There are no minority-specific provisions in the African Charter on Human and Peoples Rights. Yet, encouragingly, some of the jurisprudence of the African Commission on Human Rights has supported minority communities and the African Commission has established a Working Group on Indigenous Populations/Communities.

The main regional human rights instrument in Africa is the African Charter on Human and Peoples Rights (ACHPR). It was adopted by the Organization of African Unity (now the African Union) in 1981 and came into force in 1986. All African Union members are party to the Charter. The African Commission on Human and Peoples Rights, established by the Charter, monitors the implementation of the Charter through examining periodic reports presented by States, interpreting the provisions of the Charter and considering communications from individuals and States alleging violations of the Charter. By 1994, there was strong and growing feeling that the Commission was not sufficient to deal with human rights violations and there was need for an African Court that could provide enforceable remedies (the rulings of the Commission are recommendations and non-binding). A protocol to the African Charter was adopted in 1998 establishing the African Court on Human and Peoples’ Rights. In 2005, the protocol establishing the Court entered into force and the Court will commence its work once it is fully operational.

Article 2 of the Charter prohibits discrimination on the grounds of “race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status” with respect to the rights in the Charter. The Charter makes no mention of minorities. However, it recognizes the collective rights of ‘peoples’ to equality, existence, self-determination, development, to freely dispose of their natural resources, to international peace and security and to a satisfactory environment for development (articles 19-24).

The Charter does not define the term ‘peoples’. This has been the subject of much discussion. Documents from the meeting of experts convened to draft the Charter show that the aim of the principle of equality of peoples was closely linked to the fight against colonialism. Initially the Commission appeared reluctant to interpret the concept of peoples, possibly due to the lack of other international jurisprudence in this area. However, cases invoking the rights of peoples have been adjudicated and the jurisprudence is growing. The Commission has interpreted the term differently in various cases.

One interpretation of the term ‘peoples’ is every individual within a given State. In the case of Democratic Republic of the Congo (DRC) v Burundi, Rwanda and Uganda, the Commission uses the phrases “Congolese peoples’ rights” and “the rights of people” in the DRC interchangeably to mean all affected individuals in the DRC.⁶⁸ It is a state-centric approach where the ‘peoples’ are equated with the territorial demarcation of the State. This approach also appears to have been followed in the Gambian Coup case where the Commission did not attempt to define the peoples who have the right to “freely determine their political status” under article 20.1. The Commission referred instead to all Gambians who were eligible to vote.⁶⁹

The Commission has also interpreted the term ‘peoples’ to mean groups of individuals sharing distinct characteristics – including minorities – within the State. In the case of Legal Resources Foundations v Zambia, the Commission found that article 19, equality of all peoples, did not apply because to demonstrate such a violation, the applicants would need to show that “an identifiable group of Zambian citizens by reason of their common ancestry, ethnic origin, language and cultural habits” had been affected adversely.⁷⁰

In the case of the Katangese Peoples’ Congress v Zaire the Commission had to decide whether the right of the Katangese people to self-determination extended to secession. The Commission stated that self-determination could be exercised in various ways including “independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognisant of other recognized principles such as sovereignty and territorial integrity”.⁷¹ In contrast to the UN Human Rights Committee, which has refused to hear cases concerning claims of self-determination,⁷² the Commission examined the merits but ruled against the Katangese people because of the absence of “concrete evidence of serious violations of human rights to the point that the territorial integrity of Zaire should be called to question and the absence of evidence that the people of Katanga are denied the right to participate in Government”.⁷³ This then leaves open the possibility that a community suffering severe discrimination and human rights abuses may have a claim under the Charter.

The Commission does not make a distinction between minorities and indigenous peoples in any of the cases that address the violation of peoples’ rights. This is, again, a contrast to the approach under UN instruments where the term ‘peoples’ has been applied to indigenous groups and not to minorities. In the Katengese Peoples’ Congress case, the Commission did not examine whether the community is indigenous or a minority. The terms ‘minority’ and ‘indigenous’ were not mentioned in the case of Ogoni v Nigeria.⁷⁴ However, the Commission considered that the Ogoni (an indigenous minority from the Niger Delta) were entitled to the rights accorded to peoples under the Charter and found a violation of the rights of peoples to freely dispose of their natural resources and to a satisfactory environment favourable to their development (articles 21 and 24). Likewise, in ruling on a number of joined cases against Mauritania, although the Commission found no violation of the right to equality of peoples based on the facts, it did not rule out the possibility that discrimination against “black Mauritanians” could constitute a violation of the rights of peoples under the Charter.⁷⁵

It is clear, therefore, that the possibility exists for both minority and indigenous communities to make use of the ACHPR to protect their collective rights. In addition to cases invoking peoples’ rights (articles 19-24), there are judgments from the African Commission relating to other rights that are important to minorities.

A ruling which could be very important for linguistic minorities, stated:

“Language is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and in its activities. To deprive a man of such participation amounts to depriving him of his identity”.⁷⁶

There will be an opportunity for the Commission to further develop its jurisprudence on peoples’ rights when it makes its decision on the pending case of CEMIRIDE – Centre for Minority Rights Development (on behalf of the Endorois Community) v. Republic of Kenya.⁷⁷ The case relates to the alleged forced eviction of a pastoralist community in the 1970s to make way for the creation of a game reserve. The Endorois claim they were not consulted prior to their removal from the land, nor were they compensated for their loss. They are now seeking the restitution of their ancestral land, which is vital for their economic and socio-cultural survival as a pastoralist people.

In 2000, the Commission established a Working Group on Indigenous Populations/Communities with a mandate to examine the concept of indigenous populations/communities in Africa and to study how specific rights in the Charter relate to the well being of indigenous populations/communities. Currently, there is no respective body to deal with the rights of minorities. The Working Group on Indigenous Populations/Communities has carried out a great deal of work on issues including the situation of indigenous peoples, the approach of the ACHPR in its jurisprudence and analysis of State reports, and the identification of indigenous peoples in Africa. This work was adopted by the ACHPR in 2005. The ACHPR also produced an ‘Advisory Opinion’ (May 2007) on the UN Declaration on the Rights of Indigenous Peoples⁷⁸ to address concerns expressed by African States during the drafting of the Declaration.