Derogation from constitutional rights and its implication under the African Charter on Human and Peoples’ Rights – pg 78
Although the African Charter on Human and Peoples' Rights does not include a derogation clause, most States parties' constitutions contain derogation clauses. It is argued that these constitutions, to the extent that they contain derogation clauses, do not comply with the African Charter on Human and Peoples' Rights.
The African Charter on Human and Peoples' Rights does not contain a derogation clause. In several communications, the African Commission on Human and Peoples' Rights held that suspension of human rights cannot be justified under the Charter. The Charter and the Commission have been subject to criticisms in this regards. The critics, however, fail to consider the functions of derogation clauses in human rights treaties and the context in which the African Charter was adopted. Although a derogation clause helps in the conclusion of human rights treaties, it does not contribute to realisation of human rights. The use of emergency law as instruments of colonial control, the tendency of abusing derogation, and the unreasonable division of rights into derogable and non-derogable may further justify absence of a derogation clause from the Charter. Most States parties' constitutions contain a derogation clause and as such they do not comply with the African Charter. States rely on their constitutions to derogate from constitutional rights and subsequently suspend the application of human rights instruments including the African Charter. States' failure to bring their constitutions in conformity with human rights instruments and their reliance on their constitutions to suspend bill of rights are in contravention of international human rights law.