V & Addendum (July 2000). Morocco is the only African State that is not currently party to the African Charter. Having pulled out of the OAU in 1984, Morocco remains outside the framework of regional treaty monitoring mechanisms negotiated under the auspices of the OAU. Its membership includes the Sahrawi Arab Democratic Republic (‘Western Sahara’), and excludes Morocco, which withdrew when the OAU recognised the Arab Democratic Republic. O. Okere, “The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems”, 6 Human Rights Quarterly 141, 158 (1984). ACHPR, Social and Economic Rights Action Centre and Another v. Nigeria, Comm. No. 155/96, 30th Ordinary Session (27 October 2011), para. 68. ACHPR, Media Rights Agenda and Others v. Nigeria, Comm. Nos. 105/93, 128/94, 130/94 & 152/96, 24th Ordinary Session (31st October 1998). Also, the right to asylum is followed by the Article 23 qualification: ‘1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter.’ 23