The right to life in Africa: General Comment No. 3 on the African Charter on Human and Peoples’ Rights

Author: Paul Ogendi
Researcher, Working Group on death penalty and extrajudicial summary or arbitrary killings in Africa, African Commission on Human and Peoples’ Rights

During its 57th Ordinary Session held from 4 to 18 November 2015 in Banjul, The Gambia, the African Commission on Human and Peoples’ Rights (the Commission) adopted General Comment No. 3 on the African Charter on Human and Peoples’ Rights (General Comment No. 3) focusing on the right to life.

The document is timely because the protection of the right to life is currently under threat globally. Africa is no exception.

The Commission in 2012 expanded the work of one of its working groups focusing on the right to life to include not just death penalty but also extrajudicial, summary and arbitrary killings in Africa.

Some of the salient features of the new General Comment are discussed below.

The right to life is expressly recognized as part of customary international law as well as a jus cogens, which is a very high standard since all arbitrary deprivations of life is prohibited everywhere and in all circumstances and no derogation is permissible.

The concept of dignified life as incorporated in the document emphasizes also the enjoyment of all the other economic, social and cultural rights as well as civil and political rights. Therefore, the life of poverty that is so widespread in the continent is unacceptable.

Drawing from the African Ubuntu philosophy, all norms elaborated in the document are ‘rooted in widely shared communal values of the continent, according to which the value of one person’s life is tied to the value of the lives of others.’

In terms of the death penalty, there is no doubt that the Commission has consistently advocated for the progressive abolition of the death penalty in Africa. In this regard, the document requires states to take steps to abolish the death penalty. This obligation will ensure that progress continues to be made in this area in a progressive manner owing to the fact that the imposition of the death penalty is not just a violation of right to life but also of the right to dignity and the right to freedom from torture, cruel, inhuman and degrading treatment or punishment.

The document addresses the extraterritorial application of the right to life. For diverse reasons, states may be involved in human rights violations outside their territories. States can be held responsible if they satisfy one of the following three conditions set in the document: being in possession of a jurisdiction; exercise of effective control over a territory where the victims are affected; or engaging in conduct that could reasonably be foreseen to result in arbitrary deprivation of life (for example bombing of civilian targets including hospital and schools). The breadth of these three criteria should ensure that states act responsibly with regards to their human rights obligations not just within their borders but also beyond.

While international law does not require that all deaths be investigated and prosecuted, the document recognizes that investigation and should be done in cases of suspicious deaths and state killings. It should be noted that the best practice in this area is to investigate all deaths.

The principle of non-discrimination has also been incorporated in the document in a comprehensive manner. In seeking to protect even the most vulnerable category of people, the document provides that states have special obligations with regards to ‘individuals or groups who are frequently targeted or particularly at risk, including on the grounds listed in Article 2 of the [African] Charter and those highlighted in resolutions of the Commission.’ Consequently, it is now possible to protect the right to life of sexual minorities and the albinos by among other things relying on Resolution 275 on the protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity adopted in 2014 and Resolution 263 on the prevention of attacks and discrimination against persons with albinism respectively. The list is by no means exhaustive.

The document provides that the interpretation of the right to life in the context of armed conflict should be done with reference to the rules of International Humanitarian Law (IHL). This means that IHL is the primary law in the context of armed conflicts. International Human Rights Law (IHRL) framework including the right to life will apply where the killing of a combatant or a civilian cannot be justified under IHL.

Death threats and enforced disappearances have also been classified as a violation of the right to life.

With regards to the use of force, the use of firearms has been prohibited for the mere dispersal of assemblies. The intentional use of lethal force requires that proportionality and necessity requirement be satisfied.

Where deaths occur in state custody including in places of detention, prisons, and mental hospital, the state is presumed to be responsible unless investigations reveals otherwise. The burden of proof remains with the state to prove its innocence.

Lastly, the document avoids controversial subjects like abortion, euthanasia and others. This approach was mainly informed by the fact that the public opinion on these issues in Africa is still divided and therefore guidance on some of these issues should be best sort from other available documents.

The key take away here is that for the very first time in Africa stakeholders can rely on a truly African document developed by an African institution to enhance the protection of the right to life regionally and beyond.

About the Author:
Paul Ogendi is a Researcher in the Working Group on death penalty and extrajudicial summary or arbitrary killings in Africa, African Commission on Human and Peoples’ Rights.