Freedom of Religion under the African Charter on Human and Peoples' Rights

Abstract

Religious persecution and threats to religious freedom are widespread in Africa today. These threats target Christians, Muslims, and adherents to minority faiths. They come from both governments and non-state actors. Believers in some nations face state prosecution for blasphemy, apostasy, or even just practicing their faith. Believers elsewhere face religious-based violence from non-state actors or ostracism and discrimination in employment, education, and marriage.


What is being done to address these violations of religious freedom? What can be done? All 54 African nations have ratified the African Charter on Human and Peoples’ Rights. Article 8 of the Charter requires these nations to protect religious freedom: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The Charter requires more than that states refrain from violating these rights. Article 1 obligates member states to take affirmative steps to ensure that rights are protected. Two key bodies have been tasked with enforcing member states’ obligations under this Charter: The African Commission on Human and Peoples’ Rights (ACHPR) and the African Court on Human and Peoples’ Rights (ACtHPR).

This article undertakes the first comprehensive review of how these African enforcement bodies have sought to protect religious freedom under the Charter. It finds that both entities have issued significant and helpful decisions on religious freedom. Those decisions set forth many principles regarding state actions that violate the freedom of religion. They are not sufficient, however, to address the depth and breadth of religious freedom violations seen in Africa today. The biggest gap is the lack of clear principles for state responsibility where non-state actors are the main perpetrators of persecution and abuse. The article urges the ACHPR and ACtHPR to create a framework for protecting religious freedom (and other Charter rights) that applies a joint application of Articles 1 and 8 to violations of religious freedom by non-state actors.

The final version of this article will be published in Volume 28 Issue 2 of the Gonzaga Journal of International Law.