Analysing the Economic, Social and Cultural Rights Jurisprudence of the African Commission: 30 Years since the Adoption of the African Charter

Abstract

The African Commission on Human and Peoples' Rights (the Commission), established by the African Charter on Human and Peoples' Rights (African Charter), is a quasi-judicial regional body charged with the functions of promoting and protecting human rights in Africa, including economic, social and cultural (ESC) rights. The Commission was the third regional human rights body after the European and American regional bodies. It is empowered to ‘interpret’ Africa's key regional human rights treaty, the African Charter adopted in 1981. Although the African Charter protects ESC rights alongside other rights, the African Commission noted in its Resolution on ESC Rights in Africa, ACHPR /Res.73(XXXVI)04 (2004), that ‘despite the consensus on the indivisibility of human rights, economic, social and cultural rights remain marginalised in their implementation’ in Africa. The Commission observed that there is inadequate recognition by African States of this category of rights that results in the continued marginalisation of these rights, which ‘excludes the majority of Africans from the full enjoyment of human rights’. Not surprisingly, the Commission has found several States in violations of ESC rights. One contributory cause for the continued marginalisation of this category of rights in Africa can be attributed to the lack of awareness of the Commission's jurisprudence on these rights. This article reviews selected key aspects in the Commission's jurisprudence on ESC rights since the Commission was inaugurated in 1987 focusing on the normative content; State obligations and obligations of non-State Actors; remedies and limitations to and derogations from ESC rights.