The Continental Free Trade Area (CFTA) in Africa – A Human Rights Perspective
POPA – The human rights framework
African States are party to a wide range of human rights treaties, including the African
Charter on Human and Peoples’ Rights (ACHPR)1 , and treaties adopted under the auspices
of the United Nations, such as the International Covenant on Economic and Social Rights
(ICESCR), the Convention on the Rights of the Child (CRC) and the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW).
African States have also expressed their commitments to human rights in the Abuja
Treaty establishing the African Economic Community, the AU Constitutive Act and in REC
treaties such as the Economic Community of West African States (ECOWAS), the Southern
African Development Community (SADC) and the East African Community (EAC). As noted
in Chapters I and II, these commitments are echoed in a range of policy documents such as
Agenda 2063 and the Sustainable Development Goals. It follows that the States currently
negotiating the CFTA have committed to respecting, protecting and fulfilling human rights.
PERSPECTIVE
All human rights imply total commitment from States in achieveing the duties.
RESPECT - State must refrain from interfering with the enjoyment of human rights
PROTECT - State must prevent private actors or third parties from violating human rights
FULFIL - State must take positive measures, including adopting appropriate legislation,
policies and programmes, to ensure the realization of human rights
IMPLY OBLIGATION OF CONDUCT AND OBLIGATION OF RESULT
In 2000, 53 African heads of State adopted the AU Constitutive Act, in which they
express their determination “to promote and protect human and people’s rights, consolidate
democratic institutions and culture, and to ensure good governance and the rule of law.” The
Act states, inter alia, that the objectives of the African Union include promotion and
protection of human and people’s rights, and encouraging international cooperation, taking
due account of the Charter of the United Nations and the Universal Declaration of Human
Rights.
LEGAL BASIS AND SCOPE FOR THE FOLLOWING GENERAL HUMAN RIGHTS
The right to an Adequate Standard of Living
The right to an adequate standard of living is enshrined in Article 11, ICESCR and
reiterated in the CRC. The right to an adequate standard of living requires, at a minimum, that
everyone shall enjoy the necessary subsistence rights: adequate food and nutrition, clothing,
housing and the necessary conditions of care when required. The African human rights
framework does not set out a separate right to an adequate standard of living, but Article 4 of
the Charter on the right to life envisages a broader protection and Articles 14–18 of the
Charter includes commitments by the parties that protect rights to achieve an adequate
standard of living. The right is also recognised, for instance, in the Guidelines for national
periodic reports under the African Charter. The rights to social security and to social
protection, discussed below, are also directly related to the right to an adequate standard of
living.
In purely material terms, an adequate standard of living implies living above the
poverty line. A range of human rights bodies have considered the question of poverty.
Importantly, a human rights perspective looks not just at resources but also at the capabilities,
choices, security and power needed for the enjoyment of an adequate standard of living and
other fundamental civil, cultural, economic, political and social rights. A poverty lens
emphasises the need to pay particular attention to the “situation of women, children and other
vulnerable groups living in extreme poverty.”
At the international level, SDG 1 calls on States to eradicate extreme poverty for all
people everywhere, currently measured as people living on less than $1.25 a day. It also
moves beyond a focus on income poverty and calls for halving poverty in all its dimensions,
building resilience to shocks through social protection systems and the need to address equal
rights to economic resources.
The Right to Work and Social Security
Article 15 of the African Charter guarantees that every individual shall have “the right
to work under equitable and satisfactory conditions, and shall receive equal pay for equal
work.” The corresponding provisions at the global level are Articles 6 – 9 of the ICESCR.
Most are parties to the 1958 ILO Convention concerning Discrimination in Respect of
Employment and Occupation (No. 111) and many have ratified the 1964 Employment Policy
Convention (No. 122).27 All African States are also required to respect core labour standards,
which are considered binding on all States. They are thus bound by principles relating to
freedom of association and collective bargaining, elimination of forced or compulsory labour,
abolition of child labour and elimination of discrimination in respect of employment and
occupation. The right to work should not be understood as an absolute and unconditional right
to obtain employment. Rather, the State has the obligation to facilitate employment through
the creation of an environment conducive to the full employment of individuals within society
under conditions that ensure the realisation of the dignity of the individual.
Employment should be understood both in terms of wage employment and self-
employment. The African Commission and the UN Committee on Economic, Social and
Cultural Rights (Committee, or CESCR) have provided more details on the content of the
right to work, recalling that the general human rights principles (non-discrimination, non-
retrogression, to take steps, to monitor and to provide access to remedies) noted above apply.
For those whose work is likely to be adversely affected by trade commitments, States are
obliged to ensure access to vocational guidance and training that would enable them to obtain
alternative employment. The Committee has specified that, like all human rights, the right to
work imposes three types or levels of obligations on States: the obligations to respect, protect
and fulfil. It has also stated that work as specified in the Covenant must be decent work. The
ILO defines decent work as involving opportunities for work that is productive and delivers a
fair income, security in the workplace and social protection for families, better prospects for
personal development and social integration, freedom for people to express their concerns,
organise and participate in the decisions that affect their lives and equality of opportunity and
treatment for all women and men
The Right to food
The right to food is clearly recognised by the African Commission on Human and
Peoples’ Rights, although the right is not set out in the African Charter as such. The “right to
food is inseparably linked to the dignity of human beings and is therefore essential for the
enjoyment and fulfilment of such other rights as health, education, work and political
participation” and an “inherent part of the rights to life, health and the right to economic,
social and cultural development” the Commission has said.
Moreover, the right is recognised in the CRC, to which all African States are party.
Seven African countries have constitutionalised the right to food explicitly, and several others
can be argued to have an implicit constitutional right to food as part of other rights. The most
detailed exposition of the right to food is found in the CESCR’s General Comment on the
topic. This provides that “the right to adequate food is realised when every man, woman and
child, alone or in community with others, has physical and economic access at all times to
adequate food or means for its procurement.”
In addition to the general human rights principles (non-discrimination, non-
retrogression, to take steps, to monitor and to provide access to remedies) that apply, the
General Comment specifies that the right to adequate food implies ensuring the availability of
food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from
adverse substances, and acceptable within a given culture; the accessibility of such food in
ways that are sustainable and that do not interfere with the enjoyment of other human rights. It
notes that the concept of adequacy is particularly significant in relation to the right to food
since it serves to underline a number of factors which must be taken into account in
determining whether particular foods or diets that are accessible can be considered the most
appropriate under given circumstances: the precise meaning of adequacy is, to a large extent,
determined by prevailing social, economic, cultural, climatic, ecological and other conditions.
The General Comment also highlights the notion of sustainability, as intrinsically
linked to the notion of adequate food or food security, implying food being accessible for both
present and future generations. It is worth noting that the General Comment specifies that
availability refers to the possibilities either for feeding oneself directly from productive land
or other natural resources; or for well-functioning distribution, processing and market systems
that can move food from the site of production to where it is needed in accordance with
demand.
Women’s rights
Women’s rights are clearly protected under international law. The African Charter
prohibits discrimination, including on the basis of sex, and obliges State Parties to eliminate
all forms of discrimination against women and to ensure the protection of the rights of
women. The 2003 Protocol to the African Charter on the Rights of Women in Africa (Maputo
Protocol) is the dedicated source of African legal obligations regarding women. It provides,
inter alia, that State Parties shall take all appropriate measures to promote women’s access to
credit, training, skills development and extension services at rural and urban levels in order to
provide women with a higher quality of life and reduce poverty among women. It also
requires States to take into account indicators of human development specifically relating to
women in the elaboration of development policies and programmes, and to ensure that the
negative effects of globalisation and any adverse effects of the implementation of trade and
economic policies and programmes are reduced to the minimum for women. The Maputo
Protocol contains almost identical provisions as the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), which all African countries except two
have ratified.
