Participation in Africa
On the African continent, the African Charter on Human and Peoples' Rights was concluded in 1981. In Article 13 of this Charter, there is a participation clause that opens up in a manner similar to Article 25 of the ICCPR and Article 21 of the Universal Declaration. However, Article 13 of the African Charter lacks an operationalisation of participation in the field of elections.
ARTICLE 13, African Charter on Human and Peoples’ Rights (1981)
On the basis of Article 13, it is clear that citizens have the right to take part in government. Participation should be free, and representatives should be freely chosen. The African Charter says nothing concrete about how participation should take place. More importantly, the principles governing elections are not explicitly prescribed, although Article 13(1) mentions that participation can be direct or through freely chosen representatives. The latter part – the freely chosen representatives – seems to presuppose elections, but neither elections nor election elements are prescribed.
Nonetheless, the practice of the African Commission on Human and Peoples’ Rights and of the African Court on Human and Peoples’ Rights indicates that at least the most extreme forms of exclusion of the people from national decision-making, such as a military overthrow of civilian government, are not acceptable under Article 13(1) of the African Charter. The commencement of the functioning of the African Court on Human and Peoples’ Rights has created a new forum for trying cases on the basis of individual applications, and in one of the very first cases resolved after a material examination, Tanganyika Law Society et al. v. The United Republic of Tanzania in June 2013, the African Court found that ‘any law that requires the citizen to be part of a political party before she can become a presidential candidate is an unnecessary fetter that denies to the citizen the right of direct participation, and amounts to violation’ of Article 13(1) of the African Charter. In addition, such a requirement in national law of compulsory membership in a party is contrary to the freedom of association guaranteed in Article 10 of the African Charter. Since then, the ACtHPR has decided a number of cases dealing with electoral rights (See below, African Union Human Rights Protections System).
The OAU/AU Declaration of July 2002 is more explicit with regard to the rights and obligations relating to elections, and is also useful for consideration of the commitment to democratic elections in the African context.
The African Charter on Democracy, Elections and Governance (2007-2012) is an important addition to the regional regulation of elections, specifying in its Article 17 the contents of democratic elections and reinforcing the normative nature of the above Declaration by re-affirming the commitment of the State Parties to holding regular, transparent, free and fair elections in accordance with the Declaration.
Article 17 African Charter on Democracy, Elections and Governance (2007-2012)
State Parties re-affirm their commitment to regularly holding transparent, free and fair elections in accordance with the Union’s Declaration on the Principles Governing Democratic Elections in Africa.
To this end, State Parties shall:
In addition, regional economic communities, such as the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC), initially conceived as economic integration frameworks, have increasingly become actors in both election observation and standard setting (see below).
The African Union was launched on 9 July, 2002, to replace the Organisation of African Unity (OAU). It was established with a view to accelerating the process of integration in the continent while addressing social, economic and political problems. Its aims include the promotion of democratic principles and institutions, popular participation and good governance. The AU covers the entire continent since Morocco re-joined the organisation in 2017.
The African Charter on Human and Peoples' Rights established the African Commission on Human and Peoples' Rights. It is empowered, among other things, to receive and consider communications submitted by states, individuals and organisations alleging that a State Party has violated one or more of the rights guaranteed by the Charter. A Protocol establishing an African Court on Human and Peoples' Rights came into force on 25 January 2004. In January 2006, the first eleven judges of the Court were elected, and in July 2006 the Court held its first meeting. The Court is located in Arusha, Tanzania. It issued its first ruling on merits in June 2013.
African Charter on Human and Peoples’ Rights (ACHPR) (1981-1986)
Each individual shall have the right to receive information.
Every individual shall have the right to express and disseminate his opinions with- in the law.
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
Every citizen shall have the right of equal access to the public service of his country.
Right to Participation in the Political and Decision-Making Process
African Charter on Democracy, Elections and Governance (ACDEG) (2007-2012)
Chapter 2: Objectives
The objectives of this Charter are to:
Chapter 3: Principles
State Parties shall implement this Charter in accordance with the following principles:
Chapter 4: Democracy, Rule of Law and Human Rights
State Parties shall take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power.
Chapter 6: Democratic Institutions
Chapter 7: Democratic Elections
State Parties reaffirm their commitment to regularly holding transparent, free and fair elections in accordance with the Union’s Declaration on the Principles Governing Democratic Elections in Africa:
To this end, State Parties shall:
Chapter 8: Sanctions in Cases of Unconstitutional Changes of Government
State Parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the Union:
Chapter 9: Political, Economic and Social Governance
State Parties shall recognize the crucial role of women in development and strengthening of democracy.
State Parties shall create the necessary conditions for full and active participation of women in the decision-making processes and structures at all levels as a fundamental element in the promotion and exercise of a democratic culture. State Parties shall take all possible measures to encourage the full and active participation of women in the electoral process and ensure gender parity in representation at all levels, including legislatures.
State Parties shall strive to institutionalize good political governance through:
State Parties shall decentralize power to democratically elected local authorities as provided in national laws.
Article 2 Objectives
The objectives of this Convention are to: [...]
Article 10 Funding of Political Parties
Each State Party shall adopt legislative and other measures to:
(a) Proscribe the use of funds acquired through illegal and corrupt practices to finance political parties; and
(b) Incorporate the principle of transparency into funding of political parties.
Article 1 Establishment of the Court
There shall be established within the Organization of African Unity an African Court Human and Peoples` Rights hereinafter referred to as “the Court”, the organization, jurisdiction and functioning of which shall be governed by the present Protocol.
Article 2 Relationship between the Court and the Commission
The Court shall, bearing in mind the provisions of this Protocol, complement the protective mandate of the African Commission on Human and Peoples` Rights hereinafter referred to as “the Commission”, conferred upon it by the African Charter on Human and Peoples` Rights, hereinafter referred to as “the Charter”.
Article 3 Jurisdiction
Article 4 Advisory Opinions
Article 5 Access To The Court
Article 6 Admissibility of Cases
The Court, when deciding on the admissibility of a case instituted under article 5 (3) of this Protocol, may request the opinion of the Commission which shall give it as soon as possible.
The Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter.
The Court may consider cases or transfer them to the Commission.
Article 7 Sources of Law
The Court shall apply the provision of the Charter and any other relevant human rights instruments ratified by the States concerned.
Article 9 Amicable Settlement
The Court may try to reach an amicable settlement in a case pending before it in accordance with the provisions of the Charter.
Article 29 Notification of Judgment
Article 30 Execution of Judgment
The States Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.
Article 34 Ratification
(...) 6. At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party, which has not made such a declaration.
The African human rights protection system developed within the Organisation of African Unity (1963) then African Union (2001). As of July 2022, the African Union has 55 Member States: All African States, including South Sudan (2011) and Morocco (2017).
The OAU Charter (1963) was adopted in the post-colonial context and put a strong emphasis on sovereignty and non-interference, as demonstrated in Article II and III below. The OAU Charter makes no mention of human rights, and there was no human rights instrument before 1981.
The OAU Charter (1963)
(…) (d) To defend their sovereignty, their territorial integrity and independence;
The Member States, in pursuit of the purposes stated in Article II solemnly affirm and declare their adherence to the following principles:
In 1981, the African Charter on Human and Peoples’ Rights was adopted; it entered into force in 1986. It lists rights and also duties. The provision dealing with political participation is Article 13. In 2007, the African Union adopted the African Charter on Democracy Elections and Governance (ACDEG) as the main instrument setting democratic standards across the continent. It came into force in February 2012 and as of July 2022 had 36 State parties.
The African Charter also creates the African Commission on Human and Peoples’ Rights (1987, Banjul), with three main roles:
The competence of the Commission to examine communications does not require explicit State acceptance. Communications can be filed by direct victims, but also by any individual or organisation. In practice, most communications have been authored by NGOs (for example Interights).
The creation of the African Union (AU) has given a new impetus to the protection of human rights in Africa, as demonstrated in the Constitutive Act of the African Union (2000, 2001) by the inclusion of a reference to human rights in the objectives of the Union (Article 3) and a less absolute formulation of the principle on non-interference, which allows interference by the Union (Article 4).
During the same period, the AU adopted the Protocol to the African Charter on the Establishment of an African Court of Human and Peoples’ Rights (1998, 2004). As of July 2022 the protocol has 33 States parties. The Court sits in Arusha (Tanzania) and has been operational since 2006.
The Court has competence for delivering advisory opinions (Article 4) on any legal matter relating to the Charter or any other relevant human rights instruments, to any Member State, to the AU organs or any other “African organisation recognised by the AU”. The Court has established in 2017 that the term "organisation" used in Article 4 (1) of the Protocol covers both non-governmental organisations and inter-governmental organisations as long as they are ‘recognised by the AU.
The Court may also receive cases through several channels (Article 5):
The enforcement of the Court’s judgements is under the responsibility of the African Union Executive Council (foreign affairs ministers) who shall ‘monitor the execution on behalf of the assembly’ (Article 29).
As regards the Court’s jurisprudence related to electoral rights, the Court clarified in the case of Tanganyika Law Society et al. v. Tanzania in June 2013, that: “the rights guaranteed under the Charter as stated in Article 13(1) are individual rights. They are not meant to be enjoyed only in association with some other individuals or group of individuals such as political parties” (paragraph 98); and that Article 27(2) of the Charter allows restrictions on the rights and freedoms of individuals only on the basis of the rights of others, collective security, morality and common interest. In its reasoning, the Court mentions the United Nation’s Human Rights Committee’s position on the matter in General Comment No. 25 and cites jurisprudence from the Inter-American Court of Human Rights.
Since then, the ACtHPR has handled a number of cases dealing with electoral issues and political rights, including independent candidates in the above-mentioned Tanganyika Law Society v. Tanzania, freedom of expression in Lohé Issa Konaté v. Burkina Faso in 2014, or the composition and functioning of EMBs in Actions pour la Protection des Droits de l’Homme v Côte d’Ivoire in 2016. Crucially, in the latter case the Court also determined that the 2007 African Charter on Democracy Elections and Governance (ACDEG) and the ECOWAS Protocol on Democracy and Governance were human rights instruments in the meaning of Article 3 of the Protocol, and that therefore it had jurisdiction to interpret and apply them.
It must be noted that in parallel, the AU Assembly adopted in 2008 a Protocol on the Statute of the African Court of Justice and Human Rights, designed to create a single court by merging the ACtHPR and the Court of Justice of the African Union (CJAU). As of July 2022, this new court was not established due to insufficient ratification of its protocol.
The Economic Community of West African States (ECOWAS) was established in May 1975 to promote trade, co-operation and self-reliance in West Africa. A revised ECOWAS treaty, designed to accelerate economic integration and to increase political co-operation, was signed in July 1993. The revised treaty designates the achievement of a common market and a single currency as economic objectives, while in the political sphere it envisages the creation of a West African parliament, an economic and social council and an ECOWAS Community Court of Justice (see below) to enforce Community decisions.
Within its regional security framework, the ECOWAS Member States signed in 2001 a Protocol on Democracy and Good Governance, supplementary to the protocol that established in 1999 the Mechanism for Conflict Prevention, Management and Resolution, Peacekeeping and Security. The supplementary protocol is considered as a tool which takes into account the deep-rooted political causes of conflict, instability and insecurity. ECOWAS has 15 member States.
The ECOWAS Community Court of Justice was formally established by a 1991 Protocol, but only became operational in 2001 and received its first case in 2004. Its mandate explicitly includes human rights violations in any Member State since the 2005 Supplementary Protocol amending the Protocol relating to the Community Court of Justice, which has also expanded its admissibility rule to include individual petitions. In this context, the Court has handled an increasing number of human rights cases, especially stemming from electoral processes in member States.
Ratification status of the Protocol on Democracy and Good Governance
The following shall be declared as constitutional principles shared by all Member States: [...].
The bodies responsible for organizing the elections shall be independent or neutral and shall have the confidence of all the political actors. Where necessary, appropriate national consultations shall be organized to determine the nature and the structure of the bodies.
The voters’ lists shall be prepared in a transparent and reliable manner, with the collaboration of the political parties and voters who may have access to them whenever the need arises.
The preparation and conduct of elections and the announcement of results shall be done in a transparent manner.
Adequate arrangements shall be made to hear and dispose of all petitions relating to the conduct of elections and announcement of results.
Member States shall use the services of civil society organizations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence.
The party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner, following the guidelines and within the deadline stipulated by the law.
All holders of power at all levels shall refrain from acts of intimidation or harassment against defeated candidates or their supporters.
The armed and security forces personnel as citizens, shall be entitled to all the rights set out in the constitution, except as may be stated otherwise in their special regulations.
The Southern African Development Community was established in 1980, as a loose alliance of nine States in Southern Africa known as the Southern African Development Coordination Conference (SADCC), with the main aim of coordinating development projects in order to lessen economic dependence on the then apartheid South Africa. The transformation of the organisation from a Coordinating Conference into a Development Community (SADC) took place in 1992 with the adoption of the Declaration and Treaty Establishing the Southern Africa Development Community, which lists human rights, democracy and the rule of law among the founding principles agreed upon by the member States. The organisation furthers socio-economic cooperation and integration as well as political and security cooperation among 15 southern African countries.
The SADC Parliamentary Forum (SADC PF) has been particularly active in developing regional standards, starting with the adoption of the Norms and Standards for Elections in the SADC Region in 2001, aimed at « strengthening electoral institutions, reforming outdated legal frameworks and electoral practices, and entrenching the democratic process in the conduct of elections (…) ». Following the adoption in 2003 of the Principles for Election Management, Monitoring and Observation (PEMMO) by the SADC Electoral Commissions Forum together with the Electoral Institute for Sustainable Democracy in Africa (EISA), the SADC PF adopted in 2004 and strengthened in 2015 the SADC Principles and Guidelines Governing Democratic Elections, which has served as a benchmark for election observation in the region. Finally, the SADC PF adopted a SADC Model Law on Elections in 2018 to assist member States in the domestication of the 2015 revised Principles and guidelines in their internal legal frameworks.
A SADC Tribunal was established under the 1992 SADC Treaty with competence, inter alia, to hear individual complaints on alleged human rights violations. It was inaugurated in 2005 but was suspended in 2010 and disbanded in 2012.
SADC Protocol on Gender and Development (2008-2013)
Article 13 Participation
SADC Protocol against Corruption (2001-2006)
Article 3 Acts of corruption
Article 4 Preventive measures
SADC Protocol on Culture, Information and Sport (2001-2006)
Article 17 Objectives
In fulfillment of the principles of this Protocol, Member States agree to cooperate in the area of information in order to attain the following objectives:
Article 18 Information policies
Article 20 Freedom of the media
State Parties shall take necessary measures to ensure the freedom and independence of the media.
SADC Principles and Guidelines Governing Democratic Elections (Revised) (2015)
SADC Model Law on Elections (2018)
 ACtHPR, Socio-Economic Rights and Accountability Project (SERAP), Request No. 001/2013, Advisory Opinion of 26 May 2017.