The role of human dignity in the jurisprudence of the African Commission on Human and Peoples’ Rights

1 HUMAN DIGNITY AS AN AFRICAN CULTURAL CONCEPT

The essence of human dignity is attribution of respect to a human person and the recognition of their superior value in comparison to other creatures.1 This idea is commonly believed to have originated from the teachings of Christianity or the exposition of European philosophers such as Immanuel Kant.2 In contrast, the idea is portrayed as unknown and alien to the African continent and its inhabitants. This is partly due to the writings of philosophers such as Hegel who seem to have a very condescending view of Africa and the capacity of its people, which seems to have contributed a great deal to the general misconception about the continent for generations to come.3 Hegel describes Africa as ‘land of childhood’ and underscores the uncivilised status of the African people by noting that ‘the Negro exhibits the natural man in his completely wild and untamed state’.4 It does not take much effort to infer from these statements his equation of an African person with that of a child in his thinking and behaviour, not having any manner or rules for conducting his relationship with others. He also emphasises the ‘wildness’ and ‘savagery’ of the African people which necessitates their domestication or taming by the higher beings (the Europeans). If what Hegel is saying is taken at face value, it might seem plausible to contend that human dignity has no roots in Africa (a wholly foreign concept that Africans need to learn from others for its goodness), because its very inhabitants are savages having neither the capacity nor the time to contemplate about it. Yet , it is important to also note that while European philosophers like Hegel were discussing human dignity, European society and culture rarely practiced this in their treatment of European foreigners, people of other races, women, children, criminal suspects, people with disabilities, and the poor.5 European society of the period was savage and wild and had no interest in humane considerations.

Further, it was assumed that Africans are not capable of entertaining any abstract thought and their state of mental development does not allow them to think about how they should treat each other and treat their fellow beings with respect.6 Their ability to entertain ideas of God and religion is accordingly limited. Beside the account of European philosophers, Christian missionaries who sought to spread Christianity to Africa also contributed their part for the characterisation of African tradition and culture as barbaric devoid of any notion of human dignity in it.7 Hence, the dominant (pre) colonial narrative about Africa and Africans in the past was that they are ‘brutes’, ‘cannibalistic’, ‘crude’, ‘primitive’, ‘dark’, ‘savages’, ‘pagan’, ‘ignorant’ with no contribution for human history or civilisation.8

Here, it might help to examine why this line of thought/picture of Africa and Africans was propagated. Discovering the reason for such characterisation of Africa is not that sophisticated. It is chiefly to provide a justification or an excuse for the colonisation of African by the West and all the evils that happened the name of ‘civilizing’ or ‘humanizing’ Africans.9 Hence, in order to subjugate Africans to control by the Europeans, their portrayal as beasts and savages is crucial because it gives the impression that the colonisers are doing Africans a favour by controlling and guiding them because Africans lack the intelligence to govern themselves. In contrast, if the African culture and its people are considered to be civilised and their value system acceptable, the colonisers would lack the ground for controlling them other than for the sheer selfish desire of looting resources. Beside the issue of resources, painting the African traditional religion and belief system as savage and ridiculous, also gives advantage to religions such as Christianity and Islam to get followers in Africa. One of the most effective strategies to make people abandon a certain value system is to depict it as evil and barbarous.10 This seems to be what the missionaries did to traditional African religions and succeeded in making the people believe what they say is true and win them over.

The next important issue worthy of examination is whether what people like Hegel and the missionaries are saying about Africa and Africans is plausible? More specifically, whether the claim that Africans are alien to the ideals of human dignity is indeed true or it is something that is based on sheer misconception and ignorance about African way of life. Before analysing this subject, it is important to raise one important concern with respect to how one should approach the genealogy of dignity in different cultural traditions. A person may follow different methodologies in an attempt to discover the presence or absence of human dignity in a certain community. The most common approach is to look for the word ‘human dignity’ in written texts and laws of the community.11 If one follows this narrow approach of finding human dignity, one may be easily led to the conclusion that dignity is alien to the society simply because the word is absent from written documents. This is particularly relevant for the study of African history and value systems since most of the written pieces were destroyed by the colonisers and the African people largely relied on oral tradition.12 As such, a person genuinely interested in the discovery of the notion of human dignity in Africa must be sensitive to this reality.

This in turn requires a more nuanced method of discovery which is not merely confined to searching for the word ‘dignity’ in written form. Instead, it requires inquiring into whether a given society has the ideal of treating human beings as creatures of special worth/value and looks for manifestations of such ideas in the right places.13 These places include oral traditions, songs, their way of life, conception of religion and its practice, manners of treating individuals, as well as the duty and privileges of individuals in the community among others. In general, a holistic consideration of the community culture and value system must be considered to arrive at a sound conclusion. The adoption of such approach in the writer’s view, will affirm the idea that human dignity is not an alien concept to Africa and its marks are found in different cultures of African pre-colonial communities. Yet, it is also important to bear in mind that African culture is not homogenous and like any other society there are practices which are incompatible with the idea of human dignity. In subsequent paragraphs of the article, an attempt is made to demonstrate how some African societies recognise and respect human dignity by examining the anthropological and philosophical studies conducted on three indigenous African people, namely, the Igbo, the Akan and the Bantu people.

2 THE ROLE OF HUMAN DIGNITY IN THE JURISPRUDENCE OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

The African Charter on Human and Peoples’ Rights (African Charter) gives explicit recognition to human dignity. Reference to dignity is made three times, in the Preamble and in a specific article of the Charter.43 To begin with the Preamble, the notion is invoked in relation to the then Organisation of African Union (OAU) Charter which states that ‘freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples’.44 The African Charter reiterates the importance of these objectives through direct quotation from the constituting document of the OAU. Beside this, the Preamble also mentions dignity by linking it to the issue of colonialism. Africa was a victim of colonial ambition of the European powers. At the time of the adoption of the African Charter, some African states were still struggling to regain their independence. Cognisant of the gross indignity that colonisation has inflicted on African people and the severity of the problem, the Charter underscores the need to support people fighting for their dignity and work towards the elimination of all manifestations of indignity be it discrimination or Apartheid. A similar statement is also reiterated in the Constitutive Act of the African Union. The act celebrates the ‘heroic’ fight of the African people for their ‘dignity’ and independence; underscores the need for preserving these ideals in the African continent.45

Here one may ask what significance is of an express incorporation of dignity in the preamble of the African Charter. The scholarship on treaty interpretation underscores the importance of statements incorporated in preambles. Accordingly, one of the core functions of preambles is to specify the purpose that specific provision of the treaty seeks to achieve.46 As such, they serve as guidance in the interpretation of treaties by judicial bodies. This helps to minimise the misapplication of specific provisions of the treaty. If preambles have such a role, the presence of human dignity in the African Charter is a positive development, since the adjudicatory bodies will have the mandate to use the concept in the discovery, explication, application and limitation of rights in it. Hence, it could be argued that human dignity is a value that shapes the interpretation of human rights in the African Charter.

Beside the preamble, article 5 of the African Charter is dedicated to the right to dignity and combating several manifestations of its violations. The article provides that ‘Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited’.47 It recognises an enforceable right to dignity in the African Charter. In this sense, it is different from the reference to dignity in the preamble which is more of a value that informs all the rights incorporated under the Charter. Further, the article unequivocally perceives dignity as something that is embedded within every human person. Such understanding of human dignity resonates with the provisions of several human rights instruments such as the Universal Declaration of Human Rights. Moreover, the provision has also attempted to exemplify circumstances where the right to human dignity may be violated. These include among others denial of legal status to a human person, slavery, torture and inhuman treatment.48 The list here is only illustrative and there is a room to include more acts within this article through interpretation, as long as the inherent dignity of human beings is seriously undermined by the practice in question.

Thus, arguably human dignity is recognised in the African Charter as an interpretative value and enforceable right. A closer look at the preamble and article 5 of the Charter supports such conclusion. If this is the case, it means adjudicatory bodies of the African Charter as well as the domestic courts of states which have ratified the African Charter, have the duty to elaborate and apply human dignity in the interpretation of human rights incorporated within the charter. The following paragraphs of the article examine the dignity jurisprudence of the African Commission and the overall place of dignity in the African human rights system. Before doing that, it may be important to say a few things about the institutional framework. The African Commission on Human and Peoples’ Rights (African Commission) is the main body in the African human rights system that is entrusted with the mandate of human rights promotion and protection in the continent.49 Yet, its decisions are usually not enforced and its power of enforcement seems to be confined to reporting to the assembly of head of states.

That being said about the institutional structure, let us examine the human dignity jurisprudence of the African Commission so far. Accordingly, only the respect for integrity and equal worth aspects of human dignity are recognised in the decisions of the Commission. The number of human dignity inspired decisions are also few. Two of them deal with physical and emotional integrity. Three other cases focus on the equal worth aspect dealing with non-discrimination. To begin with the physical and emotional integrity aspect, the first important case is Spilg and Mack & Ditshwanelo (on behalf of Lehlohonolo Bernard Kobedi) v Botswana.50 The case concerns the execution of the death sentence in Botswana on a person convicted of killing a police officer. In this application, the violation of article 5 of the African Charter was alleged on a number of grounds. The first involves the health condition of the applicant as he was suffering from a heart condition. Here, the argument was that the failure of courts to consider the health condition of the applicant and the order of execution by hanging is a cruel and inhuman treatment.51 The second ground is on the failure of the court to notify the family of the applicant of the day of the execution. This in the view of the advocate deprived the applicant a dignified farewell.52

The decision of the Commission on this case is interesting and problematic from the perspective of human dignity. First, the Commission decided that the claim that execution by hanging causes severe suffering on the accused is speculative and insufficiently proved.53 What makes the case interesting is that the Commission did not ask whether the very act of the death penalty is compatible with the intrinsic worth of a human person. That aside, the Commission even failed to find a violation on the cruelty of the manner of execution. Given the health condition of the accused, it would have been difficult to allow death by hanging if the Commission followed a strictly digniterian approach of interpretation. Surprisingly, the commission found violation of article 5 for the second ground which is the failure of the Botswanan court to provide information about the date of execution. This in the Commission’s view violates the human dignity of the applicant. In the view of the writer, this is a very weak conception of human dignity. The only plausible explanation for the conclusion the Commission arrived at could be the fact that the applicant was executed before it rendered the decision.

A related case of inhumane treatment where the issue of dignity was decisive is Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola.54 The case concerns the deportation of Gambian miners legally working in Angola subsequent to the adoption of a policy of expelling foreigners. In the course of this process, the applicants alleged the commission of arbitrary detention and maltreatment on the basis of their origin. They were also kept as prisoners in a house that is filled with animal waste since animals used to live in it before the prisoners moved into it.55 In addition, the prison was not big enough to accommodate all prisoners. Thus, they had to sleep, eat and take bath in the same place. They did not also receive a sufficient amount of food, water and medical aid. For instance, only two buckets of water were provided for 500 prisoners per day.56 Based on all these facts, the prisoners alleged the violation of a number of rights recognised under the African Charter including the right to dignity. The Commission, without much reasoning ruled in their favour by noting that the treatment they have received is clearly a violation of article 5 of the African Charter since such a treatment cannot be called anything but degrading and inhuman.57 In arriving at this conclusion, the Commission also referred to the dignity jurisprudence of the UN Human Rights Committee.

Another decision of the African Commission is Purohit and Moore v Gambia.58 The case concerns mentally ill patients detained in Gambian hospitals. The communication particularly challenges provisions of the Lunatic Detention Act of Gambia (LDA).59 One of the most problematic aspects of the law is its failure to specifically define who a ‘lunatic’ is and on what criteria their status is determined. This is problematic considering the fact that a person declared lunatic is susceptible to indefinite detention in a medical detention centre and the process of determination lacks clarity or review.60 The applicants in this case alleged the violation of their right to dignity recognised under article 5 of the African Charter.

The Commission began its decision on the issue by noting that ‘human dignity is an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities as the case may be, are entitled to without discrimination’.61 In addition, the Commission expressly mentioned the duty to ‘respect’ and ‘protect’ the right to dignity as an obligation enshrined under the African Charter. It further ruled that ‘under the LDA, persons with mental illness have been branded as ‘lunatics’ and ‘idiots’, terms, which without any doubt dehumanise and deny them any form of dignity in contravention of article 5 of the African Charter’.62 Through this decision, the Commission affirmed the need to respect the intrinsic worth or value of every human person irrespective of his mental or physical disability, which is a step in the right direction. In other words, the Commission’s decision in this case shows that a human person will not lose his respect or dignity, by virtue of his disability. Rather he is valued or respected as any other member of human family.

On the equal worth aspect of human dignity, the first important case is that of the Nubian Community in Kenya v Kenya.63 It concerns person of Nubian decent living in Kenya. The Nubian community used to live in Sudan originally but the British colonisers forced some members of the community to join the British army and reside in Kenya. During the colonial time, the Nubians did not have any legal status. They were neither British nor Kenyan citizens. When Kenya got its independence the issue of the Nubian community was not resolved. Later, the Kenyan government came up with a stringent procedure for issuing identity documents such as National IDs and passports to individuals of Nubian decent residing in Kenya.64 These procedures include the payment of an application fee, the need to bring the ID card of their grandparents (which they cannot produce) and delayed processing of their application which is not applicable to other applicants. As such, the denial of legal status and the difficulty of acquiring identity documents made the life of the Nubians in Kenya very cumbersome and prevented their full participation in the life of the Kenyan community.65

In its decision the Commission noted that ‘the respect of the dignity inherent in the human person informs the content of all the personal rights protected in the Charter’.66 This is very important as it shows African Charter’s conception of dignity as a permeating value across all rights and not just a single enforceable right. It further reasoned that the Kenyan law that regulates the acquisition of identity documents for Nubians is blatantly discriminatory and arbitrary. The Commission further remarked that there is ‘a clear indication that Kenyan Nubians are unfairly discriminated against in the acquisition of identity documents solely on account of their ethnic and religious affiliations, which assails their dignity as human beings who are inherently equal in dignity’.67 It further invoked article 2 of the Charter dealing with equality and unfair discrimination by underlining that ‘differential treatment on the basis of ethnic and religious affiliations is specifically prohibited ... they have historically been misused to oppress and marginalise peoples with these attributes, thereby demeaning the humanity and dignity inherent in them’.68 Here, the Commission made an interesting connection between dignity and equality, using the former to inform the latter. In other words, it used dignity as a guide to determine whether discrimination or differential treatment is fair, which resembles the approach of the Constitutional Court of South Africa.

A similar issue was entertained by the African Commission in the case Open Society Justice Initiative v Côte d’Ivoire.69 The case concerns a challenge to the ‘ivorite’ policy of the Ivorian government which was introduced on the eve of the 2000 presidential election. Its main aim was to grant Ivorian nationality to persons born from an Ivorian mother and father. This policy was particularly designed to exclude the then Presidential candidate Mr Outaraa a member of the Douala ethnic group of a Burkinabe descent.70 Pursuant to this policy, the Ivorian Supreme Court prohibited Mr Outara from competing in the election and the incumbent president Gbagbo won the election. Subsequent to this incident, the government intensified the harsh treatment against the Doulas living in the northern part of Ivory Coast, which are predominantly Muslim. Members of the Douala ethnic group faced numerous difficulties in the course of acquiring Ivorian nationality and they were asked to pay a fine for getting citizenship which is not a requirement for other people residing in Ivory Coast.71 The consequence of denial of legal status and citizenship for the Doulas was too burdensome, which caused the problem of statelessness and their effective exclusion from assuming rights and obligations. In other words, the denial of a legal status entailed the denial of their very existence and a heavy burden on their day to day life.72 In their communication, the applicants alleged the violation of article 5 of the African Charter which guarantees the right to human dignity and right to a legal status.

In its decision the African Commission ruled in favour of the applicants and found a violation of article 5. Its reasoning also reflected the importance of human dignity in the African Charter beside this specific issue. In this regard, the commission noted that ‘Dignity is ... the soul of the African human rights system and which it shares with both the other systems and all civilised human societies. Dignity is con-substantial, intrinsic and inherent to the human person. In other words, when the individual loses his dignity, it is his human nature itself which is called into question, to the extent that it is likely to interrogate the validity of continuing to belong to human society ... when dignity is lost, everything is lost. In short, when dignity is violated, it is not worth the while to guarantee most of the other rights’.73

This is so far the strongest statement of the African Commission on human dignity. It endorsed the centrality of human dignity to the corpus of the African Charter and reaffirmed the fact that human dignity is not alien to African societies rather it is something which they share with ‘all civilised human societies’ though it did not provide details by making reference to African cultural and religious value systems. It also underscored the intrinsic character of human dignity and its direct relation to human nature. As such, when the dignity of a person is threatened their human nature is also challenged. More importantly, it emphasised the importance of securing human dignity if we are genuinely committed to further the protection of human rights in Africa.

Having made these statements as a premise, the Commission underlined the strong bond between human dignity and legal status. In doing so it referred to the jurisprudence of the European Court of Human Rights and the Inter-American Court.74 The Commission noted that, respect for human dignity presupposes the recognition of the legal status of the person which enables him/her to assume rights and duties in the society. If this status is denied, the individual will not be able to live with dignity. As such,

the Commission considers that failure to grant nationality as a legal recognition is an injurious infringement of human dignity. Such an infringement seriously affects the legal security of the individual, particularly due to the undermining of a set of consubstantial rights and privileges to the enjoyment of fundamental legal and socio-economic privileges. Ultimately, it is the very existence of the victim which is vitally compromised.75

With this reasoning, the Commission found a violation of article 5 of the African Charter.

The cases discussed above show that though human dignity is a core value and right in the African Charter, the commission’s jurisprudence so far mainly focused on the integrity and equal worth aspects of human dignity. Even for these aspects, the Commission has not done anything tangible to abolish the death penalty or combat discrimination against sexual minorities on the basis of their sexual orientation through a dignity centred interpretation of the Charter. Hence, the Commission needs to do more in concretising and entrenching human dignity centred interpretation of rights in Africa by starting from within. In this regard, much is expected from the African Commission and the African Court on Human and Peoples’ Rights to examine African culture and traditions, in the process of concretising the concept. This is important because human rights do not function in cultural vacuum.76 They will not become universal simply because we want them to be. The task needs a greater level of commitment to trace the roots of the concept in African local tradition.

In addition, the African Commission can gain insights about the meaning and application of human dignity from national and international courts. The Commission has an express legal mandate to ‘draw inspiration’ from international law in the interpretation of the Charter.77 It is also empowered to utilise as subsidiary sources ‘other general or special international conventions, laying down rules expressly recognised by member states of the Organisation of African Unity, African practices consistent with international norms on human and people’s rights, customs generally accepted as law, general principles of law recognised by African states as well as legal precedents and doctrine’.78 The Commission has invoked these provisions when it made reference to the dignity jurisprudence of the Constitutional Court of South Africa and the European Court on Human Rights in the few dignity cases it has determined so far. This mandate of the Commission also enables various conceptions of human dignity to travel from one jurisdiction to the other. This is because the African Charter has a supreme status in many African constitutional orders and the interpretation of rights in the domestic system needs to conform to it. Thus, the Commission could be a venue where legal concepts like human dignity are concretised and made ready to transfer to another jurisdiction. In other words, it could serve as a market place for the exchange of constitutional ideas such as human dignity. Yet, the performance of the African Commission so far is not satisfactory. Even if the Commission refers to international and national court in rendering it decisions, it neither critically engages with them nor justifies its choice of jurisdictions. This needs to be improved if the Commission is to serve as a good platform for the migration of human dignity centered interpretation of rights within Africa in the future.

 3 CONCLUSION

One of the core conclusions of this article is that human dignity is a concept that occupies a central place in religious, philosophical and cultural worldviews of various African societies. More importantly, the anthropological and religious study conducted on some indigenous African communities such as the Dinka, Zulu and the Igbo demonstrates that the idea of respect for human dignity is not alien to Africa. It is rather expressed and manifested in different forms. Yet, the notion is not sufficiently concretised and used by many courts in Africa to interpret and apply human rights. Thus, cultural values of African communities could serve as input to further enrich and entrench the idea of human dignity. The other point worth noting is that despite the explicit presence of human dignity in the African Charter as a value and a right, the human dignity jurisprudence of the Commission is underdeveloped. This could be inferred from the few human dignity inspired decisions of the commission and their richness. In the future, the Commission needs to develop and strengthen its human dignity jurisprudence by engaging in dialogue with advanced national systems within the region such as South Africa and serve as a site for the development and migration of human dignity centred interpretations of rights to other African systems. This may contribute its part in potentially transforming the rights protection system in the continent.