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    The Derogation Process under International and Regional Human Rights Treaties

    Module 9: National Security

    Most of the key human rights instruments allow a temporary derogation from certain human rights obligations in situations of national emergency.  For example, article 4 of the ICCPR states:

    “In a time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”(1)

    Article 4 then proceeds to list a number of articles that may not be derogated from, even in times of public emergency.  These include the rights not to be enslaved or tortured, and the right to freedom of opinion.  It does not, however, include article 19, the right to freedom of expression.

    The United Nations Human Rights Committee (UNHRCtte) has devoted two of its General Comments to explaining, in detail, the meaning of article 4 and the procedure and scope of derogation.  The more recent of these, General Comment No. 29, can be taken as an authoritative interpretation of derogation during states of emergency.  There are a number of key points to note, which can be applied equally to other human rights treaties that provide for derogation:

    • The state of emergency must be publicly proclaimed according to domestic legal requirements, and should also accompanied by notification to other State Parties and (via the UN Secretary General or other body that serves as the technical secretariat of the treaty), explaining why it is necessary.(2)
    • The situation leading to derogation must be “a public emergency which threatens the life of the nation.”(3) In terms of General Comment No. 29, the threshold of threatening “the life of the nation” is a high one, and the UNHRCttee has been highly critical of derogations that have taken place in situations that appear to fall short of the article 4 requirements.(4)
    • The UNHRCtte emphasises the importance of the principle that derogations should be limited “to the extent strictly required by the exigencies of the situation.”(5) Even in instances when derogation may be warranted, there should only be derogation from those rights that are strictly required and only to the extent necessary.

    The ACHPR, on the other hand, does not contain a clause explicitly permitting derogation during a public emergency.  However, many states who are nevertheless party to the ACHPR have adopted constitutions or legislative measures that do contain derogation clauses, contrary to the position of the ACHPR and the African Commission.(6) For example, article 24 of the Bill of Rights in the Constitution of Kenya states that:

    “A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”

    However, the High Court of Kenya decided that “protecting national security carries with it the obligation on the State not to derogate from the rights and fundamental freedoms guaranteed in the Constitution.”(7)

    The absence of a derogation clause in the ACHPR has caused controversy amongst legal scholars, some of whom argue that a derogation clause provides important protections against state abuse of freedoms during a public emergency,(8)while others claim its omission has enabled the positive development of human rights norms in Africa.(9)

    Footnotes

    1. ICCPR at article 4. Back
    2. United Nations Human Rights Council, ‘General Comment No. 29, states of emergency (article 4)’ at para. 2 (2001) (accessible at: https://digitallibrary.un.org/record/451555?ln=en). Back
    3. Id. Back
    4. Id at para. 3. Back
    5. Id at para. 4. Back
    6. Abdi Jibril Ali, ‘Derogation from Constitutional Rights and Its Implication Under the African Charter on Human and Peoples’ Rights’ Law, Democracy & Development, Vol. 17(2013) (accessible at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399789). Back
    7. Kenya Court of Appeal, Petition 628 of 2014 (2015) (accessible at: http://kenyalaw.org/caselaw/cases/view/106083/). Back
    8. Melkamu Aboma Tolera, ‘Absence of a derogation clause under  the African Charter and thsse position of the African Commission’ (2013) (accessible at: https://heinonline.org/HOL/LandingPage?handle=hein.journals/bahirdjl4&div=14&id=&page=). Back
    9. Jibril Ali above Back