The interpretive role and significance of the travaux préparatoires to the African Charter on Human and Peoples’ Rights

Abstract There is an emerging academic and judicial interest in the role and significance of travaux préparatoires or drafting history in judicial argumentation. This article considers this subject in the context of the African Charter on Human and Peoples’ Rights. Its central thesis is that the interpretive bodies of the African human rights system may consult these historical materials in their interpretive work to engineer social change in Africa. Although initially relegated to the outer margins, there is increasing acknowledgement that travaux préparatoires may assist human rights treaty bodies in norm entrepreneurship. By this, it is meant that these materials may assist these bodies to be innovative in their elaboration of human rights treaty norms. This article cautions against conflation between travaux and originalism or intentionalism. It does not call for reliance on originalism or intentionalism as a theoretical basis for reliance on travaux but argues that travaux préparatoires can be a separate and distinct basis for evolutive interpretation of the African Charter. This article laments that the travaux of the African Charter is inaccessible, and where it is found, it is cursory and incomprehensible. This is attributable to poor record-keeping by the relevant department(s) of the African Union. This therefore means that African human rights interpretive bodies are presently unable to effectively and meaningfully invoke these materials in judicial decision-making calculus. This article concludes by recommending that the drafting history of the African Charter must be reconstructed and published, if possible.