The free movement of people in Africa as a human right and as an economic right: From the African Charter to the African Economic Community Protocol of 2018

Abstract

The right to freedom of movement of persons in a state is recognised by article 12 of the African Charter on Human and Peoples' Rights as a fundamental human right but, more generally, freedom of movement is also exercised in the context of continental economic integration, a crucial norm in economic integration projects. Not long after the entry into force of the African Charter in 1986, the first steps towards economic integration were taken, and the freedom of movement was enshrined in the Treaty Establishing the African Economic Community. As the AEC lost steam, the African Commission on Human and Peoples' Rights upheld the right to unhindered trans-border freedom of human mobility and curtailed attempts by states to interfere with it. In 2018 the adoption of the Protocol to the AEC Treaty on the free movement of persons manifested in an unambiguous manner the economic aspects of this human right. This article reviews the relevant African Union instruments on the free movement of persons and examines the relevant decisions issued by the African Commission. It also explains how the human rights aspects of the freedom of movement closely interact with its economic features and the importance that an expansive and properly drafted prohibition of discrimination has in securing that human mobility on the continent will not be compromised.