The African Charter on Human and Peoples' Rights: The System in Practice 1986-2006

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THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

The African Charter of Human and Peoples’ Rights came into force in 1986, and is unique in that it lacks a precedent. However, little scholarship exists that analyses it as an operational system in practice. The success of the first edition of this book has led to this updated second edition. Contributors include experts who have been actively involved in the implementation of the Charter – commissioners, NGOs and academics. Offering a detailed evaluation of the Charter as a mechanism for the promotion and protection of human rights in Africa, the contributions cover the Charter’s reporting system, the interpretation of different rights by the Commission, the prospects for the African Court on Human and Peoples’ Rights and the role of NGOs. This authoritative and comprehensive volume will interest lawyers acting for government and non-governmental organisations, as well as academics and postgraduates. malcolm evans obe is Professor of Public International Law at the University of Bristol, and Dean of the Faculty of Social Sciences and Law. rachel murray is Professor of International Human Rights Law at the University of Bristol.

THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 2nd Edition The System in Practice 1986–2006

Edited by MALCOLM EVANS AND RACHEL MURRAY

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521883993 © Cambridge University Press 2002, 2008 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2008

ISBN-13 978-0-511-39831-5

eBook (EBL)

ISBN-13

hardback

978-0-521-88399-3

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

List of contributors page vii Table of cases xii List of abbreviations xxi Editors’ Preface xxiii Introductory Preface: The African Charter and African Commission on Human and Peoples’ Rights 1 germain baricako 1

The African Union and the Regional Human Rights System 20 gino j. naldi

2

The State Reporting Mechanism of the African Charter malcolm evans and rachel murray

3

Communications under the African Charter: Procedure and Admissibility 76 frans viljoen

4

Evidence and Fact-finding by the African Commission 139 rachel murray

5

Civil and Political Rights in the African Charter on Human and Peoples’ Rights: Articles 1–7 171 bronwen manby

6

Civil and Political Rights in the African Charter: Articles 8–14 213 kolawole olaniyan

v

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7

Group Rights 244 clive baldwin and cynthia morel

8

The Role of Non-governmental Organisations and National Human Rights Institutions at the African Commission 289 nobuntu mbelle

9

A View from the Inside: The Role of the Secretariat fiona adolu

316

10

The Special Rapporteurs in the African System rachel murray

11

Working Groups of the African Commission and their Role in the Development of the African Charter on Human and Peoples’ Rights 379 bahame tom mukirya nyanduga

12

The Creation of a New African Court of Justice and Human Rights 406 ibrahima kane and ahmed c. motala

13

Protocol to the African Charter on the Rights of Women in Africa 441 fareda banda Bibliography Index 491

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344

CONTRIBUTORS

Professor Malcolm Evans OBE is Professor of Public International Law at the University of Bristol, and currently Dean of the Faculty of Social Sciences and Law. His chief areas of interest in the field of human rights concern the freedom of religion and torture prevention, and he has written extensively on these topics, with principal works including Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997) and, as co-author, Preventing Torture (Oxford: Oxford University Press, 1998), Protecting Prisoners (Oxford: Oxford University Press, 1999) and Combating Torture in Europe (Strasbourg: Council of Europe, 2001). He is a member of the OSCE Advisory Panel on Freedom of Religion and Belief, the ILA Human Rights Law and Practice Committee, and the Board of Management of the Association for the Prevention of Torture. He has co-edited, with Rachel Murray, a collection of Documents of the African Commission on Human and Peoples’ Rights (Oxford: Hart Publishing, 2001 and 2007, forthcoming), and also continues his long-standing research and writing interests in the international law of the sea. Professor Rachel Murray is Professor of International Human Rights Law at the University of Bristol. Her specialist areas are human rights in Africa, particularly the African Charter and its Commission on Human and Peoples’ Rights, and the Organization of African Unity/African Union. She has written widely in this area, including books with Hart Publishing and Cambridge University Press (Human Rights in Africa: From the OAU to the African Union (Cambridge: Cambridge University Press, 2004); The African Charter on Human and Peoples’ Rights. The System at Work (with Malcolm Evans) (Cambridge: Cambridge University Press, 2002); The African Commission on Human and Peoples’ Rights and International Law (Oxford: Hart Publishing, 2000)), and articles in leading legal human rights journals. She also advises organisations and vii

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individuals on how to use the African human rights system, including drafting cases and participating in its meetings. She is on the editorial board of a number of journals including the Journal of African Law and African Journal of International and Comparative Law. Her other area of interest is national human rights institutions, and she has published a number of pieces in this area (The Role of National Human Rights Institutions at the International and Regional Level: The Experience of Africa (Oxford: Hart Publishing, 2007)) and holds a major grant with the Arts and Humanities Research Council to evaluate the role of national preventive mechanisms under the Optional Protocol to the UN Convention against Torture. She has previously worked at the University of the West of England, Queens University Belfast – where she was Assistant Director of the Human Rights Centre – and Birkbeck College, University of London. Fiona Adolu is a Ugandan lawyer. She is currently working with the United Nations Peacekeeping Mission in Liberia as a Human Rights Officer. Prior to that, she was a Legal Officer at the African Commission for Human and Peoples’ Rights (ACHPR). As a Legal Officer, her work involved, inter alia, drafting decisions of communications for consideration by the ACHPR; analysing initial and periodic State reports and drafting concluding observations thereto; and drafting various legal documents, resolutions and reports of Meetings, Conferences, etc. for adoption by the ACHPR. She also assisted the Follow-Up Committee on the Implementation of the Guidelines for the Prevention and Prohibition of Torture, Cruel, Inhuman or Degrading Punishment and Treatment in Africa, the Working Group on Indigenous Populations/Communities in Africa, the Special Rapporteur on Freedom of Expression in Africa and the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa. Before joining the ACHPR, Ms Adolu worked with the Uganda Law Society – which is the Bar Association of Uganda – and the Federation of Uganda Women Lawyers (FIDA(U)), where she assisted with the formation and development of human rights programmes in both governmental and non-governmental organisations within the subregion. Fareda Banda is a Reader in the Laws of Africa at the School of Oriental and African Studies, which is part of the University of London. She is an expert on women’s rights and has published widely in this area, including Women, Law and Human Rights: An African Perspective (Oxford: Hart Publishing, 2005).

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Clive Baldwin has been Head of Advocacy at MRG since 2002. Previously, he practiced as a human rights lawyer in the United Kingdom and the United States, and worked for several years in Kosovo. He has degrees from Leeds, Princeton and City (London) universities. Minority Rights Group International have been responsible for the first case to be heard on the merits at the African Commission on Human and Peoples’ Rights on indigenous land issues and the right to development. Germain Baricako is the former Secretary of the African Commission on Human and Peoples’ Rights. Ibrahima Kane is Senior Lawyer for Africa at Interights. He qualified as a lawyer in Senegal and France, and has run a human rights programme focused on public education and women’s human rights in five WestAfrican countries (Cape Verde, Republic of Guinea, Republic of GuineaBissau, Mauritania and Senegal) for six years. He was a founding member of RADDHO, a Senegalese human rights organisation, before he joined Interights in 1998. He has a particular interest in Francophone countries, economic, social and cultural rights, torture and women’s rights. Bronwen Manby currently works for the Africa Governance Monitoring and Advocacy Project (AfriMAP), an initiative of the Open Society Institute’s network of African foundations to monitor compliance with the commitments to good governance, democracy, human rights and the rule of law undertaken by Member States of the African Union. She was previously the Deputy Director of the Africa division of Human Rights Watch, and has also worked for human rights organisations in South Africa. She has degrees from Oxford and Columbia universities, and is trained as a solicitor in England and Wales. She has written on a wide range of human rights issues in Africa, especially South Africa and Nigeria. Nobuntu Mbelle is a Consultant for the Africa Division of Human Rights Watch, and Co-ordinator for the Coalition for an Effective African Court on Human and Peoples’ Rights. Cynthia Morel has served as Legal Cases Officer at MRG since 2002, and as a part-time Lecturer on Minority Rights under International Law at the University of Essex since 2006. Her previous experience includes positions at the Inter-American Institute of Human Rights, the Canadian Commission for UNESCO and the Canadian International Development Agency.

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Ahmed C. Motala, the Executive Director of the Centre for the Study of Violence and Reconciliation in South Africa, is a human rights lawyer and activist who has worked over the past eighteen years on an array of human rights and development issues at the national, continental and international level. Previously, he has been Executive Director of the Human Rights Institute of South Africa, Legal Adviser on Africa at the International Secretariat of Amnesty International and Human Rights Officer at Save the Children UK. In these capacities, he worked on human rights, child rights and development issues in a range of African, Middle Eastern and Asian countries. From 1989 to 1995, he worked as a litigating attorney and investigator at Lawyers for Human Rights, South Africa, and also managed the Litigation Fund. He has written on a range of human rights topics, including the African human rights system, and presented papers at numerous workshops and symposia. His formal training includes a Master of Laws (LLM) degree from The American University in Washington DC. Gino J. Naldi studied Law at the University of Birmingham, where he was awarded his PhD. He is Senior Lecturer at the Norwich Law School, University of East Anglia, lecturing in public international law and EC law. He has a special interest in Africa, especially the Organization of African Unity/African Union, on which he has published widely. He is author of The Organization of African Unity: An Analysis of its Role, 2nd edn (London: Mansell, 1999). Bahame Tom Mukirya Nyanduga is a member of the African Commission on Human and Peoples’ Rights. He is an LLB (Hons) graduate of the University of Dar es Salaam, Tanzania. He holds an LLM degree from the LSE, University of London, and a Post Graduate Diploma in International Law from the Institute of Social Studies, The Hague. He was elected to the African Commission by the 2nd AU Summit held in Maputo, Mozambique, July 2003. He practices law in Tanzania and was President of the East Africa Law Society from 2004 to 2006. He is Special Rapporteur on Refugees, Asylum Seekers, Migration and IDPs in Africa. Kolawole Olaniyan is Acting Africa Program Director and Africa Legal Adviser at the International Secretariat of Amnesty International London, LLB, Lagos State University, 1989; BL, Nigerian Law School, 1990; LLM, Notre Dame Law School, 1998; JSD, Notre Dame Law School, 2003; Head of the Legal Services Unit of the Constitutional Rights Project, Lagos, 1993–7; Legal counsel, Office of the Prosecutor of the United Nations

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International Criminal Tribunal for the former Yugoslavia, The Hague, 1998; Research Fellow, Danish Center for Human Rights, Denmark, 1999; and Teaching Assistant, University of Notre Dame, 2000. He acted as General-Secretary of the African Students Association, University of Notre Dame and Saint Mary College, Indiana, 2000–1, and is a member of the board of trustees of the Socio-Economic Rights and Accountability Project, Nigeria. He is also the author of many articles on international and comparative human rights law and corruption. This current work, relating to corruption and human rights, is focused on combating corruption through the framework of human rights. He is completing the writing of his new book, Corruption & International Human Rights Law. Frans Viljoen is Professor of Law at the Faculty of Law in the University of Pretoria, South Africa. He obtained the degree LLD (with a thesis on the African regional human rights system) from the University of Pretoria, and the degree LLM from Cambridge University. He also heads the AIDS and Human Rights Research Unit at the University of Pretoria. He teaches on, and is the academic co-ordinator of, the LLM (Human Rights and Democratisation in Africa), presented by the Centre for Human Rights, in collaboration with seven partner law faculties across Africa. He has taught widely on the African regional human rights system at other universities and at training events, is the author of numerous articles (especially dealing with human rights issues), has conducted research for the United Nations and the African Union, and is editor-in-chief of the African Human Rights Law Journal and co-editor of the English and French versions of the African Human Rights Law Reports.

TABLE OF CASES

Note: references to Documents of the African Commission are references to R. Murray and M. Evans (eds.), Documents of the African Commission on Human and Peoples’ Rights (Oxford, Hart Publishing, 2001). Communication 1/88, Frederick Korvah v. Liberia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 337 96, 159 Communication 2/88, Iheanyichukwu A. Ihebereme v. United States, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 337 100 Communication 3/88, Centre for the Independence of Judges and Lawyers v. Yugoslavia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 337 100 Communication 4/88, Co-ordinating Secretary of the Free Citizens Convention v. Ghana, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 338 101 Communication 5/88, Prince J. N. Makoge v. United States, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 338 100 Communication 6/88, Dr Kodji Kofi v. Ghana, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 338 101 Communication 7/88, Committee for the Defence of Political Prisoners v. Bahrain, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 339 100 Communication 9/88, International Lawyers Committee for Family Reunification v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 339 100 Communication 10/88, Getachew Abebe v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 339 100 Communication 11/88, Henry Kalenga v. Zambia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 339 81 Communication 12/88, Mohamed El-Nekheily v. OAU, Seventh Activity Report 1993– 1994, Annex IX; Documents of the African Commission, p. 340 101 Communication 13/88, Hadjali Mohamad v. Algeria, Seventh Activity Report 1993– 1994, Annex IX; Documents of the African Commission, p. 340 101, 159

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Communication 14/88, Dr Abd Eldayem A. E. Sanussi v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 340 100 Communication 15/88, Mpaka-Nsusu Andre Alphonse v. Zaire, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 340 127 Communications 16/88, 17/88 and 18/88, Comit´e Culturel pour la D´emocratie au Benin, Badjogoume Hilaire, El Hadj Boubacar Diawara v. Benin, Seventh Activity Report 1993–1994, Annex IX; Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, pp. 340 and 381 102 Communication 19/88, International Pen v. Cameroon, Ethiopia, Kenya, Malawi, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 341 101 Communication 20/88, Austrian Committee Against Torture v. Morocco, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 341 101 Communication 21/88, Centre Haitien des Libert´es Publiques v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 342 100 Communication 22/88, International Pen v. Burkina Faso, Seventh Activity Report 1993– 1994, Annex IX; Documents of the African Commission, p. 342 88 Communication 24/89, Union Nationale de Lib´eration de Cabinda v. Angola, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 342 100 Communications 25/89, 47/90, 56/91 and 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les T´emoins de Jehovah v. Zaire, Ninth Activity Report 1995–1996, Annex VIII; Documents of the African Commission, p. 444 111, 146, 193, 216 Communication 26/89, Austrian Committee Against Torture v. Burundi, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 342 100 Communications 27/89, 46/91, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internationale des Juristes (CIJ), Union Interafricaine des Droits de l’Homme v. Rwanda, Tenth Activity Report 1996–1997, Annex X; Documents of the African Commission, p. 551 151, 179, 252 Communication 28/89, Association Internationale des Juristes Democrates v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 343 100 Communication 29/89, Commission Fran¸caise Justice et Paix v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 343 100 Communication 31/89, Maria Baes v. Zaire, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 383 103 Communication 33/89, Simon B. Ntaka v. Lesotho, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 343 101 Communication 35/89, Seyoum Ayele v. Togo, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 343 159

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Communication 37/90, Georges Eugene v. United States, Haiti, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 344 100 Communication 38/90, Wesley Parish v. Indonesia, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 344 100 Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, Eighth Activity Report 1994–1995, Annex VI; Tenth Activity Report 1996–1997, Annex X; Documents of the African Commission, pp. 384 and 555 31, 106, 116, 155, 197 Communication 40/90, Bob Ngozi Njoku v. Egypt, Eleventh Activity Report 1997– 1998, Annex II; Documents of the African Commission, p. 604 115, 126, 141, 156 Communication 41/90, Andre Houver v. Morocco, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 344 101 Communication 43/90, Union des Scolaires Nigeriens, Union G´en´erale des Etudiants Nig´eriens au Benin v. Niger, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 345 89 Communication 44/90, Peoples’ Democratic Organisation for Independence and Socialism v. The Gambia, Tenth Activity Report 1996–1997, Annex X; Documents of the African Commission, p. 559 81, 91, 117, 160 Communication 45/90, Civil Liberties Organisation v. Nigeria, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 345 89, 104 Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International; Comit´e Loosli Bachelard; Lawyers’ Committee for Human Rights; Association of Members of the Episcopal Conference of East Africa v. Sudan, Thirteenth Activity Report 1999–2000, Addendum 106, 147, 174, 216, 263, 323 Communication 53/91 and 53/90, Alberto T. Capitao v. Tanzania, Seventh Activity Report 1993–1994, Annex IX; Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, pp. 346 and 384 92 Communications 54/91, 61/91, 98/93, 164/97 and 210/98, Malawi African Association; Amnesty International; Ms Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO; Collectif des Veuves et Ayants-droits; Association Mauritanienne des Droits de l’Homme v. Mauritania, Thirteenth Activity Report 1999–2000, Addendum 32, 33, 79, 147, 174, 176, 179, 202, 204, 232, 251 Communication 55/91, International Pen v. Chad, Seventh Activity Report 1993– 1994, Annex IX; Documents of the African Commission, p. 346 147, 176, 251, 323 Communication 57/91, Tanko Bariga v. Nigeria, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 346 93, 159 Communication 59/91, Embga Mekongo Louis v. Cameroon, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 385 34, 35, 143, 152

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Communication 60/91, Constitutional Rights Project (in respect Wahab Akamu, G. Adega and others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 385 116, 152, 205 Communication 63/92, Congress for the Second Republic of Malawi v. Malawi, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 346 159 Communications 64/92, 68/92 and 78/92, Krischna Achuthan, Amnesty International, Amnesty International v. Malawi, Seventh Activity Report 1993–1994, Annex IX; Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, pp. 347 and 387 172 Communication 65/92, Ligue Camerounaise des Droits de l’Homme v. Cameroon, Tenth Activity Report 1996–1997, Annex X; Documents of the African Commission, p. 562 108, 143, 150 Communication 67/92, Civil Liberties Organisation v. Nigeria, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 346 81, 89, 164 Communication 69/92, Amnesty International v. Tunisia, Seventh Activity Report 1993– 1994, Annex IX; Documents of the African Commission, p. 347 127 Communication 70/92, Ibrahim Dioumessi, Sekou Kande, Ousmane Kaba v. Guinea, Seventh Activity Report 1993–1994, Annex IX; Ninth Activity Report 1995–1996, Annex VIII; Documents of the African Commission, pp. 347 and 448 93 Communication 71/92, Rencontre Africaine pour la Defense de Droits de l’Homme v. Zambia, Tenth Activity Report 1996–1997, Annex X; Documents of the African Commission, p. 563 111, 180 Communication 73/92, Mohamed Lamine Diakit´e v. Gabon, Seventh Activity Report 1993–1994, Annex IX; Thirteenth Activity Report 1999–2000, Annex V; Documents of the African Commission, p. 348 234 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libert´es v. Chad, Ninth Activity Report 1995–1996, Annex VIII; Documents of the African Commission, p. 449 28, 94, 144, 175 Communication 75/92, Katangese Peoples’ Congress v. Zaire, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 389 33, 95, 97, 160, 246 Communications 83/92, 88/93 and 91/93, Jean Y. Degli (on behalf of N. Bikagni), Union Interafricaine des Droits de l’Homme, Commission Internationale des Juristes v. Togo, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, pp. 348 and 390 144 Communication 86/93, M. S. Ceesay v. The Gambia, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 390 117 Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 391 94, 120, 152, 203

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Communication 90/93, Paul S. Haye v. The Gambia, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 393 124 Communication 92/93, International Pen (in respect of Kemal al-Jazouli) v. Sudan, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 394 116 Communication 97/93, John K. Modise v. Botswana, Seventh Activity Report 1993–1994, Annex IX; Tenth Activity Report 1996–1997, Annex X; Fourteenth Activity Report 2000–2001, Annex V, Documents of the African Commission, pp. 349 and 567 83, 144, 178, 235 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 394 201 Communication 102/93, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998–1999, Annex V; Documents of the African Commission, p. 712 30, 144, 174, 217, 222 Communication 103/93, Alhassan Abubakar v. Ghana, Tenth Activity Report 1996–1997, Annex X; Documents of the African Commission, p. 571 121, 152, 197, 232 Communications 104/94 and 109–126/94, Centre for Independence of Judges and Lawyers v. Algeria and others, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, pp. 349 and 396 97, 160 Communications 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V; Documents of the African Commission, p. 718 26, 89, 120, 142, 151, 177, 217 Communication 106/93, Amuh Joseph Vitine v. Cameroon, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 350 160 Communication 107/93, Academic Staff of Nigerian Universities v. Nigeria, Seventh Activity Report 1993–1994, Annex IX; Documents of the African Commission, p. 350 150 Communication 108/93, Monja Joana v. Madagascar, Tenth Activity Report 1996–1997, Annex X; Documents of the African Commission, p. 573 93 Communication 127/94, Sana Dumbaya v. The Gambia, Eighth Activity Report 1994– 1995, Annex VI; Documents of the African Commission, p. 397 114 Communication 129/94, Civil Liberties Organisation v. Nigeria, Ninth Activity Report 1995–1996, Annex VIII; Documents of the African Commission, p. 452 120, 201 Communication 133/94, Association pour la D´efense des Droits de l’Homme et des Libert´es v. Djibouti, Thirteenth Activity Report 1999–2000, Annex V 82, 169 Communication 135/94, Kenya Human Rights Organisation v. Kenya, Ninth Activity Report 1995–1996, Annex VIII; Documents of the African Commission, p. 455 118 Communication 136/94, William A. Courson v. Zimbabwe, Eighth Activity Report 1994– 1995, Annex VI; Documents of the African Commission, p. 397 184 Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation

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v. Nigeria, Twelfth Activity Report 1998–1999, Annex V; Documents of the African Commission, p. 729 30, 144, 174, 217, 222 Communications 140/94, 141/94 and 145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Thirteenth Activity Report 1999– 2000, Annex V 151, 182, 219, 269 Communication 142/94, Muthuthirin Njoka v. Kenya, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, p. 398 106, 159 Communications 143/95 and 150/96, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V 80, 151, 202 Communication 144/95, William Courson (acting on behalf of Severo Moto) v. Equatorial Guinea, Eleventh Activity Report 1997–1998, Annex II; Documents of the African Commission, p. 609 143, 182 Communications 147/95 and 149/96, Sir Dawda K. Jawara v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V 96, 110, 141, 142, 174, 220, 247 Communication 148/96, Constitutional Rights Project v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V 152, 197 Communication 151/96, Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V 152, 202 Communication 153/96, Constitutional Rights Project v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V 204 Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Fifteenth Activity Report 2001–2002, Annex V 30, 32, 172, 246, 278, 309, 389 Communication 157/96, Association Pour la Sauvegarde de la Paix au Burundi v. Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia, Seventeenth Activity Report, 2003–2004, Annex VII 21, 78, 104, 185, 281 Communication 159/96, Union Interafricaine des Droits de l’Homme, F´ed´eration International des Ligues des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au S´en´egal and Association Malienne des Droits de l’Homme v. Angola, Eleventh Activity Report 1997–1998, Annex II; Documents of the African Commission, p. 615 91, 152, 180, 233 Communication 162/97, Mouvement des R´efugi´es Mauritaniens au S´en´egal v. Senegal, Eleventh Activity Report 1997–1998, Annex II; Documents of the African Commission, p. 613 97 Communication 197/97, Bah Ould Rabah v. Mauritania, Seventeenth Activity Report 2003–2004, Annex VII 77, 195 Communication 198/97, SOS-Esclaves v. Mauritania, Twelfth Activity Report 1998– 1999, Annex V; Documents of the African Commission, p. 742 112, 114, 160, 179 Communication 199/97, Odjouoriby Cossi Paul v. Benin, Seventeenth Activity Report 2003–2004, Annex VII 205

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Communication 204/97, Mouvement Burkinab´e des Droits de l’Homme et des Peuples v. Burkina Faso, Fourteenth Activity Report 2000–2001, Annex V 84, 204 Communication 205/97, Kazeem Aminu v. Nigeria, Thirteenth Activity Report 1999– 2000, Annex V 122, 158, 182 Communication 206/97, Centre for Free Speech v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V 152, 203 Communication 209/97, Africa Legal Aid v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V 165 Communicatoin 211/98, Legal Resources Foundation v. Zambia, Fourteenth Activity Report 2000–2001, Annex V 174, 235, 248, 251, 407 Communication 212/98, Amnesty International v. Zambia, Twelfth Activity Report 1998–1999, Annex V; Documents of the African Commission, p. 745 26, 89, 91, 99, 142, 180, 216 Communication 215/98, Rights International v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V 121, 152, 193 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria, Fourteenth Activity Report 2000–2001, Annex V 172 Communication 219/98, Legal Defence Centre v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V 122 Communication 221/98, Alfred B. Cudjoe v. Ghana, Twelfth Activity Report 1998–1999, Annex V; Documents of the African Commission, p. 753 114, 116 Communications 222/98 and 229/99, Law Office of Ghazi Suleiman v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII 198, 202, 204, 205 Communication 223/98, Forum of Conscience v. Sierra Leone, Fourteenth Activity Report 2000–2001, Annex V 152, 190 Communication 224/98, Media Rights Agenda v. Nigeria, Fourteenth Activity Report 2000–2001, Annex V 79, 107, 152, 178, 220 Communication 225/98, Huri-Laws v. Nigeria, Fourteenth Activity Report 2000–2001, Annex V 144, 152, 193, 227, 240 Communication 227/99, Democratic Republic of Congo v. Burundi, Rwanda and Uganda, Twentieth Activity Report, January – June 2006, Annex IV 76, 180, 232, 239, 240, 309 Communication 228/99, The Law Office of Ghazi Suleiman v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII 28, 38, 119, 222 Communication 231/99, Avocats sans Fronti`eres (on behalf of Ga¨etan Bwampamye) v. Burundi, Fourteenth Activity Report 2000–2001, Annex V 174 Communication 232/99, John D. Ouko v. Kenya, Fourteenth Activity Report 2000–2001, Annex V 193, 220, 241 Communication 233/99, Interights (on behalf of Pan-African Movement and Citizens for Peace in Eritrea) v. Ethiopia, Sixteenth Activity Report 2002–2003, Annex VII 90, 128, 136

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Communication 236/2000, Curtis Francis Doebbler v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII 90, 194, 456 Communication 238/2001, Institute for Human Rights and Development (on behalf of S´edar Tumba Mboyo v. Democratic Republic of Congo, Fifteenth Activity Report 2001– 2002, Annex V 88 Communication 239/2001, Interights (on behalf of Jose Domingos Sikunda) v. Namibia, Fifteenth Activity Report 2001–2002, Annex V 96, 115 Communication 240/2001, Interights (on behalf of Mariette Sonjaleen Bosch) v. Botswana, Seventeenth Activity Report 2003–2004, Annex VII 38, 87, 174, 397 Communication 241/2001, Purohit and Moore v. The Gambia, Sixteenth Activity Report 2002–2003, Annex VII 32, 80, 112, 123, 179, 198, 200 Communicatoin 242/2001, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v. Islamic Republic of Mauritania, Seventeenth Activity Report 2003–2004, Annex VII 114, 201, 228, 227 Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Twentyfirst Activity Report 2007, Annex III 115, 142, 148, 175, 209, 210, 222, 223 Communication 247/2002, Institute for Human Rights and Development in Africa (on behalf of Jean Simbarakiye) v. Democratic Republic of Congo, Sixteenth Activity Report 2002–2003, Annex VII 122 Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v. Republic of Guinea, Twentieth Activity Report January – June 2006, Annex IV 78, 142, 180, 234 Communication 250/2002, Liesbeth Zegveld and Mussie Ephrem v. Eritrea, Seventeenth Activity Report 2003–2004, Annex VII 28, 38, 92, 104, 183, 221, 224 Communication 251/2002, Lawyers for Human Rights v. Swaziland, Eighteenth Activity Report 2004–2005, Annex III 38, 39, 80, 90, 106, 153, 202, 227, 236 Communication 253/2002, Antoine Bissangou v. Republic of Congo, Twenty-first Activity Report 2007, Annex II 178, 201 Communication 254/2002, Mouvement des R´efugi´es Mauritaniens au S´en´egal v. Senegal, Sixteenth Activity Report 2002–2003, Annex VII 114 Communication 258/2002, Miss A. v. Cameroon, Seventeenth Activity Report 2003– 2004, Annex VII 94 Communication 261/2002, Interights et al. v. Egypt, Sixteenth Activity Report 2002– 2003, Annex VII 87 Communication 268/2003, Ilesanmi v. Nigeria, Eighteenth Activity Report 2004–2005, Annex III 109 Communication 269/2003, Interights on behalf of Safia Yakubu Husaini et al. v. Nigeria, Eighteenth Activity Report 2004–2005, Annex III 78, 85, 86, 88, 190 Communication 273/2002, Centre for Advancement of Democracy, Social Justice, Conflict Resolution and Human Welfare v. Nigeria, Eighteenth Activity Report 2004–2005, Annex III 87

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Communication 283/2003, B. v. Kenya, Seventeenth Activity Report 2003–2004, Annex VII 94, 110 Communication 290/2004, Open Society Justice Initiative (on behalf of Pius Njawe Noumeni) v. Cameroon, Twentieth Activity Report January – June 2006, Annex IV 82, 86, 223 Communication 299/2005, Anuak Justice Council v. Ethiopia, Twentieth Activity Report January – June 2006, Annex IV 111, 112, 113 Communication 304/2005, FIDH, National Human Rights Organisation (ONDH), and Rencontre Africaine pour la D´efense des Droits de l’Homme (RADDHO) v. Senegal, Twenty-first Activity Report 2007, Annex II 176

ABBREVIATIONS

ACHPR ACRWC AfriMAP APT AU AUWC CAT CEDAW

African Charter on Human and Peoples’ Rights African Charter on the Rights and Welfare of the Child Africa Governance Monitoring and Advocacy Project Association for the Prevention of Torture African Union African Union Women’s Committee Convention Against Torture Convention on the Elimination of All Forms of Discrimination Against Women CERD Convention on the Elimination of All Forms of Racial Discrimination COMESA Common Market for Eastern and Southern Africa CRR Centre for Reproductive Rights COMESA Court of Justice of the Common Market of Eastern and Southern Africa DRC Democratic Republic of the Congo EAC East African Community ECHR European Convention on Human Rights ECOSOC Economic and Social Council (of the United Nations) ECOSOCC Economic, Social and Cultural Council ECOWAS Economic Community of West African States IAC Inter-African Committee on Tradition Practices IACHR Inter-American Convention on Human Rights ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Commission of Jurists ICPD International Conference on Population and Development ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia xxi

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ILO IWGIA NEPAD NGOs NHRI OAS OAU OHCHR PRC PRI PSC RADDHO RIGs SADC SADR UDHR UN UNDP UNTS WGIP

list of abbreviations

International Labor Organization International Work Group for Indigenous Affairs New Partnership for Africa’s Development Non-Governmental Organisations National human rights institution Organization of American States Organization of African Unity Office of the High Commissioner for Human Rights Permanent Representatives Committee Penal Reform International Peace and Security Council Rencontre Africaine pour la D´efense des Droits de I’Homme Robben Island Guidelines Southern African Development Community Sahwari Arab Democratic Republic Universal Declaration of Human Rights United Nations United Nations Development Programme United Nations Treaty Series Working Group on Indigenous Populations/Communities

EDITORS’ PREFACE

It is a little unusual to produce a second edition of a collection of essays, yet the circumstances surrounding the African human rights system are such as to make this – we hope – a worthwhile endeavour. The first edition of this collection appeared in 2002 and focused on what might now be described as the foundational phase of that system, a phase in which institutions were established and the basic approaches to human rights issues as addressed in the African Charter on Human and Peoples’ Rights were explored and its potential for further development reflected and worked upon. During the last four years, the human rights system as established by the Charter has undergone considerable change. At one level, such change flows from the evolution of the Organization of African Unity (OAU) into the African Union (AU), and with it a new dynamic in the system of human rights protection. Change has also come about through the adoption and entry into force of new protocols to the Charter, on the establishment of the African Court of Human Rights and on Women’s Rights. There has also been a greater richness to the work under the system through the increasing jurisprudence under the complaints mechanisms, as well as further growth in the number of, and thematic reach of, its working groups and special rapporteurs. This new collection of essays seeks to capture these developments in a number of ways. First, we have included a number of contributions by those who have played important roles within the African Commission itself. The volume now opens with an expansive introductory preface by Germain Baricako, who as former Secretary of the Commission is uniquely qualified to provide a holistic presentation of its work. This is complemented by a new chapter by Fiona Adolu, sometime member of the Secretariat and legal officer, who is again perfectly placed to offer an ‘insider’s view’ of the practical issues facing the Commission, and with it,

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the system itself. Second, we have added a number of new chapters which address elements of the changing structural and jurisprudential framework, such as that by Fareda Banda on the Protocol on Women’s Rights, by Commissioner Nyanduga on Working Groups, and Clive Baldwin and Cynthia Morel on Group Rights under the Charter. The inclusion of the chapter by Baldwin and Morel reflects a decision to place greater emphasis on the jurisprudential output of the Commission, and this finds further reflection in the coverage given to civil and political rights being expanded hence and divided into two chapters, by Bronwen Manby and Kolawole Olaniyan. The chapter by Frans Viljoen has been expanded to consider not only admissibility criteria but other procedural questions as well. As might be expected, other chapters are also significantly amended in order to reflect changing directions. Thus Nobuntu Mbelle addresses not only the role of NGOs but also embraces national human rights institutions. Ahmed Motala and Ibrahima Kane take a fresh look at the African Court of Human and Peoples’ Rights in the light of recent resolutions of the AU concerning its future, whilst Rachel Murray adds an appraisal of three new special rapporteur mandates to the three older mandates previously examined. Chapters on reporting and evidence and fact-finding are also systematically updated in line with recent practice. To set all this in its context, the collection opens with a presentation and appraisal of the system of human rights protection in Africa by Gino Naldi that is rooted in the changing landscape ushered in by the emergence of the AU as a regional organisation. There is, then, a great deal that is new in this collection, yet as it flows from what came before, it seemed appropriate to retain the basic approach of that earlier edition rather than offer up a volume that purported to be entirely novel in its approach to the subject. In this, we have been fortified by the favourable response to the first edition, and we hope that the second edition will find equal favour. It is true that there is now a great deal more written from an academic or practitioner perspective on the African human rights system than there was a few years ago, and this is to be welcomed greatly. However, for all the advances that have taken place in terms of mechanisms and of jurisprudence, the demands that are placed on human rights mechanisms remain enormous. There are many lessons to be learnt – both positive and, it must be said, negative – from the experience under the African Charter. It is our hope that in adding a new edition of these critical essays to that growing literature we will in

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some small way help to focus upon and foster the former whilst learning the lessons of the latter in a climate that is, perhaps, more challenging for international human rights protection than might have been foreseen when this project commenced. Professor Malcolm Evans Professor Rachel Murray

Introductory Preface The African Charter and African Commission on Human and Peoples’ Rights germain baricako ∗

The process of the elaboration and adoption of the African Charter on Human and Peoples’ Rights1 More than thirty years passed after the adoption by the General Assembly of the United Nations of the Universal Declaration of Human Rights2 before the African continent equipped itself with a regional mechanism for the promotion and protection of human and peoples’ rights. However, the idea of drafting a human rights convention, with an organ charged with its implementation, began to take root in the 1960s. In effect, the proposal to create an African Commission on Human and Peoples’ Rights was put forward for the first time during the first Congress of African Jurists organised on the continent – after the first states became independent – at the initiative of the International Commission of Jurists (ICJ) in January 1961,3 in Lagos, Nigeria. The Declaration that was adopted by the Congress4 called on African governments to adopt a convention on human rights with a court to which any individual under the jurisdiction of a state party could refer a case. However, nothing immediately followed this appeal. The Organization of African Unity (OAU), after ∗

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2 3 4

Germain Baricako is a former Secretary of the African Commission. The views expressed in this chapter are those of the author and not the African Union. This chapter has been translated from the original French version. For ease of reference, ‘African Charter’ or ‘the Charter’ will be used in the text to refer to the African Charter on Human and Peoples’ Rights, and ‘Commission’ to refer to the African Commission on Human and Peoples’ Rights. The Universal Declaration of Human Rights was adopted on 10 December 1948. African Congress on the Primacy of Law, Lagos, Nigeria, 3–7 January 1961. See International Commission of Jurists, Report on the Work of the Congress, Geneva, 1961, p. 9. The Declaration of the Congress was called ‘The Law of Lagos’, 7 January 1961.

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its establishment,5 seemed to have other more pressing concerns, notably decolonisation, racial discrimination, economic development and African unity. It took three decades before the idea became concrete, in spite of the efforts of African jurists, the United Nations and non-governmental organisations (NGOs). The following developments summarise the long journey. During a conference6 organised in Dakar, Senegal, the participants returned to the idea first raised in Lagos and adopted the Declaration of Dakar in which they asked the ICJ to examine, in consultation with relevant African organisations, the possibility of creating a mechanism for the protection of human rights in Africa. The participants went as far as proposing the idea of an Inter-African Commission on Human Rights with consultative powers and the power to make recommendations.7 The United Nations also took various initiatives with the view towards the adoption of an African Convention on Human Rights. The SecretaryGeneral of the United Nations organised in Dakar, Senegal, a series of regional studies on human rights in developing countries.8 The participants examined the possibility of establishing an African mechanism for the protection of human rights but they did not reach consensus on the issue. Those who were hesitant or opponents invoked, in particular, the fact that African rulers were too jealous of their state sovereignty and that they were not ready to accept limitations by such an institution.9 Pursuing their efforts, the United Nations organised another seminar series three years later in Cairo10 on the creation of a regional Commission on Human Rights for Africa. The participants pronounced clearly on the urgent need to establish a Commission, and looked into essential issues 5 6

7 8 9 10

The OAU was established on 25 May 1963. The Charter creating the OAU was adopted on 25 May 1963 and entered into force on 13 September 1963. This first Conference of Francophone African Jurists was organised by the Association S´en´egalaise d’Etudes et de Recherces Juridiques and the ICJ from 5–9 January 1967; N. MacDermot, Memorandum sur les Conclusions des Conf´erences de la CIJ a` Lagos (1961), Dakar (1967) et autres r´egions, pr´esent´e a` la Conf´erence des Juristes africains sur le th`eme “African Legal Process and the Individual”, Addis Ababa (Ethiopia) 18–27 Avril 1971, ICJ Document S–2895(b). See Declaration of Dakar, in Bulletin de la Commission Internationale de Juristes, No.29, March 1967, p. 11. ‘Seminar Series on Human Rights in Countries in the Process of Development’, Dakar, Senegal, 8–22 February 1966; UN Doc. ST/TAO/HR/25, 1966. Ibid. The seminar series was organised by the UN in co-operation with the government of the United Arab Republic. See ‘Seminar Series on the Creation of Regional Commissions on Human Rights with regard to Africa’, UN Doc. ST/TAO/HR/38, 1970.

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such as its composition, competence and its mandate, which would later be considered during the drafting of the African Charter. At the end of their work, the participants unanimously decided to: (1) request the Secretary-General of the United Nations to communicate their report to the Secretary-General and Member States of the OAU in order to take appropriate measures with a view to creating a regional Commission on Human Rights for Africa;11 (2) call upon the Secretary-General of the United Nations to accord all assistance required in support of the efforts aimed at creating a Commission on Human Rights for Africa;12 (3) call on the Secretary-General of the United Nations to draw the attention of the Commission on Human Rights of the United Nations to the report of the seminar;13 and (4) facilitate consultations between the above mentioned Commission on Human Rights and the OAU with a view to discussing the possibilities of creating a Commission on Human Rights for Africa.14 Moreover, the United Nations Commission on Human Rights had already placed the issue on its agenda and discussion had taken place. During its 23rd Session held in 1967, the Commission set up an ad hoc working group to examine the question and make recommendations.15 During its 24th and 25th Sessions held in 1968 and 1970 respectively, the Commission examined the report of the working group. At its 26th Session, the Commission decided to ask the Secretary-General of the United Nations to facilitate contacts between itself and the OAU with a view to discussing the possibilities of creating a regional Commission of Human Rights.16 For its part, the United Nations Economic Commission for Africa organised a Conference of African Jurists on ‘The African Legal Process and the Individual’ in Addis Ababa, Ethiopia, from 19–23 April 1971. Among other things, the Conference urged for the adoption of an African Convention on Human Rights and for the creation of a consultative organ charged with interpreting the Convention.17 11 14 16 17

12 13 Ibid., p. 20, para. 65(a). Ibid., p. 20, para. 65(c). Ibid., p. 20, para. 65(d). 15 Ibid., p. 20, para. 65(e). Resolution CHR Res.6 (XXIII) of 16 March 1967. Commission on Human Rights, Report of the Twenty-Sixth Session, 24 February–27 March 1970, E/4816, pp. 39–42. See Report of the Conference of African Jurists on ‘The African Legal Process and the Individual’, Addis Ababa, Ethiopia, 19–23 April 1971; UN Doc. E/CN.14/521, 28 June 1971.

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Two years later, the United Nations organised another seminar18 in Dar-es-Salaam, Tanzania, on ‘A Study of New Ways and Means of Promoting Human Rights with Special Attention to the Problems and Needs of Africa’. The participants returned to the question of the adoption of an African Convention on Human Rights and the creation of an African mechanism for the protection of human rights. Unfortunately they did not reach consensus on that question.19 Coming back to the issue, the Commission on Human Rights of the United Nations adopted a resolution20 during its 34th Session in 1978, calling on the Secretary-General of the United Nations to consider the possibility of providing the OAU with all necessary assistance with a view to facilitating the establishment of a Commission on Human Rights for Africa. It is clear that the Commission reiterated, at its 26th Session, the recommendations of the seminar held in Cairo.21 The General Assembly of the United Nations approved the resolution of the Commission.22 From 3–7 July 1978, a colloquium on ‘Human Rights and Economic Development in Francophone Africa’ was organised by the Institute of International Law and Economic Development (Washington DC) and the Faculty of Law of the National University of Rwanda in Butare, Rwanda.23 The participants had suggested, among other things, the idea of an African Commission on Human Rights following the example of the European model, but the proposal was not accepted.24 Another colloquium on ‘Human Rights and Economic Development’ was organised in Dakar in September 1978.25 The participants considered further the proposal for a mechanism for the promotion and protection of human rights in Africa. They also proposed the adoption of a Pan-African Convention on Human Rights, with a structure to promote human rights on a continental scale and several organs for protection at the regional level.26 Noting that these earlier colloquia and conferences had ended with pious 18 19 22 23

24 25 26

The seminar took place from 23 October–5 November 1973; UN Doc. ST/TAO/HR/48, 1973. 20 21 Ibid. Resolution CHR, Res.24 (XXXIV) of 8 March 1978. See note 6 above. Resolution AG, Res.33/167 of 20 December 1978. H. Hannum, ‘The Butare Colloquium on Human Rights and Economic Development in Francophone Africa: A Summary and Analysis’, Universal Human Rights 1(2) (April–June 1979) 63–81. Ibid., 82. This colloquium had been organised by the Association S´en´egalaise d’Etudes et de Recherches Juridiques and the ICJ. I. Fall, ‘Des structures possibles a` l’´echelon africain pour la promotion des droits de l’homme’, Revue S´en´egalaise de Droit, sur le Colloque de Dakar sur le d´eveloppement et les droits de l’homme, 22 (December 1977) 71–7.

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vows, the participants at the colloquium set up a follow-up committee composed of African personalities to, as its name suggested, follow closely the implementation of the conclusions and recommendations that they had adopted. This committee carried out a number of visits in Africa to explain to Heads of State and other political authorities in the countries visited that it was necessary and urgent for Africa to have a Commission on Human Rights. Following the visit of the committee to Dakar, President L.S. Senghor, at that time President of the Republic of Senegal, agreed to present at the next session of the OAU Assembly of Heads of State and Government a resolution on the establishment of an African Commission on Human Rights. For its part, the United Nations, in compliance with the aforementioned Resolution 33/167 of the General Assembly,27 organised a seminar in Monrovia (Liberia) on the creation of regional human rights commissions, in particular for Africa.28 The participants at this seminar adopted a document entitled ‘The Monrovia Proposal on the Establishment of an African Commission on Human Rights’,29 which laid the foundation for the creation of an African Commission on Human Rights. The seminar also called on the Secretary-General of the United Nations to transmit this document to the OAU and to its current Chairperson.30 The results of this seminar were in line with the conclusions of the Cairo seminar.31 It is worth noting that two months earlier, the OAU Assembly of Heads of State and Government had adopted, in the same city of Monrovia, a decision32 requesting the Secretary-General of the OAU to convene as quickly as possible a meeting of African experts at the highest level, with a view to elaborating a draft of an African Charter on Human and Peoples’ Rights, aiming at, among other things, the institution of organs for the promotion and protection of human and peoples’ rights. This historic decision of the OAU, which was adopted unanimously, marked a turning point in the process of elaborating an African Convention on Human Rights. 27 29

30 31 32

28 See note 18 above. The seminar was organised from 10–21 September 1979. See ‘Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa’, Monrovia (Liberia), 10–21 September 1971; UN Doc. ST/HR/SER.A/4, 1979. Who at that time was Dr William Tolbert, President of Liberia. See note 6 above. Decision AHG/Dec.115 (XVI), Rev. 1, of the Assembly of Heads of State and Government of the OAU, at its 16th Ordinary Session held in Monrovia, Liberia, from 16–20 July 1979.

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In accordance with this decision, and at the invitation of Senegal, the OAU Secretary-General organised a conference in Dakar, from 28 November to 8 December 1979, a conference bringing together about twenty African experts from six countries33 under the presidency of the Honourable Judge K´eba Mbaye, then President of the Supreme Court of Senegal. It seems, at this stage, important to indicate that the President of Senegal, L´eopold Sedar Senghor, opened the experts’ meeting. His opening speech made apparent his wish to see the experts undertaking a work of good quality. He called on them ‘to use their imagination and to draw inspiration from African traditions, bearing in mind the values of African civilisation and the real needs of Africa’.34 He equally pleaded for a special place to be accorded to the right to development that, according to him, embraces economic, social and cultural rights as well as civil and political rights. He also insisted on the need to make provision for ‘duties of the individual’ which are in harmony with the rights granted by the society to which he/she belongs. These remarks and advice of President Senghor clarified to some extent the terms of reference of the experts, and certainly served as the basis of the document that they had elaborated. The experts were also inspired by the ‘Monrovia Proposal’.35 The Committee did remarkable work and succeeded, in about ten days, in drafting a text containing a Preamble and 65 Articles taking into account the political and ideological diversity of the OAU Member States, based on the principles constituting the foundation of the African traditions. The document then had to be submitted to a conference of plenipotentiaries organised by the OAU Secretary-General in Addis Ababa, Ethiopia, on 24 March 1980. Unfortunately, this conference did not take place, due to lack of quorum. This lack of quorum, far from being by chance, was the outcome of the hostility of certain governments which, without being able to express their position openly, did not support the adoption of a human rights charter by the OAU, seeing this as the start of a liberalism that they did not wish to see introduced in Africa. As a result, the first attempt by the OAU Secretary-General that aimed at an urgent adoption of the above-mentioned document ended in a failure. 33

34 35

‘Project on the Report of the Rapporteur of the Conference of African Experts on the Pilot Project of an African Charter on Human and Peoples’ Rights’, Dakar, Senegal, 28 November–8 December 1979; OAU Doc. CAB/LEG/Draft/Rapt/Rpt. Speech by His Excellence L´eopold Sedar Senghor, President of the Republic of Senegal; OAU Doc. CAB/LEG/67/5. See note 29 above.

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The OAU Secretary-General then had the idea of asking one of the most democratic countries of Africa where human rights were the most respected, The Gambia, to invite the OAU to hold a ministerial session in Banjul, with a view to adopting the draft Charter elaborated in Dakar by the Committee of Experts. The President of the Republic of The Gambia welcomed this idea enthusiastically, and invitations were sent out for the OAU Council of Ministers of Justice – not for a plenipotentiaries’ conference – to meet in Banjul.36 The session was opened in Banjul on 9 June 1980. The work took place in an extremely strained atmosphere; the debates were marked by several incidents. It seemed that, since the start of the session, the representatives of certain countries reproached the Committee of Experts in Dakar for having adopted a peculiar draft, not taking into account certain African beliefs, and containing ideas that were too capitalist. By the end of the session, the experts had only examined the Preamble and 11 Articles. The Charter was under threat. Before leaving, the participants had nonetheless agreed on the principle of holding another meeting to continue their work.37 After this first session, everything was put in place to thwart the efforts of those against the Charter. It was thus on the occasion of its 35th Ordinary Session, held in Freetown, Sierra Leone, in June 1980, that the Council of Ministers urgently called on the Ministerial Conference to do everything to complete the consideration of the draft Charter during its second session in Banjul, with a view to submitting it to the 18th Ordinary Session of the OAU Assembly of Heads of State and Government, which would be held in Nairobi, Kenya, in June 1981.38 At this juncture, the OAU SecretaryGeneral convened a new conference, in Banjul from 7–19 January 1981. This Ministerial Conference regrouped a number of the most important states, and there was no attempt to block the proceedings. The session took place in a relaxed atmosphere, and the work was completed well before the set date. The Conference adopted a text of 68 Articles39 as well as a Preamble. In view of these historic circumstances, the African 36

37 38 39

Council of Ministers, Report of the Secretary-General on the Draft of an African Charter on Human and Peoples’ Rights, 37th Ordinary Session, 15–21 June 1981, Nairobi, Kenya; OAU Doc. CM/1149 (XXXVII). Ibid. Resolution CM Res.792 (XXXV) of 23 June 1980, 35th Ordinary Session of the Council of Ministers of the OAU. See African Charter on Human and Peoples’ Rights, ‘Ministerial Meeting of the OAU on the Drafting of the African Charter on Human and Peoples’ Rights’, Banjul, The Gambia, 7–19 January 1981; OAU Doc. CAB/LEG/67/3/Rev.5.

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Charter was given the appropriate title of ‘the Banjul Charter’. The draft was then submitted to the OAU Council of Ministers,40 but the Ministers were not able to come to an agreement on the draft document.41 In spite of the obstacles at the level of the Council of Ministers, the draft Charter was submitted in good order to the OAU Assembly of Heads of State and Government, which adopted it without debate.42 As a result of these numerous events, the African Charter on Human and Peoples’ Rights was born on 28 June 1981 in the Kenyan capital. It entered into force on 21 October 1981, three months after its ratification by the absolute majority of OAU Member States.43 Today, it counts 53 States Parties who are also Member States of the AU. The above historical background shows that the process of creation, maturation and materialisation of the African Charter on Human and Peoples’ Rights has been punctuated by a series of seminars, conferences and colloquia essentially driven by African jurists. The determination of NGOs, the commitment of the United Nations, the tireless efforts of African jurists, the strong support from non-African observers and the crucial role of the OAU Secretary-General at that time created a synergy, without which it would have been difficult to overcome the manoeuvres of those opposing the African Charter. It seemed necessary to retrace the background to the elaboration of the African Charter in order to highlight the restricting circumstances and the difficult environment in which the process took place, as well as the invaluable investment of certain actors to make it succeed.

Creation, composition, mandate and functioning of the African Commission on Human and Peoples’ Rights Creation and composition The Commission had been created by virtue of Article 30 of the African Charter. It is composed of eleven members elected by secret ballot by the OAU/AU Assembly of Heads of State and Government for a period of six years renewable. They are drawn from a list of candidates presented by the States Parties to the African Charter, and chosen from among African 40 41 42

The Council of Ministers met at its 37th Ordinary Session from 10–21 June 1981 in Nairobi, Kenya. F. Ouguergouz, La Charte Africaine des Droits de l’Homme et des Peuples (Paris: Presses Universitaires de France, 1993), pp. 63–4. 43 Ibid. Article 63(3) of the African Charter.

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personalities of the highest reputation, known for their high morality, their integrity, their impartiality and their competence in human and peoples’ rights.44 At the time of the first elections, the Chairperson of the OAU Assembly of Heads of State and Government drew the names of four members who would have a mandate of two years, as well as the names of three others who would take a mandate of four years.45 This process aimed at avoiding the expiration of the mandate of all members of the Commission at the same time. The number of members of the Commission takes into account the OAU/AU principle of equitable geographical representation between the five regions of the north (two members), the east (two members), the west (three members), the centre (two members) and the south (two members) of Africa. Unfortunately, this initial regional balance was disturbed during other elections. Certain regions omitted to provide candidates, whereas others presented too many. Certain countries that were keen to have a national sitting on the Commission did everything to make sure that their candidate was elected, contrary to the total indifference of other countries. It would seem that the Heads of State elected the countries and not the candidates. It was noted time and time again that the very good candidates, with irreproachable CVs, failed at the expense of others less worthy. This state of affairs deserves to be corrected to ensure a better composition and good functioning of the Commission. Regarding the independence of the Commission, there was much criticism relating to certain members of the Commission who were concurrently holding their membership of the Commission with incompatible functions at the national level. The Commission counted among its numbers Ministers, Ambassadors and other plenipotentiaries of their country of origin. Observers felt that certain offices did not allow members of the Commission to work with total independence and objectivity, and some of the members of the Commission shared this point of view. The members of the Commission have debated this issue often, but they have not been able to settle it over the years. The NGO community has equally raised this question with vehemence on many occasions. Quite obviously, it is of major interest to the Commission to rule on this question and to define criteria to fulfill in order to avoid incompatible situations. If the African Commission fails to do so, the Commission of the African Union should take its responsibilities and draw the attention 44 45

Articles 31, 33, 34 and 35 of the African Charter. Articles 36 and 37 of the African Charter.

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of the Member States to such criteria, as it has done for the elections of members of the African Court of Human and Peoples’ Rights, during the nomination of candidates to the African Commission. The attention of the AU Executive Council should equally be drawn to the question during the elections. It is interesting to note that the current Chairperson of the Commission of the African Union, Professor Alpha Omar Konare, has already pronounced clearly on the need to put an end to incompatibilities within the African Commission. During the last presidential election in Malawi in 2004, the press spoke about the candidature of Commissioner Vera Chirwa to the Presidency. The Chairperson of the AU Commission immediately gave instructions to check the information with the interested Commissioner and to invite her to resign from the Commission if her candidature was confirmed. Commissioner Chirwa denied the news in the media. The initiative was very laudable and marked a new era. Although not explicit in the African Charter, the principle of parity between men and women in the distribution of positions at the AU has over the years been reflected more and more within the African Commission, which now includes five women.46

Mandate and functioning Mandate In addition to carrying out all the other tasks which may be entrusted to it by the OAU/AU Assembly of Heads of State and Government, the Commission is charged with three main missions:47 (1) the promotion of human and peoples’ rights; (2) the protection of human and peoples’ rights; and (3) the interpretation of the African Charter.

Organisation The members of the Commission sit in their individual capacity (they do not represent a state) and in their own name (they cannot be represented by another).48 They have total independence. The emoluments and allowances of the members of the Commission are charged to the 46 47

The list of members of the Commission can be found on the website www.achpr.org. Accessed 12 September 2007. 48 Article 45 of the African Charter. Rule 12 of the Rules of Procedure.

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OAU budget.49 They enjoy, in discharging their functions, the diplomatic privileges and immunities provided for in the General Convention on Privileges and Immunities of the OAU.50 The Commission elects from among its members a bureau composed of a Chairperson and Vice-Chairperson for a period of two years renewable.51 The number of mandates is unlimited. The election takes place in secret and only the members are present and take part. The candidate who obtains the majority of two-thirds of members present and voting is elected.52 If no candidate obtains the majority at the second, third and fourth rounds of voting, the one who obtains the greatest number of votes at the fifth round is elected.53 In case of an equal number of votes, the Chairperson has a casting vote.54 The Chairperson exercises their powers under the authority of the Commission.55 If the Chairperson is absent, they are replaced by the Vice-Chairperson who has the same rights and duties as the Chairperson.56

Seat The African Charter and the Rules of Procedure are silent on the subject. Initially, it was from the Legal Office, at the Secretariat of the OAU in Addis Ababa, Ethiopia, where its activities were co-ordinated, and it was the Legal Advisor who was the Acting Secretary to the Commission. From the beginning of its activities, the African Commission felt the need to have its seat situated outside the country where the political and administrative organs of the OAU were based, in order to be protected from all their pressure and influence.57 The OAU Assembly of Heads of State and Government decided, during its 14th Ordinary Session held from 25–28 May in Addis Ababa, Ethiopia, that the seat of the African Commission should be in Banjul, The Gambia, and it has been based there since November 1989. Its Secretariat was housed in a temporary and inadequate building that lacked basic facilities like meeting rooms. The Commission has been forced to hold its meetings in hotels at exorbitant cost to the Gambian government. In 2004, the Secretariat of the Commission 49 51 52 54 55 57

50 Article 44 of the African Charter. Article 43 of the African Charter. Article 42(1) of the African Charter and Rule 17(1) of the Rules of Procedure of the African Commission. 53 Rule 17(2) of the Rules of Procedure. Rule 17(3) of the Rules of Procedure. Article 42(2) of the African Charter and Rule 60 of the Rules of Procedure. 56 Rule 18 of the Rules of Procedure. Rules 19 and 20 of the Rules of Procedure. This is moreover the recommendation of the Colloquium on the African Commission organised by the International Academy of Human Rights, ICJ and the African Association of International Law in Dakar, Senegal, from 17–19 June 1987.

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was moved to another temporary building, even more unsuitable than the first one in terms of space and location. Staff were cramped. A lot of documents and materials remained packed up due to lack of space; there was threat of damage due to the heat and humidity. The government has been promising to build a permanent headquarters since 1992, but at the time of writing this chapter the project has not yet been finalised. The African Commission has had occasion to express its preoccupation on this issue with the relevant authorities at the highest level. Unfortunately, the Commission does not yet have a headquarters and its Secretariat has not yet been properly settled.

Secretariat The Commission is a permanent organ but it does not sit on a permanent basis. It is assisted in its work by the Secretariat, which functions permanently and which is headed by a Secretary appointed58 by the SecretaryGeneral of the OAU. The latter provides, besides staff, the means and necessary services for the effective exercise of the Commission’s functions.59 The Rules of Procedure of the Commission detail the functions of the Secretary of the Commission.60 He or she is responsible for the activities of the Secretariat under the direction of the Chairperson. The Secretary assists the Commission and all its members in the exercise of their functions, and serves as the intermediary for all the correspondence concerning the Commission. He or she looks after the archives of the Commission. The Secretary, with their team, must provide all the technical assistance (processing communications, preparation for missions, undertaking missions and writing up reports thereto, preparing periodic reports of States, preparing the applications for affiliated status of National Human Rights Institutions and applications for observer status of NGOs), financial assistance (mobilisation of the necessary funds for their activities) and administrative assistance (arranging their work, organising trips, etc.). The execution of all these tasks allotted to the Secretariat requires substantial resources. The reality is that the Secretariat of the Commission has always suffered from a chronic lack of human, material and financial means. The number of staff put at the disposal of the Secretariat by its mother organisation is clearly insufficient: the legal section which is the backbone of the Secretariat has only three statutory legal officers; the personnel of this section are essentially funded from external assistance. The 58 59

The head of the Secretariat carries the title of ‘Secretary’. 60 Article 41 of the African Charter. Rule 23 of the Rules of Procedure.

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Documentation, Media and Information sections, despite their importance for the work of the Commission, are always taken charge of by partners; the purchase of books, the publication of documents and the computerisation of the documents of the Commission are ensured by extra budgetary funds. For example, the AU funds promotional missions up to US$40,000 per year, which covers barely four missions of a commissioner and the legal officer who accompanies him/her. The work of the Special Rapporteurs and Working Groups is funded entirely by partners. Computer equipment and photocopying, essential for the daily work of the Secretariat and for its sessions, has been provided by external partners. We could give many examples to illustrate the inadequate means provided by the OAU/AU to the Commission in relation to its mandate and related resources. In short, the budget of the OAU/AU only covers the salaries of the staff that occupy the statutory posts, and part of the operational expenses, tickets, daily subsistence allowance and honorarium of the members of the Commission, as well as expenses for translators and interpreters during the two annual ordinary sessions. These are just the operational costs. The activities of the Commission are not funded. Faced with this deficiency in resources coming from the OAU, the Secretariat has had to turn to external funding. The friends of the Commission have shown themselves sensitive to its needs from the start of its activities. For that reason, the Commission often expressed its appreciation for these kind gestures towards it. In the course of the last ten years, the main partners which have brought sustained and constant assistance to the Commission are: the Danish Centre for Human Rights, which became the Danish Institute for Human Rights; SIDA (the Swedish government) and the Netherlands. ‘Rights and Democracy’ of Canada joined them recently. These partners have even undertaken the mobilisation of other potential sponsors in order to ensure, in the worst of scenarios, that the Commission maintains the level of funding and performance already reached. The Danish Centre of Human Rights organised, to this effect, a sensitisation meeting in Copenhagen in 2001, and ‘The Nordic Africa Institute’ of Sweden, which takes a lot of interest in the African Commission, organised a similar meeting in 2003. The full involvement of the Commission of the AU and the African Commission on Human and Peoples’ Rights in the mobilisation of funds for the latter,61 which had been claimed by the partners, has been confirmed by the presence of the Commissioner 61

The mobilisation of resources for the Commission has always been entrusted to the Secretary.

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for Political Affairs of the AU, responsible for human rights, as well as the Bureau of the African Commission. The European Union and the Office of the High Commissioner for Human Rights of the United Nations equally intervened on a one-off basis.62 The States Parties are actually better disposed to human rights, and accept that the African Commission mobilises extra budgetary resources; they even offer to give voluntary contributions to the Human Rights Fund, which is in the process of being established.63 It is important to note that the ordinary budget and extra budgetary funds are managed in accordance with the financial rules of the AU. Equally, the instructions that the sponsors provide have to be respected. The table of the Secretariat (Table 1) shows that the structure of the AU allows for a total of twelve functionaries, in total, including two legal officers, while, with external assistance, the total number has been brought to eighteen functionaries including six legal officers, a documentalist and one assistant, a press and information officer and an administrative and finance officer charged with programmes and funding. The multiple assistance of its partners during the last ten years has allowed the African Commission to achieve enormous progress in its work. Since 1996, it has worked on the basis of a coherent programme of work with the Mauritius Plan of Action64 and Strategic Plans,65 which followed. Each Commissioner and each Special Rapporteur has a plan of action for his/her activities, and is assisted by a jurist.66 Thanks to improved technical support, the communications, which are one of the essential tasks of the Commission, are dealt with more efficiently. Before 1994, only the judgment of the decisions was written on the folder of the Communication by the Commissioner rapporteur. Now, the decisions are written in the form of judicial decisions with a clear reasoning. The Secretariat prepares a summary of each communication, does the necessary legal research and prepares a draft decision for the Commissioner rapporteur. These documents are distributed to all members of the Commission; this enables easy examination of the files. Regarding the State periodic reports, the jurists prepare summaries and questionnaires to facilitate 62 63 64 65 66

Following up the assistance of these two partners has been strongly delayed by heavy bureaucracy. See the Report of the First Ministerial Conference of the African Union on Human Rights, Kigali (Rwanda), May 2003. The Mauritius Plan of Action was adopted by the Commission in October 1996 for a period of five years (1996–2001). The Commission adopted a strategic plan for 2001–2003 and another for 2003–2006. These are public documents. The lack of jurists means that one jurist must assist two Commissioners.

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Table 1. Staff at the African Commission on Human and Peoples’ Rights Available funding Positions Secretary to the Commission Legal Affairs Coordinator (NP) Legal Officer Promotion 1 Legal Officer Promotion 2 Legal Officer Promotion 3 Legal Officer Protection 1 Legal Officer Protection 2 Legal Officer Protection 3 (NP) Legal Officer/NGO Coordinator (NP) Technical Assistant Documentalist Assistant Documentalist (NP) Public Relations Officer Bilingual Secretary (NP) Administrative and Finance Officer Administrative Assistant (NP) Account Clerk (NP) Bilingual Secretary Filing Clerk Secretary/Receptionist Driver Driver Cleaner Security Guard Security Guard TOTAL

AU Funding

External Financing

Funding to be sought

x x x

x

x x x x x x x x x x

x x x x x x x x x x x 12

6

7

Note: (NP) = New Position. These positions are not filled. This table clearly shows that the Secretariat of the Commission needs to be strengthened in terms of human resources. This covers the minimum number of staff needed for the smooth operation of the Secretariat of the Commission.

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examination by the Commission. For each session, the Secretariat prepares a working document on each agenda item. The members of the Commission are required to carry out promotional missions or fact-finding visits to States Parties. The Secretariat does everything possible to provide the necessary assistance,67 to the extent of its means, to working groups,68 and to special rapporteurs69 of the Commission. The Secretariat had to follow the elaboration of the Protocol establishing the African Court on Human and Peoples’ Rights70 as well as the Protocol on the Rights of Women in Africa.71 The interaction between the African Commission and NGOs has also improved, and there is increased publicity of the work of the Commission, thanks to better media coverage before, during and after the sessions, as well as the creation of a website.72 All of these examples show how vital external assistance has been for the African Commission. However, over the years, certain Member States of the OAU/AU did not look favourably on external support and were suspicious of the influence of western countries through this funding. The independence of the Commission, as a result, was called into question, albeit wrongly, because this assistance was not subject to any conditions. But there was no alternative unless one resolved to paralyse the activities of the Commission, something which no responsible person would support.

Sessions The Commission holds two ordinary sessions73 each year, either at its headquarters in Banjul74 or in another African capital75 at the invitation

67 68 69

70

71

72 73

The jurists are distributed among the Commissioners, special rapporteurs and working groups. The Commission has put in place working groups on fair trial and legal assistance, indigenous populations, prevention of torture and freedom of expression. See Chapter 11. The Commission has created special rapporteurs on the following themes: the rights of women, freedom of expression, extrajudicial, summary and arbitrary executions, prisons and conditions of detention in Africa and refugees and internally displaced persons. See Chapter 10. The Protocol to the African Charter creating an African Court on Human and Peoples’ Rights was adopted by the Assembly of Heads of State and Government of the OAU on 10 June 1998 in Ouagadougou (Burkina Faso) and entered into force on 25 January 2004. See Chapter 12. The Protocol on the Rights of Women in Africa was adopted by the Assembly of Heads of State and Government of the AU on 11 July 2003 in Maputo (Mozambique) and entered into force on 25 November 2005. See Chapter 13. The website of the Commission is www.achpr.org. Accessed 12 September 2007. 74 75 Rule 2 of the Rules of Procedure. Rule 4 of the Rules of Procedure. Ibid.

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of States Parties to the African Charter. The Commission also holds extraordinary sessions76 according to its needs and financial possibilities. The Commission has held 40 ordinary sessions77 and three extraordinary sessions. When the ordinary sessions are held at its headquarters in Banjul, the main part of the expenses is covered by the AU. By virtue of the Headquarters Agreement signed between The Gambia and the OAU, the government of The Gambia has the obligation to provide to the Commission adequate headquarters, which should include, among other things, meeting rooms. But at present, The Gambia must hire rooms for the Commission’s sessions. The Government also provides vehicles for members of the Commission. When other States Parties host the sessions of the Commission, they take charge of all expenses which are not covered by the budget of the AU, calculated on the assumption that the sessions take place in Banjul. An Agreement is signed between these countries and the Secretary of the Commission in this regard. The duration of the sessions varies following the availability of resources provided by the OAU and now the AU. The length initially was two weeks; this was then reduced to ten days and has now been brought back to fifteen days. The initial draft agenda is prepared by the Secretary in consultation with the Chairperson and the Vice-Chairperson of the Commission before being sent to the members of the Commission for their contributions. It is then finalised and sent to participants with invitations to the session. The participants who wish to do so send their proposals to the Secretary to the Commission. The agenda is formally adopted by the Commission at the start of each session.78 After the adoption of the agenda, the Commission fixes its working hours and nominates the rapporteur of the session as well as the rapporteur for its activity report, which must be presented at each of the ordinary sessions of the AU Assembly of Heads of State and Government.79 At the present time, the Assembly of Heads of State and Government of the AU, which was holding only one ordinary session each year, now holds two sessions a year. Once the agenda is adopted, the Secretary to the Commission prepares a programme of work indicating the time allocated to each agenda item, as well as the items to be examined each day. This 76 77 78

Rules 1 and 3 of the Rules of Procedure. The 40th Ordinary Session took place from 15–29 November 2006 in Banjul, The Gambia: see Final Communiqu´e of the session. 79 Rule 8 of the Rules of Procedure. Article 54 of the African Charter.

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programme helps to better manage time, and even if it is difficult to follow it rigorously, it serves as an indication of the progression of work. The agenda of the sessions is always heavily loaded because of the large number of pressing issues raised, and it is rarely exhausted. The impossibility for the members of the Commission to be available during the intersessions, due to their professional obligations and/or because of lack of resources, is the reason for them being overburdened. The Commission has often created working groups to examine certain urgent questions during its intersessions in order to provide a report and help to accelerate the consideration of these questions, but this arrangement rarely works because of the reasons mentioned above. The quorum is seven members. Decisions are taken by consensus or, failing that, by the vote of the majority of members present and voting. According to present practice, the consensus is the rule, and the vote the exception. The Commission can sit in public or in private.80 During the public sittings, participants have the possibility of contributing to debates on the questions under consideration. The delegates of States Parties, the representatives of inter-governmental and non-governmental organisations as well as National Human Rights Institutions equally have occasion to express themselves. It must be noted that during the NGO Forum, organised regularly on the eve of the sessions of the Commission, NGOs systematically prepare their contributions on the different agenda items. But only those NGOs with observer status can take the floor. During its private sittings, the Commission considers confidential issues and deliberates on questions debated in the public sittings. Only the participants called into the room are admitted and can take part. The Commission is supposed to work in the four OAU/AU official languages:81 Arabic, English, French and Portuguese. But because of lack of financial means, it works mainly in English and French, and sometimes in Arabic. This deficiency inevitably prejudices Lusophones and in particular the members of the Commission who usually work in Portuguese.82 The sessions constitute the most important part of the activities of the Commission. They offer members the opportunity to review the past intersession, to rule on pending issues and to plan the following intersession and beyond.

80 82

81 Rule 32 of the Rules of Procedure. Rules 34–37 of the Rules of Procedure. Commissioner Angela Melo normally works in Portuguese.

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Conclusion The process of conception, maturation and drafting of the African Charter was long and arduous. After the adoption and coming into force of this Charter, the African Commission was established, and although some placed a lot of hope in this important institution, many observers quickly became disillusioned because their expectations had been disappointed. For a large part, the Commission has been unjustly blamed because it has not had resources to function as it would have wished. The Secretariat, which is the foundation on which the Commission rests, is underequipped from all points of view. The comparison with its European and Inter-American sister institutions is very meaningful. Even if noticeable progress has been registered these last years, the Secretariat would have been able to do better and do more if sufficient resources had been put at its disposal. The insufficiency of resources remains the major handicap of the Commission. The partners have done and given what they could over the years to advance the work of the Commission, but waiting for the OAU/AU to take over the responsibility has been late in coming, and some partners have had to disengage because of this. There are grounds for fearing that the African Court on Human and Peoples’ Rights might go through the same difficulties. It is time that the AU undertook its responsibilities and provided the personnel, the budget and adequate equipment to the Commission to enable it to function properly. The creation and speedy operationalisation of the ‘Human Rights Fund’ should be of great use. The Commission of the African Union should also take seriously the problem of the headquarters of the Commission and deal with it quickly. After seventeen years of waiting for a headquarters promised by its host state, the AU should draw the necessary conclusions. Lastly, it is appropriate to pay deserved tribute to the partners of the African Commission for their precious assistance and to urge them not to tire, because the work that remains for promoting and protecting human and peoples’ rights is still immense.

1 The African Union and the Regional Human Rights System gino j. naldi

Introduction In 2002, a new pan-continental regional institution for Africa, the African Union (AU), came into being,1 succeeding the discredited Organization of African Unity (OAU) which was dissolved.2 This notable event had its origins in the Sirte Declaration adopted by the OAU in September 1999, where African leaders had met to discuss the future of the OAU. There was an acceptance that the OAU, as originally conceived in the early 1960s, could no longer serve or satisfy the needs and aspirations of the Continent, and it was decided to replace it with a more dynamic organisation capable, on the one hand, of preserving and building upon the OAU’s achievements and, on the other hand, of promoting Africa’s role in the 1

2

Its constituent instrument, the Constitutive Act of the African Union, was adopted by the 36th Ordinary Session of the Organization of African Unity, meeting in Lom´e, Togo in July 2000; the establishment of the AU was declared by the 5th Extraordinary Session of the OAU, meeting in Sirte on 2 March 2001; Decision on the African Union, OAU Doc. EAHG/Dec.1 (V). The Constitutive Act of the African Union is available at the AU’s website: www.africa-union.org. Accessed 12 September 2007. It entered into force on 26 May 2001; see Article 28 of the Constitutive Act which stipulates that it would enter into force thirty days following the deposit of the instruments of ratification by at least twothirds of the Member States of the Organization of African Unity. The official launch of the AU was effected in July 2002 in Durban, South Africa: Durban Declaration in Tribute to the Organization of African Unity and on the Occasion of the Launching of the African Union, AU Doc. ASS/AU/Decl.2 (I), reproduced in International Legal Materials 41 (2002) 1029. All of the Organization of African Unity’s fifty-three Member States have joined the AU. For analysis, see K. Magliveras and G. J. Naldi, The African Union and its Predecessor, Organization of African Unity (The Hague: Kluwer Law International, 2004), pp. 108–96; K. Magliveras and G. J. Naldi, ‘The African Union – A New Dawn for Africa?’, International and Comparative Law Quarterly 51 (2002) 415; C. Packer and D. Rukare, ‘The New African Union and its Constitutive Act’, American Journal of International Law 96 (2002) 365. See Article 33(1) of the Constitutive Act specifying that the AU would replace the OAU after a transitional period of one year.

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twenty-first century. The Sirte Declaration sought, inter alia, to address in an effective manner the new social, political and economic realities in Africa through a revitalised pan-African organisation that would have an enhanced role in meeting the needs of the peoples of the Continent.3 The AU, in all essential regards a political and economic institution, is loosely modeled on the European Union and constitutes the expression of a renewed determination in Africa to expedite political co-operation and economic integration. The AU is designed to provide the African continent with the legal and institutional framework to tackle successfully the twin challenges of the post-Cold War age and globalisation.4 Of particular interest is the fact that human rights and democratic values are founding principles of the AU and, unlike the OAU Charter, express references to these core beliefs are made in the Constitutive Act.5 It is also important to note that the AU has inherited the OAU’s endeavours in the field of human rights.6

The primacy of human rights and democratic principles The Preamble to the Constitutive Act clearly establishes the AU’s commitment to the ideals of human rights and democracy, whereby the AU undertakes to ‘promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law’. Significantly, this pledge has not remained at a purely abstract level, but by enshrining them in the operative sections of the Constitutive Act the AU has emphasised the centrality of their role. Among the AU’s objectives, as set out in Article 3 of the Constitutive Act, are the 3 4

5

6

Sirte Declaration of 9 September 1999, OAU Doc. EAHG/Decl. (IV) Rev.1, reproduced in Revue Africaine de Droit International et Compar´e 11 (1999) 803. According to the OAU Secretary-General, ‘[The African leaders] certainly had in mind an organization that would provide a framework for enhanced cohesion, cooperation, integration and strengthened capacity to deal with the crises that face the African continent today’: Report of the Secretary-General on the Implementation of the Sirte Decision on the African Union, OAU Doc. CM/2210 (LXXIV), p. 10, para. 26. A fact acknowledged by the African Commission on Human and Peoples’ Rights in Communication 157/96, Association Pour la Sauvegarde de la Paix au Burundi v. Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia, Seventeenth Activity Report 2003–2004, Annex VII. See, in particular, the African Charter on Human and Peoples’ Rights 1981 and the Protocol to the African Charter on the Establishment of the African Court of Human and Peoples’ Rights 1998. For further analysis of the Court, see Chapter 14 below and G. J. Naldi and K. Magliveras, ‘Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court on Human and Peoples’ Rights’ Netherlands Quarterly of Human Rights 16 (1998) 431.

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promotion of democratic principles and institutions, popular participation and good governance,7 and the promotion and protection of human rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.8 The wording of these provisions would indicate that they create binding obligations for the Member States, which should help improve the frequently abysmal human rights record in Africa. It is also interesting to observe that the statement of the AU’s objectives reveal the realisation by the African States that the attainment of sustainable economic development cannot be achieved without respecting and encouraging the principles of democracy, popular participation and good governance and the protection of human rights. By directly associating sustainable economic development with safeguarding human rights, the Constitutive Act acknowledges that a human rights culture is indispensable in fostering economic growth. The AU has to act in accordance with a number of fundamental principles set out in Article 4 of the Constitutive Act, the strict observance of which will allow its objectives to be attained. Included among these principles are respect for democratic principles, human rights, the rule of law and good governance.9 The promotion of gender equality is expressly mentioned, significant in a continent where women have often been discriminated against on a routine and systematic basis.10 Particularly noteworthy, however, is the inclusion of a ‘democracy clause’ whereby unconstitutional changes of government are condemned and rejected.11 This appears to follow logically from the objectives of promoting democratic principles and institutions, and good governance, throughout the continent. In a critical departure from the ancien r´egime of the OAU, the AU can reinforce democracy among Member States through the imposition of punitive measures. Article 30 of the Constitutive Act therefore stipulates that regimes coming to power through unconstitutional

7 9 10

11

8 Article 3(g) of the Constitutive Act. Article 3(h) of the Constitutive Act. Article 4(m) of the Constitutive Act. Article 4(l) of the Constitutive Act. Note Article 3(i) of the Protocol on Amendments to the Constitutive Act of the African Union 2003, not yet in force, which seeks to ensure the effective participation of women in decision-making. It should be observed that the AU has adopted a treaty on women’s rights, the Additional Protocol to the African Charter on Human And Peoples’ Rights on Women’s Rights in Africa 2003, under Article 2(1) of which States Parties undertake to combat all forms of discrimination against women. See further Chapter 15 below. Article 4(p) of the Constitutive Act.

african union and the regional human rights system

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means shall be prohibited from participating in the activities of the AU.12 Its proper and consistent application should hopefully act as a deterrent to attempts at military coup d’´etats that have so frequently plagued Africa. Another notable innovation is the right of the AU to intervene in a Member State in respect of war crimes, genocide and crimes against humanity.13 The founding of the AU represents the most concrete manifestation towards the realisation of a process of political and economic cohesion among the States of Africa. However, the establishment of the AU has added significance because of the prominent commitments to democracy and human rights, which are especially desirable developments and constitute welcome improvements on the OAU Charter, which was silent on these matters. Human rights have been given an enhanced role in the AU legal order, but the AU must take its pertinent pledges seriously if it is not to repeat the mistakes of the OAU. Nevertheless, the fact should not be overlooked that the OAU did take concrete steps to promote human rights through the adoption of various treaties and initiatives that put in place mechanisms for their protection, and which at the same time made, and continue to make, a distinctive contribution to international human rights law.14 This regional framework was inherited, and expanded, by the AU. Besides the human rights framework centred on the African Charter on Human and Peoples’ Rights, which is discussed below, the OAU in 2001 had adopted NEPAD (New Partnership for Africa’s Development) that, in seeking to address social and economic development, gives a prominent role to human rights.15 One of the features that distinguishes the AU from the OAU is the fact that the promotion and protection of human rights is a core objective of the AU organs.16 This responsibility may fall upon the Court of Justice in particular, established as the principal judicial organ of the AU under Article 18 of the Constitutive Act, since by virtue of Article 19(1)(b) of the Protocol of the Court of Justice of the African Union 2003 the Court 12

13 14 15 16

See Communication 157/96. In addition, under Article 23(2) of the Constitutive Act, the failure by any Member State to comply with the decisions and policies of the AU may lead to the imposition of sanctions. Article 4(h) of the Constitutive Act. See further Article 4(h) of the Protocol on Amendments to the Constitutive Act. See generally, R. Murray, Human Rights in Africa: From the OAU to the African Union (Cambridge: Cambridge University Press, 2004), pp. 7–30. Ibid., pp. 38–43. See A. Lloyd and R. Murray, ‘Institutions with Responsibility for Human Rights Protection under the African Union’, Journal of African Law 48 (2004) 165.

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has jurisdiction over all AU (and OAU) treaties.17 Another AU organ with a human rights mandate is the Pan-African Parliament.18 In this context the Peace and Security Council is noteworthy.19 The Peace and Security Council is a ‘standing decision-making organ for the prevention, management and resolution of conflicts’, as well as a ‘collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa’.20 The Peace and Security Council was deemed necessary in order to enhance the AU’s conflict resolution capacity and to establish an operational structure for the more effective implementation of relevant decisions. The objectives of the Peace and Security Council include for present purposes promoting and encouraging democratic practices, good governance and the rule of law, and protecting human rights.21 It is authorised, inter alia, to follow up the progress towards the promotion of democratic practices, good governance and the rule of law, and the protection of human rights.22 The Peace and Security Council thus provides the AU with the institutional means to take effective action.

The African Charter on Human and Peoples’ Rights – Fatally Flawed? The regional human rights system for Africa has its inception, for all practical purposes, in the adoption of the African Charter on Human and Peoples’ Rights (hereafter the Banjul Charter).23 The Banjul Charter was 17 18

19

20 21 22 23

Not yet in force. For comment, see K. Magliveras and G. J. Naldi, ‘The African Court of Justice’ Zeitschrift f¨ur ausl¨andisches o¨ ffentliches Recht und V¨olkerrecht 66 (2006) 187. Article 3 of the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament see K. Magliveras and G. J. Naldi, ‘The Pan-African Parliament of the African Union: An Overview’, African Journal of Human Rights 3 (2003) 222–34. See Protocol Relating to the Establishment of the Peace and Security Council of the African Union 2002. The Protocol was ratified in 2003 and the Peace and Security Council became operational in 2004. Note that Article 5 of the Protocol on Amendments to the Constitutive Act lists the Peace and Security Council as one of the organs of the AU. See generally, Murray, Human Rights in Africa, pp. 124–26; Magliveras and Naldi, The African Union and its Predecessor, pp. 93–8, 105–6. Article 2(1) of the Protocol Relating to the Establishment of the Peace and Security Council. See also Article 9 of the Protocol on Amendments to the Constitutive Act. Article 3 of the Protocol Relating to the Establishment of the Peace and Security Council. Article 7 of the Protocol Relating to the Establishment of the Peace and Security Council. Adopted by the Eighteenth Assembly of Heads of State and Government of the Organization of African Unity at Nairobi in July 1981, entered into force on 21 October 1986: www.africa-union.org. Accessed 12 September 2007. All AU Member States have ratified the Banjul Charter. For an analysis of the Banjul Charter, see G. J. Naldi, The Organization

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innovative, idiosyncratic even, in that it contains a wide range of rights; not simply civil and political rights but also economic, social and cultural rights and extending even to peoples’ rights, and duties. The enforcement of these rights was entrusted to a commission, the African Commission on Human and Peoples’ Rights (hereafter the Commission), comparable in many ways to bodies such as the UN Committee on Human Rights or the now defunct European Commission on Human Rights. But significantly, unlike the American and European systems, no provision was made for a court at that stage. These peculiarities may be explicable if the Banjul Charter is considered in context. The drafting of the Banjul Charter was inspired by the traditions and values of African society, including African concepts of law and rights, prompted further by negative historical experiences, and those influences are evident throughout.24 The Banjul Charter met with a largely hostile reception from academic circles. It has been described as ‘the least developed or effective (in relation to the European and Inter-American regimes), the most distinctive and the most controversial’ of the regional human rights systems,25 and additionally as ‘modest in its objectives and flexible in its means’.26 Certainly there are a number of features about the Banjul Charter which have given just cause for concern. More so than other comparable instruments, the substantive provisions of the Banjul Charter are equivocally phrased.27

24

25 26

27

of African Unity: An Analysis of its Role, 2 edn (London: Mansell, 1999), pp. 109–212; U. O. Umozurike, The African Charter on Human and Peoples’ Rights (The Hague: Kluwer Law International, 1997). Umozurike, The African Charter on Human and Peoples’ Rights, Chapter 8; J. Cobbah, ‘African Values and the Human Rights Debate: An African Perspective,’ Human Rights Quarterly 9 (1987) 322. H. J. Steiner and P. Alston, International Human Rights in Context, 2nd edn (Oxford: Oxford University Press, 2000), p. 354. B. Obinna Okere, ‘The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems’, Human Rights Quarterly 6 (1984) 141, p. 158. For other sceptical assessments, see R. Gittleman, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis,’ Virginia Journal of International Law 22 (1982) 667; P. Amoah, ‘The African Charter on Human and Peoples’ Rights – An Effective Weapon for Human Rights?,’ Revue Africaine de Droit International et Compar´e 4 (1992) 226; G. Robertson, Crimes Against Humanity: The Struggle for Global Justice (London: Penguin, 1999), pp. 57–8. Steiner and Alston, International Human Rights in Context, ibid.; R. M. D’Sa, ‘The African Charter on Human and Peoples’ Rights: Problems and Prospects for Regional Action’, Australian Yearbook of International Law 10 (1981–3) 101, pp. 107–8; Gittleman, ‘The African Charter on Human and Peoples’ Rights’, 685. C. A. Odinkalu, ‘The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment’, Transnational Law & Contemporary Problems 8 (1998) 359, p. 398, is not too pessimistic, as he believes that the Commission has been addressing this problem through its procedures and jurisprudence.

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Moreover, extensive use is made of ‘clawback’ clauses28 that seem to make the enforcement of the right dependent on municipal law or at the discretion of the national authorities. Article 10(1) is one such example.29 It states that, ‘Every individual shall have the right to free association provided that he abides by the law’ (emphasis added). The attainment of this right therefore appears to be undermined because it is made subject to the dictates of municipal law.30 However, human rights advocates were encouraged by the fact that the Commission cautioned against a ‘too easy resort to the limitation clauses in the African Charter’.31 Indeed, it rejected an interpretation based on the premise of ‘clawback’ clauses and asserted the supremacy of international human rights law.32 The Commission’s 28 29

30

31 32

See generally, R. Higgins, ‘Derogations under Human Rights Treaties’ British Yearbook of International Law 48 (1976–7) 281. See also Articles 8, 9(2), 12(1), and 13(1) of the Banjul Charter. For comment see, G. J. Naldi, ‘Limitation of Rights under the African Charter on Human and Peoples’ Rights: The Contribution of the African Commission on Human and Peoples’ Rights’, South African Journal of Human Rights 17 (2001) 109. It does not seem appropriate to draw an analogy with the limitations contained in Articles 10 and 11 of the European Convention on Human Rights, for example, since these are strictly defined and are only permitted subject to stringent criteria: see D. J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995), pp. 285–301. Robertson, Crimes Against Humanity, pp. 57–8; D’Sa, ‘The African Charter on Human and Peoples’ Rights’, pp. 109–11; E. A. Ankumah, The African Commission on Human and Peoples’ Rights: Practice and Procedure (The Hague: Martinus N¨ıjhoff Publishers, 1996), pp. 176–7. One commentator observed that the ‘legal reasons and conditions for invoking these limitations are not defined in the Charter’; E. Bello, ‘The African Charter on Human and Peoples’ Rights’, Hague Recueil 194 (1985–6) 13, p. 70. Another stated that since ‘there are no provisions to ensure that a core of the human rights guarantees prevails against legislative restrictions, this represents a considerable structural defect’; P. Kunig, ‘The Protection of Human Rights by International Law in Africa’ 25 German Yearbook of International Law 25 (1982) 138, p. 155; while another expressed the view that ‘[t]he limitations are not defined exactly in the Charter, arguably leaving it purely to the discretion of states, and thus, in effect, allowing rights to be denied’; R. Murray, The African Commission on Human and Peoples’ Rights and International Law (Oxford: Hart Publishing, 2000), p. 127. Umozurike, who is less critical, divides the Banjul Charter’s civil and political rights into ‘unrestricted’ and ‘restricted’ rights; The African Charter on Human and Peoples’ Rights, Chapter 3. See also, U. O. Umozurike, ‘The Protection of Human Rights under the Banjul (African) Charter on Human and Peoples’ Rights’, African Journal of International Law 1 (1988) 65, p. 68. However, it is encouraging to note that the Commission has interpreted this particular provision creatively, stating that there is a duty on the State ‘to abstain from interfering with the free formation of associations’, and that ‘there must always be a general capacity for citizens to join, without State interference, in associations in order to attain various ends’; Communication 101/93, Civil Liberties Organization in respect of Nigerian Bar Association v. Nigeria, Eighth Activity Report 1994–1995, Annex V. Communication 212/98, Amnesty International v. Zambia, Twelfth Activity Report 1998– 1999, Annex V, para. 42. Communications 105/93, 128/94, 130/94 and 152/96; Media Rights Agenda and Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V.

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important and reasoned views on this issue, which although dealing with the specific question of freedom of expression states a principle of general application, deserve to be quoted at length: Governments should avoid restricting rights, and have special care with regard to those rights protected by constitutional or international human rights law. No situation justifies the wholesale violation of human rights. In fact, general restrictions on rights diminish public confidence in the rule of law and are often counter-productive. . . . According to Article 9(2) of the Charter, dissemination of opinions may be restricted by law. This does not mean that national law can set aside the right to express and disseminate one’s opinions; this would make the protection of the right to express one’s opinions ineffective. To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter. . . . In contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances. . . . The only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27(2), that is that the rights of the Charter ‘shall be exercised with due regard to the rights of others, collective security, morality and common interest’. . . . The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained. . . . Even more important, a limitation may never have as a consequence that the right itself becomes illusory.33

While the wording of the Banjul Charter with respect to clawback clauses leaves much to be desired, it is satisfying to note that the Commission has interpreted the relevant provisions in conformity with international human rights standards, and its practice clearly establishes that it will 33

Ibid., pp. 725–6, paras. 65–70. See also Communication 242/2001, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v. Islamic Republic of Mauritania, Seventeenth Activity Report 2003–2004, Annex VII, paras. 76–9.

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not uphold the legality of a limitation that leaves its precise scope and meaning dependant on the whim of the State. More recently, in The Law Office of Ghazi Suleiman v. Sudan, the Commission stated in relation to the freedoms of expression and assembly exercised with a view to promoting the protection of human rights that, ‘[s]uch actions and expressions are among the most important exercises of human rights and as such should be given substantial protection that do not allow the State to suspend these rights for frivolous reasons and in a manner that is thus disproportionate to the interference with the exercise of these fundamental rights.’34 In this context it is a salient fact that the Banjul Charter, unlike all other comparable treaties, does not contain a derogation clause. This actuality has been emphasised by the Commission.35 In Media Rights Agenda and Constitutional Rights Project v. Nigeria, the Commission stated accordingly that ‘limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances’.36 There is therefore no reason to persist in the belief that the guarantees in the Banjul Charter are rendered meaningless or that the Commission would adopt a State-oriented view of this matter. Another distinguishing characteristic of the Banjul Charter is the fact that it explicitly imposes obligations upon the individual towards the State and the community.37 While the relevant provisions of the Banjul Charter have been inspired by traditional African values, it is apparent that the scope and extent of these obligations goes considerably further than those set out by other international documents.38 Although it has been pointed out that the Banjul Charter cannot be considered unique in this regard, nevertheless it is, 34 35 36

37

38

Communication 228/99, The Law Office of Ghazi Suleiman v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII, para. 62. Communication 74/92, Commission Nationale des Droits de l’Homme et des Libert´es v. Chad, Ninth Activity Report 1995–1996, Annex VIII, para. 21. Communications 105/93, 128/94, 130/94 and 152/96. See also Communication 250/2002, Liesbeth Zegveld and Mussie Ephrem v. Eritrea, Seventeenth Activity Report 2003–2004, Annex VII, para. 60. Articles 27–9. See further, Ankumah, The African Commission on Human and Peoples’ Rights, pp. 170–2; Naldi, The Organization of African Unity, pp. 114, 138–9; Umozurike, The African Charter on Human and Peoples’ Rights, pp. 64–5; G. W. Mugwanya, Human Rights in Africa: Enhancing Human Rights Through the African Regional Human Rights System (Ardsley, NY: Transnational Publishers, 2003), pp. 228–31; D’Sa, ‘The African Charter on Human and Peoples’ Rights’, pp. 115–16; M. wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’, Virginia Journal of International Law 35 (1995) 339. See, e.g., Article 29(1): Universal Declaration of Human Rights.

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‘the first human rights treaty to include an enumeration of, to give forceful attention to, individuals’ duties. In this respect, it goes well beyond the conventional notion that duties may be correlative to rights . . . [it] also goes beyond correlative duties of individuals that many human rights instruments explicitly or implicitly impose . . . The Charter differs by defining duties that are not simply the ‘other side’ of individual rights, and that run from individuals to the state as well as to other groups and individuals.’39

Their sweeping nature could adversely affect the enjoyment of the rights protected, and as a result the Banjul Charter has attracted considerable criticism. As Ankumah points out, the duty provisions are generally ‘problematic and could adversely affect enjoyment of the rights set forth in the Charter’.40 Gittleman hence writes that the Banjul Charter is ‘incapable of supplying even a scintilla of external restraint upon a government’s power to create laws contrary to the spirit of the rights granted’.41 Umozurike’s early assessment was that the Banjul Charter ‘may well be a paper tiger except for effective public opinion that may be whipped up against the offender’.42 The Banjul Charter could aptly be described as a statist document which cannot be easily reconciled with the individualistic bias of liberal democratic thought. The suggestion has therefore been made that the Banjul Charter be revised to make it more anthropocentric.43 However, lest it be thought that it is all doom and gloom with the Banjul Charter, its positive attributes should be acclaimed. The Banjul Charter protects civil and political rights broadly comparable to those guaranteed by other international and regional human rights instruments, accompanied by an emergent jurisprudence from the Commission.44 A key feature, however, is that equal prominence is given to second- and third-generation rights, which are listed as legally enforceable rights rather than purely aspirational or desiderata, to be realised progressively as other human rights instruments provide.45 The OAU reaffirmed its position on this matter 39 40 41 42 43

44 45

Steiner and Alston, International Human Rights in Context, p. 355. Ankumah, The African Commission on Human and Peoples’ Rights, p. 171; Amoah, ‘The African Charter on Human and Peoples’ Rights’, pp. 227–8. Gittleman, ‘The African Charter on Human and Peoples’ Rights’, p. 159. Umozurike, ‘The Protection of Human Rights’, pp. 82–3. W. Benedek, ‘The African Charter and Commission on Human and Peoples’ Rights: How to Make it More Effective’, Netherlands Quarterly of Human Rights 11 (1993) 25, p. 31. Odinkalu is sceptical whether such a development would necessarily result in greater protection of human rights: ‘The Individual Complaints Procedures’, p. 398. Mugwanya, Human Rights in Africa, pp. 191–205, 275–99; Naldi, The Organization of African Unity, pp. 117–27. See further Chapters 6 and 7 below. Mugwanya, Human Rights in Africa, pp. 205–28; Naldi, The Organization of African Unity, pp. 127–38; Umozurike, The African Charter on Human and Peoples’ Rights, pp. 45–9,

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in the Grand Bay Declaration and Plan of Action 1999, proclaiming ‘the principle that human rights are universal, indivisible, interdependent and inter-related’ and calling for parity to be given to economic, social and cultural rights.46 The Declaration proceeded to assert third-generation rights as ‘universal and inalienable rights which form an integral part of fundamental human rights’.47 The Commission has accordingly drawn attention to the ‘uniqueness’ of the African situation and the ‘special qualities’ of the Banjul Charter, which requires international human rights to be responsive to African needs.48 It has therefore commented that ‘collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa’.49 Moreover, it has stated that States Parties are under a ‘duty to respect, protect, promote, and fulfil’, as well as give effect to, all the Banjul Charter obligations.50 The Commission has stated emphatically that ‘there is no right in the African Charter that cannot be made effective’ and that it ‘will apply any of the diverse rights contained’ therein.51 This radical approach, fuelling the debate about the nature of human rights, which traditionally has focused exclusively on an individualistic approach towards civil and political rights, was one that had attracted considerable criticism, even in recent times.52 However,

46 47 48

49 50

51

52

51–61; D’Sa, ‘The African Charter on Human and Peoples’ Rights’, pp. 113–15, 116–22. See further Chapters 8 and 9 below. Umozurike has expressed doubts as to the wisdom of this approach, which he believes confuses legally enforceable rights with desirable political rights. Since the integrity of the former could therefore be undermined, he would have preferred that the second- and third-generation rights had been declared merely hortatory: ‘The Protection of Human Rights under the Banjul (African) Charter on Human and Peoples’ Rights’, 81 and ‘The African Charter on Human and Peoples’ Rights’ in M. Theodoropoulas (ed.), Human Rights in Europe and Africa (Athens: Hellenic University Press, 1992), pp. 114–15. (1999) 11 Revue Africaine de Droit International et Compar´e 352, para. 1. Ibid., para. 2 Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Fifteenth Activity Report 2001–2002, Annex V, para. 68. Ibid. Ibid., paras. 43–8. The Commission added that each State is under a ‘minimum core obligation’ to ensure the satisfaction of, at the very least, minimum essential levels for each right under the Charter. See also Communication 74/92; Communications 137/94, 139/94, 154/96, 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998–1999, Annex V. Ibid., para. 68. Odinkalu had foreseen this eventuality, writing that, ‘the obligations that States Parties assume with respect to these rights are clearly stated as being of immediate application’: ‘The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights’, p. 196. See, e.g., R. Higgins, Problems and Process: International Law and How We Use it (Oxford: Clarendon Press, 1994), pp. 99–103; P. Sieghart, The Lawful Rights of Mankind (Oxford: Oxford University Press, 1986), p. 161.

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the ideological distinction between the different categories of rights now seems less important in light of the Vienna Declaration on Human Rights, which stresses that all human rights are universal, indivisible and interdependent.53 While second- and third-generation rights have traditionally been considered as non-justiciable,54 it must be acknowledged that there is an increasing acceptance of their justiciability.55 It seems fair to describe the Commission as a pioneer in this regard. The Commission has been confronted with socio-economic rights in a number of cases. Thus in Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, the Commission held that the right to work guaranteed by Article 15 of the Banjul Charter had been infringed when the applicant, a magistrate, who had been imprisoned without trial, failed to be reinstated when others who had been condemned in similar conditions had been.56 Transgressions of the right to health have been found in a number of cases. In Union Interafricaine des Droits de l’Homme v. Zaire, a violation of the right to health enshrined in Article 16 of the Banjul Charter was established when the State failed to provide safe drinking water, electricity and medicines.57 The Commission additionally found that the closure of universities and secondary schools for a number of years constituted a violation of the right to education in Article 17(1) of the Banjul Charter. In Media Rights Agenda and

53

54

55

56 57

Vienna Declaration and Programme of Action, Part I, para. 5; UN Commission on Human Rights, Resolution 1999/25, para. 3(d); UN Doc. E/CN.4/1999/167, p. 105. The Limburg Principles also describe economic, social and cultural rights as an integral part of international human rights law: International Commission of Jurists, The Review 37 (1986) 43–55. Significantly, the UN Committee on Economic, Social and Cultural Rights has stated that States Parties to the International Covenant on Economic, Social and Cultural Rights 1966 have assumed clear obligations in respect of the full realisation of the rights in question, which require them to move expeditiously and effectively towards that goal: General Comment 3; UN Doc. HRI/GEN/1/Rev.2, pp. 55–9. See, e.g., E. Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’, Netherlands Yearbook of International Law 9 (1978) 69; C. Sunstein, ‘Against Positive Rights’, East European Constitutional Review 2 (1993) 35. Hence Hatem Kotrane, independent expert on the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights has expressed the view that, ‘[i]n light of the experience gained in recent years from the application of international, regional and national human rights instruments and mechanisms, the independent expert notes that there is no longer any doubt about the essentially justiciable nature of the rights guaranteed by the [International Covenant on Economic, Social and Cultural Rights]’; UN Doc. E/CN.4/2003/53, para. 2. Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, Tenth Activity Report 1996–1997, Annex X. Communication 100/93, Union Interafricaine des Droits de l’Homme v. Zaire, Ninth Activity Report 1995–1996, Annex VIII.

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Constitutional Rights Project v. Nigeria, the Commission found another breach of Article 16 when a detainee in deteriorating health was denied medical assistance.58 In Malawi African Association et al. v. Mauritania, the Commission considered the right to cultural life protected by Article 17(2) of the Banjul Charter, stating that language is an integral part of cultural expression that enables the individual to take an active part in the life of the community. Preventing an individual expressing himself/herself in a particular language deprives him/her of their identity.59 More recently, the Commission has provided ample reasoning for its conclusions. A particularly important case, therefore, is that of Purohit and Moore v. The Gambia, which upheld a number of complaints against the legislation governing mental health.60 The Commission emphasised the relevance of the right to health describing it as ‘vital to all aspects of a person’s life and well-being, and is crucial to the realisation of all the other fundamental human rights and freedoms’.61 But in a deeply significant passage, the Commission proceeded to set out its philosophy on this issue: ‘The African Commission would . . . like to state that it is aware that millions of people in Africa are not enjoying the right to health maximally because African countries are generally faced with the problem of poverty which renders them incapable to provide the necessary amenities, infrastructure and resources that facilitate the full enjoyment of this right. Therefore, having due regard to this depressing but real state of affairs, the African Commission would like to read into Article 16 the obligation on part of States . . . to take concrete and targeted steps, while taking full advantage of its available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind.’62

Probably the most celebrated case, however, is that of The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, where the Commission considered these rights in some detail.63 The case originated with the claims of the Ogoni people that a 58

59 60 61 63

Communications 105/93, 128/94, 130/94 and 152/96. See also Communications 137/94, 139/94, 154/96 and 161/97; Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, Malawi African Association et al. v. Mauritania, Thirteenth Activity Report 1999–2000, Annex V, para. 37. Communication 241/2001, Purohit and Moore v. The Gambia, Sixteenth Activity Report 2002–2003, Annex VII. 62 Ibid., para. 80. Ibid., para. 84. Communication 155/96. For comment, see G. Bekker, ‘The Social and Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria’, Journal of African Law 47 (2003) 126.

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number of their fundamental rights had been violated by the Nigerian military regime, acting through the state oil company, which had failed to take measures to protect the local population from acts harmful to the environment. The Commission found violations of, inter alia, the right to health, the right to housing and the right to food. One of the interesting elements of this case is that, notwithstanding the fact that neither the right to housing nor the right to food are explicitly protected by the Banjul Charter, the Commission nonetheless found that they constituted an integral part of the combined effect of various provisions of the Banjul Charter, including the right to health protected by Article 16. The Commission has also had the opportunity to pronounce on thirdgeneration rights. In Katangese Peoples’ Congress v. Zaire, the Commission had to consider the nature and scope of the right to self-determination under Article 20(1) of the Banjul Charter, holding that secession was not sanctioned by the Banjul Charter.64 In Malawi African Association et al. v. Mauritania, the Commission held that unprovoked attacks on villages by government forces violated the right to peace and security guaranteed by Article 23 of the Banjul Charter.65 In The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, the Commission stated that the right to a satisfactory environment, guaranteed under Article 24 of the Banjul Charter, imposed clear obligations upon a Member State, which was required to ‘take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’, and to ‘desist from directly threatening the . . . environment of their citizens’.66 The Commission went on to find a violation of the right of peoples to dispose freely of their wealth and natural resources and of the right to a clean and safe environment protected by Articles 21 and 24 of the Banjul Charter when State exploitation of oilfields polluted the environment of the Ogoni people.67 These decisions of the Commission are valuable for a variety of reasons. First, the Commission has begun to set out ‘what is generally expected of governments under the Charter and more specifically vis-`a-vis the rights themselves’, entailing a combination of positive and negative duties.68 This was not true of its early decisions which usually lacked full reasoning. Second, the Commission has stressed the special nature of the Banjul 64 65 66

Communication 75/92, Katangese Peoples’ Congress v. Zaire, Eighth Activity Report 1994– 1995, Annex VI. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, para. 140. 67 68 Communication 155/96, para. 52. Ibid. Ibid., para. 43.

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Charter, which, unlike most other human rights treaties, guarantees both civil and political rights and socio-economic rights and that States have assumed obligations with regard to all of them. In fact, the Commission has stated that the different categories of rights listed in the Banjul Charter are of equal validity and that none have priority.69 Third, the Commission is seeking to give effect to these socio-economic rights, placing emphasis on the need of States to take steps towards their realisation. Whether the Commission’s exhortations will have any effect on the priorities of African governments is quite another matter. Another innovative feature of the Banjul Charter is the capacity for the Commission, pursuant to Article 58 thereof, to flag emergency cases where communications reveal ‘the existence of a series of serious or massive violations of human and peoples’ rights’ and to bring them to the attention of the OAU/AU.70 Isolated individual violations, however serious, lie beyond the scope of this provision; rather it refers to a pattern of large-scale violations.71 The Commission has determined that it must act promptly in such cases and that it should make use of publicity and public opinion as a means of pressurising States to amend their behaviour.72

The African Commission on Human and Peoples’ Rights As has been mentioned, the monitoring of the rights enshrined in the Banjul Charter is presently entrusted to the Commission, the system’s safeguard mechanism, which is composed of eleven independent African personalities with expertise in human rights, mandated with promoting and ensuring protection of human and peoples’ rights.73 That 69 70

71

72

73

Ibid., para. 44. See generally, R. Murray, ‘Serious or Massive Violations under the African Charter on Human and Peoples’ Rights: A Comparison with the Inter-American and European Mechanisms’, Netherlands Quarterly of Human Rights 17 (1999) 109. In Communications 25/89, 47/90, 59/91 and 100/93, Free Legal Assistance Group, Lawyers Committee for Human Rights, Union Interafricaine des Droits de l’Homme, and Les Temoins Jehoves v. Zaire, Ninth Activity Report 1995–1996, Annex VIII, the Commission upheld allegations including arbitrary arrests, unfair trials, torture, extra-judicial killings, restrictions on the freedom of association and freedom of the press, and religious persecution. In Communication 74/92, claims of killings, disappearances and torture were upheld. See Resolution Mechanisms for Urgent Response to Human Rights Emergencies under Article 58 of the African Charter on Human and Peoples’ Rights, in R. Murray and M. D. Evans (eds.), Documents of the African Commission on Human and Peoples’ Rights (Oxford: Hort Publishing, 2000), p. 757. Articles 30 and 45 of the Banjul Charter. The Commission became operational in 1987. Ankumah prefers to describe the Commission as a ‘supervisory institution’. The African Commission on Human and Peoples’ Rights, p. 8.

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responsibility is now shared with the African Court on Human and Peoples’ Rights, which has only recently become operative. It was initially believed that the Commission had relatively weak powers of investigation and enforcement.74 It must be understood that the Commission is not a court or tribunal with compulsory jurisdiction. Like other similar bodies, such as the UN Human Rights Committee, the Commission could be described as having a ‘quasi-judicial’ function in that it has been conferred the authority to entertain inter-State communications75 and ‘Other’ communications.76 This infelicitous wording led some to question whether the Commission had the capacity to receive individual complaints,77 but it is now well established in the Commission’s practice that complaints may be submitted by individuals and NGOs.78 In fact, a particularly constructive feature of this procedure is that the locus standi requirements are relatively broad, since individuals and organisations other than the victim can complain to the Commission. In The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, the Commission actually thanked the NGOs for bringing the case, expressing the view that it was ‘a demonstration of the usefulness to the Commission and individuals of actio popularis, which is wisely allowed under the African Charter’.79 According to the Commission, the main aim of this procedure is ‘to initiate a positive dialogue, resulting in an amicable resolution . . . which remedies the prejudice complained of. A prerequisite for amicably remedying violations of the Charter is the good faith of the parties concerned, including their willingness to participate in a dialogue.’80 It has therefore been observed that the ‘Commission thus recognizes that the bottom line of the communications procedure 74

75 77 78

79 80

K. O. Kufuor, ‘Safeguarding Human Rights: A Critique of the African Commission on Human and Peoples’ Rights’, Africa Development 18 (1993) 65, p. 74; Z. Motala, ‘Human Rights in Africa: A Cultural, Ideological, and Legal Examination’, Hastings International and Comparative Law Review 12 (1989) 373, p. 405. A State reporting procedure is also required under Article 62. See further, Naldi, The Organization of African Unity, pp. 139– 47; Ankumah, The African Commission on Human and Peoples’ Rights, pp. 20–8, 51–77, 79–110. 76 Articles 47–54 of the Banjul Charter. Articles 55–9 of the Banjul Charter. Odinkalu, ‘The Individual Complaints Procedures’, p. 371. Rule 114(2) of the Commission’s Rules of Procedure, since deleted, made this clear, stating that, ‘[t]he Commission may accept such communications from any individual or organization irrespective of where they shall be’ in G. J. Naldi (ed.), Documents of the Organization of African Unity (London: Mansell, 1992), p. 151. See Umozurike, ‘The Protection of Human Rights under the Banjul (African) Charter on Human and Peoples’ Rights’, p. 78; Benedek, ‘The African Charter and Commission on Human and Peoples’ Rights’, pp. 27–8. Communication 155/96, para. 49. Communications 25/89, 47/90, 59/91 and 100/93.

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is the redress of the violations complained of’.81 Nevertheless, the Commission attracted criticism, sometimes verging on the hysterical, that it was generally unable to act as a forceful guardian of rights.82 It must be acknowledged that for various reasons – subordination to the OAU, lack of transparency, timidity – the Commission had an uncertain start. Certainly an examination of its early work leaves much to be desired. It took the Commission many years to publish details on its work, including its decisions on individual communications, not helped by the fact that it was criminally under-resourced.83 Lack of an effective remedy was identified as a particular deficiency.84 This is partly because its decisions do not formally have the binding legal force of a ruling of a court of law, but have a persuasive authority (political and moral) akin to the opinions of the UN Human Rights Committee and other similar UN bodies.85 It needs to be remembered that the Commission is not a judicial body; it thus does not seem fair to criticise the Commission for not being something that it is not. Nonetheless, the passage of time seems to have lent credence to 81 82

83

84 85

Odinkalu, ‘The Individual Complaints Procedures’, p. 374, and pp. 374–8. Ankumah, The African Commission on Human and Peoples’ Rights, pp. 179–98; Robertson, Crimes Against Humanity, pp. 58–9. Makau Wa Mutua thus describes the Commission as ‘a facade, a yoke that African leaders have put around our necks’: ‘The African Human Rights System in Comparative Perspective’, Review of the African Commission on Human and Peoples’ Rights 3 (1993) 5, p. 11. According to Steiner and Alston, the Commission ‘has few powers, and for the most part has been hesitant in exercising those powers or creatively interpreting and developing them’: International Human Rights in Context, p. 920. J. Oloka-Onyango, although not as critical, is also unimpressed: ‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa’, California Western International Law Journal 26 (1995) 1, pp. 52–6. See also Amoah, ‘The African Charter on Human and Peoples’ Rights’, pp. 232–7; C. E. Welch, Jr., ‘The African Commission on Human and Peoples’ Rights: A Five-Year Report and Assessment’, Human Rights Quarterly 14 (1992) 43. For a more favourable assessment, see Umozurike, The African Charter on Human and Peoples’ Rights, pp. 67–85; R. Murray, ‘Decisions by the African Commission on Individual Communications under The African Charter on Human and Peoples’ Rights’, International and Comparative Law Quarterly 46 (1997) 412. The Office of the UN High Commissioner for Human Rights identified the limited resources allocated by the OAU to the Commission as one of the major obstacles to its effective functioning: UN Doc. E/CN.4/1999/93, para. 6. Benedek, ‘The African Charter and Commission on Human and Peoples’ Rights’, pp. 31–2; Kufuor, ‘Safeguarding Human Rights’, pp. 71–4. See Article 59 of the Banjul Charter and Rule 120 of the Commission’s Rules of Procedure, as amended, in Murray and Evans, Documents of the African Commission, p. 21; Ankumah, The African Commission on Human and Peoples’ Rights, pp. 24, 74–5; D’Sa, ‘The African Charter on Human and Peoples’ Rights’, p. 126. Murray writes that the Commission has relied on these provisions, enabling it to declare that there have been violations of the Banjul Charter: Murray, ‘Decisions by the African Commission’ p. 428. For thoughtful arguments that the Commission’s decisions are binding, see F. Viljoen and L. Louw, ‘The Status of the Findings of the African Commission: from Moral Persuasion to Legal Obligation’, Journal of African Law 48 (2004) 1.

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Ankumah’s observation that, notwithstanding its failings, the Commission had the potential to become an effective body.86 Thus an expectation of compliance does appear to have been engendered.87 An analysis of the Commission’s recent decisions, compared with its approach in earlier times, does suggest that the Commission is steadily becoming more robust in performing its protective mandate.88 This is also true of the Commission’s use of interim measures of protection,89 which strongly suggest that the Commission considers them as binding on the parties to the case.90 Furthermore, the criticism that the African system was toothless, as it lacked remedies, is no longer valid, as the Commission has called for remedies in a number of cases.91 The fact that the Commission performs other protective and promotional functions should not be overlooked.92 In this context, the State reporting system deserves mention. Under Article 62, States Parties must submit a report every two years on legislative or other measures taken to give effect to the rights and freedoms guaranteed by the Banjul Charter, and is virtually identical to the supervisory functions that exist under the 86 87

88

89

90

91

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Ankumah, The African Commission on Human and Peoples’ Rights, p. 9. This approach would appear to be required under Article 1 of the Banjul Charter: see Communication 129/94, Civil Liberties Organization v. Nigeria, Ninth Activity Report 1995–1996, Annex VIII (Documents of the African Commission, p. 452); see further, C. Anyangwe, ‘Obligations of States Parties to the African Charter on Human and Peoples’ Rights’, Revue Africaine de Droit International et Compar´e 10 (1998) 625. It may be that the Commission has come to regard its decisions on communications as binding: see Communications 137/94, 139/94, 154/96 and 161/97, paras. 113–16; Murray, ‘Decisions by the African Commission’, p. 431; Viljoen and Louw, ‘The Status of the Findings of the African Commission’. See, e.g., Communications 27/89, 46/91, 49/91 and 99/93, Organisation Mondiale Contre La Torture and the Association Internationale des Juristes Democrates and others v. Rwanda, Tenth Activity Report 1996–1997, Annex X; Communications 105/93, 128/94, 130/94 and 152/96; Communications 137/94, 139/94, 154/96 and 161/97; Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98; Communication 155/96. See further, Murray, ‘Decisions by the African Commission’, pp. 428–32. Rule 111 of the Commission’s Rules of Procedure, in Murray and Evans, Documents of the African Commission, pp. 21–48. Their purpose is to ‘avoid irreparable damage being caused to the victim’ and/or to protect the interests of the parties or the proper conduct of the proceedings: see, e.g., Communications 137/94, 139/94, 154/96 and 161/97, para. 114. See in particular, Communications 137/94, 139/94, 154/96 and 161/97, para. 114. See further, G. J. Naldi, ‘Interim Measures of Protection in the African System for the Protection of Human and Peoples’ Rights’, African Human Rights Law Journal 2 (2002) 1–10. See further, G. J. Naldi, ‘Reparations in the Practice of the African Commission on Human and Peoples’ Rights’, Leiden Journal of International Law 14 (2001) 681; Viljoen and Louw, ‘The Status of the Findings of the African Commission’, pp. 10–13. R. Murray, The African Commission on Human and Peoples’ Rights and International Law, pp. 14–26.

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UN control machinery.93 The system is designed to reveal the extent of implementation through ‘constructive dialogue’.94 It must be admitted that there is scope for improvement in the record of compliance.95 Acting under the broad authority assigned to the Commission under Articles 45 and 46 of the Banjul Charter, thematic rapporteurs have been appointed, for example on the rights of women and on prisons and conditions of detention.96 Although this is an initiative with significant potential, the results to date do not appear to be very encouraging.97 Relying on this authority, the Commission has adopted resolutions on a variety of topics, both of a specific and general nature.98 Notable among the latter are the Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa,99 the Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa,100 the Resolution on the Adoption of the ‘Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa’,101 and the Resolution on the Protection of Human Rights Defenders in Africa.102 This is no mere pious pontification on the part of the Commission, since the resolutions have had a practical impact. The Commission has thus invoked its resolutions in its decision-making, reinforcing its reasoning, for example, in The Law Office of Ghazi Suleiman v. Sudan,103 Interights et al. (on behalf of Mariette Sonjaleen Bosch) v. Botswana,104 Liesbeth Zegveld and Mussie Ephrem v. Eritrea,105 and Lawyers for Human Rights v. Swaziland,106 amongst others. These resolutions can be viewed as an authoritative interpretation and elaboration of specific rights in the Banjul Charter. Recourse to 93

94 95 98 99 101 103 104 105 106

The Commission assumed this supervisory role notwithstanding the fact that Article 62 is not explicit in assigning it this responsibility: Ankumah, The African Commission on Human and Peoples’ Rights, p. 79. The Commission has issued guidelines to assist States Parties in drafting their reports, amended in 1998, in Murray and Evans, Documents of the African Commission, pp. 49–81. See generally Chapter 3 below: Mugwanya, Human Rights in Africa, pp. 302–7. Ankumah, The African Commission on Human and Peoples’ Rights, p. 80. 96 97 See Chapter 3 below. See further Chapter 12 below. Ibid. See Mugwanya, Human Rights in Africa, pp. 308–12. 100 Sixteenth Activity Report 2002–2003, Annex VI. Ibid. 102 Seventeenth Activity Report 2003–2004, Annex IV. Ibid. Communication 228/99. Communication 240/2001, Interights et al. (on behalf of Mariette Sonjaleen Bosch) v. Botswana, Seventeenth Activity Report 2003–2004, Annex VII, para. 52. Communication 250/2002. Communication 251/2002, Lawyers for Human Rights v. Swaziland, Eighteenth Activity Report 2004–2005, Annex III.

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examples of ‘soft law’ is not uncommon practice by international bodies. Another practical result has been the creation of a follow-up committee under the Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa. In addition to the developments described above, the Commission has taken the opportunity recently to add another role to its mandate, which should not come as a surprise to any student of international institutions: that of promoting democracy in Africa.107 It may be that the Commission was emboldened to make this statement by the AU’s explicit commitment to democracy and good governance. In any case, a practical application of this objective can be seen in Lawyers for Human Rights v. Swaziland, where the Commission held that a ban on political parties violated, inter alia, freedom of association under Article 10 of the Banjul Charter, freedom of assembly under Article 11 of the Banjul Charter and the right to participate in the government of one’s country under Article 13 of the Banjul Charter.108 Genuine democracy is rare in Africa; it is common knowledge that many ruling regimes lack popular support or democratic mandate, with many elections neither free nor fair. Space precludes further discussion, but it should be observed that the link between democratic values, human rights and development is well established.109 Indeed, the OAU acknowledged the relationship between bad governance and human rights abuses.110 Odinkalu’s statement that on ‘its interpretation of the Charter, the Commission has been mostly positive and sometimes even innovative’ seems justified therefore.111 There is truth in his further comment that, ‘any conclusions . . . about the work of the Commission . . . must remain tentative and probably lie somewhere between the extremes of opinion’, but ‘that any temptation to dismiss it as a worthless institution today must be regarded as premature, ill-informed, or both’.112 He adds that 107 108 109

110 111 112

Communication 228/99, para. 53. Communication 251/2002. See also Communication 242/2001. See the Vienna Declaration and Programme of Action, International Legal Materials 32 (1993) 1661, Part I, paras. 8, 10(3). The UN Commission on Human Rights has declared that democracy fosters the full realisation of human rights: Resolution 1999/57; UN Doc. E/CN.4/1999/167, p. 194. See further, Murray, Human Rights in Africa, pp. 235–66. ‘Grand Bay Declaration and Plan of Action’, Revue Africaine de Droit International et Compar´e 11 (1999) 352, para. 8(g)–(i), (p), (r). Odinkalu, ‘The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights’, p. 402. Ibid., pp. 401, 402.

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the Commission has been successfully addressing the deficiencies in the Banjul Charter ‘through its practice, evolving procedures, and jurisprudence’.113 More recently, Murray has argued that too many commentators have been too readily dismissive of the Commission, whereas its jurisprudence has provided examples of ‘innovative and dynamic interpretations of the law’.114 Whatever its failings, perceived or otherwise, the Commission was assigned the sole role of safeguarding human rights under the Banjul Charter. The suggestion of strengthening the protection of human rights by establishing a court like other regional human rights regimes was initially rejected.115 This decision was justified on the ground that the African conception of dispute settlement is based on negotiation and conciliation rather than an adversarial or confrontational system.116 However, the real reason may have been more prosaic. It appears there was widespread reluctance among OAU Member States to subordinate themselves to a supranational judicial organ.117

The African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights – a troubled relationship? The creation of an African Court on Human and Peoples’ Rights118 (hereafter the Court) with the specific task of reinforcing the role of the 113 114 115 116

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Ibid., p. 398. R. Murray, ‘International Human Rights: Neglect of Perspectives from African Institutions’, International and Comparative Law Quarterly 55 (2006) 193, p. 195. Amoah, ‘The African Charter on Human and Peoples’ Rights’, p. 237. Amoah, ‘The African Charter on Human and Peoples’ Rights’, pp. 237–8. On the African philosophy of rights, which emphasises the nexus between individual and community, see A. A. Naim and F. M. Deng (eds.), Human Rights in Africa (Washington DC: The Brookings Institution, 1990); T. Maluwa, International Law in Post-Colonial Africa (The Hague: Kluwer Law International, 1999), pp. 130–7; Umozurike, The African Charter on Human and Peoples’ Rights, pp. 12–19; J. A. M. Cobbah, ‘African Values and the Human Rights Debate: An African Perspective’, Human Rights Quarterly 9 (1987) 309. It should be observed that the Preamble to the Banjul Charter stresses that the concept of human and peoples’ rights should be inspired by African values and historical tradition. Ankumah, The African Commission on Human and Peoples’ Rights, p. 9. Umozurike has also been critical of this omission, writing that it ‘was an attempt to avoid exposing a government or the head of State closely identified with the government for its wrong doings’: ‘The Protection of Human Rights under the Banjul (African) Charter on Human and Peoples’ Rights’, p. 78. See note 6 above. The Protocol on the African Court of Human and Peoples’ Rights entered into force in 2004, and at the time of writing has been ratified by twenty-three States. See Chapter 12 below.

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Commission119 enhances in theory the prospects of promoting the protection of human rights in Africa.120 Since the Court is considered in detail elsewhere in this book, discussion is limited to the relationship between the two organs, but it is apparent that the possibility of jurisdictional disputes does exist. The jurisdiction of the Court extends under Article 3(1) of the Protocol on the African Court of Human and Peoples’ Rights to all cases and disputes submitted to it concerning the interpretation and application of the Banjul Charter, the Protocol and any other relevant human rights instrument ratified by the States Parties concerned. Its contentious jurisdiction is addressed by Article 5(1) of the Protocol according to which the following are entitled to submit cases to the Court: (a) the Commission; (b) a State Party which has lodged a complaint to the Commission; (c) a State Party against which a complaint has been lodged at the Commission; (d) a State Party whose citizen is a victim of human rights violations.121 This provision gives rise to a number of observations. It appears that only the Commission has an unconditional right of access to the Court. The Commission can therefore refer to the Court inter-State and individual communications lodged before it,122 but it is submitted that it will also have the capacity to initiate new cases before the Court. If interpreted dynamically, the Commission has potentially been granted sweeping powers to champion human rights by holding States to account before the Court. By contrast, a State that wishes to have recourse to the Court must come within one of the scenarios envisaged by sub-paragraphs (b)–(d). It is not immediately apparent from the wording of provisions (b)–(c) whether a State concerned need await the Commission’s decision before submitting 119 120

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Article 2 of the Protocol on the African Court of Human and Peoples’ Rights. This commitment has been put in doubt as a result of the AU’s decision in 2004 to merge the Court with the African Court of Justice: see AU Doc. Assembly/AU/Dec.45 (III), para. 4 and AU Doc. Assembly/AU/Dec.83 (V) of 2005. Notwithstanding this decision, the AU’s Executive Council called for the operationalisation of the Court: AU Doc. Decision EX.CL/Dec.165 (VI) of 2005. The judges have been elected. The Commission has expressed its concern at the merger decision, given the different mandates and litigants of the two Courts: Resolution on the Establishment of an Effective African Court of Human and Peoples’ Rights, Thirty-Seventh Session, April–May 2005, at www1.umn.edu/humanrts/africa. Accessed 12 September 2007. The modalities of the merger have not been published at the time of writing. On the African Court of Justice, see Magliveras and Naldi, ‘The African Court of Justice’. These, in contrast to applicants under Article 5(3), could be described as privileged applicants in that their locus standi is not dependent on an additional declaration by a State accepting the competence of the Court. Odinkalu therefore describes the Commission in this context as a ‘filter’: ‘The Individual Complaints Procedures’, p. 404.

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the case to the Court. These issues will need to be addressed by the Court’s statute and/or rules of procedure. In a significant development, the Protocol recognises the locus standi of other applicants. Thus, according to Article 5(3), the Court may enable individuals and NGOs with observer status before the Commission to submit cases directly to the Court.123 However, such applicants may still have to satisfy the hurdles of admissibility, and while the Court reflects on this issue it may request the Commission’s opinion on the matter.124 The Commission is required to respond promptly to this request, but since some delay is bound to be occasioned it is to be hoped that recourse will not be had to this procedure in urgent circumstances. It is interesting to note that the Court may seek to claim the authority to review the Commission’s decisions on admissibility. This observation is based on the wording of Article 6(2) of the Protocol, which states that the Court must take account of the hurdles of admissibility and not that the hurdles of admissibility must be satisfied. If the Court were to eschew a legalistic approach, it could overlook minor procedural irregularities for the sake of justice. Therefore, applications previously declared inadmissible by the Commission under Article 56 of the Banjul Charter could still be considered by the Court.125 This power should be used cautiously by the Court, however, both to uphold confidence in the Commission and maintain its integrity, and to avoid being encumbered. Under Article 4 of the Protocol, the Court is competent to give advisory opinions on any legal matter relating to the Banjul Charter or other relevant human rights instruments ratified by African States at the request of, inter alia, the AU or any AU organ, such as the Commission. However, the 123

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However, it is important to note that such jurisdiction is optional in that States are required to make a separate declaration under Article 34(6) of the Protocol on the African Court of Human and Peoples’ Rights, accepting the competence of the Court to receive petitions from such complainants under Article 5(3). However, the Commission could be lobbied to initiate proceedings under Article 5(1)(a). Article 6(2) of the Protocol on the African Court of Human and Peoples’ Rights states that the Court shall rule on the admissibility of cases taking account of Article 56 of the Banjul Charter. This provision enumerates seven conditions of admissibility to be satisfied by individual communications submitted to the Commission: see Ankumah, The African Commission on Human and Peoples’ Rights, p. 61–70. This interpretation is based on Rule 118(2) of the Commission’s Rules of Procedure, enabling it subsequently to reconsider a decision to declare a communication inadmissible, and on the settled practice of the Inter-American Court of Human Rights see, e.g., Fairen Garbi and Solis Corrales v. Honduras (Preliminary Objections), Series C, No. 2, Judgment of 26 June 1987.

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Court is directed to decline jurisdiction where the issue is already being examined by the Commission. This should be interpreted as referring to matters currently before the Commission rather than cases decided upon by the Commission. It is not clear in this context whether the Court will entertain ‘appeals’ concerning the Commission’s views. An important source of possible conflict concerns jurisdiction. The Protocol provides no guidance as to when it might be more appropriate to submit a complaint to the Court rather than the Commission, or vice versa. Again the Court’s statute and/or Rules of Procedure may provide the necessary clarification. The complainant or the parties may have the option depending perhaps on the nature and seriousness of the violation, the remedy sought and the political and diplomatic sensitivities of the case. States may thus prefer to have recourse to the Commission in certain circumstances, for example where they wish to avoid binding adjudication. It is therefore unlikely that the Commission will become marginalised to the point of irrelevance. The Commission will, of course, continue to have a role with regard to States that have not ratified the Protocol. An area that may lead to duplication of effort and/or conflict concerns the Commission’s quasi-judicial function under Article 45(3) of the Banjul Charter to interpret its provisions. The Commission retains this power notwithstanding the creation of the Court. The possibility exists that the Commission’s and Court’s understanding of a particular provision of the Banjul Charter may vary. In such an eventuality, it is submitted that the Court’s interpretation must be considered as final. It can therefore be observed that there are likely to be areas of tension between the Commission and the Court. The Protocol is nevertheless aware of such a possibility, and the complementarity between the two organs is to be addressed by the Rules of Procedure.126 The establishment of the Court constitutes a welcome and overdue development. A long-standing criticism of the African human rights system has been the lack of enforcement generally and the absence of a judicial organ in particular. These lacunae have now been addressed, although unfortunately the AU has given the appearance of undermining this commitment by deciding to merge the two courts. Judgement must be reserved until the publication of the required details and the subsequent decisions of the AU. 126

Article 2 of the Protocol on the African Court of Human and Peoples’ Rights.

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Protocols additional to the African Charter The OAU/AU sought to provide greater protection for the most vulnerable members of society, since it was believed that the Banjul Charter did not adequately protect the rights of children or women. Additional measures of protection from an African perspective were required, resulting in the adoption of two protocols: the African Charter on the Rights and Welfare of the Child 1990 (Charter on Children’s Rights)127 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003 (Protocol on the Rights of Women),128 considered in greater detail elsewhere in this book. Both documents must be viewed as positive developments, on the whole. The Charter on Children’s Rights is a regional complement to the UN Convention on the Rights of the Child that seeks to guarantee a number of civil, political, economic, social and cultural rights comparable to those protected by the UN Convention,129 but, in keeping with the African concept of rights, the Charter on Children’s Rights imposes responsibilities on the child towards his/her family, the community and the State.130 The Protocol on the Rights of Women seeks to bridge the ‘gender gap’ by promoting gender equality, especially by removing discrimination in a variety of fields, and constitutes the most obvious demonstration of the AU’s promotion of gender perspective.131 127

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The Charter on Children’s Rights entered into force on 29 October 1999. See further, Murray, Human Rights in Africa, pp. 163–84; B. Thompson, ‘Africa’s Charter on Children’s Rights: A Normative Break with Cultural Traditionalism’, International and Comparative Law Quarterly 41 (1992) 434; K. C. J. M. Arts, ‘The International Protection of Children’s Rights in Africa: The 1990 OAU Charter on the Rights and Welfare of the Child’, Revue Africaine de Droit International et Compar´e 5 (1993) 139, pp. 141–3; A. Lloyd, ‘A Theoretical Analysis of the Reality of Children’s Rights in Africa: An Introduction to the African Charter on the Rights and Welfare of the Child’, African Human Rights Law Journal 2 (2002) 11. The Protocol on the Rights of Women entered into force in November 2005. See generally, F. Banda, ‘Blazing a Trail: The African Protocol on Women’s Rights Comes Into Force’, Journal of African Law 50 (2006) 72. See Chapter 13 below. The view has been expressed that the protection offered by the Charter on Children’s Rights is not generally as effective as under the UN Convention on the Rights of the Child: Arts, ‘The International Protection of Children’s Rights in Africa’, pp. 147–9. Article 31 of the Charter on Children’s Rights. See Arts, ‘The International Protection of Children’s Rights in Africa’, pp. 153–4 and Articles 42, 43 and 45 of the Charter on Children’s Rights. See note 10 above. On the efforts of the OAU/AU to promote women’s issues, see Murray, Human Rights in Africa, pp. 134–62.

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In terms of supervision, the Charter on Children’s Rights makes provision for an implementation mechanism: the African Committee of Experts on the Rights and Welfare of the Child.132 Its mandate is broad133 and significantly includes the jurisdiction to entertain communications from persons, groups or NGOs relating to the Charter on Children’s Rights.134 By way of contrast, the Protocol on the Rights of Women does not provide for a dedicated regulatory mechanism, but the Commission does have a supervisory role in that States Parties must account for the measures taken to realise the rights recognised by the Protocol on the Rights of Women in their periodic reports.135 Significantly, the rights enshrined in the Protocol on the Rights of Women will be capable of being interpreted and applied by the African Court on Human and Peoples’ Rights.136

The African Charter in light of the African Union It needs to be recalled that the Banjul Charter was a product of the OAU. As has been observed previously, human rights was never a priority for the OAU, which gave precedence to other concerns, such as the struggle against colonialism and apartheid, the preservation of territorial integrity and non-interference in the internal affairs of States. The adherence to the latter principle was so resolute that any expression of concern about failings in the protection of human rights was deemed impertinent or impermissible. There was such a reluctance to criticise tyrants that the protection of human rights in Africa was deemed a bad joke. References to human rights in the OAU Charter were therefore scanty and unspecific. The drafting of the Banjul Charter was handicapped by ideological posturing and a lack of shared values between many African States. The committee entrusted with drafting the Banjul Charter therefore had to take account of a number of guiding principles, including the traditional principles of African society, respect for the different ideological systems existing in Africa, maintaining a balance between individual and collective rights, civil and political and social, economic and cultural rights, and the primacy of the OAU.137 A strong Commission that might hold 132 133 134 135 136 137

Article 32 of the Charter on Children’s Rights. Articles 42, 43 and 45 of the Charter on Children’s Rights. Article 44(1) of the Charter on Children’s Rights. Article 26(1) of the Protocol on the Rights of Women. Article 27 of the Protocol on the Rights of Women. Naldi, The Organization of African Unity, p. 111.

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States to account was not a viable option at the time. The limitations of the Banjul Charter are therefore explicable against this background. The establishment of the AU, however, has brought human rights to the fore. As has been seen, respect for human rights, the rule of law and democratic principles are integral parts of the AU’s very existence. Their consolidation is arguably even more important. The AU stresses the link between a culture where human rights are valued and the attainment of peace and prosperity: the two are mutually reinforcing, and has put in place the institutional machinery to enable concrete action to be taken to promote and protect human rights. Economic development and prosperity are therefore very much at the core of the AU. It has also expanded and enhanced the OAU’s accomplishments in the field of human rights by bringing to fruition treaties that were conceived under the auspices of the OAU, and encouraging the ratification and adoption of such treaties. The Protocol on the African Court on Human and Peoples’ Rights is particularly significant in this regard. Achievements have also been made at an institutional level, since the AU acknowledges the importance of democratic institutions. The perceived failings of the Banjul Charter will henceforth have to be judged in the light of these developments. There is some ground for optimism. The substantive provisions of the Banjul Charter will have to be interpreted against the prevailing principles of the AU. It is wellestablished in human rights law that human rights treaties should not be interpreted literally, mechanistically and rigidly, but should instead be interpreted in a broad, evolutive and purposive manner that takes account of changing and emerging societal conditions in order to enable them better to play a dynamic role in articulating the values of that system.138 The AU and emerging constitutionalism throughout Africa should provide the Commission with the necessary legitimacy to pursue this course with alacrity. The AU has given the Commission a renewed sense of purpose. The decisions of the Commission in more recent times certainly reflect this dictate, and through its jurisprudence the Commission has been interpreting the relevant provisions of the Banjul Charter to conform with international human rights standards, including those expressed in the AU Constitutive Act. In a number of decisions, the Commission has engaged in a comparative approach, and emphasised the importance of 138

See, e.g., Tyrer v. United Kingdom (1978) Series A, No. 26; Right to Information On Consular Assistance Within the Framework of the Guarantees of Due Legal Process (1999) Series A, No. 16.

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international human rights law.139 Moreover, it has stressed more specifically that States will be held to account against prevailing democratic standards.140 It does not seem unfair to state that the Commission appears to have been emboldened in its more robust approach by the values of the AU. With the African Court on Human and Peoples’ Rights now operative, it may be expected that this trend will be strengthened. While it is encouraging to note that the Commission has been giving due weight to civil and political rights in line with international standards, at the same time it has been at the forefront in international human rights terms in finding collective rights justiciable. The Banjul Charter, as has been seen, was instrumental in providing for collective rights, and the Commission has made clear that such rights are not merely aspirational but are substantive. The decision in The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, the best known case, is extremely significant in this regard.141 Indeed, the Commission stated that all Charter obligations must be protected and fulfilled,142 which should be approached in a holistic manner so that all clauses reinforce each other.143 One may therefore expect the Commission to continue to pronounce in future on matters integral to the policies of the AU.

Conclusion It can be seen from the above exposition that Africa, through the OAU/AU, has erected a comprehensive framework for the promotion and protection of human rights that has the potential to become an effective regional system. In terms of substantive rights, the standards set by the OAU and latterly, the AU, generally conform to international standards. Where content falls short of international standards, it is encouraging to observe that the Commission is interpreting the provisions of the Banjul Charter in ways that meet such principles. Where the rights of certain groups have been inadequately addressed, such as women and children, additional instruments have been drafted to seal the gaps. Weaknesses in the enforcement arena are also being addressed, principally through the establishment of the African Court on Human and Peoples’ Rights. Certainly it does not seem to be an exaggeration to assert that the OAU, though a latecomer to 139 140 142

See, e.g., Communication 61/91, Amnesty Internationa v. Mauritania, Thirteenth Activity Report 1999–2000, Annex V, para. 102. 141 See, e.g., Communication 228/99. Communication 155/96. 143 Ibid., paras. 43–8. Communication 251/2002, para. 37.

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this field, made an important contribution to the development of human rights law, at least at a theoretical level. This has been built upon by the AU, which is expressly dedicated to the cause of human rights. There is, therefore, some cause for optimism. However, much still remains to be done, regrettably. Realisation of international human rights standards is inhibited by a variety of factors, including lack of political will, inter and intra-State conflicts and resource constraints. The response of the AU towards human rights abuses in certain countries is sometimes worryingly craven, suggestive of the bad old days of the OAU. The commitment of many African States towards upholding fundamental rights and freedoms is still suspect. Ratification of the existing treaties, especially the Protocol on the African Court of Human and Peoples’ Rights, would be a significant step towards attaining greater regard for human rights in practice. Ultimately, the best guarantor of fundamental rights is the development of a culture at national level that respects the rule of law and human rights norms.

2 The State Reporting Mechanism of the African Charter malcolm evans and rachel murray

It was as long ago as 1961 that the idea of an African human rights court was put forward as a possible mechanism for addressing the issue of human rights abuses in Africa,1 but at that time it was considered to be too controversial a proposition to gain endorsement from the Member States of the Organization for African Unity (OAU). This is a reflection of attitudes that have long underpinned the African system, and that have led many African leaders over a considerable period of time to believe that sensitive issues of human rights violations could only be dealt with within a non-confrontational atmosphere. This approach is reflected in the procedures under the African Charter on Human and Peoples’ Rights. The African Commission is the organ with the primary responsibility for promotion and protection of human rights under the African Charter,2 and it was confidently expected that such an atmosphere would prevail at its sessions once it was established. The two main mechanisms used by the Commission to monitor State compliance with their Charter obligations and to address human rights issues within Africa are the communication or complaints system,3 and the State reporting procedure established in Article 62 of the Charter. Ultimately, the degree to which confrontation can be eliminated from the operation of a reporting procedure is determined by the quality of the participation of both sides. It is not sufficient for a State to produce timely and accurate reports and to present them in a balanced and open fashion if the form of scrutiny to which they are subjected is perfunctory, ill-informed or hostile. However, it is certainly the case that a nonconfrontational process cannot even get off the ground if the State does 1 2 3

See International Commission of Jurists, ‘African Conference on the Rule of Law’, Lagos, 3–7 January 1961. Articles 30 and 45 of the African Charter on Human and Peoples’ Rights (ACHPR). Articles 47–54 provide for an inter-State complaints system; Articles 55–9 for an individual communications procedure: see Chapter 4 below.

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not meet its basic obligations under the Charter. The particular substantive obligations are considered elsewhere in this volume, but for current purposes it is necessary to recall the more general obligations that are assumed by States Parties. Article 1 places States Parties under a mandatory obligation to give effect to the rights, freedoms and duties that are set out in the Charter,4 and in Article 62 it is provided that: Each State Party shall undertake to submit every two years, from the date the present Charter comes into force, a report on the legislative measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed by the present Charter.

There is little doubt that the Charter’s effectiveness depends primarily on the willingness of States Parties to carry out their solemn treaty obligations, and it is upon their contribution to the reporting process that this chapter will focus.

The objectives of the reporting procedure under the African Charter As international concern for the promotion and protection of human rights around the world has increased, different strategies have been developed to ensure compliance with international norms. The most basic of all of these procedures is that of State reporting. This is found in all the principal UN human rights treaties and, indeed, is the only procedure that is compulsory in all instruments. It has long been regarded as the lowest common denominator, and has been derided for being inadequate to force States to comply with their treaty obligations.5 As is well known, such criticisms miss the point. Reporting procedures are intended to oversee compliance and are not a form of enforcement mechanism as such. To be sure, the potency of a reporting system as a catalyst for change and as a point of pressure upon States should not be underrated, but the essence of the process lies in the State presenting its record of compliance to the monitoring body and receiving the benefit of external 4

5

Article 1 reads: ‘The Member States of the Organization of African Unity parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.’ B. Graefrath, ‘Reporting and Complaint Systems in Universal Human Rights Treaties’ in A. Rosas and J. Helgesen (eds.), Human Rights in a Changing East-West Perspective (London and New York: Pinter, 1990), p. 290.

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scrutiny. A spirit of collaboration could be considered to pervade the entire concept: a joint exploration of compliance which fully reflects the underlying premise of the African model. On this interpretation it is hardly surprising that such an approach would be accorded priority within the Charter. Of course, in the light of the practice under the UN system, this portrayal of the ideal reads as a cruel parody of reality. In-depth examinations of the functioning of the UN reporting system have pointed to the ‘corrosive’ effects of the backlog of reports that are still awaiting submission to the supervisory bodies, and to the time it takes for those bodies to consider reports.6 The various treaty bodies within the UN system have themselves taken a variety of measures to address a number of problems with the operation of the reporting system.7 This notwithstanding, the reporting system has evolved over the years into an important component of the human rights framework, and has acquired a certain potency that can play an important part in bringing out compliance with human rights standards and treaty obligations. Some international experts believe that the process of reporting, for all the bureaucratic baggage that it carries, ‘should be treated as an opportunity rather than a chore or a formality. It is an opportunity to reaffirm a government’s commitment to respect the human rights of its own citizens and to reassert that commitment in the domestic political forum.’8 While acknowledging that conscientious compliance with reporting requirements can be time-consuming and expensive, an effective reporting procedure that enables periodic examination and evaluation of the human rights situation within a country against the backdrop of a specific set of legally framed obligations can hardly fail to augment and enhance the degree of protection accorded to those within the scope of the African Charter. 6

7

8

See, for example, the report of Philip Alston, as independent expert, ‘Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments’, E/CN.4/1997/74; and J. Crawford, ‘The UN Human Rights Treaty System: A System in Crisis?’ in P. Alston and J. Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000), p. 1, pp. 4–6. It should be noted that it is not the purpose of this chapter to explore these developments, nor to offer a comparative account of the reporting procedures. For discussion of reforms to the UN human rights machinery, see Volume 7(1) of the Human Rights Law Review 2007. P. Alston, ‘Purposes of Reporting’ in United Nations Manual on Human Rights Reporting Under Six Major International Human Rights Instruments, UN Doc. HR/PUB/91/1 (1991), 19–24, p. 13.

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The practice concerning the reporting obligation under the African Charter At present under the UN system, it is expressly provided that it is the monitoring bodies established under the treaties that receive and consider the reports submitted by States Parties,9 and it is therefore natural to assume that this is inevitably the case as regards reports submitted in accordance with Article 62 of the African Charter. However, Article 62 merely requires that a State submit reports; it is entirely silent on the issue of who is to receive and review them, and on the related question of who is to determine whether the resulting picture is satisfactory. Some commentators have suggested that this silence was deliberate, so as not to jeopardise the prospects for ratification.10 Such conclusions could well be justified when one takes into consideration the political context and climate that prevailed during the period leading to the adoption of the Charter. As with the individual communication procedure, the very existence of which is concealed within the text of the Charter, it was the Commission that gave itself the mandate to consider the reports submitted under Article 62. At its 3rd Ordinary Session in 1988, the Commission took the view that ‘the African Commission is the only appropriate organ of the OAU capable not only of studying the said periodic reports but also of making pertinent observations to States Parties’, and recommended that the OAU mandate it with the power to examine them.11 Not only did the Assembly of Heads of State and Government of the OAU do so, but it also entrusted the Commission with the responsibility for preparing guidelines on the form and content of the periodic reports,12 and it is in pursuance of this mandate that the Commission has been endeavouring to develop an effective system for the operation of the reporting procedure. The Commission’s view on the purpose of reporting is reflected in the introductory notes to the Guidelines for National Periodic Reports, which 9

10 11

12

Although see proposals for a Unified Standing Treaty Body, ‘Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’, Report by the Secretariat, HRI/MC/2006/CRP.1, 14 March 2006. C. Heyns (ed.), Human Rights Law in Africa, Vol. II, 1997 (The Hague: Kluwer Law International, 1999), p. 56. Recommendation on Periodic Reports, First Annual Activity Report of the African Commission on Human and Peoples’ Rights 1987–1988, ACHPR/RPT/1st, Annex IX in Murray and Evans (eds.), Documents of the African Commission, p. 168. At its 24th Ordinary Session. See Second Annual Activity Report of the African Commission on Human and Peoples Rights, para. 31 (Murray and Evans (eds.), Documents of the African Commission, p. 176).

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it adopted in 1988.13 According to the Commission, the elaboration and acceptance of human rights instruments by States ‘important as they are, are by themselves a mere beginning in the essential exercise of promotion, protection and restoration of human and peoples’ rights; implementation of those instruments, by word and deed, is of parallel significance and is equally needed’.14 It was the desire of the Commission that the reports ‘show not only achievements made on the statute books’ but that they also ‘reveal the extent of implementation in terms of how far the rights and freedoms of the Charter are being fulfilled and how far the duties are successfully carried out’.15 Thus, ‘the aim of the exercise is to show the degree of actual satisfaction of the rights, duties and freedoms of the Charter; the reporting obligation therefore extends to the practices of the courts and administrative organs of the State Party, and other relevant facts’.16 On the face of it, the obligations imposed on States by virtue of Article 62 are disarmingly straightforward. Each State Party is required to submit a report every two years from the date on which the Charter entered into force,17 which is to ‘report on the legislative measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed’ by the Charter.18 They will then be invited to send a representative to the next session of the Commission, where the report will be examined in public. There is no doubt that the existing system is far from effective in 13

14 17 18

Guidelines for National Periodic Reports, Second Annual Activity Report of the African Commission on Human and Peoples’ Rights 1988–1989, ACHPR/RPT/2nd, Annex XII (Murray and Evans (eds.), Documents of the African Commission, p. 49). 15 16 Ibid., para. 1. Ibid. Ibid., para. 9. Although it does not make it clear, it is evident that this period runs from the date at which the Charter entered into force for each State Party. This rather odd and restrictive wording could be taken to imply that there is no obligation to report on legislative measures that concerned the areas of the rights, etc. in question that was not enacted with the express purpose of giving effect to Charter rights (which might, for example, include legislation which predated the entry into force of the Charter or, more significantly, subsequent legislation that, while affecting the enjoyment of such rights, etc. was not intended to give effect to them but, perhaps, erode them). There is certainly a marked contrast with the wording of the equivalent obligation in Article 40 of the International Covenant on Civil and Political Rights (ICCPR), which calls for reports ‘on measures they have adopted which give effect to the rights recognised therein and on the progress made in the enjoyment of those rights’. However, it is unlikely to be understood in so restrictive a sense. Indeed, the most obvious difference concerns the restriction on the African Charter to legislation, as opposed to other forms of administrative or judicial acts, but, as will be seen below, the Commission has made it clear in its Guidelines that the reporting obligation is to be understood to include the latter, indicating thus a preference for a broad, inclusive and purposive approach to the nature of the reporting obligation.

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attaining even these minimal prescribed and desired goals. After almost fifteen years of its being in operation, only a small number of States have discharged their Charter obligations by submitting periodic State reports and sending representatives to respond to the Commission’s questions on their reports. At the time of the 40th Ordinary Session in November 2006, fifteen States had not submitted any report at all, fourteen States had submitted only an initial report and eight States a subsequent report but still owed more. There are only eleven States who have submitted and presented all their reports,19 but this is somewhat misleading since it includes those States whose overdue reports have been ‘rolled up’ into the most recently submitted and consolidated report. Although it is true to say that these States are now deemed to be ‘up to date’ with their reporting obligations, this does not mean that they have been acting in compliance with their reporting obligations across the period that the Charter has been in force for them. The Commission’s response to this situation has been limited, amounting to little more than adopting resolutions calling on States to submit their reports, writing letters to countries who have failed to do so20 and requiring the individual Commissioners to raise the issue of compliance with reporting obligations in the course of their promotional visits to countries. One development that has certainly improved awareness of the extent to which States have been failing to comply with Article 62 has been the decision of the Commission to compile a list setting out the status of each State regarding its rate of compliance.21 A more practical step, taken in order to facilitate the clearing of the backlog of overdue reports, was the decision of the Commission in 1995 that several reports could be combined into one. This gesture has met with some limited success, and thirty-three States have since submitted consolidated reports 19

20

21

A further five states had submitted their reports but were due to be presented in forthcoming sessions: see Twenty-First Activity Report of the African Commission on Human and Peoples’ Rights 2006, para. 63. Letter by Mr Isaac Nguema, Second Annual Activity Report of the African Commission on Human and Peoples’ Rights 1988–1989, ACHPR/RPT/2nd, Annex XIII (Murray and Evans (eds.), Documents of the African Commission, p. 187); Draft Resolution on Overdue Reports for Adoption, Fifth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1991–1992, ACHPR/RPT/5th, Annex IX (Murray and Evans (eds.), Documents of the African Commission, p. 226). Although intended as a source of potential embarrassment, there is also the danger that, in revealing just how widespread non-compliance is, it may serve only to reassure States in their delinquency.

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that combine those that are overdue.22 In one instance, however, the State submitted an out-of-date report, making it then difficult for the Commission to examine it effectively.23 As indicated above, the timely submission of reports is only the first element of the reporting process. The next concerns the presentation and discussion of that report, and the Commission has been faced with the difficulty of States, who have submitted a report, not sending a representative to the sessions when the report was due to be examined. After much discussion about how to respond to this, the Commission decided at one stage that it would examine the reports at subsequent sessions, even if a representative of the State was not present. It might be that the Commission sees this as a way of putting pressure on States that have submitted reports to send a representative to a subsequent session, but it does not appear to have had much effect, principally because the Commission has generally failed to act on its threat. The most persistent offender to date has been Seychelles, which submitted its first report in 1995 but has so far failed to send a representative to a session of the Commission. Whilst the Commission has been content to continually defer the examination of its report while negotiations continue to attempt to ensure their presence,24 eventually, at the 39th Session in May 2006, the Commission 22

23

24

Algeria (combining 1989–95; 1998–2000; and 2001–5), Angola (combining 1992–8; and 1998–2006), Benin (combining 1988–1992; and 1992–2000), Burkina Faso (combining 1988–99; and 1999–2003), Burundi (combining 1991–9), Cameroon (combining 1991– 2001; and 2001–4), Central African Republic (combining 1988–2006), Chad (combining 1988–99), Congo-Brazzaville (combining 1988–2001), DRC (combining 1989–2001), Egypt (combining 1988–1990; 1994–2000; and 2000–2004), The Gambia (combining 1988–1992), Ghana (combining 1995–9), Guinea (combining 1988–98), Kenya (combining 1994–2006), Lesotho (combining 1994–2000), Libya (combining 1993–9), Mali (combining 1988–98), Mauritania (combining 1988–2000; and 2000–4), Mozambique (combining 1991–8), Namibia (combining 1994–8), Niger (combining 1988–2004), Nigeria (combining 1992–2005), Rwanda (combining 1990–2000; and 2002–4), SADR (combining 1988–2003), Senegal (combining 1994–2002), South Africa (combining 2001–3), Sudan (combining 1988–96; and 1999–2003), Swaziland (combining 1997–9), Togo (combining 1995–2001), Uganda (combining 1988–2000; and 2000–6), Zambia (combining 1988–2006), Zimbabwe (combining 1996–1998; and 1999–2005): see Status on Submission of State Periodic Reports to the African Commission, www.achpr.org. Accessed 12 September 2007. South Africa submitted a report dated 2001 to the African Commission and this was examined at its 38th Session in December 2005. The Commission spent much of the oral examination asking the State to update it on the issues in the report. Another example concerns Chad, which submitted its report in 1997 but failed to send a representative until the 25th Session in 1999. The examination of the reports submitted by Ghana in March 2000, Namibia in May 2000, Libya in 2005 and Cameroon in 2005,

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examined the report in the absence of a representative, carrying through its threat.25 The failure of many States to comply with their obligations, and the subsequent – arguably, lack of – reaction by the Commission, can perhaps be explained by the emphasis that the Commission places upon the element of ‘dialogue’ within the reporting process. The Commission’s Reporting Guidelines identify the goal of the reporting procedure as being to ‘create a channel for constructive dialogue between the States and [the Commission] on human and peoples’ rights’26 and conceives its relationship with States as being between equals.27 It would appear that the desire to ensure that a ‘constructive dialogue’ takes place is considered to be more important than simply holding an examination of the report. Laudable as this preference for substance over form may be, it does nevertheless remain the case that the Commission has failed to adopt and put into practice a coherent policy on how to deal with this situation should it arise again.28 Alternatively, the approach of the Commission to this particular problem could be seen in the broader context of its approach to the reporting process as a whole. As will be seen below, the Commission has hitherto taken a restrained approach when considering the substance of State reports. Given the lack of enthusiasm for the Charter in numerous States, the Commission has tended to view the reporting mechanism as a means of involving States in its work, and as a way of encouraging their attendance at the sessions, rather than as an effective monitoring tool. As such,

25

26 27

28

have had to be postponed because representatives have not attended the sessions at which their reports were due to be considered (27th Session, April 2000 28th Session, October 2000; 38th Session, December 2005; 38th Session, December 2005 ). The Final Communiqu´e of the Commission’s 38th Ordinary Session notes that: ‘The African Commission decided to remind Seychelles to send its representatives to present its Initial Report at the 39th Ordinary Session. Seychelles was also informed that if no State Delegate is present at the 39th Ordinary Session, the Report would be examined in Seychelles’ absence’, Nineteenth Annual Activity Report 2005, para. 17. Guidelines; note 13 above, para. 2. This is reflected in the Guidelines which, for example, provide in para. 2: ‘The States being invited to report on the measures they have adopted and the progress made in achieving the objectives of the Charter, as well as indicating any factors and difficulties affecting the degree of fulfilment. The Commission, on the other hand, furnishing suggestions, advice and other assistance on satisfying the requirements of the Charter.’ However, its draft Rules of Procedure, as they currently stand, make provision for this issue by giving two sessions for the State to send a representative, after which the report will be examined in their absence: Draft Rules of Procedure of the African Commission on Human and Peoples’ Rights Rule 84(4), on file with author. These are not yet adopted by the Commission and so are subject to change.

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the Commission appears to be trying to foster the interest of States in its work, and building a relationship with them before taking a more critical approach to a State’s compliance with human rights. But it is questionable whether the correct balance has been struck. The human rights situation in Africa is in large part a reflection of the lack of political will on the part of several States Parties to carry out their Charter obligations. Unless steps are taken to improve the situation, the goals and aspirations of the African Charter will remain a pipe dream. Placed against this background, the reporting mechanism provides a fleeting opportunity to raise the shutters, casting light and allowing the gaze of fellow African States to fall upon the situation. A refusal to respond to this most minimal of opportunities could be seen as reflecting a lack of desire to build confidence between the Commission and the State in order that a richer and more fruitful relationship will subsequently flourish, and a desire instead to avoid the charge of intrusion and intervention into the affairs of the States concerned, not for legal reasons – human rights now not being solely a matter of domestic concern – but for broader political considerations. The independence of Commissioners from government influence has been a constant source of concern,29 and where procedures rely on amicable methods for their success there is inevitably an increased risk that political considerations will outweigh human rights concerns. To the extent that this is the case, it is unlikely that the legitimate and indeed welcome emphasis upon constructive dialogue can provide a convincing rationale for the failure of the Commission to respond effectively to the problems of non-submission and non-appearance.

The content of State reports The Commission has adopted the traditional approach found in the UN treaty bodies of calling for the submission of an initial report to be followed by periodic reports that provide updates on progress and on obstacles encountered. It its Guidelines for National Periodic Reports, the Commission recommends that ‘the initial report’ will constitute the background. In the first report, the governments should describe the basic conditions prevailing in their countries, as well as the basic programmes and institutions relevant to the rights and duties covered in the Charter.30 As 29

30

The degree to which those Commissioners who are simultaneously State officials, such as ambassadors, or who are serving government ministers can act in a fully independent capacity is clearly a matter of legitimate debate, not to say doubt. Guidelines; note 13 above, para. 4.

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such, it is expected to be general in nature, containing an overview of the human rights situation and including details of the laws and other forms of domestic action that have been taken pertaining to human rights. This initial report is ‘to be the foundation on which the subsequent reports will be based’.31 As required by Article 62 of the Charter, the initial report is to be followed every two years by a periodic report, which is to set out the progress being made in a much more detailed and precise fashion. This is spelt out in the reporting Guidelines which provide that: In the following periodic reports the governments would indicate the measures taken, the progress made in achieving the observance of the rights and duties in the Charter, and spell out the difficulties limiting success which they encountered in their efforts. A report on the new measures such as new legislation, new administrative decisions or judicial judgments passed to uphold these rights since the submission of the initial report would also be added. This means that the subsequent reports will follow the topics as discussed in the initial reports.32

The actual content of the reports are expected to follow the pattern laid out in the Guidelines. The primary reason for this was to ensure that reports were uniform in content, which would, among other things, assist the Commission in obtaining a global view of the human rights situation in Africa, in addition to the position in each reporting country.33 This would appear to be straightforward enough. Unfortunately, there are currently two sets of Guidelines, and the relationship between them is far from clear. The original Guidelines produced and adopted by the Commission in 1988 are complex, repetitive and lengthy. In 1998, the Commission adopted an Amendment to the Guidelines, which is brief, to the point of being vacuous.34 Inevitably, practice lies somewhere between these two extremes. Since both sets of Guidelines may now be sent to States, they are left with the conundrum of knowing which to follow, and can hardly be blamed for not conforming to the full rigours of the original set. To make matters worse, it is also entirely unclear from the text of the Amendments whether the revised set are intended to apply only to initial reports or to periodic reports as well. In this state of confusion, the only sensible approach is to present an overview of both the Guidelines and the Amendments, although this should be sufficient to make it clear that 31 34

32 33 Ibid. Ibid. Ibid., Section I, para. 2. Amendment of the General Guidelines for the Preparation of Periodic Reports by States Parties, DOC/OS/27 (XXIII). These are reproduced in full in the text below.

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the Amendments provide far too skimpy a framework for the satisfactory development of periodic as opposed to initial reports. There is, however, one common feature of both the Guidelines and the Amendments that needs to be highlighted at the outset. Although the Charter does not formally classify the rights it contains into rigid categories such as ‘civil and political rights’ and ‘economic, social and cultural rights’, the Guidelines and Amendments call for various forms of rights to be addressed separately within the body of reports.35

Reports under the reporting guidelines According to the Guidelines, initial reports are to address civil and political rights in two distinct parts. The first part should contain a general section giving a brief description of the general legal framework within which civil and political rights are protected in the reporting State. In the course of doing so, a number of distinct issues are to be addressed: whether civil and political rights are protected by a ‘Bill of Rights’ in the Constitution and the extent to which derogation is possible; whether the Charter can be invoked in the national courts and has become part of the domestic law; which judicial, administrative or other authorities have jurisdiction affecting human rights; which remedies are available for victims of human rights violations; and any other measures taken to implement the Charter.36 In its second part, addressing civil and political rights, the initial report should give a ‘description of the basis of the applicable Articles of the Charter’ relating to: the legislative and other measures in force with regard to the provisions of the Charter; any restrictions or limitations imposed on the enjoyment of rights; any factors or difficulties affecting the implementation of the Charter; and any other information concerning progress.37 Periodic reports are expected to follow almost the same pattern as the initial reports, but are to give more detailed information on the implementation of each of the rights, duties and freedoms contained in the Charter.38 The Guidelines for reporting on economic, social and cultural rights are similar to those of the civil and political rights, but are more specific and require the provision of technical information on a range of issues. 35

36 37

The rights which are to be regarded as civil and political for the purposes of the reporting procedure, are set in the Guidelines, note 13 above, Section I, para. 3. These correspond to Articles 2–13 of the Charter. Guidelines; note 13 above, Section I, para. 4(a)(i)–(vi). 38 Ibid., Section I, para. 4(b)(i)–(iv). Ibid., Section I, paras. 7–8.

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Three general categories of such rights are identified, and then detailed guidance – in many cases very detailed guidance – is provided on the matters to be addressed in initial and then periodic reports. The three basic areas are: (1) the right to work as provided for in Article 15; (2) matters pertaining to family and health as provided for in Articles 16 and 18; and (3) matters pertaining to education as provided for in Article 17(1).39 By way of illustration, and taking the first of these three categories by way of example, States are expected to describe in general the basic conditions prevailing in their countries, as well as programmes and institutions relevant to the rights concerned, and with emphasis upon information concerning programmes directed at economic advancement,40 and then to consider a series of questions concerning remuneration; safe and healthy working conditions; equal opportunity for promotion; and rest, leisure, limitation of working hours, and holiday with pay.41 A similar approach and level of specificity is required of the other areas of social and economic concern. The following two sections of the Reporting Guidelines work through the substantive rights found in Articles 18–25, concerning Peoples’ Rights,42 and Articles 26–29, concerning specific duties of both States and individuals under the Charter.43 Compared with the previous sections, these are in the main couched in much more general terms, and lack the same degree of specificity. There then follow three sections requesting information on what might be termed themes not directly addressed within the Charter but implicit within the human rights framework: the elimination of all forms of racial discrimination,44 apartheid45 and discrimination against women.46 In all of these instances, 39

40 42 43 45

No one would describe the Guidelines as well drafted. In sheer presentational terms, the first of these three social and economic concerns are addressed in Section II of the Guidelines, whereas the second and third are addressed in Sections II.A and II.B. The rights provided for in Article 17(2) are covered in the section dealing with ‘peoples’ rights’. Article 17(3) does not appear to be directly addressed by the Guidelines. Moreover, the guidance concerning the right to education in Section II.B is only given in relation to initial reports and, unlike the other subdivisions, there is no mention of the manner in which it is to be considered in periodic reports. 41 Ibid., Section II, para. 2. Ibid., Section II, paras. 6–9. Ibid., Section III, paras. 1–19. The bulk of this section, paras. 14–19, is in fact comprised of very detailed guidelines relating to Article 17(2), concerning cultural life. 44 Ibid., Section IV, paras. 1–8. Ibid., Section V, paras. 1–20. 46 Ibid., Section VI, paras. 1–2. Ibid., Section VII, paras. 1–9.

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the Guidelines appear to have been more than merely inspired by those relating to the relevant UN instruments. With the recent adoption of the Protocol on the Rights of Women in Africa,47 a further complication is also introduced. This Protocol, requiring further ratification by States Parties to the ACHPR, enforces the obligations of those Parties to the Protocol through requiring them to ‘in their periodic reports submitted in accordance with Article 62 of the African Charter, indicate the legislative and other measures undertaken for the full realisation of the rights herein recognised’.48 Given that most States now make reference in their Article 62 reports to women’s rights, it is not entirely clear from the text of the Protocol how much further detail is required. The Commission, through its Special Rapporteur on the Rights of Women, is presently drafting guidelines for States Parties on this obligation. Whether these will add further confusion is yet to be seen.

The amendment to the Guidelines The divisions in the Guidelines are so formal that they could be taken as suggesting that separate reports might be required on each of these areas. In fact, the Commission has not taken this view, and no State has presented its reports in this way. This categorisation does, however, add to the confusion of what is required, since each section calls for separate styles of reporting to be applied to the various sets of rights. Whatever other merits the Guidelines may have in terms of providing concrete guidance and potentially shedding light upon the favoured approach to their interpretation by the Commission, the overwhelming feeling is that their length and detail is inappropriate for the practical exercise of State reporting. Thus, at the request of Member States and at the insistence of NGOs, discussion took place on amendments to the Guidelines, and this resulted in the adoption of the amendments in 1997.49 These amended Guidelines were inspired by the recommendations of two seminars organised in Harare and Tunis.50 They are just over a page long and provide as follows: 47 48 49 50

See Chapter 13. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 26(1). Amendment of the General Guidelines; see note 34 above. ‘Seminar on State Reporting for the English Speaking Countries’, Harare, Zimbabwe, 23–27 August 1993; ‘Seminar on State Reporting for Francophone, Arabophone and Lusophone Countries’, Tunis, Tunisia, 24–27 May 1994.

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(1) An initial report (the first report) should contain a brief history of the State, its form of government, the legal system and the relationship between the arms of government. (2) The initial report should also include basic documents such as the constitution, the criminal code and procedure and landmark decisions on human rights. (3) The major human rights instruments to which the State is a party, and the steps taken to internalise them, should be set out. (4) How well is the party implementing the following rights protected by the Charter: (a) civil and political rights?; (b) economic, social and cultural rights?; and (c) group rights? (5) What is the State doing to improve the condition of the following groups mentioned in the Charter: (a) women?; (b) children?; and (c) the disabled? (6) What steps are being taken to protect the family and encourage its cohesion? (7) What is being done to ensure that individual duties are observed? (8) What are the problems encountered in implementing the Charter having regard to the political, economic or social circumstances of the State? (9) How is the State carrying out its obligations under Article 25 of the Charter on human rights education? (10) How is the State, as an interested party, using the Charter in its international relations, particularly in ensuring respect for it? (11) Any other relevant information relating to the implementation and promotion of the Charter.

Evaluation There is no doubt that these shorter guidelines would be easier for States to use in preparing their reports but, despite this, the pattern of reporting has been far from uniform. Although reports in more recent years have tended to be of greater length, they have always varied hugely in their quality and style, and this has continued under the new Guidelines. It is therefore not clear that States have in fact obtained or followed the simplified Guidelines. Indeed, some States say that they have not obtained

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a copy of them. However, it may be that the Commission is itself less concerned about the uniformity of reports than with their actually being submitted with sufficient detail and critique. Nevertheless, the amended Guidelines are now so vaguely constructed that they might fail to give sufficient guidance on the material that the Commission requires – or should be requiring – if the dialogue is to have substance. Thus it is very much in the hands of the States themselves to make of this situation what they will. This was the case before the adoption of the amended Guidelines, and their adoption has merely served to underline this practice and, arguably, legitimate it. In practice, however, while the amended Guidelines appear to have made little difference initially (e.g. with Seychelles in 1995 and Chad and Guinea in 1998), in more recent years, States have adopted increasingly detailed reports. The latter is clearly the Commission’s preference, and the reports of Zimbabwe and the initial report of South Africa were held up by the Commission as models of their kind. The Zimbabwe report in question was a combination of its second and third reports,51 and was separated into sections reflecting the rights within the Charter, detailing within each section constitutional provisions and legislation adopted that was relevant to those rights. There were some indications that the government saw shortcomings in its approach, and statistics and tables were included, such as on the number of AIDS cases and access to safe drinking water, for example. It was over sixty pages long. South Africa’s initial report was nearly 150 pages in length.52 It included detail on the structure of government, the legal system and international instruments before going on to consider each of the provisions of the Charter separately. It included separate sections on South Africa’s approach to Article 25 and its relations with other States in respect of the Charter. The sections on the rights included constitutional provisions, legislation and programmes. There was a recognition throughout of shortcomings in certain respects. The report of Burkina Faso followed a similar structure and length.53 By way of comparison, that of Chad was only thirteen pages long and briefly dealt with certain, but not all, rights, omitting discussion of peoples’ rights and duties altogether.54 Where some States have been 51 52 53 54

Zimbabwe’s Second and Third Report in Terms of Article 62 of the African Charter on Human and Peoples’ Rights. Government of South Africa, Initial Country Report 1998. Rapport Initial du Burkina Faso sur la Promotion et la Protection des Droits de l’Homme, October 1998. Mesures d’Ordre Legislatif ou Autres Prises en Vue de Donner effet aux Droits et Libert´es Reconnus et Garantis dans la Charte Africaine des Droits de l’Homme et des Peuples, Rapport adress´e a` la Commission Africaine des Droits de l’Homme et des Peuples, October 1998.

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praised for the quality of their reports, this has actually prompted other States being examined at the same session of the Commission to make comparisons with their own, often less satisfactory, reports.55 Thus, States can prompt each other to improve their practice regarding the reporting obligation. At the end of the day, however, it is difficult to see that the adoption of the amended Guidelines has made a great deal of difference. Although much has been made of the complexity of the original Guidelines, and this certainly prompted the Commission to review them, the more recently submitted reports tend to be more rather than less detailed. The most important factor is not the Guidelines, but the will of the State to engage fully with the reporting process. What, for example, is to be made of the incident in which one State asked a Commissioner who was its national to present its report to the Commission?56 It is arguable that the Commission focused too much on amending the Guidelines rather than the actual practicalities and efficiency of the procedure that the report feeds into. So, for example, it has not paid equal attention to ensuring that it contacts the relevant government personnel and examines whether the procedure of examining the report could be improved. Above all else, the Commission seems to have simply assumed that States have access to and pay attention to the Reporting Guidelines, and that amending the Guidelines would have the effect of encouraging States to submit reports. There is no evidence to support this, and the Commission has no clear strategy for ensuring that the Guidelines are properly disseminated and influence the composition of the reports. In truth, it seems that the position is very much as follows: whereas previously States were largely unaware of a complicated, lengthy set of guidelines on reporting, they are now largely unaware of a simplified version. The Commission must rethink its approach to the whole of the State reporting process. Methods to encourage the submission of reports by States have been debated, including ideas such as the Commission taking the initiative to produce reports on the human rights situation in particular countries, visits by Commissioners on a periodic basis or the Commission sending regular reminders to States.57 In this respect, the decision to require 55

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For example, Burkina Faso’s report was examined after that of South Africa, which was considerably more detailed in its content and its presentation. The representatives expressed embarrassment at having to follow this report. See R. Murray, ‘The 1997 Sessions of the African Commission on Human and Peoples’ Rights’, Human Rights Law Journal 19 (1998) 169–87, p. 184 and note 101. Ibid., pp. 184–5.

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Commissioners to ask States about the fulfilment of their reporting obligations during their promotional missions is an important initiative and does appear to have prompted some reports from States and the subsequent attendance of their representatives at the session. Although the Commission might also consider taking the initiative and adopting its own reports on particular countries, this would not solve the problem of bringing about a constructive dialogue. Indeed, it might have quite the opposite effect. Moreover, the material upon which such a report could be based is likely to be limited, and this would inevitably devalue the nature of the exercise, rendering it politically sensitive and potentially damaging. For example, where States have not responded to requests for a report, they are likely to be equally reluctant to accept a fact-finding visit from the Commission. It has also been suggested that the Commission might base its considerations upon reports obtained from the UN. Once again, there are difficulties with this approach. Not only does it not facilitate dialogue, but the scope of the African Charter is not matched by the UN treaties, either individually or collectively, and, even where the same rights are addressed, such an approach simply presumes that their content is the same. In the final analysis, there is no effective substitute for the timely submission of an appropriately constructed report produced in the spirit of constructive engagement with the Charter, its obligations and its mechanisms. For its part, the Commission must be alert to its own shortcomings in its dealings with States Parties. On the available evidence, it seems that both the States Parties and the Commission have a long way to go.

The process of examining State reports State reports are considered in public during the two ordinary sessions that the Commission holds annually. This gives rise to a number of issues.

Language and translation Upon receipt of a State’s report, copies should be made and sent to members of the African Commission who are to apprise themselves of its content. This has not always proven possible. At the sessions themselves, simultaneous translation is normally provided between English and French, and sometimes also Arabic. However, reports are often only

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made available in the original language in which they were submitted.58 This has the practical consequence of preventing some Commissioners from being able to read particular reports at all. After a futile struggle to seek additional resources to enable the Secretariat to translate the reports, the Commission decided to appoint rapporteurs from among themselves who would have the task of studying the report thoroughly, making a summary of its contents and setting out the main questions on which clarification or additional information is required from the State Party. However, while this may have had considerable benefits in terms of organisation, it still does not enable all Commissioners to have the benefit of familiarising themselves with the report itself. It should be self-evident that all members of the Commission should be able to have access to the contents of the reports and be able to involve themselves fully in the examination process. At one stage, the Commission considered asking States to provide translations of their reports, but this does not seem to have met with a positive response, and the Commission has not raised this request since. For the time being, the problem remains insuperable.

The level of State representation Once the State has submitted its report to the Commission it is invited to send a representative to the next session, wherever it may be. There has been a recent trend towards examining the report of the country in which the session is being held, since this has sometimes facilitated the attendance of representatives.59 Difficulties have arisen concerning the level and competence of the delegate sent. If the persons sent are not sufficiently senior, there may be problems in answering the Commission’s questions fully and with authority. In recent years, it has been usual for States to send a delegation comprised of two or three senior officials from the State capital, usually from the Ministry of Foreign Affairs and/or Justice.60 While often well-placed to speak on policy issues, they may not 58

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Only on very few occasions have reports been made available in a number of languages. For example, the reports of the Seychelles and Central African Republic were available in French and English, as available at the 39th Session of the Commission in May 2006. For example, the report of Benin was examined at the 28th Session in Cotonou in October/November 2000. See above as regards States who do not send representatives. For example, the South African delegation presenting its report during the 37th Session of the Commission in April/May 2005 was headed by the Minister of Justice. Clapham notes similar difficulties in relation to the UN systems: see A. Clapham, ‘UN Human Rights Reporting Procedures: An NGO Perspective’ in P. Alston and J. Crawford (eds.),

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always have at their disposal the detailed information that is required to respond adequately to the questions posed to them.

Examination The procedure followed by the Commission for the actual presentation is, again, a reflection of its desire that reporting be a channel through which it creates and maintains a ‘constructive dialogue’ with States. Indeed, the Chairperson usually stresses this at the start of the examination.61 The representative of the State briefly introduces the report, and this oral presentation usually takes the form of a summary of the report, enhanced by some supplementary information where necessary. The representative usually talks for under half an hour. The rapporteur Commissioner will then pose a number of questions, following which the other Commissioners take turns to ask questions or make comments on the report. The amount of time spent on this phase of the proceedings largely reflects the length and content of the report and the Commissioners’ willingness to probe the report in detail in light of information from other sources such as NGOs. Rarely, however, does this phase go beyond two to three hours. Over the years, there does appear to have been an increased willingness by the Commissioners to seek information from additional sources and use such information when posing their questions. As a result, there has been some evidence that some Commissioners’ questions are increasingly probing, detailed and critical.62 The State representative is then given a short time in which to formulate the responses to the questions. This can be as little as the break period of 15–30 minutes or may be as long as overnight, depending on the time of day at which the report is being examined and whether the State delegation requests more time. The representative will then answer the questions posed. In addition, an important advance was made at the 29th Session63 where, for the first time, the Commission followed up the examination of the reports with concluding comments, sometimes oral and in all cases written, on the reports. While these comments were brief and in general not directed towards specific questions that may not have been answered, at least this was a move towards a more critical use of the reporting

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The Future of UN Human Rights Treaty Monitoring, (Cambridge: Cambridge University Press, 2000), pp. 175–200, p. 189. See Murray, ‘The 1997 Sessions’. See in relation to UN procedures, Clapham, ‘UN Human Rights Reporting’, p. 188. Tripoli, Libya, 23 April–7 May 2001.

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procedure. Unfortunately, this practice has not been systematically followed, and only on a couple of occasions have concluding observations been made available since, despite reference to them by the Commission.64 Although the basics of this procedure are familiar from the UN context, there are a number of concerns with the manner in which this procedure is conducted. There is clearly insufficient time to prepare the responses. This is exacerbated by the fact that, although questions are supposed to be sent to the State prior to the session, in the past this often did not occur, or the questions posed were not the same as those of which the State had been notified, although there does seem to have been some improvement in this regard more recently. In addition, the formalism of a procedure in which all the questions are first read out before the answers are provided diminishes the effectiveness of the reporting procedure as a constructive dialogue. In effect, it is an oral exchange of written documentation and it is difficult to discern much evidence of genuine ‘dialogue’. Declamation would be a more apposite description. The bulk of the time is made up of the State representatives presenting the written report (which may, of course, be the first time that some have been able to be properly appraised of its contents by virtue of the simultaneous translation) and the Commissioners asking questions that ought already to have been made known to the delegation. Comparatively little time is taken up by the delegation considering and giving their responses, or the Commissioners responding to them. Indeed, the latter is a comparatively rare phenomena: it is unusual for the Commissioners to return to the fray and take up the issues raised by the responses provided and, although there have occasionally been requests for further details where the answers first provided were inadequate, even this is not consistently or often done.

Timing The whole process of examining a report, then, usually takes in the order of three or four hours. This is clearly insufficient time to deal with the situation of human rights, engage in a clear dialogue and probe further the concerns of the human rights community. Although the length of the sessions has recently been increased to fifteen days, the Commission does not appear to have made full use of this additional time. At 64

Although the Commission has made specific provision on concluding observations in Rule 87 of its draft Rules of Procedure, which sets out the content of these concluding observations and requires that they will be included in the Commission’s activity report.

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the moment, the Commission usually only receives and examines two or three reports per session. It would therefore seem worthwhile considering whether more time could be devoted to the examination of those reports. The Commission should seriously consider revising its overall time allocations during its sessions to facilitate this. The agenda items are often the same from session to session, and the necessity for some items is questionable. For example, there is usually considerable discussion on the promotional reports of Commissioners. The Commission has produced most of these reports recently in written format during the session. Although oral statements may reflect and ensure the accountability of Commissioners for their promotional activities, it would be worth considering whether providing written reports, coupled with a brief session for any questions to be raised, might be more appropriate and in keeping with the essential purposes of the Commission’s activities.65 Even within the existing timeframes devoted to the consideration of reports, there is plenty of scope for more effective use of the time devoted to the exercise. The efficiency of the procedure could be enhanced by ensuring that questions are indeed sent to the State in advance of the session, and that only additional questions need be raised orally by the Commissioners after the initial presentation of the State report. Time should be used productively and not ritualistically. At the very least, this would send a signal to those States attending the session that the Commission takes its role as a human rights institution seriously, even if it makes it a more uncomfortable experience for the States themselves.

Conclusions and follow-up Perhaps one of the most important elements of any reporting procedure is the feedback that the State receives on its report, and the comments and suggestions that are made by the treaty body. There have been limited attempts to provide some documentary record of the exchanges,66 but there are no official summary records of the discussions, and the annual activity reports tend merely to record the fact that the exchange 65

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Similarly, the procedure whereby applications for observer status by NGOs and now national human rights commissions are examined is also time-consuming. Commissioners could consider only noting in detail those whose applications were not accepted and the reasons why this is the case. For example, distribution of copies of the questions submitted to the States and answers provided at the sessions. This has been haphazard, however, and still fails to present the views of the Commission on the topics raised.

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took place rather than distil the essence of it. Until recently, therefore, the Commission’s procedures have been wholly deficient in this respect. However, the decision at the Commission’s 29th Session, to adopt concluding observations on the four State reports that were examined,67 is a welcome advance. The comments, some of which were also delivered orally in the presence of the State, were brief and related to positive as well as negative aspects of the report, and included a number of recommendations that the Commission then called on the State to respond to. This approach does appear to be an attempt to be more critical, to delve further into matters that were of particular concern or that were not answered by the State. It is a pity that there was no consistency: for example, not all questions that the State failed to answer were picked-up on. Despite these flaws, this change did appear to be an attempt to move away from the perception that the examination is the end of the process and that the obligations of the State had been fulfilled for another two years. Indeed, the adoption of concluding observations has been accompanied by questions asked by the Commission on the State’s initial report which had not been adequately answered the first time.68 While it was hoped that the Commission would repeat this procedure with further reports, and will use this change in direction to provide more detailed comments and a comprehensive appraisal of a State’s report, it has since then failed to make public any concluding comments it may have adopted, despite promises to do so.69

The role of other actors NGOS, national human rights institutions and alternate/shadow reports In accordance with the spirit of Article 45(1)(a) of the Charter, the Commission has over the years developed a working relationship with international and African NGOs. More than 300 NGOs have been granted 67 68 69

Algeria, Ghana, Namibia and Congo. Commissioner Chigovera in relation to Namibia’s first periodic report: see R. Murray, ‘Report of 29th Session of the African Commission’, on file with the author. E.g., in its Eigthteenth Annual Activity Report, the Commission stated that it had adopted concluding observations on the reports of Rwanda, Mauritania and Egypt that had been examined at the 36th and 37th Sessions of the Commission, and that these ‘were transmitted to the states concerned and will be published together with the country reports’: para. 16.

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observer status, which has the effect of creating a formal relationship between them.70 Given their knowledge of the actual human rights situation in the various States Parties to the Charter or concerning various groups, NGOs can be a reliable source of information that the Commission could utilise, particularly to verify aspects of States’ reports. In order to facilitate its work, the Commission encourages national NGOs to prepare alternate or shadow reports or commentaries to their country reports, and to make these available to the Commission.71 The problem, already mentioned above, was that the Commission was reluctant to allow bodies such as NGOs to see the State reports in advance of the session. Indeed, rarely were copies of reports readily available before or during the sessions themselves, although some NGOs sought and were given a copy of the report from the State. This clearly placed great difficulties in the way of NGOs seeking meaningfully to contribute to the process, since they were left to guess at what needed to be challenged. The decision, however, taken prior to the 39th Session in 2006 and subsequently followed before the 40th and 41st Sessions of the Commission, whereby the reports of those States scheduled for consideration were placed on the Commission’s website in advance of the session, is very much to be welcomed. The fact that this has been done before the last three sessions as well augurs well for it becoming a consistent practice of the Commission. Indeed, in its current draft Rules of Procedure, there is specific provision for reports to be made publicly available on the website as soon as they are received by the Commission.72 What has been concerning, however, even in recent sessions, is the willingness of the Commission to permit States to submit their reports immediately prior to the session itself, thereby preventing any possible preparation or submission of alternative information by NGOs and others.73 Although consideration of States’ reports takes place in open session, only members of the Commission and the State concerned are involved 70 71

72 73

See Chapter 8 for further information on the role of NGOs in the work of the Commission. See in relation to UN systems, Clapham, ‘UN Human Rights Reporting’, pp. 190–2; and generally, G. Lansdown, ‘The Reporting Process Under the Convention on the Rights of the Child’ in P. Alston and J. Crawford (eds.), The Future of UN Human Rights Treaty Monitoring, pp. 118–22. Rule 77 of the draft Rules of Procedure of the African Commission. This was the position at the 37th Session of the Commission, where Mauritania presented its report, despite no mention of it in the draft agenda sent out to participants. NGOs commented that they had only known the report was to be heard the day before the presentation by the State.

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in the dialogue, and, although NGOs have asked that they be permitted to pose questions, they have been refused by the Commission, the latter stressing the need to maintain a constructive dialogue. There may, of course, be other opportunities to raise matters informally during the period of the session, and lively exchanges can and do occur, albeit indirectly rather than directly through the conduct of the reporting procedure. The African Commission has consistently encouraged the participation of national human rights institutions in its sessions, a call that has been taken up by only a limited number of them.74 Despite this, the Commission has stressed that they are ‘essential partners’ in the implementation of the Charter,75 and has called on these institutions to submit shadow reports to Article 62 reports.76 So far, very few institutions have participated actively in the work of the Commission to generate a great deal of information for this task.

The role of the African Union The African Charter was adopted by OAU Member States ‘firmly convinced of their duty to promote and protect human and peoples’ rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa’.77 As its parent body therefore, the AU has an obligation to ensure the implementation of the provisions of the Charter. Unfortunately, minimal efforts have hitherto been made to ensure meaningful implementation of these obligations by the AU, although the Ministerial Conferences on Human Rights organised by the OAU in April 1999 and the AU in 2003 also laid emphasis on the need for Member States to comply with their Charter obligations.78 This unpalatable situation is constantly brought to the attention of all stake holders, 74 75

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For further discussion on the role of national human rights institutions see Chapter 10. ACHPR/Res.31(XXIV)98: Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, 1998, Twelfth Annual Activity Report 1998–1999, Annex IV. See, e.g., Report of the Retreat of Members of the African Commission on Human and Peoples’ Rights (ACHPR) facilitated by the Office of the High Commissioner for Human Rights (OHCHR), African Union Conference Centre, Addis Ababa, Ethiopia, 24–26 September 2003. Preamble to the African Charter. ‘Grand Bay (Mauritius) Declaration and Plan of Action, OAU First Ministerial Conference on Human Rights in Africa’, Grand Bay, Mauritius, 12–16 April 1999, CONF/HRA/DECL (I); ‘Kigali Declaration, First African Union (AU) Ministerial Conference on Human Rights in Africa’, Kigali, Rwanda, 8 May 2003, para. 25.

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and especially the States Parties and the OAU itself, not least by the Commission, which has begun the practice of providing information on the status of reporting under the Charter as part of its report to the Executive Council and Assembly whenever they meet.79 This is now engendering a positive response, which counters the notion that there is a total lack of political will on the part of States to engage with the system. That being said, while an encouraging number of States have expressed a genuine desire to collaborate with the African Commission and implement their Charter obligations by trying to overcome the obstacles facing them, a good number still appear unwilling to do so.

Conclusion In-depth evaluations of the effectiveness of the reporting procedure and, indeed, the objectives of the exercise are yet to be carried out by the Commission, States Parties or the AU. However, the Working Group on Issues Relating to the Work of the African Commission is tackling many of these matters in its revision of the Commission’s Rules of Procedure.80 The extent to which concerns will be taken on board and amendments to its procedure agreed upon by the Commission, let alone implemented in practice, is of course yet to be seen and is unlikely to be imminent. While the recent examination of the report of Seychelles in the absence of the representative may suggest the Commission is now prepared to do something about states that fail to send delegations to the session, the fact that this took the Commission over a decade to do so does not bode well for a swift response to non-appearance in the future. So far, the Commission does not appear to have considered seriously how to tackle the problems of non-submission of reports other than by the adoption of an alternative set of guidelines, the relevance and impact of which as a strategy is open to doubt. It is clear that the actual modalities of the dialogue – the examination process itself – are also in need of serious reassessment, since it does not promote a constructive dialogue with States Parties or contain sufficient checks and balances to ensure consistency in approach between delegates and Commissioners. At the moment, its success is almost entirely dependent upon the ability and willingness of the individual Commissioners to seek additional information, and to probe 79 80

This is now an express requirement in the current Draft Rules of Procedure of the African Commission: Rule 82(4). See Chapter 13 below.

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the manner, honesty and depth in which the State representatives are willing to answer the questions. This is a difficult task, and the Commission could do much to help itself by drawing on resources that domestic and international civil society is willing to place at its disposal. The ad hoc move to adopt concluding comments and to follow up on initial reports in later examinations is to be welcomed and, if continued, should help States appreciate that merely conducting the examination process is not the aim of the exercise, and that the Charter obligation is not satisfied by the two-yearly submission of reports. The idea that this is the start rather than the end of the process is almost entirely absent. It must be realised that it is a means to an end, not an end in itself. The reporting mechanism has the potential to enable the Commission to monitor over an extended time period the human rights situation in States Parties to the Charter, a possibility not afforded by the individual communication procedure. Currently, however, its principal function appears to be as a device to encourage States’ attendance at the sessions. A number of easily achieved and inexpensive amendments, however, might enhance the usefulness of the procedure. As regards encouraging the timely submission of adequately prepared reports, the Commission should continue with its practice of requiring Commissioners to raise the question of reporting obligations during their promotional visits to States. It would also be useful if the Secretariat were to ensure that up-to-date details of the State representative responsible for the report were obtained, and to make known whether it is anticipated that they will attend the session. This would facilitate the establishment of an ongoing relationship, rather than the haphazard contacts that are currently the norm. The Commission might also consider preparing a State reporting pack for dissemination to States, containing the Guidelines (both the original and amended versions), the name of a contact person at the Commission’s Secretariat, the obligations of the State and a list of those States that have submitted their reports. States could later be told who is the rapporteur Commissioner for the report, be provided with the list of questions to be posed, be informed of any additional information required and be given some details of the procedure for examination of the report at the session. In terms of dissemination, it is indeed encouraging that prior to the three most recent sessions since May 2006, reports have been available on the Commission’s website several weeks beforehand. Yet the Secretariat also needs to ensure, besides this being a regular feature of its pre-session arrangements, that the reports are translated by States themselves, or by

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the Commission at least, into English, French and Arabic. Certainly, most other documents of the Commission seem now to be translated into at least two languages, and there is no clear reason why this should not be done for the State reports. It is essential that when a report is received from a State it is disseminated to relevant NGOs and national human rights institutions (NHRIs) in the country, and with observer status together with a brief letter requesting their comments. The Commission must also reconsider the examination procedure itself, and should show a greater willingness to provide a detailed critique of the report and not assume that ‘constructive dialogue’ is a synonym for ‘polite exchange’. There is no point in a dialogue that does not attempt to address the real issues. In the past, so great a premium has been placed upon securing co-operation and avoiding confrontation that there has been a danger of the process spilling over into collaboration, with weaknesses in reports and unanswered questions passed over and no concluding comments or criticisms made.81 The changes, if continued and strengthened, signal some hope for the reporting procedure becoming a ‘constructive dialogue’. It might also be worthwhile considering seriously the frequency with which States should submit reports. Clearly, a twoyearly cycle has not on the whole been complied with, and is perhaps an unrealistic expectation. What is not unrealistic is the belief that the reporting mechanism under the Charter can and should play an important role within the system of human rights protection within Africa. That it is yet to do so is a problem that for the time being lies with the Commission to solve. 81

Indeed, Commissioners have found the process particularly acute at sessions where it is the host State’s report that is being examined, and they have expressed ‘embarrassment’ at having to do this: see R. Murray, ‘Report of the 2000 Sessions of the African Commission on Human and Peoples’ Rights’, on file with the author.

3 Communications under the African Charter: Procedure and Admissibility frans viljoen

Introduction and overview of the individual communications procedure1 The African Charter’s protective ambit (or ‘communications procedure’) comprises two main procedures: the inter-State and individual ‘communications’ (or complaints) procedures.2 So far, the African Commission has dealt almost exclusively with individual communications, the first interState communication being published in July 2006 as part of its Twentieth Activity Report.3 The discussion that follows briefly sets out the individual communications procedure, with an emphasis on the admissibility phase. Although it has been of less practical importance, the inter-State procedure is also briefly touched upon. The African Court on Human and Peoples’ Rights was established to ‘complement’ the protective mandate of the African Commission, and came into being in 2006 when its first eleven members were elected and its seat assigned.4 The role of the Court in the individual and inter-State 1

2

3 4

See, generally, E. A. Ankumah, The African Commission on Human and Peoples’ Rights: Practice and Procedure (The Hague: Martinus Nijhoff, 1996), pp. 51–77; C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The Development of its Non-State Communications Procedures’, Human Rights Quarterly 20 (1998) 235; V. O. O. Nmehielle, The African Human Rights System: Its Laws, Practices, and Institutions (The Hague: Martinus Nijhoff Publishers, 2001); F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (African Charter) (The Hague: Martinus Nijhoff, 2003), pp. 570–659. The African Charter does not use the term ‘individual communications’, opting rather for ‘other communications’ (Article 55), to distinguish these from inter-State communications. The term ‘individual communication’, as it is used here, includes communications by single or multiple individuals, groups and NGOs. Communication 227/99, Democratic Republic of Congo (DRC) v. Burundi, Rwanda and Uganda, Twentieth Activity Report 2006, Annex IV. The establishment of the Court is considered in detail in Chapter 12 below.

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procedure is also considered, even though its practice has not yet clearly crystallised. The Commission was established as a quasi-judicial body but without an explicit mandate to consider individual communications.5 Its competence to consider individual communications has, however, been institutionalised without much resistance, and over time its procedure has become increasingly judicialised. This trend is exemplified by the increasingly detailed nature of its findings and reasoning, the issuing of remedial orders in cases of violations, the adoption of minority views,6 and the decline in recourse to friendly settlements. This trend may be ascribed to a number of factors, such as the increased participation of legal counsel, improvements in the quality in submissions and the introduction of oral hearings. Before dealing with the substantive legal questions raised by a communication, the Commission’s findings (or ‘decisions’)7 set out a summary of the facts of the case and then provide a step-by-step overview of the ‘procedure’ in that case. In the case of individual communications, that procedure progresses through four phases: seizure, admissibility, merits and remedies. In addition, the communications procedure also provides for the possibility of ‘amicable settlements’ and the indication of ‘provisional measures’, all of which will be discussed below. Two further possible outcomes, ‘withdrawal’ and ‘closure of file’, are also considered in outline.

Seizure So far, the Commission has decided whether it should be ‘seized’ of a particular communication as a distinct procedural phase, and although the African Charter does not require this, it is reflected in the Commission’s Rules of Procedure.8 In no case so far recorded has the Commission 5

6 7

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On this issue, see, e.g., R. Murray, ‘Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights’, International ¨ and Comparative Law Quarterly 46 (1997) 412–434, p. 412, and I. Osterdahl, Implementing Human Rights in Africa (Uppsala: Iustus F¨orlag, 2002), pp. 112–13. See the dissenting opinion of Commissioner El Hassan in Communication 197/97, Bah Ould Rabah v. Mauritania, Seventeenth Activity Report 2003–2004, Annex VII. The term ‘decisions’ is used to refer to the written text of the Commission’s ‘findings’, rather than ‘judgment’, which would suggest an unequivocal binding decision. For a summarised version of most of the aspects covered in this chapter, and an expansion of some issues, see F. Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007), pp. 319–40, 438–54. Rule 102 of the African Commission on Human and Peoples’ Rights Rules of Procedure, 6 October 1995.

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decided not to be seized of a matter. Usually the ‘procedure’ section of a reported decision indicates the session at which the Commission ‘decided to be seized’, though it does not give any reasons for that decision. Whatever its initial justification may have been, this phase of the process has become obsolete, and only serves to delay consideration of the communication by at least a further six months since the examination of admissibility does not commence until the following session. In one instance, it appears that the Commission decided to be seized of a communication twice,9 and, in another, that consideration of seizure may also extend beyond six months.10

Admissibility Once seized of a communication, the Commission decides on its admissibility. The criteria for admissibility are set out in Article 56 of the African Charter, and this phase of the process is analysed in detail in subsequent sections of this chapter.

Merits Consideration of the merits is aimed at establishing whether the State against which the complain has been brought has violated a Charter provision. Consideration of the merits takes place at a separate session to that at which admissibility is determined. Once a communication has been declared admissible, the parties are invited to respond by explaining and indicating ‘if possible, measures it was able to take to remedy the situation’.11 The time limit within which the State must respond is fixed at three months.12 Although the Rules of Procedure only refer to the consideration of written material and arguments, the practice of allowing parties to present oral arguments – and even call witnesses – has evolved.13 9

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Communication 157/96, Association pour la Sauvegarde de la Paix au Burundi v. Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia, Seventeenth Activity Report 2003–2004, Annex VII, paras. 6 and 9. See, e.g., Communication 269/2003, Interights (on behalf of Sofia Yakubu Husaini) v. Nigeria, Eighteenth Activity Report 2004–2005, Annex III, para. 28 (the Commission received the communication on 31 January 2002 and decided to be seized of it only in May 2003). Rule 119(2) of the Commission’s Rules of Procedure. Rule 119(2) of the Commission’s Rules of Procedure. See, e.g., Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v. Guinea, Twentieth Activity Report, para. 26.

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At the merits phase, the Commission has on occasion also found that a State had violated other international instruments, such as the UN Basic Principles on the Independence of the Judiciary, in addition to violations of the Charter itself.14 The Charter draws a clear distinction between ‘ordinary’ violations and those revealing a ‘series of serious or massive violations’. In accordance with Article 58 of the Charter, the Commission initially referred a number of cases revealing serious or massive violations to the (then) OAU Assembly. These referrals were met with silence and inaction from the Assembly, the highest political body of the OAU,15 and so the Commission proceeded to deal with all communications itself, thus bypassing and negating the requirements of Article 58.16 Since findings on communications comprise ‘measures taken’ within the chapter of the Charter dealing with communications, they remain confidential until they are approved by the (now) AU Assembly.17 For this reason, the communications are attached to the Commission’s Activity Reports to the AU Assembly.

Remedies If a violation is found, the Commission may proceed to indicate a remedy as part of its finding. In its early years, the Commission was largely silent on the question of remedies.18 This might have been because neither the Charter nor the Rules of Procedure provide for remedial measures to be adopted, and might also have been due to parties not having had the opportunity initially to present written or oral arguments addressing the matter. Later on, and as its practice evolved, the Commission began 14 15

16

17 18

Communication 224/98, Media Rights Agenda v. Nigeria, Fourteenth Activity Report 2000– 2001, Annex V, para. 76. See, e.g., Communication 47/90, Lawyers Committee for Human Rights v. Zaire, Seventh Activity Report 1993–1994, Annex IX, para. 2, where the Commission ‘called the attention’ of the OAU Assembly to the situation of serious or massive violations. See, e.g., Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, Malawi African Association and others v. Mauritania, Thirteenth Activity Report 1999–2000, Annex V, where the Commission’s practice has already evolved into a finding of ‘grave or massive violations of human rights’, without any reference to the Assembly or Article 58 of the Charter as part of the remedy. See also Ouguergouz, The African Charter, pp. 629–32. Article 59(1) of the African Charter. The AU Assembly granted this competence to the AU Executive Council. See, e.g., Communications 64/92, 68/92 and 78/92, Krischna Achuthan (on behalf of Aleke Banda) and others v. Malawi, Eighth Activity Report 1994–1995, Annex IX, para. 13.

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to recommend that the State take the ‘necessary measures’ to comply with the Charter, though without specifying what these measures were.19 Although by no means consistent, the Commission has more recently been adopting detailed and targeted remedial ‘orders’.20 Recommendations on remedies may also be coupled with requirements concerning the follow-up or implementation of the remedy. In Lawyers for Human Rights v. Swaziland,21 for example, the Commission recommended that the Swazi Government inform it ‘in writing within six months on the measures it has taken to implement’ the remedies indicated.22 In other decisions, the Commission has linked follow-up to the State’s reporting obligation by requiring violator-States to indicate in their next periodic report, submitted under Article 62 of the Charter, how they have implemented the Commission’s remedial recommendations.23

Amicable settlements Neither the African Charter nor the Commission’s Rules of Procedure provide for amicable resolution as part of the individual communications procedure.24 This omission may be the result of there being no clear basis for individual communications in the Charter at all. Although the Commission’s practice has no explicit legal basis, it may be argued that it 19

20

21 22 23

24

See, e.g., Communications 27/89, 49/91 and 99/93, Organisation Mondiale Contre la Torture and others v. Rwanda, Tenth Activity Report 1996–1997, para. 37, calling on Rwanda to ‘adopt measures in conformity with’ the Commission’s decision. See, e.g., Communications 143/95 and 150/96, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000. Annex V, para. 36, where the Commission called on Nigeria to ‘bring its laws in line with the Charter’, and Communication 155/96, Social and Economic Rights Action Centre (SERAC) and another v. Nigeria (SERAC v. Nigeria), Fifteenth Activity Report 2001–2002, Annex V, para. 71 for an example of a comprehensive and wide-ranging remedial order. Communication 251/2002, Lawyers for Human Rights v. Swaziland, Eighteenth Activity Report 2004–2005, Annex III. Ibid., para. 53. See, e.g., Communication 241/2001, Purohit and Moore v. The Gambia, Sixteenth Activity Report 2002–2003, Annex VII, para. 85. The follow-up practice of the Commission received a boost with the adoption in November 2006 of the Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States Parties, ACHPR/Res.97(XXXX)06, in which States are requested to ‘indicate the measures taken and/or the obstacles in implementing the recommendations of the African Commission’ within 90 days of being notified thereof. The Charter and the Commission’s Rules of Procedure do, however, allow for amicable settlement of inter-State communications (Article 52 and Rule 98).

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is implied as a part of the Commission’s mandate given its quasi-judicial nature and the practice of other such bodies.25 Only a small number of cases have so far been finalised by way of friendly settlement.26 The first two communications that ended in amicable settlements were concluded in 1994, early in the life of the Commission, and provide only minimal detail concerning the terms of the agreement. In Henry Kalenga v. Zambia,27 it is stated that the ‘author was released after a member of the Commission effected an amicable settlement’. In Civil Liberties Organisation v. Nigeria28 the Commission played a less active role and relied on information ‘obtained’ that the ‘issue has been settled amicably’ before closing the file. Two later instances of amicable settlement have to be understood in the light of the broader changed and changing political context. In the first, Peoples’ Democratic Organisation for Independence and Socialism v. The Gambia,29 the complaint concerned unreliable voter registration under Gambian electoral laws. The case was commenced in 1991 and had not progressed very far when a coup took place in 1994, bringing the Jammeh Government to power. In the spirit of breaking with the past, the new government was critical of the previous government’s position on voters’ registration, calling it ‘inexcusable and indefensible’. Absorbed in the optimism of the new, the complainants apparently accepted in good faith the ‘determination’ of the new government to ‘review the current electoral law’. One disconcerting element of this case is that the complainant never explicitly accepted the settlement. In what amounts to a nisi order, the Commission allowed a period of just over a month within which the complainant could indicate that the settlement was not acceptable. In the absence of any response, the case was concluded on the basis of the Government’s undertaking to review the laws in question. The second case concerned the protracted conflict between the Issa dominated government forces and the Afar nationalist or ‘rebel 25

26 27 28 29

Under the broad ambit of Articles 60 and 61 of the Charter, the Commission can draw inspiration from other human rights treaty bodies – not only on substantive issues but also on procedures. Approximately one per cent of all cases finalised by the Commission, as at the publication of its Nineteenth Activity Report, have been settled amicably. Communication 11/88, Henry Kalenga v. Zambia, Seventh Activity Report 1993–1994, Annex IX, para. 2. Communication 67/92, Civil Liberties Organisation v. Nigeria, Seventh Activity Report 1993–1994, Annex IX, para. 2. Communication 44/90, Peoples’ Democratic Organisation for Independence and Socialism v. The Gambia, Tenth Activity Report 1996–1997, Annex X.

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movement’, the Front pour la Restauration de l’Unit´e et de la D´emocratie (FRUD) in Djibouti. A complaint was brought to the Commission in 1994, alleging the extra-judicial killing, torture and rape of unarmed civilians by government forces.30 Subsequently, a group of Afar insurgents split from the FRUD and engaged in negotiations with the Government, which resulted in the signature of a protocol between the Government and the complainant, aimed at bringing about ‘a lasting settlement to the demands of the civilian victims, refugees and displaced persons’. Having been informed of this protocol in 1998, the Commission unsuccessfully sought confirmation from the complainant. As a result, the Commission mandated one of its members to undertake a mission to Djibouti. This mission took place in early 2000 and confirmed that an amicable settlement had been reached. This position was formalised in the Commission’s eventual finding. More recently, a communication involving the banning of a private radio station in Cameroon was amicably resolved as a result of the relevant Minister’s intervention.31 This case illustrates the importance of the Government’s willingness to become involved, even when the Commission does not play a pronounced role. After the agreement had been reached, the Commission ensured that both parties agreed to its terms, registered it and closed the file. A cause for concern is the lack of finality in the agreement, which refers to a ‘commitment’ to grant the complainant authorisation to broadcast (rather than ‘granting’ that authority) and to ‘ongoing’ negotiations to determine fair compensation (rather than setting the amount itself).32 Whilst it is true that the complainant might submit a new communication if these commitments are reneged upon, it would have been much less burdensome to the complainant, and more in line with ‘respect for human rights’, if the Commission had attached conditions to ensure effective follow-up to the agreement. There are obviously more cases in which amicable settlements could have been reached. A similar situation of changed political circumstances occurred in Nigeria when the Abacha dictatorship made way for civilian rule under President Obasanjo. The new government accepted that its predecessor was responsible for atrocities in Ogoniland. After declaring the communication in SERAC v. Nigeria admissible, the Commission sent a mission to Nigeria, but there is no indication that it engaged the parties 30 31 32

Communication 133/94, Association pour la D´efense des Droits de l’Homme et des Libert´es v. Djibouti, Thirteenth Activity Report 1999–2000, Annex X. Communication 290/2004, Open Society Justice Initiative (on behalf of Pius Njawe Noumeni) v. Cameroon, Twentieth Activity Report, Annex IV. Ibid., para. 22.

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with a view to reaching an amicable settlement (possibly because the mission took place in March 1997, before Abacha’s death in 1998). In this case, as in others, there is a lack of clarity concerning the relationship between amicable settlement and the on-site missions of the Commission.33 In the absence of any framework providing for amicable settlement under the Charter, some reliance should be placed on the prerequisites for such settlements developed under other human rights systems. The primary criterion is that the settlement must be based on respect for human rights.34 It is necessary to stress this since it is always possible that an unequal power-relationships between the parties may induce the weaker party (usually the complainant) to accept an unfavourable compromise, this would run counter to the very raison d’ˆetre of the treaty body, which is to ensure the protection of human rights. Thus far, however, the Commission has not made specific reference to this criterion.35 Other pre-requisites for arriving at a friendly settlement are that both parties must explicitly agree to it, and that a time limit should be set within which the possibility must be explored. The Modise case illustrates the need for both of these prerequisites.36 Initially, the Commission closed the case on the basis that a friendly settlement had been reached even though the complainant was not satisfied with its terms. However, by recommending that the Botswana Government ‘continue’ with its efforts to resolve the matter amicably, the Commission anticipated that a request would be made to re-open the case, which indeed happened and – more than seven and a half years after it was first submitted – culminated in a finding that Botswana had violated the complainant’s rights. The reluctance by the Commission to fix time periods for seeking an amicable solution contributed significantly to the delay.

33

34

35

36

The mission to Senegal was termed a ‘Mission of Good Offices’, while the one to Mauritania, termed a ‘Mission’, included amicable settlement as part of its objectives. See Annex VIII and IX to the Commission’s Tenth Activity Report. See Article 48(1)(f) of the American Convention on Human Rights and Article 38 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This aspect is provided for in respect of inter-State communications under the Charter (Article 52), allowing for the construction of an analogous argument with respect to individual communications. It came closest in the following obiter dicta (in Communications 27/89, 49/91 and 99/93): ‘A prerequisite for amicably remedying violations of the Charter is the good faith of the parties concerned, including the willingness to participate in a dialogue.’ Communication 97/93, John K. Modise v. Botswana, Seventh Activity Report 1993–1994, Annex IX; Tenth Activity Report 1996–1997, Annex X, para. 42 (Documents of the African Commission, p. 567) and the subsequent decision in the same communication, Fourteenth Activity Report 2001–2002, Annex V, para. 69.

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Even if these requirements have been complied with, there are still some concerns about this procedure, notably that an amicable settlement does not lead to a public acknowledgment that the State has violated the complainant’s rights,37 and that the societal interest in knowing the true state of affairs is disregarded. To overcome these concerns, other treaty bodies adopt findings in which the terms of settlements are made public in a relatively detailed form.38 The African Commission has not adopted such a practice. The use of the amicable settlement procedure is consonant with the Commission’s understanding of the complaints procedure as, generally, an attempt at a dialogue with States.39 Given that its legal basis is rooted in practice, the Commission should take a more consistent approach when considering the feasibility of the amicable settlement procedure. There is little indication that the Commission places itself ‘at the disposal of the parties’ to reach such a settlement, as is the case in other regional human rights systems.40 Its successful application also leads to an effective remedy for the complainant, something that may often not happen should the Commission make a finding that there has been a violation, given the reticence of States in complying with remedial orders. Provided that the requirements outlined above are stated clearly,41 meticulously observed, and that complainants are not coerced into reconciling the 37

38

39 40

41

See, however, R. Murray, The African Commission on Human and Peoples’ Rights and International Law, p. 177, who argues that an amicable resolution at least implies that human rights violations have occurred. In respect of the Inter-American Commission, see, e.g., Report 97/05, Petition 14/04, Alfredo D´ıaz Bustos v. Bolivia, ‘Friendly Settlement’ finding of 27 October 2005, para. 16 (www.cidh.org/annualrep/2005eng/bolivia14.04eng.htm). Accessed 17 July 2006. See, e.g., Communications 27/89, 49/91 and 99/93: ‘The main goal of the communications procedure . . . is to initiate a positive dialogue.’ See Article 48(1)(f) of the American Convention on Human Rights and Article 38 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This lack of initiative on the part of the Commission is illustrated in Communication 204/97, Mouvement Burkinab´e des Droits de l’Homme et des Peuples v. Burkina Faso, Fourteenth Activity Report 2000–2001, Annex V, para. 36: the parties ‘expressed their desire to reach an amicable solution and requested’ the Commission’s ‘assistance to this end’. It is not clear what the Commission did to ‘inform the parties that it was at their disposal’. In line with Article 41(5) of the Rules of Procedure of the Inter-American Commission: ‘If a friendly settlement is reached, the Commission shall adopt a report with a brief statement of the facts and of the solution reached, shall transmit it to the parties concerned and shall publish it. Prior to adopting that report, the Commission shall verify whether the victim of the alleged violation or, as the case may be, his or her successors, have consented to the friendly settlement agreement. In all cases, the friendly settlement must be based on respect for the human rights recognized in the American Convention on Human Rights, the American Declaration and other applicable instruments.’

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irreconcilable, the amicable settlement procedure allows for a balance to be struck between giving effect to human rights obligations on the one hand, and claims to State sovereignty that still exercise a powerful influence on the other.42

Provisional measures In line with other regional systems, the African Charter’s silence about provisional (‘interim’, ‘temporary’ or ‘precautionary’) measures is ameliorated by its initial and revised Rules of Procedure, which make provision for such measures to be taken in order to ‘avoid irreparable damage being caused to the victim’ of the alleged violation.43 The most important requirement is that such measures may only be taken in relation to a case already submitted. As the Commission only meets for two fifteenday sessions per year, it falls to the Chairperson, in consultation with other members, to take the necessary action during the intersessional period.44 In both its Rules and jurisprudence, the Commission underlines the ‘temporary’ nature of these measures by reiterating that the adoption of provisional measures ‘does not imply a decision on the substance of the communication’.45 Delay has impeded the effectiveness and impact of the Commission’s ultimate findings since it is often the case that a decision is taken on a communication long after the immediate cause of harm has been eliminated or has been reduced significantly. An increasing appreciation of this has resulted in complainants seeking to exploit the possibility of ‘provisional measures’, even to the extent of losing interest in the eventual outcome of the case itself. This is illustrated by the case of Interights (on behalf of Safia Yakubu Husaini and others) v. Nigeria.46 Interights submitted a complaint on behalf of Safia Husaini, alleging that various elements of the Shari’a criminal justice system that applied in Northern Nigeria violated the Charter. Fearing execution after having being convicted of adultery under this very system, the complainant also submitted a request for provisional measures under Rule 111. The victim was not executed and, 42

43 44 45 46

See, e.g., V. Eteka Yemet, La Charte Africaine des Droits de l’Homme et des Peuples (Paris: L’Harmattan, 1996), p. 326, who advocates the use of amicable settlements as a way of reconciling claims to sovereignty and the progressive realisation of human rights. Rule 111(1), mirroring the ‘old’ Rule 109. Rule 111(3) of the Commission’s Rules of Procedure. Rule 111(1) of the Commission’s Rules of Procedure. Communication 269/2003.

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with the immediate harm averted, the communication was subsequently withdrawn. The relative success in this case may be ascribed to the involvement of the AU Chairperson and AU Political Affairs Department, which resulted in the intervention of the Nigerian Head of State.47 However, the withdrawal of the complaint meant that the underlying concerns related to the Shari’a penal legislation were left unaddressed. Although provisional measures have been complied with in some cases, they have been disregarded in many others.48 Despite the Commission’s invocation of provisional measures in respect of the death sentence imposed on Ken Saro-Wiwa, his execution went ahead despite the fact that communication had not been considered on the merits, and that an on-site mission by the Commission was pending.49 On at least one occasion, the complainants have presented oral arguments concerning non-compliance with orders for provisional measures.50 The State Party’s response revealed problems with the transmission of information within government circles,51 and also highlighted a potential link between provisional measures and amicable settlement since when the relevant Minister became aware of the situation, he ‘offered his good offices’,52 setting in motion a process that did indeed culminate in an amicable settlement.53 In some instances of the most blatant disregard of provisional measures, States have disputed the effectiveness of the transmission of the relevant information. For example, twenty days after receiving a communication alleging that the imposition of the death sentence constituted a violation of fair trial rights and the right to life of Mariette Bosch, the Chairperson of the Commission allegedly faxed a message to the President of Botswana calling for a suspension of the execution pending consideration of the communication.54 Four days after the fax was sent, she was executed. At a subsequent hearing, the Government argued that the message had not been received. Because the Commission could not prove that the message had been received, as opposed to sent, the Government’s argument 47 48

49 50 51 52

Ibid., paras. 19–22. On the Commission’s compliance practice, see G. Baricako, ‘La Mise en Oeuvre des D´ecisions de la Charte Africaine des Droits de l’Homme et des Peuples par les Autorit´es Nationales’ in J. F. Flauss and E. Lambert-Abdelgawad (eds.), L’Application Nationale de la Charte Africaine des Droits de l’Homme et des Peuples (Brussels: Bruylant, 2004). Communications 137/94, 139/94, 154/96 and 161/97, International PEN and others (on behalf of Saro-Wiwa) v. Nigeria, Twelfth Activity Report 1998–1999, Annex V. Communication 290/2004, para. 14. An urgent request for provisional measures, directed to the President on 15 July 2004, had by November/ December 2004 not been communicated to the relevant Minister (ibid.) 53 54 Ibid. Ibid., paras. 22 and 23. Communication 269/2003.

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was accepted.55 Quite clearly, the Commission should not allow States to invoke this excuse – the question should have been whether there was sufficient proof that the fax was sent to the appropriate person or institution. There is also some discrepancy in the Commission’s jurisprudence concerning the legal nature of provisional measures. In the Saro-Wiwa case, the Commission considered non-compliance with provisional measures to be not only a cause of ‘deep regret’, but also to comprise a violation of Article 1 of the Charter.56 However, in the Bosch case, the Commission did not refer to the Saro-Wiwa decision, and declined to find a violation of Article 1, arguing that the ‘only instance’ in which a State could be found in violation of that provision was ‘where the State does not enact the necessary legislative enactment’.57 This finding not only contradicts the Saro-Wiwa decision but also disregards the phrase ‘or other measures’ in Article 1 of the Charter.

Withdrawal and closure of the file A number of communications have been withdrawn or closed. Working from the premise that the right of submission also implies the right of withdrawal,58 the Commission has adopted the formalistic position of accepting any request to do so. Although a written request is preferable, an explicit oral request (such as at a hearing of the Commission) is sufficient.59 In one instance, the Commission followed up an e-mail request for withdrawal with further efforts to obtain ‘written confirmation’, suggesting that an e-mail is insufficient for this purpose.60 Since communications can be submitted to the commission on behalf of victims rather than by victims themselves, it would be possible for a complaint to be withdrawn by the complainant (such as an NGO) without reference to

55 57 58 59 60

56 Ibid., para. 50. Communications 137/94, 139/94, 154/96 and 161/97. Communication 240/2001, Interights and others (on behalf of Mariette Sonjaleen Bosch) v. Botswana, Seventeenth Activity Report 2003–2004, Annex VII, para. 51. ¨ See Osterdahl, Implementing Human Rights, p. 115, relying on an unofficial version of one of the Commission’s decisions. See, e.g., Communication 261/2002, Interights et al. v. Egypt, Sixteenth Activity Report 2002–2003, Annex VII, para. 9. Communication 273/2003, Centre for Advancement of Democracy, Social Justice, Conflict Resolution and Human Welfare v. Nigeria, Eighteenth Activity Report 2004–2005, Annex III, para. 23.

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the victim. However, it seems desirable to obtain confirmation from the victim, particularly when serious unresolved violations are alleged.61 Both withdrawal and closure may, of course, be linked to an amicable resolution, such as in an early case where the Commission decided ‘to close the file’ in the light of the release of the victim.62 However, making a finding that the case has been withdrawn or closed precludes consideration of the merits of the case on the part of the Commission. Thus, although the complainant’s ‘wish to withdraw’ in Interights (on behalf of Husaini) v. Nigeria63 may have arisen from an apparently successful invocation of provisional measures, the underlying issues concerning the Shari’a penal system have, as a consequence, remained unaddressed.

Procedure for consideration of admissibility The principle that communications before human-rights treaty bodies have to comply with certain admissibility requirements before they may be ‘admitted’ serves as a screening or ‘filtering’ mechanism between national and international institutions. The continued importance of sovereignty to States is reflected in the fact that all complaints mechanisms under UN human rights treaties are optional.64 The admissibility requirement places a further divide between sovereign States and international supervision. Disputes between nationals and their States should, in the first instance, be resolved through non-judicial and judicial mechanisms at the national level. A dispute needs to be of a specific nature or character for it to proceed to the international level. At the international level, these prerequisites are included in each of the human rights instruments, and there is an apprehension that, without such a filter, international institutions may become overburdened with cases. Admissibility findings play 61

62 63

64

See, e.g., Communication 238/2001, Institute for Human Rights and Development (on behalf of S´edar Tumba Mboyo) v. Democratic Republic of Congo, Fifteenth Activity Report 2001– 2002, Annex V, para. 15), where it is stated that ‘counsel for the complainant informed the Commission that Mr Mboyo had requested that this communication be withdrawn’. Communication 22/88, International PEN v. Burkina Faso, Seventh Activity Report 1993– 1994, Annex IX. Communication 269/2003. On closer inspection, however, it appears that the request for withdrawal and the Commission’s closure of the case were combined with the failure of the parties to provide information and arguments on admissibility, without which it would have been difficult for the Commission to consider the matter further. See, e.g., Article 14 of the Convention on the Elimination of Racial Discrimination (CERD); (First) Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR); Article 22 of the Convention Against Torture (CAT); Optional Protocol to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

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an important role in the work of international human-rights treaty bodies. Under the Optional Protocol to the ICCPR, 248 (or 29.3 per cent) of the 844 finalised communications were declared inadmissible up to January 1999.65 From its inception in 1987, up to its 39th Session in May 2006, the African Commission finalised 119 individual communications. Of these, 46 (or 39 per cent) have been declared inadmissible.66 Rigorous analysis of the Commission’s findings on admissibility is often difficult, due mainly to the lack of substantiation in the reasoning of the African Commission, especially in its initial years of operation.67 Subsequent findings on communications have become more elaborate and extensive, and a summary of the chronological background to the procedure at the level of the Commission has been added. This has contributed to a clearer picture of the issues related to admissibility.68 Sometimes the reason for a finding remains unclear, however, because the factual basis for the finding is not disclosed. Often facts are merely listed, the applicable law is stated in a general way and the conclusion is announced. This may be explained partly with reference to the influence of civil law judicial style,69 which is more concise and less reasoned than the common law style. The issue of admissibility is considered separately from, and before, the substantive consideration of a communication.70 Admissibility is mostly decided on written evidence and arguments, without an oral hearing. On some occasions, however, parties have also made oral presentations as part of this process. The Commission, or a working group of its members, decides on the admissibility of communications. As the number of communications was initially not very high, the Commission did not make use 65

66

67

68 69

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M. Nowak, ‘The International Covenant on Civil and Political Rights’ in R. Hanski and M. Suksi (eds.), An Introduction to the International Protection of Human Rights: A Textbook (Finland: Abo Akademi University, Institute for Human Rights, 1999), p. 95. Cases in which admissibility findings were made due to States not being party to the Charter are left out of the equation. These cases, accounting for twenty-three of the finalised cases, were initially treated as ‘inadmissible’, but have later, correctly, been treated as ‘irreceivable’. For example the ‘judgment’ in Communication 45/90, Civil Liberties Organisation v. Nigeria, Seventh Activity Report 1993–1994, Annex IX reads as follows: ‘The Commission declares that local remedies have not been exhausted as required by Article 56 of the Charter and Rule 114 of the Rules of Procedure and declares the communication inadmissible.’ See, e.g., Communication 102/93, Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V. For emulation of the civil law (French) style, see, e.g., Communication 43/90, Union des Scolaires Nig´eriens, Union G´en´erale des Etudiants Nig´eriens au Benin v. Niger, Seventh Activity Report 1993–1994, Annex IX, using the formula ‘meeting at . . .’, ‘by petition dated . . .’, ‘considering that . . .’, ‘declares . . .’. See, e.g., Communication 212/98, Amnesty International v. Zambia, Twelfth Activity Report 1998–1999, Annex V, para. 28.

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of working groups until 1999, when a communications working group was designated to deal with the preparation of communications in the period between the 27th and 28th Sessions. In practice, every communication is assigned to a particular commissioner, who acts as rapporteur. When communications are received, they are dealt with by the Secretary, who prepares a list of all communications, with a brief summary of their contents.71 The Rules of Procedure provide that the ‘Commission, through the Secretary, may request the author of a communication to furnish clarifications’ of his or her communication.72 Unfortunately, this provision has sometimes been interpreted to mean that the Secretary placed the communications as they had been received before the Commission, and awaited its instructions, even in cases where there clearly was information lacking. In other words, the Secretary did not ensure that all the information pertaining to admissibility had been gathered before referring the communication to the Commission. The author of the communication should set out contact details, the State against which the complaint is lodged, the relevant facts, the Charter provision allegedly violated and particulars about how the admissibility criteria have been met.73 The respondent State is given an opportunity to respond.74 Further clarifications may be requested, even in the form of specific legal issues on which the parties are invited to submit arguments.75 The Commission fixes a time limit for the submission of additional information or written arguments. The lack of a specified time period and too much flexibility in extending specified periods have caused inordinate delay.76 Currently, the Commission usually sets an initial limit of three months, and two months for compliance with follow-up requests.77 The Commission must decide ‘as early as possible’ on the admissibility of communications.78 Unfortunately, delay rather than promptness 71 72 73 74 75

76

77 78

Rule 103 of the Commission’s Rules of Procedure. Rule 104 of the Commission’s Rules of Procedure. Rule 104 of the Commission’s Rules of Procedure. Rule 117 of the Commission’s Rules of Procedure. See, e.g., Communication 233/99, Interights (on behalf of Pan-African Movement and Citizens for Peace in Eritrea) v. Ethiopia, Sixteenth Activity Report 2002–2003, Annex VII, para. 17. As Communication 236/2000, Doebbler v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII, paras. 10–18, illustrates, extension is sometimes granted due to a lack of communication within government. See, e.g., Communication 251/2002, Lawyers for Human Rights v. Swaziland, Eighteenth Activity Report 2004–2005, Annex III, paras. 11 and 13. Rule 113 of the Rules of Procedure.

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has characterised findings on admissibility. Long periods of delay often occur in the process of obtaining information, and it is not always clear whether these delays should be ascribed to the Commission or the Secretariat. Communication 44/90, Peoples’ Democratic Organisation for Independence and Socialism v. The Gambia was received in 1990 and a finding on admissibility was made in 1995: ‘from 1990 to 1995, the Commission proceeded to verify the exhaustion of local remedies’.79 It is unclear whether the Commission formally considered admissibility, or whether it was functioning through its Secretariat. Be that as it may, the five-year delay is unacceptable. When finding Communication 159/96, Union Interafricaine des Droits de l’Homme and others v. Angola admissible in April 1997, the Commission explained that its decision was based on ‘information furnished by the complainants’, and it deplored ‘the fact that the defendant State did not respond to the notification sent to it in December 1996’.80 Findings on admissibility have been much swifter in other cases. For example, Communication 212/98, Amnesty International v. Zambia was declared admissible within about a month of being received by the Commission.81 The inclusion of the names of the Commissioners who act as rapporteurs in respect of a particular communication as part of the Commission’s finding may be a factor enhancing greater commitment to the speedy resolution of communications. In order to avoid delays in processing, communications should be as detailed as possible from the outset. A communication must also be in one of the working languages of the African Commission: Arabic, English or French. As a practical consideration, because few of the secretarial staff or the commissioners speak Arabic, it is best to submit Arabic communications with an English or French translation. Translation facilities at the level of the Secretariat have been lacking in the past. For this reason, it is preferable that even English or French communications should be submitted in both languages. Although this is desirable in order to ensure that all Commissioners will be able to read the communication, it must be stressed that this is not a formal requirement. The language of communications should be clear and simple and the facts stated concisely. 79 80

81

Communication 44/90. Communication 159/96, Union Interafricaine des Droits de l’Homme, F´ederation International des Ligues des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au S´en´egal and Association Malienne des Droits de l’Homme v. Angola, Eleventh Activity Report 1997–1998, Annex II. Communication 212/98.

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A number of cases declared inadmissible have been reintroduced before the Commission, which makes sense given that many communications are declared inadmissible because of insufficient facts or information about the exhaustion of local remedies. A decision of inadmissibility may be reconsidered at a later date if the Commission is requested to reconsider its previous decision.82 Sometimes the Commission invites the author to do so, as in Alberto T. Capitao v. Tanzania,83 where the Commission observed that the ‘case can be resubmitted when the local remedies have been properly exhausted or if the complainant proves that local remedies are unavailable, ineffective or unreasonably prolonged’.84 The Commission may entertain requests to reconsider inadmissible findings.85 In Liesbeth Zegveld and Mussie Ephrem v. Eritrea,86 the Government requested the reopening of the admissibility phase after the Commission had found the case admissible. Dismissing this request, the Commission reiterated that its Rules of Procedure do not make provision for reviews of this nature,87 and confirmed its practice of not reconsidering ‘a decision declaring a communication admissible’.88 At the same time, the Commission ‘noted’ that the State did not present any new factual or legal ‘elements’, but as this remark was not determinative of the issue, it should not become the basis for an argument that the introduction of new facts can override the requirements of the Rule of Procedure and the Commission’s established practice on this matter. The Commission should make its findings on admissibility known ‘as soon as possible’ to the author of the complaint and the State Party concerned.89

Grounds for admissibility Article 56 of the Charter, which sets out the conditions for the admissibility of individual communications under the Charter, is supplemented by the Commission’s Rules of Procedure and its jurisprudence. Failure to comply 82 83 84 86 87 89

Rule 118(2) of the Commission’s Rules of Procedure. Communications 53/90 and 53/91, Alberto T. Capitao v. Tanzania, Seventh Activity Report 1993–1994, Annex IX; Eighth Activity Report 1994–1995, Annex VI. 85 Ibid., para. 3. Rule 118(2) of the Commission’s Rules of Procedure. Communication 250/2002, Liesbeth Zegveld and Mussie Ephrem v. Eritrea, Seventeenth Activity Report 2003–2004, Annex VII. 88 See also Communication 236/2000. Ibid., para. 45. Rule 118(1) of the Commission’s Rules of Procedure.

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with any one of these threshold requirements is fatal to the admissibility of a communication.90

Identity of the author Article 56(1) stipulates that communications must ‘indicate their authors even if the latter requests anonymity’. The phrase ‘indicate their authors’ should be understood broadly to include full particulars to enable the Commission’s Secretary to remain in contact with the author, to keep him or her informed about the status of the communication and to request further information if it is required.91 Therefore an ‘indication’ of the author means not only his or her full name, but also at least an address where the author can be contacted.92 This should preferably be a street address, postal address, telephone number, fax number and e-mail address, should these be available.93 The Commission has found a communication inadmissible due to the absence of the author’s address.94 Communication 108/93, Monja Joana v. Madagascar illustrates the difficulties involved in obtaining such details where there are insufficient means of communication.95 In this case, the Commission lost contact with the complainant, and unsuccessfully tried various means in an attempt to contact the complainant through other individuals. Later, it transpired that the complainant had died. Even attempts to contact his legal successor bore no results. In numerous communications, the fact that the Commission has lost contact with the complainant has played a part in the result being a finding of inadmissibility.96 90 91

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Communication 299/05, Anuak Justice Council v. Ethiopia, Twentieth Activity Report, Annex IV, para. 44 (where the conditions are called ‘conjunctive’). Communication 70/92, Ibrahim Dioumessi, Sekou Kande, Ousmane Kaba v. Guinea, Seventh Activity Report 1993–1994, Annex IX; Ninth Activity Report 1995–1996, Annex VIII, which emphasised that the identity of the authors must be known in order for them to ‘be sent notifications’. In Communication 57/91, Tanko Bariga v. Nigeria, Seventh Activity Report 1993–1994, Annex IX, the Commission made it clear that an address is required because ‘for practical reasons it is necessary that the Commission is able to contact the author’. The Inter-American Convention goes further by requiring that individual petitions must contain ‘the name, nationality, profession, domicile, and signature of the person or persons or the legal representative of the entity lodging the petition’: Article 46(1)(d) of the IACHR. Communication 57/91. Communication 108/93, Monja Joana v. Madagascar, Tenth Activity Report 1996–1997, Annex X. See, e.g., Communication 239/2001, Interights (on behalf of Jose Domingos Sikunda) v. Namibia, Fifteenth Activity Report 2001–2002, Annex V.

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No communication may be submitted anonymously.97 The author may request anonymity but still needs to state his or her name and other particulars as part of the communication. It will sometimes be difficult to maintain the anonymity of the complainant, as the State needs to be alerted to the specific situation that gave rise to the complaint against it. Where NGOs brought communications, they usually stipulated on whose behalf these communications were brought.98 This did not happen in some instances, probably because the communication alleged situations of massive or widespread violations of human rights.99 Only two communications, both found in the Commission’s Eighteenth Activity Report, refer to the complainants by initial only, reflecting their desire to remain anonymous.100

The communication must be compatible with the AU Constitutive Act and the African Charter At first glance, and relying on the wording in the African Charter before the advent of the AU, it appears that communications are required by Article 56(2) to be compatible with either the OAU Charter101 (since 2001, the AU Constitutive Act) or the African Charter, and not with both.102 It does not, however, make sense to require that allegations of violations of the Charter should be compatible with the AU Constitutive Act, and not with the African Charter. The OAU Charter was the founding document of the OAU, a political organisation, and sets out the aims and objectives of the OAU and the mandate and functioning of the OAU institutions. The main points of departure of this Charter that are in conflict with the 97 98 99

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There exists a similar requirement for communications under Article 3 of the Optional Protocol to the ICCPR and Article 22(2) of the CAT. See, e.g., Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI. See, e.g., Communication 74/92, Commission Nationale des Droits de l’Homme et des Libert´es v. Chad, Ninth Activity Report 1995–1996, Annex VIII, in which reference is to ‘15 . . . people detained’, ‘200 wounded’ and ‘several tortured’. The communication refers by name to two individuals, Bisso Mamadou and Joseph Betudi, who had allegedly been assassinated: paras. 5 and 6. See Communication 258/2002, Miss A. v. Cameroon, Seventeenth Activity Report 2003– 2004, Annex VII and Communication 283/2003, B. v. Kenya, Seventeenth Activity Report 2003–2004, Annex VII. Charter of the Organization of African Unity, 25 May 1963, 47 United Nations Treaty Series 45, reprinted International Legal Materials 8 (1969) 1288. Article 56(3) reads as follows: ‘are compatible with the Charter of the OAU or with the present Charter’.

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ethos of the African Charter are State sovereignty and non-interference in the domestic affairs of Member States. The only mention of human rights is made as part of its purpose, namely, ‘to promote international co-operation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights’.103 The African Charter, on the other hand, sets out the rights of individuals and peoples in States Parties, and places the duty on States Parties to recognise and give effect to these rights. The word ‘or’ in Article 56(2) should therefore be read conjunctively, joining the two instruments, making it a requirement that communications have to be compatible with both the OAU Charter and the African Charter. The AU Constitutive Act, which has replaced the OAU Charter, goes much further than the OAU Charter in its reference to human rights as part of the AU’s aims and principles.104 However, as it retains the principle of non-interference by one member in another’s internal affairs,105 the argument for a conjunctive reading of ‘or’ above still applies. Compatibility with the OAU Charter received attention in Communication 75/92, Katangese Peoples’ Congress v. Zaire.106 Without explicitly referring to the OAU Charter, the Commission took into account the ‘sovereignty and territorial integrity of Zaire’. Given that these concepts are never mentioned in the African Charter but form the basis of the OAU Charter, this decision could lend support to the contention that communications have to be compatible with both the OAU Charter/AU Constitutive Act and the African Charter. Even if one accepts this conclusion, the essence of Article 56 is that the Commission considers communications only if they are ‘compatible with’ the African Charter. Compatibility with the African Charter has four main aspects. First, the communication must allege that a right set out in the Charter has been violated (the ‘substantive’ requirement). Second, the communication must be directed at a State Party and must be submitted by someone who is competent to do so (the ‘personal’ requirement). Third, the communication must be based on events that have occurred within the period of the Charter’s application (the ‘temporal’ 103

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Article 2(1) of the OAU Charter. In fact, this formulation also suggests that the OAU Charter and the African Charter should be read cumulatively in Article 56 of the African Charter, as it is in respect of the UN Charter and its main human rights instrument at the time, the Universal Declaration of Human Rights. See, e.g., Articles 3(h), 4(h) and 4(m) of the AU Constitutive Act. Article 4(g) of the AU Constitutive Act. Communication 75/92, Katangese Peoples’ Congress v. Zaire, Eighth Activity Report 1994– 1995, Annex VI.

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requirement). Lastly, the communication must be based on events that took place within the territorial sphere in which the Charter applies (the ‘territorial’ requirement). These will be examined in turn.

Compatibility ‘ratione materiae’ To be admissible, a communication must be based on an alleged violation of the Charter, constituting the ‘substantive requirement’.107 Similar prerequisites exist under all international human rights systems.108 Adopted in 2003 and having entered into force in November 2005, the Protocol to the African Charter on the Rights of Women in Africa has expanded the substantive ambit of the African Charter in respect of States Parties to the Protocol.109 As the Protocol supplements the Charter, and since the Protocol does not establish an additional mechanism for its implementation, communications alleging violations of the rights therein should be directed to the African Commission. All communications, and not only those revealing a series of serious or massive violations of human rights, may be submitted to the Commission. Rejecting the Gambian Government’s argument for restricting the substantive application of the Charter to serious or massive violations, the Commission invoked Article 55 and its own ‘useful practice’.110 Allegations set out in a communication should provide prima facie evidence that a provision of the African Charter has been violated. In Frederick Korvah v. Liberia,111 the author based the communication on a lack of discipline in the Liberian Security Police, corruption, immorality of the Liberian people generally and a national security risk caused by American financial experts. The Commission, finding that the matters ‘described in the communication do not amount to violations of human 107

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An example under the Optional Protocol to the ICCPR is that an alleged breach of the collective right to strike cannot be brought under the ICCPR: see Communication 118/82, J. B. and others v. Canada, Doc. A/41/40, p. 151. See, e.g., Article 1 of the Optional Protocol to the ICCPR, where the Human Rights Committee can entertain communications alleging violations of ‘any of the rights set forth in the Covenant’; Article 22(2) of the CAT and Article 47(b) of the IACHR, where a petition which does not state ‘facts that tend to establish a violation of the rights guaranteed’ by the Convention are inadmissible. See Chapter 15 in this volume. Communications 147/95 and 149/96, Sir Dawda K Jawara v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V, para. 42. Communication 1/88, Frederick Korvah v. Liberia, Seventh Activity Report 1993–1994, Annex IX.

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rights under the provisions of the Charter’,112 declared the communication inadmissible. Although there is no need for the complainant to mention the specific provisions of the Charter that are allegedly violated, there must be a sufficient indication of the factual basis on which the alleged violation is based.113 The Commission will otherwise not know which incident to investigate, about which specific incident to require information from the State, or on which particular violation to base its finding. Communications 104/94 and 109–126/94, Centre for Independence of Judges and Lawyers v. Algeria were declared inadmissible for a lack of specificity about places, dates and times on which incidents had allegedly occurred.114 At least one communication, found to be inadmissible for not revealing a violation of a right under the Charter, gave rise to some analysis of a substantive Charter provision. In Communication 75/92, Katangese Peoples’ Congress v. Zaire, the Commission found that the communication had ‘no merit under the African Charter’.115 The Katangese Peoples’ Congress, a liberation movement working towards achieving independence of the Katanga region from the (then) Zaire, brought a communication under Article 20(1) of the African Charter, requesting that the Commission recognise that it was entitled to independence, and therefore allow it to secede from Zaire. The Commission found that the claim did not amount to a violation of Article 20(1). The reasoning of the Commission was that, under the OAU Charter, the Commission must uphold the sovereignty and territorial integrity of all OAU Member States, including Zaire. Selfdetermination, referred to in Article 20, may be exercised in a variety of ways including independence, self-government, local government, federalism and unitarism. As a general rule, nationals of a State have to make use of one of these alternatives, without undermining the sovereignty 112 113

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Ibid. Communication 162/97, Mouvement des R´efugi´es Mauritaniens au S´en´egal v. Senegal, Eleventh Activity Report 1997–1998, Annex II, which was found inadmissible on the ground that the facts do not reveal a prima facie violation of the Charter. The Commission mentioned, in addition, that the specific provisions of the Charter which were allegedly violated had not been stipulated. In this respect, the Commission does not require that the ‘complaints intended to be made subsequently’ at the international level had to be made ‘at least in substance’ at the national level, such as invoking the particular right at stake either by name or as part of an argument ‘to the same or like effect’, as the European system does (Ahmed Sadik v. Greece, ECHR, Judgment of 15 November 1996, European Human Rights Reports 24 (1997) 323, paras. 30 and 32). Communications 104/94 and 109–126/94, Centre for Independence of Judges and Lawyers v. Algeria and others, Eighth Activity Report 1994–1995, Annex VI. Communication 75/92.

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and territorial integrity of the State. The Commission hints at two possible justifications that would entitle nationals to self-determination in the form of independence or secession. These are instances where there is ‘concrete evidence of violations of human rights to the point that the territorial integrity of the State should be called to question’, and where there is evidence that the group concerned is denied the right to participate in government, as guaranteed in the Charter. As neither of these prerequisites were present in the facts giving rise to the communication, the allegations could not be regarded as constituting a violation of Article 20. Socio-economic rights under the Charter are in principle placed on a par with other rights as far as their justiciability is concerned.116 No threshold objection by respondent States that these rights are non-justiciable should therefore be countenanced at the admissibility stage. Two socioeconomic rights under the Charter place unequivocal obligations on States to direct resources towards their realisation: the right to education and the right to health. The right to health is limited by the phrase ‘best attainable state of physical and mental health’.117 In the right to ‘work under equitable and satisfactory conditions’,118 ‘work’ should be understood to be a verb, rather than a noun.119 Such an understanding means that this right does not primarily place an obligation to ‘fulfil’ on the State, but rather to ‘respect’ akin to rights that are considered to be civil or political in nature, rather than socio-economic. The question arises as to whether a respondent State may argue that a communication is inadmissible on the basis that the alleged violation is allowed by a clawback clause.120 This issue will only arise in respect of those rights containing a clawback clause. For example, is a communication alleging a violation of the right to association admissible if the right is curtailed by domestic law?121 The practice of the Commission indicates that such issues do not raise questions of admissibility. The Commission has considered communications on their merits in instances where 116

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See Communication 155/96, para. 68 and ‘Statement from Seminar on Social, Economic and Cultural Rights in the African Charter’, African Human Rights Law Journal 5 (2005) 182. 118 Article 16(1) of the African Charter. Article 15 of the African Charter. The French version of the Charter uses the verb travailler (to work) as the equivalent of ‘work’. Such as the terms ‘laid down by law’, Article 6; ‘subject to law and order’, Article 8; and ‘provided he abides by the law’, Article 12(1). Article 10(1) of the Charter: ‘Every individual shall have the right to free association provided he abides by the law.’

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clawback clauses have come into play. This is in line with the Commission’s interpretation of the word ‘law’, which does not equate ‘law’ with ‘domestic law’. Rather, ‘law’ is understood as incorporating, presumably through Articles 60 and 61 of the Charter, international standards, and therefore cannot lead to curtailment of rights. A clear articulation of this view is found in Communication 212/98, Amnesty International v. Zambia, where the Commission stated that ‘“clawback” clauses must not be interpreted against the principles of the Charter’ and ‘recourse to these should not be used as a means of giving credence to violations of the express provisions of the Charter’.122 The same may be said of findings pertaining to admissibility – recourse to clawback clauses should not be allowed as a means of denying the African Commission jurisdiction. Reservations are related to clawback clauses, in that they also purport to restrict the substantive scope of the rights that may be invoked before the Commission (or Court). Two states, Egypt and Zambia, made reservations to the Charter,123 and at least three (The Gambia, Namibia and South Africa) entered reservations when they became States Parties to the Women’s Protocol.124 As neither the Charter nor the Protocol excludes the possibility of States entering reservations, the general international law position should apply: reservations that are compatible with the object and purpose of these instruments are valid.125 A communication alleging the violation of a right that has been made subject to a valid reservation should be declared inadmissible for falling outside the Commission’s substantive jurisdiction. So far, the Commission has not pronounced itself on the validity of any of these reservations. If such a communication is submitted to it, the Commission will have to determine the validity of the reservation as part of its decision on admissibility. If a reservation is deemed valid, complaints that fall within its substantive scope are inadmissible. The fact that the allegation must reveal a violation of the human rights treaty also implies that the treaty body does not review factual findings made by national tribunals. The UN’s Human Rights Committee has held that it is ‘beyond its competence to review findings of fact made by national tribunals or to determine whether national tribunals properly evaluated 122 123 124 125

Communication 212/98. Printed in C. Heyns, Human Rights Law in Africa, Vol. 1, 1996 (The Hague: Kluwer Law International, 1996), pp. 108–9. See www.chr.up.ac.za/hr docs/themes/theme39.html. Accessed 10 June 2006. The Gambia subsequently withdrew its reservations. Article 19 of the Vienna Convention on the Law of Treaties.

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new evidence submitted on appeal’.126 The European institutions have also made it clear that they do not establish a court of fourth instance.127

Compatibility ‘ratione personae’ The second requirement is that a communication must be directed at a State that is a party to the Charter (passive legitimation) by an individual or group that has standing to do so (active legitimation). As far as passive legitimation is concerned, numerous petitioners in the early years of the Commission overlooked this rather obvious requirement resulting in it initially taking a substantial amount of the Commission’s attention. It is preferable to deal with such matters administratively, at the level of the Secretariat. In the first few years, this requirement was the cause of most findings of inadmissibility: twenty-three of the fifty-four cases found to be inadmissible until May 1999. There are four categories of countries against whom these communications were directed: non-African States,128 OAU Member States that had not yet become States Parties to the Charter;129 the 126 127

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Communication 174/84, J. K. v. Canada, Doc. A/40/40, p. 251. See, e.g., K. Reid, A Practitioner’s Guide to the European Convention on Human Rights (London: Sweet & Maxwell, 1998), p. 31: ‘The Convention organs are not . . . a court of appeal from domestic courts and cannot intervene on the basis that a domestic court has come to the “wrong” decision or made a mistake. Their role is to ensure compliance with the provisions of the Convention by the Contracting Parties.’ Non-African States complained against are Bahrain (Communication 7/88, Committee for the Defence of Political Prisoners v. Bahrain, Seventh Activity Report 1993–1994, Annex IX); Indonesia (Communication 38/90, Wesley Parish v. Indonesia, Seventh Activity Report 1993–1994, Annex IX); the United States (Communication 2/88, Iheanyichukwu A. Ihebereme v. United States, Seventh Activity Report 1993–1994, Annex IX; Communication 5/88, Prince J. N. Makoge v. United States, Seventh Activity Report 1993–1994, Annex IX); and Yugoslavia (Communication 3/88, Centre for the Independence of Judges and Lawyers v. Yugoslavia, Seventh Activity Report 1993–1994, Annex IX). One communication was directed at two such States simultaneously: Haiti and the United States (Communication 37/90, Georges Eugene v. United States, Haiti, Seventh Activity Report 1993–1994, Annex IX). African States complained against before they had become party to the Charter are: Angola (Communication 24/89, Union Nationale de Lib´eration de Cabinda v. Angola, Seventh Activity Report 1993–1994, Annex IX); Burundi (Communication 26/89, Austrian Committee Against Torture v. Burundi, Seventh Activity Report 1993–1994, Annex IX); Ethiopia (Communication 9/88, International Lawyers Committee for Family Reunification v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Communication 10/88, Getachew Abebe v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Communication 14/88, Dr Abd Eldayem A. E. Sanussi v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Communication 21/88, Centre Haitien des Libert´es Publiques v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Communication 28/89, Association Internationales des Juristes Democrates v. Ethiopia, Seventh Activity Report 1993–1994, Annex IX; Communication 29/89, Commission Fran¸caise Justice et Paix v. Ethiopia, Seventh Activity

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only African non-OAU member, Morocco130 , and the OAU itself.131 When the Rules of Procedure were amended in 1995, this was one of the issues to be addressed. Rule 102(2) now provides as follows: ‘No communication concerning a State which is not a party to the Charter shall be received by the Commission or placed on a list under Rule 103 of the present Rules.’ Communications should not be directed against non-State actors. This may seem trite, but the language of the Charter invites an interpretation that, by including duties of individuals owed to other individuals, individuals may also be bound, and be found to ‘violate’ the Charter. The starting point is that the Charter is open only for ratification by States, and not individuals. The concept of duties should be used as a guideline by States to fulfil their general obligation under Article 1 of the Charter. States may be in breach of the Charter if they do not give effect to the duties of individuals under the Charter. But then it remains that it is the State that will be in breach, and not an individual. An inter-State communication may, for example, be brought against a State in respect of its failure to adopt legislative or other measures to give effect to individual duties. Individual duties may give rise to a communication in such a roundabout way, but not directly against individuals. However, States may be held responsible for violations by non-State actors, such as guerrilla groups, multinationals, private enterprises and para-statals under the doctrine of State responsibility. A State may be in violation of the Charter if it is complicit in the violations of the Charter with a non-State actor, if it has sufficient control over the ‘private actor’,132 or if it fails to investigate violations by non-State actors. Under such circumstances, violations by non-State actors of rights

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Report 1993–1994, Annex IX); and Ghana (Communication 4/88, Co-ordinating Secretary of the Free Citizens Convention v. Ghana, Seventh Activity Report 1993–1994, Annex IX; Communication 6/88, Dr Kodji Kofi v. Ghana, Seventh Activity Report 1993–1994, Annex IX); Lesotho (Communication 33/89, Simon B. Ntaka v. Lesotho, Seventh Activity Report 1993–1994, Annex IX). One communication was directed at four States simultaneously, none of them a party to the Charter at the time (Communication 19/88, International Pen v. Cameroon, Ethiopia, Kenya, Malawi, Seventh Activity Report 1993–1994, Annex IX). Two communications were directed at Morocco, who at that stage was not a member of the OAU (Communication 20/88, Austrian Committee Against Torture v. Morocco, Seventh Activity Report 1993–1994, Annex IX; Communication 41/90, Andre Houver v. Morocco, Seventh Activity Report 1993–1994, Annex IX). A further communication was directed at the OAU (Communication 12/88, Mohamed El-Nekheily v. OAU, Seventh Activity Report 1993–1994, Annex IX. Communication 61/79, Hertzberg and others v. Finland, Doc. A/37/40, p. 161, in which the Human Rights Committee pointed out that Finland was responsible for the actions of a broadcasting company in which it had a dominant stake (90 per cent) and which was placed under specific government control.

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guaranteed under the Charter are imputed to the State. A communication may consequently be brought against a State under such circumstances. In Communication 74/92, Commission Nationale des Droits de l’Homme et des Libert´es v. Chad,133 the Government of Chad conceded that massive violations were taking place in Chad, but ascribed it to a situation of civil war, over which it and its agents had no control. Invoking Article 1 of the Charter, the Commission found that if a State neglects to ensure the rights in the Charter, it violates the Charter ‘even if the State or its agents are not the immediate cause of the violation’. The Commission reiterated that the Government ‘had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders’. It is possible for a communication to be submitted against a new government for violations of the previous government given the doctrine of State responsibility. In respect of the situation in Malawi, the Commission observed as follows: ‘Principles of international law stipulate . . . that a new government inherits the previous government’s international obligations, including the responsibility for the previous government’s mismanagement.’134 ‘Inherited responsibility’ derives from the fact that States, rather than governments, ratify the African Charter and, therefore, a communication may be submitted against the new government. The outcome of the case may be a finding of violation, or a finding that the matter has been amicably settled.135 In respect of the question by whom a communication may be lodged (the second leg of the personal requirement or active legitimation), the African Commission has made it clear that the author of a communication under the African Charter need not be a victim or a member of the victim’s family.136 The rationale for this broad approach to standing is the practical difficulties that individuals face in Africa. These obstacles include the existence of serious or massive violations that may preclude individual victims from pursuing remedies on their own behalf, and the fact that victims are often obstructed or have difficulty in submitting communications themselves. Consequently, the Commission has declared admissible numerous communications submitted by African NGOs from a specific 133 135

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134 Communication 74/92. Communications 64/92, 68/92 and 78/92. As in Communications 16/88, 17/88 and 18/88, Comit´e Culturel pour la D´emocratie au B´enin, Badjogoume Hilaire, El Hadj Boubacar Diawara v. Benin, Seventh Activity Report 1993–1994, Annex IX; Eighth Activity Report 1994–1995, Annex VI. The Commission observed that ‘the present government of Benin has satisfactorily resolved the issue of violations of human rights under the previous administration’. This line of reasoning is based, textually, on Article 56(1) of the Charter, which makes reference to ‘authors’, rather than ‘victims’.

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country, such as the Civil Liberties Organisation and the Constitutional Rights Project (both in Nigeria) or NGOs with a regional focus, such as the Union Interafricaine des Droits de l’Homme. The lack of a ‘victim’ requirement has additional consequences. First, communications may be filed by individuals or NGOs from countries that are not States Parties to the Charter. This happened, for example, in Communication 31/89, Maria Baes v. Zaire,137 where Maria Baes, a Danish national, submitted a communication on behalf of a Zairean colleague at the University of Zaire, Dr Kondola. The Commission declared the communication admissible. Second, communications may be filed by international non-governmental organisations. Examples of international NGOs that have successfully submitted cases to the Commission are Amnesty International, the International Commission of Jurists, International Pen and the Organisation Mondiale Contre la Torture. The absence of a ‘victim requirement’ also means that authors may complain to the Commission about the compatibility of national laws or practices without being themselves directly or even indirectly affected by a particular law or practice. Under the ICCPR, the Human Rights Committee observed as follows: ‘It is not the task of the Human Rights Committee, acting under the Optional Protocol, to review in abstracto national legislation or practices as to their compliance with obligations imposed by the Covenant.’138 Some other international human rights instruments enable a third party to submit the communication on behalf of the victim.139 By not requiring the author to be a ‘victim’, the Inter-American system shows the closest resemblance to the position under the African Charter. Indeed, the Inter-American Convention on Human Rights provides that ‘any person or group of persons, or any non-governmental entity legally recognised in one or more Member States’ of the OAS, may lodge complaints.140 137 138

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Communication 31/89, Maria Baes v. Zaire, Eighth Activity Report 1994–1995, Annex VI. Communication 187/85, J. H. v. Canada, Doc. A/40/40, p. 230, declared the communication inadmissible as there was ‘no specific indication in the communication that the author himself has been adversely affected by the policy which he complains about’. See also Communication 35/78, Aumeeruddy-Cziffra and others v. Mauritius, Doc. A/36/40, p. 134, in which the Human Rights Committee held that a complainant must actually be affected to bring a complaint under the Optional Protocol to the ICCPR. Article 22(1) of CAT provides that its Committee will consider communications in light of information ‘made available to it by or on behalf of the individual’ (and the State Party concerned) (emphasis added). Article 44 of the IACHR.

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Communications may be submitted on behalf of ‘victims’ without their approval or the authorisation of someone acting on their behalf. This may be useful when both the victim and family fear that even anonymity may not insulate them from retaliation because of their connection with the submission of the case. For example, in Liesbeth Zegveld and Mussie Ephrem v. Eritrea,141 a Dutch lawyer and an Eritrean residing in Sweden coauthored a communication alleging that the indefinite and unauthorised detention of eleven former Eritrean Government officials violated the African Charter. It is the Commission’s broad standing requirements that made the submission of this case possible. The need to obtain the consent of the ‘victims’ distinguishes class actions from an action in the public interest (actio popularis). While class actions depend on an approving and definable group (the ‘class’), the actio popularis is brought without the authorisation of a group. Since the African Charter protects the rights of peoples, an undefined term denoting a collectivity of nationals or minorities within a State, it seems inevitable that the authors alleging the violation of people’s rights would invoke standing on the basis of actio popularis. This, in fact, transpired in Social and Economic Rights Action Centre (SERAC) and another v. Nigeria.142 Characterising the communication as an actio popularis, the Commission emphasised the usefulness of this procedure that had been ‘wisely allowed under the African Charter’.143 Similarly, a Belgian-based NGO was granted ‘locus standi’ to challenge an embargo on Burundi by a number of States on the basis of a ‘class action’.144 Allowing such wide access has its downside. Since the consent of the ‘victim’ is not required, another individual or an NGO may submit a communication without the knowledge or approval of the ‘victim’. Practically, this may make it difficult for the author (complainant) to provide sufficiently detailed information to the Commission, or to keep abreast of developments – especially where the victim and author are geographically removed from one another. These difficulties notwithstanding, the Commission should not adopt a more restrictive approach to standing. This requirement should not be confused or conflated with the further prerequisite that admissible cases may not be based exclusively on the media as a secondary source.145 Such a condition implies that there is 141 144

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142 143 Communication 250/2002. Communication 155/96. Ibid., para. 49. Communication 157/96, Association pour la Sauvegarde de la Paix au Burundi v. Kenya and others, Seventeenth Activity Report 2003–2004, Annex VII. The allegations contained in this communication include ‘peoples’ rights’ (Articles 22 and 23 of the Charter). See the discussion on Article 56(4) below.

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some familiarity with the personal circumstances or contact with ‘victims’ or their families or acquaintances, and this should be sufficient to address the concern that frivolous and interfering busy-bodies with personal agendas might hijack the communications procedure,146 and not lead to the erosion of the expansive practice related to standing to submit communications.

Compatibility ‘ratione temporis’ As regards the ‘temporal’ requirement, it is a general principle of international law that treaties ‘do not bind a party in relation to any act or fact which took place in any situation which ceased to exist before the date of the entry into force of the treaty in respect to that party’,147 except where the treaty itself provides otherwise by expressly allowing for retroactive effect, or where there are ‘continuous violations’.148 Since the African Charter does not deal explicitly with this aspect, the Commission has applied these general principles to the Charter. The practice of the African Commission distinguishes between two possibilities.149 First, as regards States that were original parties to the Charter and for whom the date of entry into force coincided with the entry into force of the Charter (21 October 1986), the Commission only has competence with respect to violations alleged to have occurred after the date of entry into force of the Charter. Issues relating to retrospective application with respect to such States have not arisen in the period after 1986 and are now unlikely to do so. Second, as regards States that became parties after the entry into force of the Charter, the Commission has the competence to consider communications that originated after the date of entry into force for a particular State. The date of entry into force is three months after the deposit by that State of its instrument of adherence.150 146 147 148

149

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See the discussion on Article 56(4) below. Article 28 of the Vienna Convention on the Law of Treaties. See the Human Rights Committee’s views in Communication 117/81, M.A. v. Italy, Doc. A/39/40, p. 190, and the European Court in De Becker v. Belgium, Series A, No. 4, Judgment of 27 March 1962, European Human Rights Reports 1 (1962) 43. A ‘continuous violation’ is an action that started before the entry into force of the treaty, but where it or its effects continue after the entry into force of the treaty and, at that stage, therefore, may constitute an infringement of the treaty. Similar issues are set to arise in respect of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which entered into force on 25 November 2005. Article 65 of the Charter.

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These principles have been applied in a number of cases. Communication 142/94, Muthuthirin Njoka v. Kenya,151 originally submitted in 1991, was declared inadmissible because Kenya was not a State Party to the Charter at the time the communication was submitted. Kenya acceded to the Charter on 23 January 1992. The complainant subsequently resubmitted his communication, but it was again found to be inadmissible, the Commission observing that the ‘cause of the complaint arose at a time when Kenya was not a party to the Charter’. The Commission also implicitly accepted the possibility of the ‘continuous violation’ exception when it remarked that there was ‘no evidence of a continuing damage in breach of the Charter’. Similarly, in Communication 39/90, Annette Pagnoulle v. Cameroon,152 the Commission reiterated that it ‘cannot pronounce on the quality of court proceedings that took place before the African Charter entered into force in Cameroon’, but added: ‘If, however, irregularities in the original sentence have consequences that constitute a continuing violation of any of the Articles of the African Charter, the Commission must pronounce on these.’153 In some other cases the question of temporal jurisdiction was not explicitly raised at the admissibility stage, but the Commission has considered it as a ‘preliminary matter’ during its consideration of the merits. For example, the Commission found it was ‘competent’ to pronounce on the compatibility with the Charter of the 1973 Proclamation by the King of Swaziland that repealed the Constitution and Bill of Rights.154 Drawing on the distinction between ‘allegations that are no longer being perpetrated’ and ‘violations that are ongoing’,155 the Commission considered it was competent to deal with the communication because the violations occasioned by the Proclamation were ‘still ongoing to date’.156 As it clearly is a threshold issue that impacts on admissibility, temporal jurisdiction 151 152

153 154

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Communication 142/94, Muthuthirin Njoka v. Kenya, Eighth Activity Report 1994–1995, Annex VI. Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, Eighth Activity Report 1994–1995, Annex VI; Tenth Activity Report 1996–1997, Annex X. Ibid., para. 15. Communication 251/2002. See also Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International; Comit´e Loosli Bachelard; Lawyers’ Committee for Human Rights; Association of Members of the Episcopal Conference of East Africa v. Sudan, Thirteenth Activity Report 1999–2000, Annex V, para. 40; Communications 54/91, 61/91, 98/93, 164/97 and 210/98; Communication 97/93. 156 Communication 251/2002, para. 43. Ibid., para. 45.

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should always be treated as a part of the admissibility phase. There is little sense in going through the whole procedure of admissibility, with the Commission taking a decision on the issue, only for this to be followed by a separate hearing at which the parties present their arguments on the merits, and only then to investigate whether the matter falls within the Commission’s temporal scope.

Compatibility ‘ratione loci’ Finally, the ‘territorial’ requirement provides that States Parties to the African Charter are in principle only responsible for violations that occur within their territory. The territorial requirement flows from the fact that States are responsible only for actions or events under their control. A State will, consequently, be responsible for an extra-territorial incident or event in cases where the State has de facto control over that incident or event. The European Court on Human Rights has held, for example, that a government can exercise its control ‘directly’, ‘through its armed forces’, or ‘through a subordinate local administration’, in that case finding Turkey in violation of the ECHR in respect of actions by its security forces in Northern Cyprus.157 Extra-territorial jurisdiction may be established when a State (S) exercises ‘some of the public powers normally to be exercised’ by a Government (G) in a territory over which the State (S) has effective control ‘as a consequence of military occupation or through the consent, invitation or acquiescence of the Government’(G).158 The European Court further clarified that effective control may also be exercised ‘temporarily’.159 As the case of Ila¸scu and others v. Russia and Moldova shows,160 a State may also incur extra-territorial responsibility under the ECHR if it sets up and supports a separatist regime in another State, and ensure the survival of the regime through military, economic, financial and political support. The African Charter was applied extra-territorially in the single inter-State communication decided so far.161 After occupying 157 158

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Loizidou (Preliminary Objections) v. Turkey, Series A, No. 310, Judgment of 23 March 1995, (1997) European Human Rights Reports 23, 513. Bankovi´c v. Belgium and others, No. 52207/99, 12 December 2001, Butterworths Human Rights Cases 11 (2001) 435, para. 71 (on the facts of the case, involving the bombing by NATO forces of a radio station in Belgrade, causing the death of sixteen civilians, the European Court of Human Rights did not find a jurisdictional link between the victims and the respondent States). Issa and others v. Turkey, No. 31821/96, 16 November 2004, para. 74. No. 48787/99, 8 July 2004. See the discussion below and Communication 227/99.

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its eastern provinces, armed forces of the respondent States raped women and girls, and looted the natural resources of the DRC. The African Commission not only held the occupation itself, but also the ensuing violations, to be in conflict with the African Charter. None of the respondent States raised the issue of territorial application as a ground of incompatibility of the communication.

Communications must not be written in disparaging language The African Charter disqualifies communications that are written in ‘disparaging or insulting language’,162 directed at the State complained against and its institutions, or the OAU/AU. This requirement is not found in other international human rights instruments.163 The Commission has on two occasions based a finding of inadmissibility, at least partly, on this ground. An NGO, the Ligue Camerounaise des Droits de l’Homme, submitted a communication in which it alleged that the Cameroonian Government was committing serious and massive human rights violations.164 The communication contained statements such as ‘Paul Biya must respond to crimes against humanity’, ‘30 years of the criminal neocolonial regime incarnated by the duo Ahidjo/Biya’, ‘regime of torturers’ and ‘government barbarism’.165 The Government argued that the communication should be declared inadmissible because the allegations therein ‘are posed in disparaging and insulting language’. The Commission agreed and declared the communication inadmissible. This decision is unfortunate and regrettable. At most, the Commission should have struck out the offending phrases, or should have referred the matter back to the author, including a reference to Article 56(3). Although the author may now resubmit the communication, this will require great determination: the original communication was submitted in March 1992, and the admissibility decision was taken only in April 1997. It is unlikely that the author will resume a process that has proven unsuccessful after more than five years. The allegations in this communication relate to the situation of human rights in Cameroon. These remarks 162 163

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Article 56(3) of the Charter. The closest resemblance is the requirement that a complainant must not abuse the right to submit a communication, found in both the Optional Protocol to the ICCPR (Article 3) and the CAT (Article 22(2)). Communication 65/92, Ligue Camerounaise des Droits de l’Homme v. Cameroon, Tenth Activity Report 1996–1997, Annex X. Article 56(4) of the African Charter.

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should not be viewed as ‘insulting’ to the State, but as part of a passionate plea to focus attention on the situation in Cameroon. The Commission should have adopted the narrowest possible meaning of the words ‘disparaging’, ‘insulting’ and ‘State concerned’. It is something quite different to use insulting language towards a ‘State’, as the Charter requires, from insulting a head of State, yet this distinction is not referred to in the Commission’s finding. In the second case, Ilesanmi v. Nigeria,166 the complainant alleged widespread smuggling and corruption, mocking the effectiveness of the Government’s anti-smuggling and anti-corruption efforts. In this instance, it is not so much the words or language as such, but the insinuations they contain, that gave offence. Relying on a dictionary definition, the Commission posed the question of whether the language ‘undermined the integrity and status of the institution and [brought] it into disrepute’.167 Deducing that ‘every reasonable person would lose respect’ for an institution or person that is alleged to be corrupt, the Commission answered the question posed affirmatively. In this case, the ‘institution’ is that of the President, who is mentioned by name in the communication. If this finding is correct, no one would be able to make allegations of bribery against high-ranking Government officials. Government complicity in bribery and corruption is something that is not unheard of in Africa. As the Commission’s finding implies that the Commission did not believe there is any substance to the complainant’s allegations, it should rather have dismissed the matter on the basis that no prima facie case was made out. One cannot but agree with Odinkalu that Article 56(3) provides ‘an artifice for distraction, obfuscation, and subterfuge’.168 However, it seems that both decisions did not turn on the issue of disparaging language. In the first case, the Commission observed that the information available to it did not give evidence of ‘prima facie violations of the African Charter’, that it lacked ‘specificity’, and declared the communication inadmissible. The language of the communication was only mentioned as an afterthought. But by stating clearly that this is a factor that the Commission considered, the Commission sent out a clear signal that it may ‘censure’ communications to cater for the sensibilities of heads of States. In the second case, the matter was also declared inadmissible principally due to local remedies not having been exhausted. 166 167

Communication 268/2003, Ilesanmi v. Nigeria, Eighteenth Activity Report 2004–2005, Annex III. 168 Ibid., para. 39. Odinkalu, ‘The Individual Complaints Procedure’, p. 382.

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Communications must not be based solely on media information The African Charter stipulates that communications are only to be considered if they ‘are not based exclusively on news disseminated through the mass media’.169 There is no similar requirement under the UN treaties or other regional human rights systems. This requirement was inserted in the African Charter especially because the Charter does not have the same individualistic focus. The fact that a complainant does not have to be personally affected (be a ‘victim’), and that there is express provision for the submission of cases alleging serious or massive human rights violations, provide the possibility that communications may be based on reports by the mass media. But the media may be biased, and media misrepresentation is not uncommon. As the possibilities of the electronic age increase global awareness of and information about human rights violations, the submission of communications as a result of mediabased outrages alone may become more prevalent. The Charter, although not necessarily drafted against this backdrop, deals sufficiently with the demands of globalised communication. It does not rule out media reports as further substantiation or support, but they may not be the only basis for the allegations. In Communications 147/95 and 149/96, Sir Dawda K. Jawara v. The Gambia,170 the Commission emphasised the importance of the media in revealing human rights violations, referring to the role of the media in revealing human rights atrocities in Burundi, Congo, Rwanda and Zaire. However, the Commission also pointed out that the Charter makes use of the word ‘exclusively’. Because the communication under consideration was in part, but not exclusively, based on news disseminated through the mass media, the Commission found it to be admissible. The Commission’s approach is summarised by the following statement: ‘While it would be dangerous to rely exclusively on news disseminated from the mass media, it would be equally damaging if the Commission were to reject a communication because some aspects of it are based on news disseminated through the mass media.’171 Adopting this approach, the Commission correctly focuses on the reliability of the information, rather than its source. 169

170 171

Article 56, and Communications 147/95 and 149/96. See also Communication 283/2003, B. v. Kenya, Seventeenth Activity Report 2003–2004, Annex VII, para. 25, where the respondent State invokes this ground. Thirteenth Activity Report 1999–2000, Annex V. Para. 24.

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Communications must be sent after local remedies have been exhausted Article 56(5) requires that communications should be sent to the Commission only ‘after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged’.172 The rationale for the existence of this rule derives from the consensual nature of international law. It is only fair that a State must be afforded full opportunity to give effect to its international law obligations, something it has consented to do.173 The African Commission observed that this requirement is based ‘on the principle that a government should have notice of a human rights violation in order to have the opportunity to remedy such violation before [being] called before an international body’.174 According to the International Court of Justice, the rule is founded upon the principle ‘that the responsible State must first have an opportunity to redress by its own means within the framework of its own domestic system the wrong alleged to be done to the individual’.175 The requirement of exhaustion of local remedies conforms with the principle that international law is subsidiary to national law. It does not replace, but rather supplements, national institutions. Local remedies are ‘normally quicker, cheaper, and more effective than international ones’.176 The requirement of exhaustion of local remedies is part of the admissibility requirements of all international human rights systems.177 The different elements of Article 56(5) are analysed in more detail below. 172

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175 176 177

For a general discussion on this topic, see N. J. Udombana, ‘So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples’ Rights’, American Journal of International Law 97 (2003) 1 and H. Onoria, ‘African Commission on Human and Peoples’ Rights and the Exhaustion of Local Remedies under the African Charter’, African Human Rights Law Journal 3 (2003) 1. See, generally, C. F. Amerasinghe, Local Remedies in International Law, 2nd edn (Cambridge: Cambridge University Press, 2004). According to Amerasinghe, the principle of exhaustion of local remedies originated in the context of the diplomatic protection of aliens, where the host State was allowed to settle the matter internally before international mechanisms were invoked. Communications 25/89, 47/90, 56/91 and 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les T´emoins de Jehovah v. Zaire, Ninth Activity Report 1995–1996, Annex VIII. For another expression of the rationale, see Communication 71/92, Rencontre Africaine pour la Defense de Droits de l’Homme v. Zambia, Tenth Activity Report 1996–1997, Annex X, para. 9. Interhandel case (Switzerland v. United States), ICJ Reports (1959) 6, para. 27. Communication 299/2005, Anuak Justice Council v. Ethiopia, Twentieth Activity Report January – June 2006, Annex IV, para. 48. Article 5(2) of the Optional Protocol to the ICCPR refers to ‘available’ domestic remedies that need to be exhausted, unless their exhaustion is ‘unreasonably prolonged’. Article

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‘Exhaustion’ Regarding the phrase ‘after exhausting’ in Article 56(5), if a complaint is ‘pending’ before the local courts, domestic remedies have not been exhausted.178 In other circumstances, whether internal remedies have in fact been exhausted is mainly a factual question about which the Commission may request further information. This raises the questions as to whose duty it is to exhaust local remedies, and who bears the onus to establish this before the Commission. Because the Charter uses the passive voice,179 Article 56 does not stipulate who has to exhaust local remedies: is it the ‘victim’ or the ‘complainant’? Communications may be submitted by victims, but also by complainants who are not the victims of violations. When the victim is also the complainant, the position is clear. When a complainant who is not personally affected submits a communication, confusion may arise. In principle, it seems logical to place the obligation to exhaust local remedies on the person bringing the claim, especially since a complainant does not require the authorisation of the victim. However, the contrast between the broad standing before the Commission and narrow standing in most domestic systems has the effect of depriving most ‘non-victim complainants’ of the possibility to exhaust local remedies. In practice, then, it seems to make more sense to require the victims to exhaust local remedies. Without showing any awareness of this dilemma, the Commission in Purohit and another v. The Gambia exempted the complainants from exhausting local remedies based on the indigence of the victims (the ‘people being represented’).180 As far as the onus is concerned, the complainant must at least lay a foundation for a finding that local remedies have been exhausted. Where the complainant in Communication 198/97, SOS-Esclaves v. Mauritania did not respond as to whether local remedies had been exhausted, the case was declared inadmissible.181

178 179 180 181

22(5)(b) of CAT also makes reference to ‘available’ local remedies, restates the ‘unreasonably prolonged’ exemption, and adds the exemption that local remedies need not be exhausted if they are ‘unlikely to bring effective relief to the person who is a victim’. See, e.g., Communication 18/88; Communications 16/88, 17/88 and 18/88 and Communication 299/2005, para. 62 (the claim was ‘filed but not yet settled’). Communications shall be considered ‘if they are sent after exhausting local remedies’ (Article 56(5)). Communication 241/2001, paras. 26 and 27. Communication 198/97, SOS-Esclaves v. Mauritania, Twelfth Activity Report 1998–1999, Annex V.

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A three-phased process seems to have developed to determine this issue.182 At the outset, the onus, although not a heavy one, is on the complainant. The complaint must merely set out a basis for a potential finding of admissibility, that is that the victim or complainant has exhausted or tried to exhaust local remedies. If the complainant alleges that a particular remedy is unavailable, ineffective or insufficient, such an allegation must be made. Thereafter, if the respondent State denies the allegations, and declares that there is a further available, effective and sufficient remedy, the State must prove this. Lastly, should the State meet this onus, the author of the communication has the duty to prove that this remedy is unavailable, or if it is generally available, why under the particular circumstances it is ineffective and insufficient. Although its practice lacks consistency, the African Commission has mostly followed this approach, as is illustrated in Communication 71/92, Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia.183 The complainant seemingly met the initial burden. It then fell to the State to prove the existence of an unused remedy: ‘When the Zambian Government argues that the communication must be declared inadmissible because the local remedies have not been exhausted, the Government then has the burden of demonstrating the existence of such remedies.’184 The State did this by indicating that legislation (the Immigration and Deportations Act) provided for an appeal against expulsion orders. Referring to the testimony of the complainant, implying that the onus has shifted back onto the complainant, the Commission found that the remedy was not available as a practical matter.185 Without referring to previous onus of proof-jurisprudence, the Commission in Anuak Justice Council v. Ethiopia186 applies similar reasoning. In response to the complainant’s allegations that local remedies were not available and effective, the State pointed to a Commission of Inquiry and attached a list of cases pending before local courts. In other words, the State met the onus of showing that there were available and effective remedies that had not been exhausted. Finding that the complaint lacks ‘concrete evidence’ and a sufficient foundation to ‘cast doubt about the effectiveness of domestic 182

183 185

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See Communication 268/2003, para. 46 and also D. McGoldrick, The Human Rights Committee. Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Oxford University Press, 1991), pp. 145–50. 184 Communication 71/92. Ibid., para. 12. See also Communications 53/90 and 53/91, where the Commission noted that an inadmissible communication may be resubmitted if ‘the complainant proves that the local remedies are unavailable, ineffective or unreasonably prolonged’. Communication 299/2005.

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remedies’, and relies on ‘isolated or past incidences’,187 the Commission held the communication inadmissible. Findings of inadmissibility on the basis of non-exhaustion of local remedies are often made because the communication does not reveal a sufficient factual basis to indicate otherwise. In Communication 127/94, Sana Dumbaya v. The Gambia,188 the complainant failed, on two occasions, to respond to requests for further clarification about the exhaustion of local remedies. Faced with this uncertainty, and having given the author an opportunity to clarify the matter, the Commission assumes that if local remedies had been exhausted, the complainant would have made it known. In Communication 198/97, SOS-Esclaves v. Mauritania,189 for example, the complainant indicated that the supposed victims have initiated internal procedures, without saying ‘anything about the status of those procedures’. Since the Commission was unable to determine whether the procedures had been concluded, it declared the communication inadmissible. The complainants must be taken not to have met the initial onus. As a practical matter, in order to enable the Commission to arrive at a decision in respect of admissibility within the shortest possible period, copies of any relevant national decisions should be attached to communications.190

A ‘local remedy’ A ‘local remedy’ for the purposes of Article 56 has been described as an ordinary remedy of common law that exist in jurisdictions, and that are ‘normally accessible to people seeking justice’.191 The remedy must be of a judicial nature (‘action before the law courts’),192 includes common law remedies such as actions in tort that are not specified in legislation,193 administrative law action against an abuse of authority,194 and extends 187 188 189 190

191 192 193 194

Ibid., para. 58. Communication 127/94, Sana Dumbaya v. The Gambia, Eighth Activity Report 1994– 1995, Annex VI. Communication 198/97. For an example where this had been done, see Communication 212/98. Judgments from the High Court of Malawi in Lilongwe, the High Court in Zambia in Chipata and the Supreme Court of Zambia in Lusaka were attached. This clear documentary basis accounts in part for the apparent ease with which a finding of admissibility was taken. Communication 242/2001, Interights and others v. Mauritania, Seventeenth Activity Report 2003–2004, Annex VII, para. 27. Communication 221/98, Alfred B. Cudjoe v. Ghana, Twelfth Activity Report 1998–1999, Annex V, para. 14. See Communication 241/2001. See Communication 254/2002, Mouvement des R´efugi´es Mauritaniens au S´en´egal v. Senegal, Sixteenth Activity Report 2002–2003, Annex VII, para. 19.

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to all avenues of appeal or review,195 including an application about the constitutionality of legislation in dispute.196 Exhaustion of ‘extraordinary’ legal remedies such as a constitutional challenge of the legality of an executive Order,197 instituting private prosecutions,198 and a request to review a final judicial decision are not required.199 In Interights (on behalf of Sikunda) v. Namibia,200 the Commission held that even proceedings to contest the willful disregarded of a court order form part of ‘local remedies’. As a general principle, this seems to place a very heavy burden on a complainant, as is illustrated by the facts of this case. Sikunda was arrested and detained by the Namibian authorities on the ground that he was suspected of being a UNITA supporter. Under the terms of an administrative order dated 16 October 2000, and valid until 1 February 2001, he could be deported from Namibia. He urgently applied to the High Court and obtained an order for his release. As this did not happen, he approached the same court one week later for an order enforcing his release by way of an application to hold the Minister of Home Affairs in contempt of court for refusing to do so. The Court granted an order nisi, calling on the Minister to show, by 10 November 2000, reasons why he should not be held in contempt. However, on that date, the case was further postponed, to 29 November, and then again to 12 January 2001. On 12 January, the presiding Judge mero motu recused himself.201 Fearing that the deportation order may still be enforced, on 31 January 2001 Sikunda approached the Commission. The High Court heard the matter the next day and on 9 February found the Minister in contempt.202 The Commission held that because the contempt hearing was pending, Article 56(5) had not been complied with.203 It is not sufficient that a complainant alleges that a quasi-judicial institution at the domestic level, such as the national human rights institution, 195 196 197

198 199

200 201 202 203

See, e.g., Communication 40/90, Bob Ngozi Njoku v. Egypt, Eleventh Activity Report 1997–1998, Annex II, para. 57. See Communication 241/2001. Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Twentyfirst Activity Report 2007, Annex IV, para. 67 (a constitutional challenge, in that case, ‘would not bring immediate relief to the victims of the violations’). Ibid., para. 70. Communication 242/2001, paras. 25–28 (revision under exceptional conditions such as proof that the court’s decision was wrong, or due to the fact that the other party is in possession of ‘decisive evidence’ not required as part of ‘local remedies’). Communication 239/2001. See Sikunda v. Government of Namibia (1) 2001 NR 67 (HC). See Sikunda v. Government of Namibia (2) 2001 NR 86 (HC). See Sikunda v. Government of Namibia (3) 2001 NR 481 (SC); Government of Namibia v. Sikunda 2002 NR 203 (SC).

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has investigated the matter. In Communication 221/98, Alfred B. Cudjoe v. Ghana,204 for example, the complainant submitted a complaint to the Ghanaian national human rights institution, the Commission on Human Rights and Administrative Justice, which found that the complainant’s dismissal without benefits was invalid, and that he was entitled to compensation. The complainant then submitted the same matter as a communication to the African Commission. The African Commission declared the communication inadmissible, as remedies of a judicial nature had not been exhausted. The Commission also declared a communication admissible despite the fact that a request for non-confirmation (clemency) of the death sentence by the (military) governor could still be pursued domestically.205 Describing clemency as a ‘discretionary extraordinary remedy of a non-judicial nature’, of which the aim is to ‘obtain a favour and not to vindicate a right’, the Commission found that it would be inappropriate to insist that the complainants seek remedies ‘from sources which do not operate impartially and have no obligation to decide according to legal principles’. The complainant in Communication 92/93, International Pen v. Sudan206 was detained incommunicado in 1992. By the time he submitted a communication to the Commission, he had not exhausted any remedies. He argued that remedies would not be effective because the Government had denied the existence of any incommunicado detention. The Commission observed that ‘the fact that the Government has in general terms denied the existence of incommunicado detentions in Sudan does not amount to saying that the case has been tried in Sudanese courts’.207 Communication 39/90, Annette Pagnoulle v. Cameroon208 mentions several stages pursued by the complainant, including petitioning the President of Cameroon, approaching the Ministry of Justice with an out-ofcourt settlement offer, submitting the case to the Administrative Chamber of the Supreme Court and subsequently approaching the Supreme Court. 204

205 206 207

Communication 221/98. See also Communication 268/2003, para. 42, in which the Commission reiterated that non-judicial bodies – in that case, the National Human Rights Commission and the Independent Corruption Practices Commission – need not be approached. Even though they may ‘grant remedies’, these bodies are not ‘part of the judicial structure’. Communication 60/91, Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI. Communication 92/93, International Pen (in respect of Kemal al-Jazouli) v. Sudan, Eighth Activity Report 1994–1995, Annex VI. 208 Ibid. Communication 39/90.

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The Commission held that local remedies had been exhausted, because none of the steps taken yielded any results. The question may also arise whether a colonial judicial remnant is part of ‘local remedies’. In Communication 44/90, Peoples’ Democratic Organisation for Independence and Socialism v. The Gambia,209 the Government contested its admissibility on the basis that the communication ‘could be taken through the courts to the level of the [UK] Privy Council’. The Commission found the communication admissible on the basis that ‘the exhaustion of local remedies had been unduly prolonged’. It is not clear to what extent the provision of the relevant legislation,210 making appeal to the Privy Council impossible, played any role. The role of recourse to the Privy Council is unclear in other communications against The Gambia, which were found to be inadmissible on the basis of non-exhaustion of local remedies.211 Ankumah is of the opinion that appeal to the Privy Council should not be regarded as a ‘local remedy’, because making use thereof will cause undue hardships, such as travelling to England, and will be inconsistent with the idea that the African Charter represents a forum to cater for the special needs of Africans.212 However, the fact remains that Gambian governments have thus far elected to retain this extraordinary remedy as part of its ‘local remedies’.

An available remedy (‘if any’) It would appear from the wording ‘if any’, in Article 56(5), that only remedies that are in fact available, adequate and sufficient need to be exhausted.213 Although the Commission provides a description of each and treats them as separate elements, they are often entangled and not usefully separable. According to the Commission, a domestic remedy is ‘available’ when it is readily accessible as a matter of practical reality;214 it 209 210 211

212 213 214

Communication 44/90. Section 22(5) of the (Gambian) Elections Act provides that, on issues pertaining to elections, judgments of The Gambian Supreme Court are final and conclusive. See, e.g., Communication 86/93, M. S. Ceesay v. The Gambia, Eighth Activity Report 1994–1995, Annex VI, in which the Commission noted the following under the heading ‘Decision’: ‘The Government notified the Commission that the complainant had not had recourse to the local remedies . . . [T]he Commission declared the communication inadmissible.’ Ankumah, The African Commission on Human and Peoples’ Rights, p. 69. See, e.g., Communications 147/95 and 149/96. See also the discussion by Udombana, ‘So Far, So Fair’. See, e.g., Communications 147/95 and 149/96, paras. 32 and 33; Communication 251/2002, para. 27.

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is ‘adequate’ (or ‘effective’) when it offers some likelihood of success;215 and it is ‘sufficient’ when it is ‘capable of redressing the complaint’.216 It is worth considering whether the subjective perception (or belief) of the complainant is sufficient to meet this requirement, or whether an objective test should be applied. In Communication 192/85, SHB v. Canada,217 a complainant before the UN Human Rights Committee argued that the remedy open to him, namely further appeal to the Court of Appeal, was not ‘effective’, exhaustion would be ‘futile’ and it therefore did not need to be exhausted. The Human Rights Committee found that ‘the author’s doubts about the effectiveness of these remedies are not warranted and do not absolve him from exhausting them’, therefore seeming to opt for an objective standard to determine whether local remedies ‘exist’. The same may be said about the practice of the African Commission. In Communication 135/94, Kenya Human Rights Commission v. Kenya,218 the complainant challenged the refusal of the Registrar of Trade Unions to register the Universities Academic Staff Union (UASU) as a trade union. Court proceedings were initiated to overturn this decision. Although these proceedings were still pending at the time when the African Commission determined the issue of admissibility, the Kenyan President, Moi, had publicly stated that the Government would never register the UASU, despite the fact that the matter was already in court. This factor, which supposedly influenced the complainant to bring the communication, was not regarded as sufficient to indicate that remedies were unavailable. It is not clear from the Commission’s finding whether this factor was explicitly considered as such, but the decision indicates that the Commission applied an objective test (implicitly) finding that the perception of the complainant was not sufficient to exempt the complainant from exhausting local remedies.

Exemptions Under the Inter-American system, the requirement of exhaustion of local remedies is not applicable in certain circumstances,219 namely: when the domestic legislation of the State concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; the party alleging violation of his rights has been denied access to 215 218 219

216 217 Ibid. Communications 147/95 and 149/96. Doc. A/42/40, p. 174. Communication 135/94, Kenya Human Rights Organisation v. Kenya, Ninth Activity Report 1995–1996, Annex VIII. Article 46(2) of the IACHR.

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the remedies under domestic law or has been prevented from exhausting them; or there has been unwarranted delay in rendering a final judgment. Similarly, under the African Charter, one can also identify a number of grounds for exemption from exhausting local remedies: cases of massive or serious violations; where clauses oust the jurisdiction of national courts; when it is illogical to require exhaustion of local remedies; and when a complainant is indigent.220 Each of these will be examined in turn. As a practical matter, local remedies are prima facie not available or effective in instances of serious or massive violations. The complainants in Communications 25/89, 47/90, 56/91 and 100/93, Free Legal Assistance Group and others v. Zaire221 alleged widespread arrests, detention, extrajudicial executions, torture, unfair trials, restrictions of press freedom, deprivation of property and denial of access to education.222 After bringing the situation to the attention of the OAU Assembly under Article 58 of the Charter, the Commission unsuccessfully attempted to undertake a visit to Zaire. Finding the communication(s) admissible, the Commission remarked as follows: The Commission has never held the requirement of local remedies to apply literally in cases where it is impractical or undesirable for the complainant to seize the domestic courts in the case of each violation. This is the situation here, given the vast and varied scope of the violations alleged and the general situation prevailing in Zaire.223

It would appear, therefore, that domestic remedies need not be exhausted if the violations to which they relate occur within the context of serious 220

221 222

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To this may be added the political situation in a country. During a state of emergency, for example, the actual application of law including ‘local remedies’ may be ‘made difficult’; see Communication 228/99, Law Offices of Ghazi Suleiman v. Sudan (II), Sixteenth Activity Report 2002–2003, Annex VII, para. 36. Communications 25/89, 47/90, 56/91 and 100/93. See also Communications 27/89, 46/91, 49/91 and 99/93, where the Commission noted again ‘the vast and varied scope’ of violations and the ‘large number of individuals involved’. Alleging widespread massacres and arbitrary arrests of members of the Tutsi group between 1989 and 1992, this communication predates the 1994 genocide. The decision was, however, only finalised in October 1996. One of the reasons for this disturbing delay is the number of unsuccessful attempts by the Commission, from 1990 to 1995, to send a mission to Rwanda to investigate, among others, these cases. See further Communication 71/92, which also found to be admissible, based on the massive nature of the arrests, the fact that the victims were kept in detention prior to their expulsions, and the speed with which the expulsions were carried out that gave the complainants no opportunity to establish the illegality of these actions in the courts. Communications 25/89, 47/90, 56/91 and 100/93 (joined).

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or massive violations of rights.224 The Commission has, in fact, taken judicial notice of the fact that domestic remedies are ineffective in such circumstances as the result of two factors: more than one right is violated at the same time, and such situations involve numerous victims. These factors led the Commission to accept that the State would have had ample notice of the violations but did nothing to redress them. It therefore becomes unnecessary for victims to exhaust local remedies, which are clearly not sufficient in the circumstances. The second situation in which complainants may be exempted from exhausting local remedies is where there has been an attempt to oust the jurisdiction of the courts. The military government in Nigeria adopted a number of ouster clauses in decrees that placed a blanket exclusion on the judicial review of certain decisions or actions taken in terms of military decrees and on the judicial review of ‘special’ (military) tribunals, or insulated the decrees themselves from any form of review. The Constitution (Suspension and Modification) Decree 107 of 17 November 1993, for example, specified that no question ‘as to the validity of this Decree . . . shall be entertained by a court of law in Nigeria’. The Commission has found that ‘ouster’ clauses render local remedies ‘non-existent, ineffective or illegal’225 or ‘illusory’, and create a legal situation in which ‘the judiciary can provide no check on the executive branch of government’.226 The Commission consequently held that local remedies were ineffective and need not be exhausted when such ouster clauses applied.227 In a similar vein, the Commission held that a Clemency Order that pardoned persons ‘liable for any politically motivated crime’ denied the access to local remedies in the form of prosecutions for crimes.228 224 225

226 227

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See also Communication 159/96. See also the advisory opinion of the Inter-American Court in Habeas Corpus in Emergency Situations, OC–8/87, 30 January 1987, reprinted International Legal Materials 27 (1988) 517, where the Court held that derogation from amparo and habeas corpus orders is prohibited under the Inter-American Convention (Article 27(2)). Communications 137/94, 139/94, 154/96 and 161/97. See also Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Communication 129/94, Civil Liberties Organisation v. Nigeria, Ninth Activity Report 1995–1996, Annex VIII, where the Commission agreed with the complainant’s argument that ‘it is reasonable to presume that domestic remedies will not only be prolonged but are certain to yield no results’; Communications 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Project and Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V, and Communication 228/99, para. 34. Communication 245/2002, para. 64.

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Another ground that exempts a complainant from exhausting local remedies is when it would be illogical to require exhaustion, such as when the victim has died. In the case relating to the treatment and execution of Ken Saro-Wiwa,229 the Commission noted that as the subjects of the communication (including Ken Saro-Wiwa) were deceased, the communication was admissible because ‘no domestic remedy can now give the complainants the satisfaction they seek’.230 Unfortunately, this ‘logic’-based (or ‘reasonableness’) approach has led to inconsistencies in respect of the question as to whether a victim who left the State against which the complaints are brought is exempted from exhausting remedies in that State. In the first of the related decisions, the Commission held that a victim-complainant who escaped imprisonment as a political detainee and fled to another country need not exhaust local remedies in the country from which he fled.231 Another matter was brought by an NGO on behalf of a relative of Ken SaroWiwa, who fled Nigeria and later obtained refugee status, after he had been tortured in a Nigerian military camp.232 The Commission found that the victim was ‘unable to pursue any domestic remedy following his flight for fear of his life’.233 The Commission did not refer to any obligation on the complainant, based in Nigeria, to pursue domestic remedies. Against this background, the Commission took three relevant decisions at its 27th Session. In two of them, the Commission followed its previous reasoning. In Jawara v. The Gambia,234 it held that the deposed President’s ‘generalised fear for his life (or even those of his relatives)’ exempted him from returning from exile to The Gambia in order to exhaust local remedies. The Commission held that it would be ‘an affront to common sense and logic to require the complainant to return to his country’ to make use of local remedies. It added that a remedy is unavailable if the fear of a risk to life exists not only ‘in the mind of the author’ but also in the ‘minds of right-thinking people’.235 A similar conclusion was reached in Aminu v. Nigeria, a communication submitted by a lawyer (Aminu) on behalf of a victim who fled Nigeria after being tortured by security 229 231 232 233 235

230 Communications 137/94, 139/94 and 154/96 and 161/97. Ibid., para. 77. Communication 103/93, Alhassan Abubakar v. Ghana, Tenth Activity Report 1996–1997, Annex X. Communication 215/98, Rights International v. Nigeria, Thirteenth Activity Report 1999– 2000, Annex V. 234 Ibid., para. 24. Communications 147/95 and 149/96, para. 35. Ibid., para. 37.

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officials.236 The Commission decided not to insist on the fulfillment of Article 56(5) in light of the victim’s fear of his life and the ‘prevailing situation under the Nigerian military regime’. The lawyer-author was not required to play any role in exhaustion of local remedies abroad. These decisions stand in contrast with the Commission’s finding in Legal Defence Centre v. The Gambia.237 The complainant was an NGO based in Nigeria, and the victim a Nigerian journalist deported from The Gambia to Nigeria. Within hours of his arrest the victim was deported as an ‘undesirable alien’, allegedly for crimes committed in Nigeria but more likely for engaging in critical journalism. Despite the fact that the deportation order was ‘still subsisting’, the Commission held that the victim did not need to be ‘physically in a country to avail himself of domestic remedies, such could be done through his counsel’.238 The Commission then explicitly found that ‘the complainant ought to have exhausted available remedies in The Gambia’.239 The obligation to exhaust remedies in The Gambia was thus placed on the complainant, an NGO based in Nigeria, without an inquiry concerning the financial and legal feasibility of this. Not only is this a very burdensome avenue to explore, but its successful implementation is undermined by the inability of the victim to testify on this issue in The Gambia due to the ‘subsisting’ deportation order.240 Subsequent decisions have not resolved this contradiction. On the one hand, in Ouko v. Kenya241 the Commission held that a student leader who was detained for ten months due to his political opinions and who had fled Kenya ‘for fear of his life’ did not have to exhaust local remedies. On the other hand, in Institute for Human Rights and Development in Africa (on behalf of Simbarakiye) v. Democratic Republic of the Congo242 a Burundian national who had obtained refugee status, settled and worked in the DRC but who had fled to Togo, was not exempted from attempting to exhaust 236 237 238 240

241 242

Communication 205/97, Kazeem Aminu v. Nigeria, Thirteenth Activity Report 1999– 2000, Annex V. Communication 219/98, Legal Defence Centre v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V. 239 Ibid., para. 17. Ibid. See also Udombana, ‘So Far, So Fair’, p. 26: ‘It is singularly flaccid and unconvincing, in fact self-contradictory’ to require the victim to exhaust local remedies from exile ‘when that victim has been disabled, through the heinous actions of the state, from returning to the country’. Communication 232/99, John D. Ouko v. Kenya, Fourteenth Activity Report 2001–2002, Annex V, para. 19. Communication 247/2002, Institute for Human Rights and Development in Africa (on behalf of Jean Simbarakiye) v. Democratic Republic of Congo, Sixteenth Activity Report 2002–2003, Annex VII.

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local remedies while in Togo. The Commission distinguished the latter case from previous decisions, and held that the complainant did not meet the onus of ‘showing the moral and material constraints alleged to have prevented him from exhausting local remedies’.243 Without explaining the role of the complainant’s wife in this process, the Commission made reference to the fact that she remained in the DRC for some time after he had left the DRC. An analysis of these findings fails to reveal a consistent and clear basis, such as the nature of the right alleged to have been violated, or the factor as to whether the complaint was brought by or on behalf of the victim, on which these cases may be distinguished. Lastly, it is debatable whether a local remedy is ‘available’ to an individual who does not have the financial means to make use of it and, therefore, whether indigence should absolve a complainant from exhausting local remedies. This question was posed by the Inter-American Commission to its Court,244 which concluded that ‘if legal services are required . . . and a person is unable to obtain such services because of his indigence, then that person would be exempted from the requirement to exhaust local remedies’.245 The Court based its opinion on the reality that to require such a person to exhaust local remedies may infringe his or her right to equal protection before the law. Equal protection before the law includes the right not to be discriminated against on the basis of economic status.246 The lack of legal aid is a reality in many African countries.247 Even where such a system exists, it is highly unlikely that it would extend to support an individual lodging all the available remedies. The African Charter provides that every individual ‘shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as social origin, fortune, or other status’.248 In Purohit and Moore v. The Gambia,249 the ‘victims’ were two patients detained in a mental health institution, and the complainants two ‘mental health advocates’. Although the Commission implicitly accepted the State’s argument, in general terms, that local remedies in the form of common law actions or constitutional challenges could have been instituted, it found that their exhaustion by the ‘particular category of persons’ was not 243 244 245 247 248

Ibid., para. 32. Exceptions to the Exhaustion of Local Remedies, Inter-American Court, OC–11/90, 10 August 1990, reprinted in Human Rights Law Journal 12 (1991) 20. 246 Ibid., para. 33. Ibid., para. 22. See A. S. Butler, ‘Legal Aid before Human Rights Treaty Monitoring Bodies’, International and Comparative Law Quarterly 49 (2000) 360–89. 249 Article 2 of the African Charter. Communication 241/2001.

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realistic due to the victims’ indigence. People like the victims are likely to be ‘picked up from the streets or [be] from poor backgrounds’.250 Linked to indigence is the question of whether the incompetence of a (particularly State-provided) legal representative ‘excuses’ the complainant from exhaustion of local remedies.251 Complainants are not exempted from exhausting local remedies if they did not make use of existing local remedies due to their own ‘default or negligence’.252

The length of the procedure The wording of Article 56(5) of the Charter – ‘Unless it is obvious that this procedure is unduly prolonged’ – makes it clear that complainants do not have to exhaust domestic remedies if the procedure is ‘unduly prolonged’. In Communication 135/94, Kenya Human Rights Commission v. Kenya,253 court proceedings were initiated on 23 December 1993, the communication was submitted on 8 March 1994 and declared inadmissible by the Commission in October 1995. The question arises as to how the period of ‘undue delay’ is to be determined. Is it the period between initiating proceedings locally (23 December 1993) and submission of the communication (8 March 1994), which amounts to less than three months? Or is it the period between the start of proceedings locally (23 December 1993) and the finding of the Commission (October 1995), which amounts to about one year and ten months? A strict reading of the Charter seems to favour the first method of calculation, since Article 56(5) refers to communications ‘sent’ (submitted) after exhausting local remedies. However, another interpretation is also possible. It is surely relevant to consider whether local remedies have not yet been exhausted at the time the Commission considers the communication (especially if the complainant has kept on trying to exhaust local remedies after submission of the communication). The phrase ‘unless it is obvious that this procedure is unduly prolonged’ is not qualified by an indication of the time when the communication was sent. In this case, the Commission based its finding on the fact that the communication was ‘still pending’, clearly adopting an approach in which the period up to consideration by the Commission is taken into account. In any event, the periods involved 250 251 252 253

Ibid., para. 37. This ground was invoked but not decided in Roberto Moreno Ramos v. United States, Petition P4446/02, Inter-American Commission on Human Rights, 10 October 2003. Communication 90/93, Paul S. Haye v. The Gambia, Eighth Activity Report 1994–1995, Annex VI. Communication 135/94.

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(about three months, or one year and ten months) were not considered to constitute ‘undue delay’. Under the Inter-American system, ‘undue delay’ is also an exception to the rule that local remedies have to be exhausted. The Inter-American Commission has found a delay of three years and six months,254 and of twenty months255 after the institution of proceedings to be ‘undue delay’.

Communications must be submitted within a reasonable time after local remedies have been exhausted Article 56(6) requires that communications must be submitted ‘within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter’. As with the UN human rights treaties, no time limit for submission of communications has been imposed.256 This is contrary to the requirements under the European and Inter-American systems, which require that a complainant submit a communication within six months after the date the ‘final decision was taken’257 or after he or she had ‘been notified of the final judgment’.258 Given the lesser accessibility and visibility of the African Charter and Commission, it is certainly realistic not to make the six months rule a rigid requirement in Africa. Indeed, the situation in Africa is similar to that under the Inter-American system when a complainant is unable to obtain redress locally, and is not required to exhaust local remedies. In such instances, the Inter-American Commission has applied a ‘reasonable time’ test between the date of violation and the date of eventual submission. The African Commission has so far not interpreted the relative flexible standard of ‘reasonable period’ to the detriment of any author. No cases explicitly invoking this ground have so far been decided.

Communications must not have already been settled in terms of international law According to Article 56(7) of the Charter, a communication is inadmissible if it has already been ‘settled’ ‘in accordance with the principles’ of the African Charter, the AU Constitutive Act (previously, the OAU 254 255 256 257

Report 14/89, Case 9641 (Ecuador), 12 April 1989, Annual Report of the Inter-American Commission on Human Rights 1988–1989, OEA/Ser.L/V/II/76, Doc. 10, pp. 104–15. Report 1a/88, Case 9755 (Chile), 12 September 1988, Annual Report of the Inter-American Commission on Human Rights 1987–1988, OEA/Ser.L/V/II/74, Doc. 10 rev.1, pp. 132–9. There is no such rule under the Optional Protocol to the ICCPR or under CAT. 258 Article 35 of the ECHR. Article 46(1)(b) of the IACHR.

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Charter) or the UN Charter. In other words, the rule ne bis in idem applies. This is clearly sound, because a State should not be found in violation twice for one violating action or conduct, and a complaint that has been finalised on the merits should not be reopened. This principle is similar to those of autrefois acquit and autrefois convict, which entail that an accused in a criminal trial may not be tried again for an offence similar to one for which he or she has already been either acquitted or convicted. Questions may, however, arise as to whether different complaints submitted at the international level are substantially ‘similar’. International human rights bodies functioning internationally operate either at the regional or global level. The problem of concurrent jurisdiction arises especially in respect of allegations of violations that are covered by both a regional, in this case the African Charter, and global instrument, such as the UN Charter or the ICCPR, with a supervisory body at each level. It is necessary that the interrelationships of these institutions be clearly defined. While the African Charter allows for the simultaneous submission of communications to both the African Commission and a UN treaty body such as the UN Human Rights Committee, the complainant has to abide by the first decision or finding. This approach eliminates the unsettling possibility of divergent ‘conclusions’ to a particular matter before different bodies. Before submitting Communication 40/90, Bob Ngozi Njoku v. Egypt259 to the African Commission, the complainant submitted the same matter to the UN Sub-Commission on Human Rights. The latter decided not to entertain the matter or to make any pronouncement on it, and the African Commission found that the (in)action by the UN Sub-Commission ‘does not boil down to a decision on the merits of the case and does not in any way indicate that the matter’ has been ‘settled’, as required by Article 56(7). The communication was consequently declared admissible. Under some treaties it is not the ‘settlement’ of the matter by another international body, but the fact that it is ‘being examined’ by such a body that renders the matter inadmissible. According to this approach, a complainant is bound to await the outcome of the matter in the first forum to which the matter was submitted.260 Some States, especially those party to the ECHR, have made declarations when accepting the Optional Protocol to the ICCPR, for example, in terms of which 259 260

Communication 40/90. Article 5(2)(a) of the Optional Protocol to the ICCPR and see also the CAT.

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the ‘settlement’ principle (‘already having been considered’) is incorporated. These States declare that they do not accept the Optional Protocol procedure if a communication has already been examined under the European human rights system. Only one African State, Uganda, has made a similar declaration when ratifying the Optional Protocol to the ICCPR.261 Despite the fact that the African Charter prescribes that communications that have already been ‘settled’ by the States involved in accordance with the UN or OAU Charter (now the AU Constitutive Act) should not be considered, the original Rules of Procedure, which in general restated the admissibility requirements in the Charter, deviated from this requirement. They stated that the Commission must ensure that ‘the same issue is not already being considered by another international investigating or settlement body’.262 In Communication 69/92, Amnesty International v. Tunisia,263 the Commission expressed the view that the purpose of the relevant rule, Rule 114(3)(f), was to ‘avoid usurpation of the jurisdiction of another body’. The Commission found the communication to be inadmissible because it had already been examined in terms of the procedure established under ECOSOC Resolution 1503. In addition, under these same Rules of Procedure, the Commission declared Communication 15/88, Mpaka-Nsusu Andre Alphonse v. Zaire264 inadmissible, as the communication had already ‘been referred for consideration to the Human Rights Committee’.265 There was no indication, and neither did the Commission require, that the matter should have been ‘settled’ by either the Human Rights Commission or the UN Human Rights Committee. The African Commission’s revised Rules of Procedure reflect the 261

262 263 264 265

The full text of the declaration reads as follows: ‘The Republic of Uganda does not accept the competence of the Human Rights Committee to consider a communication under the provisions of Article 5(2) from an individual if the matter in question has already been considered under another procedure of international investigation or settlement.’ See www.ohchr.org/english/countries/ratification/5.htm. Accessed 21 January 2001. Rule 114(3)(f) (emphasis added). Communication 69/92, Amnesty International v. Tunisia, Seventh Activity Report 1993– 1994, Annex IX. Communication 15/88, Mpaka-Nsusu Andre Alphonse v. Zaire, Seventh Activity Report 1993–1994, Annex IX. See also the Human Rights Committee’s views in Communication 157/83, MpakaNsusu v. Zaire, Doc. A/41/40, p. 106, in which a number of violations of the Covenant were found. The Human Rights Committee recommended that the Government provide the victim with ‘effective remedies, including compensation, for the violations that he has suffered, and to take steps to ensure that similar violations do not occur in the future’.

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provisions of the Charter: Rule 116 now specifies that admissibility issues are in all respects to be determined ‘pursuant to Article 56 of the Charter’, thus restating the requirement of ‘settlement’ rather than ‘being settled’. Notwithstanding this restatement of the Charter position, the Commission seems to have reverted to the position under the defunct Rules of Procedure in one of its most confusing decisions, Interights (on behalf of Pan-African Movement and others) v. Eritrea and Ethiopia.266 The Commission found the communication admissible at its 27th Session but then proceeded to pose questions to the parties related to admissibility, and went on, at its 33rd Session, to suspend its decision on the merits sine die. The basis for the suspension was that the complaints before the Commission had been placed before the Ethiopian-Eritrean Claims Commission.267 Having deemed the Claims Commission to be a body ‘envisaged under Article 56(7)’,268 the Commission decided not to proceed to the merits, but to await the decision of the Claims Commission. As indicated by the heading ‘The relevance or otherwise of Article 56(7) of the African Charter’, the Commission’s decision essentially amounted to a reconsideration of admissibility, and constituted a finding that the communications were inadmissible because they were ‘being considered’ by a body envisaged under Article 56(7). On a strict reading of the provision, the Commission could have dealt with the communications because they had not been ‘settled’ under an international law arrangement. In its decision, the Commission seems to conflate recourse under Article 56(7) and ‘local remedies’ in Article 56(5). Distinguishing the processes ‘envisaged under Article 56(7)’ from political mediation, the Commission pointed out that the Claims Commission is ‘bound to apply rules of international law’. The Commission relied on its jurisprudence in respect of Article 56(5) to hold that the Article 56(7) mechanisms should not be of a non-judicial nature, and should be obliged to ‘decide according to legal principles’.269 Perhaps the best reading of this case is that the Claims Commission was regarded as an extension of domestic remedies, and that the case was declared inadmissible due to non-exhaustion of this remedy. In this reading of the decision, the sine die suspension is an invitation to the complainants to resubmit the matter once this remedy has been exhausted, if they so wish.

266 269

267 268 Communications 233/99 and 234/99. Ibid., para. 57. Ibid., para. 56. Ibid., para. 56, where the Commission relies on Communication 60/91.

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Procedure under the Protocol establishing the Court Overview After the entry into force of the Protocol establishing the African Court on Human and Peoples’ Rights in 2004,270 the Court eventually came into being in 2006.271 The Court exercises contentious,272 advisory273 and conciliatory jurisdiction.274 It is not clear whether the conciliatory jurisdiction of the Court is limited to inter-State communications. It should be recalled that although the Commission has by way of its jurisprudence extended this form of jurisdiction (the ‘friendly settlement’ procedure) to individual communications, the Charter itself allows for this possibility only in respect of inter-State communications. The stipulation in the Protocol that the Court may try to reach an amicable settlement in cases ‘pending before it in accordance with the provisions of the Charter’,275 therefore, seems to suggest that the conciliatory jurisdiction of the Court is limited to those cases in respect of which amicable settlement is envisaged under the Charter, that is, cases between States.

Locus standi before the Court A distinction must be drawn between the Court’s contentious and advisory jurisdiction. Under the Court’s contentious jurisdiction, and when the State complained against has not made a declaration under Article 34(6) of the Protocol, the individual who submitted the case to the Commission has no standing to refer the case to the Court. It will be up to the African Commission to refer the matter to the Court. How should the Commission exercise its discretion in this regard? The African Commission should submit to the Court all cases in which it made a finding that a State had 270

271 272 274 275

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU/LEG/EXP/AFCHPR/PROT(III) ¨ (hereinafter ‘Protocol on the Court’). See I. Osterdahl, ‘The Jurisdiction Ratione Materiae of the African Court of Human and Peoples’ Rights’, Review of the African Commission on Human and Peoples’ Rights 7 (1998) 132–50; N. Kirsch, ‘The Establishment of an African Court on Human and Peoples’ Rights’, Zeitschrift f¨ur auslandisches offentliches Recht und Volkerrecht 58 (1998) 713, with the Protocol on the African Court on Human and Peoples’ Rights, reprinted at ibid., p. 727. On the Court, generally, see Chapter 14 in this volume. 273 Article 5 of the Protocol on the Court. Article 4 of the Protocol on the Court. Article 9 of the Protocol on the Court. Article 9 of the Protocol on the Court (emphasis added).

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violated the Charter, and in which the State, after a reasonable period, had not complied with the Commission’s recommendation. Such an approach would enable the Court to convert the Commission’s recommendatory findings into binding decisions. The Protocol further permits the State against which a complaint has been lodged also to submit a case to the Court.276 This provides the State with an opportunity to appeal against the findings of the Commission in respect of both individual and inter-State communication. This may be of value in respect of inter-State communications, but its significance in respect of individual communications remains limited, since States will hardly ‘appeal’ against findings in their favour, and in cases where the finding has gone against them, States may be reluctant to refer a case for fear that the Court will give its binding imprimatur to the Commission’s recommendation. A State Party whose citizen is a victim of human rights violations may also submit a communication.277 When the State has exercised the option to permit direct individual access to the Court, the individual (or NGO) may approach the Court without submitting the case to the Commission. By requiring that NGOs have observer status with the Commission, the standing requirement is more restrictive than is the case before the Commission, where any NGO is able to submit a case. In respect of the Court’s advisory jurisdiction, Article 4 of the Protocol extends the list of those entitled to approach the Court to any AU Member State, the AU, any AU organ, as well as any ‘African organisation recognised by the OAU’.278 Distinguishing the latter group, ‘African organisations’, from the category ‘African Intergovernmental Organisations’279 makes it clear that the term includes NGOs. As observer status with the African Commission is a form of recognition by the AU, at least all NGOs enjoying observer status with the African Commission should be permitted to request advisory opinions from the Court.

Admissibility Article 6(2) of the Protocol provides that: ‘The Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter.’ This mandates the Court to (re)consider the question of 276 277 278

Article 5(1)(c) of the Protocol on the Court. Article 5(1)(d) of the Protocol on the Court. See, on this issue, Ouguergouz, The African Charter on Human and Peoples’ Rights, pp. 720–2. 279 Now the AU. Article 5(1)(e) of the Protocol on the Court (emphasis added).

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admissibility. It should be remembered that cases may reach the Court by way of two avenues: first, in respect of a State that has accepted the Protocol, but has not made a declaration accepting the right of individuals to approach the Court directly;280 or secondly, in respect of States that have accepted the direct petition before the Court, and where such a petition is in fact brought. Of the twenty-four States that have so far ratified the Protocol, only one (Burkina Faso) has made the optional declaration. It therefore seems relatively unlikely that this procedure will play a significant role in the future. The focus should therefore be on the procedure of a communication first being submitted to the Commission, and subsequently submitted by the Commission to the Court. This procedure has important implications for the way in which the Court may be expected to deal with admissibility. As always, the first hurdle for the applicant is the admissibility phase at the level of the Commission under Article 56 of the African Charter. The Court is not mandated to ‘consider’ the issue of admissibility, but to ‘rule’ on the issue, while ‘taking into account the provisions of Article 56’. In other words, the Court need not apply or implement Article 56, but must merely take it into account. The wording suggests that the Court may negate the strict requirements of Article 56 if, for example, more pressing considerations arise. The Court should remain conscious of the traditional admissibility requirements, but need not rigorously apply them. This leaves the Court with a wide margin of discretion to consider other relevant factors, and consequently to deviate from the Commission’s finding. Such discretion may also be of value when the Court has to deal with the admissibility of advisory requests. Requirements such as ‘exhaustion of local remedies’ do not apply in advisory cases, which by their very definition need not arise from a dispute amenable to any domestic court’s jurisdiction. The Court should, in line with the Inter-American Court of Human Rights, accept that the rule of exhaustion of domestic remedies may be waived, either expressly or by implication, by any party entitled to invoke it.281

Substantive jurisdiction of the Court Most contentious cases are likely to emanate from the Commission. To be admissible before the Commission, the case will have to allege a violation 280 281

In terms of Article 34(6) of the Protocol on the Court. See, e.g., Castillo P´aez v. Peru, Inter-American Court of Human Rights, Series C, No. 24, Judgment of 30 January 1996, para. 40.

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of the African Charter. However, the Protocol states that the ‘jurisdiction’ of the Court is not only based on the African Charter, but extends to other human rights instruments ratified by the States concerned.282 Even in the absence of this expanded mandate, the Women’s Protocol, as an adjunct to the Charter, clearly falls within the Court’s substantive jurisdiction.283 If the adjective ‘African’ had been included before ‘human rights instrument’, the Court’s substantive jurisdictional reach would have been quite clear as regards African treaties open to ratification, such as the African Charter on the Rights and Welfare of the African Child. This omission of the ‘African’ qualification seems to be curious, potentially leading to problematic consequences. For example, does it imply that the African Court has jurisdiction to decide cases on the basis of obligations flowing from the International Covenant on Civil and Political Rights, thereby usurping the jurisdiction of that treaty’s supervisory body? Is reference to ‘instruments ratified by States concerned’ a reference to treaties ratified, or does it also refer to the acceptance of optional individual complaints mechanisms provided for under CERD, the Optional Protocol to the ICCPR and CAT? If a literal reading is followed, the answer seems to be that reference is made only to the treaties, and not to the acceptance of the optional complaints mechanisms, thus allowing cases concerning these instruments to be brought before the African Court that could not be brought before the treaty monitoring bodies that those treaties have established. When considering these questions, one must bear in mind that the purpose of the Court is to ‘complement’284 and ‘reinforce’ the mandate of the Commission.285 The Court was, therefore, intended to support an existing system in which communications are based on the African Charter, and not on other human rights instruments. As for its advisory jurisdiction, the Court’s material jurisdiction is based on ‘any legal matter relating to the African Charter’,286 but may also extend to ‘any relevant human rights instrument’.287 The extension of the Court’s material competence is less problematic in respect of advisory opinions than it is as regards contentious cases.288 282 283

284 286 288

Article 3(1) of the Protocol on the Court. See also Article 27 of the Protocol on the Rights of Women, which provides explicitly that the Court ‘shall be seized with matters of interpretation arising from the application or implementation’ of that Protocol. 285 Article 2 of the Protocol on the Court. Preamble to the Protocol on the Court. 287 Article 4(1) of the Protocol on the Court. Ibid. See the advisory opinion of the Inter-American Court of Human Rights, ‘“Other Treaties” Subject to the Advisory Jurisdiction of the Court (Article 64 of the Inter-American

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The temporal jurisdiction of the Court The necessity for co-existence between the Commission and Court gives rise to a number of questions concerning the Court’s temporal jurisdiction. Presumably, the Commission could not refer all the cases it has considered since it was established in the late 1980s to the Court for consideration, but what is the appropriate retrospective cut-off point – the entry into force of the Protocol (25 January 2004) or the entry into force of the Protocol in respect of a particular State (particularly if that State had accepted the Protocol before its entry into force)? Even if a matter may be referred to the Court, does the Court’s substantive jurisdiction extend to matters that arose before the State ratified the Protocol, or to those that arose before the entry into force of the Protocol? Is it possible for the State to deny the jurisdiction of the Court on the ground that at the time the violation occurred it had not explicitly accepted the Court’s jurisdiction over that matter? If an issue arises during the period after a State had ratified the Protocol but before the Protocol entered into force, might that State contest the Court’s jurisdiction over communications arising in the period between its adoption of the Protocol and the Protocol’s subsequent entry into force, even if it had already accepted the competence of the Court? Acceptance of direct access to the Court may further complicate matters, this depending on the State making a separate declaration under the Protocol when ratifying the Protocol or at any time thereafter. Two differing approaches can be taken. First, the Court might decide that the ‘critical moment’ is the ratification of the Charter. As the obligation of States Parties to respect and observe the Charter flows from its ratification, all disputes concerning alleged violations subsequent to ratification arguably fall within the Court’s mandate. Second, States might argue that they have accepted to be bound by the recommendations by a quasi-judicial body, the African Commission, and not by the binding decisions of the African Court. The Court should follow the first of these two approaches, which is in line with the original European convention system, and according to which complaints could be brought concerning alleged violations that had taken place after ratification of the European Convention, but before acceptance of the right to individual petition.289

289

Convention on Human Rights)’, IACHR, OC–1/82, 24 September 1982, Series A, Judgments and Opinions 1. P. van Dijk and G. J. H. van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Law International, 1998), p. 13.

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Inter-State communications If a State Party considers that another State Party ‘has violated the provisions of the Charter’, it may lodge an inter-State complaint against that State.290 The submission takes two forms: (1) under Article 47 and 48, States have to engage in efforts to reach an amicable settlement; and (2) under Article 49, a State may approach the Commission without engaging in such efforts. Although the African Charter, the Commission’s Rules of Procedure and its jurisprudence all emphasise the importance of trying to resolve such matters through negotiations or other peaceful procedures (friendly settlement),291 the exhaustion of friendly settlement procedures is not a prerequisite for the admissibility of an inter-State communication.292 Thus, when in the first inter-State case to be submitted, the respondent States contested the admissibility of the communication, the Commission underlined that the use of the Article 47 conciliatory procedure is permissive and not mandatory.293 Opting for direct submission to the Commission is most appropriate when the complaining State has no desire to ‘make contact’ with the other State due to difficulty or impossibility of seeking a diplomatic settlement. In the particular circumstances of this case, a situation of undeclared war between the States in the Great Lakes region made this approach particularly appropriate.294 As in the case of individual communications, the chief requirement is that domestic remedies must have been exhausted, unless it is obvious to the Commission ‘that the procedure of achieving these remedies would be unduly prolonged’.295 By using wording similar to that in Article 56(5), the Charter suggests that the ‘remedies’ mentioned here are of a legal nature, rather than by way of negotiation or other forms of political settlement. In the Great Lakes case, the Commission does not shed much light on what this requirement means, except to say that the alleged violations occurred ‘in the territory of the complainant State’.296 While this may be an important factor, it cannot by itself be determinative – there is still a possibility that the perpetrators may, for example, be prosecuted 290 291 292 293 294 296

Article 47 of the African Charter. Article 48 of the African Charter; Rule 98 of the Rules of Procedure; Communication 227/99, para. 57. Articles 49 of the African Charter. Communication 227/99, para. 58 (the complainant State ‘may’ draw the attention of the respondent State). 295 Ibid., para. 61. Article 50 of the African Charter. Communication 227/99, para. 63.

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in the complainant State, though the decision does not dwell on such possibilities and focuses on the issue of territoriality. It is not clear whether this means that the complainant State needs to have exhausted those remedies available to it in the State against which it is bringing the complaint, or whether it is the affected individuals that need to have exhausted such remedies. In the ordinary course of events, the duty to exhaust remedies falls on the individual rather than on the States. Sometimes the only potential remedies may be of a nature that makes them unsuited to exhaustion by individuals, as would be the case in situations involving allegations of massive and widespread violations. Even in cases of this nature, the wording of the Rules of Procedure suggests that the complainant State should still seek to exhaust at least some form of remedy, since the Rules require that the complainant State provides information about ‘measures taken to exhaust local procedures for appeal’.297 It should, however, be noted that the exhaustion of local remedies has not played an important role in respect of inter-State communications brought under the ECHR, most of which relate to instances of massive or widespread violations.298 A second, implied, admissibility requirement is that the matter should not have been settled by another procedure for international investigation or settlement.299 This issue was not raised in the Great Lakes case, where the matter, as far as it concerned the DRC and its neighbours Rwanda and Uganda, had also been submitted to the International Court of Justice (ICJ). In the case against Rwanda, the ICJ subsequently determined that it lacked jurisdiction to deal with the substantive questions involved;300 and in the case against Uganda, the ICJ reached a finding similar to that of the African Commission, but only in respect of one of the respondent States. Although eventually not decided as an inter-State communication, in Association pour la Sauvegarde de la Paix (ASP-Burundi) v. Kenya and others, the Commission grappled with the nature of this procedure.301 297 298

299 300

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Rule 93(2)(b) of the Rules of Procedure. See, e.g., the decisions of the European Court of Human Rights in Ireland v. United States, European Human Rights Reports 2, (1979–80) 25, and the European Commission on Human Rights in Denmark, Norway, Sweden and the Netherlands v. Greece, Yearbook of the European Convention on Human Rights 12 (1969) 164. Rule 93(2)(c) of the Rules of Procedure (emphasis added). See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda, Judgment of 3 February 2006); see www.icj-cij.org. Accessed 31 January 2007. Communication 157/96.

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The NGO ASP-Burundi submitted a complaint in respect of the embargo of Burundi by Kenya, Rwanda, Tanzania, Uganda, the DRC and Zambia, which had been instituted following a coup d’´etat that had overthrown the elected Burundian President on 25 July 1996. Although its authors ‘were in all respects representing the interests of the military regime of Burundi’ the Commission decided not to treat the communication as an inter-State complaint.302 There was certainly an overlap between the Government’s and the complainants’ substantive interests, and the Commission considered the exhaustion of local remedies to be ‘hardly applicable in this matter inasmuch as the national courts of Burundi have no jurisdiction over the State respondents therein’.303 This observation would seem to add weight to the argument that it is individuals rather than States that need to exhaust local remedies. However, the Commission decided to deal with the matter as an individual communication on the ground that it ‘deserves its attention’.304 As Olinga pointed out, this is not a proper basis for deciding between individual and inter-State procedures.305 The Commission’s approach flowed from the fact that the matter was mainly brought in the name of and on behalf of the people of Burundi. Because the Commission has accepted that the concept of ‘peoples’ under the Charter may also denote the nationals of a State, a communication brought in such a fashion should in principle be allowed.306 It is therefore possible that the interests of the ‘peoples’ (the ‘nation’) and the State (the ‘nation-State’) may overlap. The Commission was therefore of the view that the communication could, in principle, be brought as an ‘individual’ complaint. Could the Commission, if it were convinced that an NGO was in reality a ‘front’ for the State and acting as its ‘undercover’ agent – as it apparently thought was so in the Burundi case – decide that the ‘NGO’ represented the State and deal with the matter under the inter-State procedure? This question received a negative answer in Interights (on behalf of Pan-African Movement and others) v. Eritrea and Ethiopia, the Commission taking the view that the inter-State and individual communication procedures were ‘clearly distinct’.307 The Charter and the Commission’s Rules of Procedure also do not provide for the conversion of the one procedure into the other. Most importantly, the ‘initiation of an inter-State complaint is dependent on the voluntary exercise of the sovereign will of a State party’.308 302 305 306

303 304 Ibid., para. 63. Ibid., para. 65. Ibid., para. 66. A. D. Olinga ‘The Embargo against Burundi before the African Commission on Human and Peoples’ Rights’, African Human Rights Law Journal 5 (2005) 424, p. 429. 307 308 See Chapter 9 in this volume. Communication 233/99. Ibid.

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Conclusion Although the African Charter provides for both inter-State and individual communications, the latter practice has proven to be of far greater importance. Only one inter-State communication has so far been completed, and the decision was only given after the matter had substantially been resolved. Over the last twenty years, the procedure before the Commission pertaining to individual communications has evolved from an ad hoc process emanating in a clear quasi-judicial ‘report’ to a relatively formal and formalised process culminating in a finding that much closer approximates a court ‘judgment’. Despite these developments, inconsistencies and contradictions still characterise the Commission’s practice. It is anticipated that the African Human Rights Court will rectify these deficiencies in its own practice, and that such a development will also impact upon the Commission’s functioning. Drawing on provisions in UN and regional human rights treaties, the African Charter deals quite elaborately with admissibility in Article 56. Compared to other international human rights instruments, its most positive features are that authors of communications are not required to be ‘victims’ and that there is no fixed period within which communications have to be submitted. It is a pity, however, that there is a requirement that communications should not be written in disparaging language. Admissibility has played an important role in the findings of the African Commission. About 40 per cent of communications finalised so far by the Commission failed at this hurdle. Initially, the Commission dealt falteringly with admissibility. Numerous communications were declared inadmissible due to the fact that the States complained against had not been States Parties. Long delays occurred between the submission of communications and admissibility findings. The reasoning of the Commission was scant and ambiguous. There was some confusion about how to deal with communications submitted to more than one international forum. However, the Commission’s practice has improved over the years. Communications against non-States Parties have later been dealt with administratively. Delays have decreased. The reasoning of the Commission has become much more elaborate and informative. The position in respect of communications submitted to different fora was clarified in the Commission’s Rules of Procedure. The Commission did not adopt an overly formalistic stance on the issue of admissibility. In line with its general interpretative approach, the Commission has preferred a progressive approach that favours complainants and avoids a technical and literalist approach. In its own words, if it ‘were

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to literally interpret Article 56, it might be more inclined to hold communications inadmissible.309 This generous approach is manifest when the Commission interpreted the phrase ‘local remedies, if any’ to require that remedies must be available, adequate and effective. Responding to the breakdown of the rule of law and of a functional judicial system at the national level, the Commission held that in situations of massive human rights violations and when the jurisdiction of national courts has been ousted, there is no need to have recourse to domestic remedies. This means that the Commission stepped in as a ‘court’ of first instance, which required it to further develop its procedures for dealing with disputed facts and oral arguments. Inconsistencies in the Commission’s practice regarding admissibility undermine its credibility and effectiveness. Discrepancies occur in numerous respects, particularly on the issue of whether an exiled or deported complainant/victim is required to exhaust local remedies, and on the issue of submission to international bodies. The factual basis of decisions is still not clear, and often the basis for a finding on inadmissibility is not clearly pronounced. Complainants are likely to face arguments about admissibility from the respondent State or the Commission. As States engage more with the communications procedure, non-exhaustion of domestic remedies is increasingly raised. Because of this, communications should deal carefully and comprehensively with all issues relating to admissibility. The better a communication is prepared before submission, the more likely the Commission is to come to a prompt decision favouring the complainant. These suggestions do not detract from the important role of comprehensive and substantiated arguments on the merits and remedies in the procedure of both the Commission and the Court. 309

Communication 241/2001, para. 38.

4 Evidence and Fact-finding by the African Commission rachel murray

Introduction The outcome of communication procedures, namely the findings of violations of particular provisions of the instrument, are well-documented. Yet an analysis of how international human rights bodies examine evidence presented before them has received little attention, usually being considered in passing during examination of the complaints procedures.1 Indeed, the international and regional bodies themselves, the African Commission being no exception, have often only touched upon such issues. Yet in many of its communications, the African Commission has had to analyse issues of evidence in coming to its decision. This chapter will examine these communications and the general approach of the Commission to issues of evidence and fact-finding in the communication procedure. While the discussion will draw upon the experience of other international and regional bodies, there are a number of caveats that must be 1

However, see R. Dixon, K. Kahn and R. May (eds.), Archbold: International Criminal Courts: Practice, Procedure and Evidence (London: Sweet & Maxwell, 2002); R. May and M. Wierda, International Criminal Evidence (Ardsley, NY: Transnational Publishers, 2002); D. Sandifer, Evidence before International Tribunals (Charlottesville, VA: University Press of Virginia, 1975); C. N. Brower, ‘Evidence before International Tribunals: The Need for Some Standard Rules’, International Law 28 (1994) 47; J. J. Paust, ‘The Complex Nature, Sources and Evidence of Customary Human Rights’, Journal of International and Comparative Law 25 (1995–6) 235; K. Highet, ‘Evidence and the Proof of Facts’ in L. F. Damrosch (ed.), The International Court of Justice at a Crossroad (New York: Transnational Publishers, 1987), pp. 355–75; H. Thirlway, ‘Evidence before International Courts and Tribunals’ in R. Bernhardt (ed.), Encyclopaedia of Public International Law (New York: Elsevier Science, 1995), Vol. II, p. 302; M. Reisman and J. K. Levit, ‘Fact-Finding Initiatives for the Inter-American Court of Human Rights’ in R. Navia (ed.), La Corte y el Sistema Interamericanos de Derechos Humanos (Costa Rica: Inter-American Court of Human Rights, 1994), pp. 443–57; T. Buergenthal, ‘Judicial Fact-Finding: Inter-American Human Rights Court’ in R. Lillich (ed.), Fact-Finding before International Tribunals (New York: Transnational Publishers, 1991), pp. 261–74.

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borne in mind when making comparisons. State-only courts such as the International Court of Justice may apply different considerations, and although the African Charter has provision for inter-State communications,2 it has only produced a decision on one such case.3 The primary focus of this chapter is on communications that have been submitted by individuals or, often, NGOs. Similarly, the approaches of the international criminal tribunals for Rwanda and Yugoslavia must be treated with caution, given that not only are they conducting criminal procedures, but these are with the aim of determining the guilt of an individual. Despite limited attention to issues of evidence, a more rigorous approach is needed. The individual communication procedure is provided for in Articles 55–9 of the African Charter. Cases can be submitted by individuals even if they are not victims of a violation themselves, and many cases have been submitted by NGOs acting on behalf of others. On receipt of a letter from an individual or NGO at the Secretariat of the Commission, the legal officers will register it with a number.4 The Secretariat will then send a copy of the communication to the State against which it is brought, with time limits for the State’s response. A Commissioner will be appointed as rapporteur for the case. At its session, the Commission will examine the admissibility of the case on the basis of the information received.5 The parties will be informed of the decision on admissibility. If the communication is inadmissible, the case will be closed; if it is declared admissible, the parties will be asked for further information on the merits,6 any responses will be transmitted to the other party,7 and the parties will subsequently be invited to attend the session of the Commission at which the case may be heard. After any oral hearing8 at the session, the Commission will deliberate in private on the matter. It will then produce a written decision, which will be forwarded to the parties and subsequently made public in its yearly report after adoption by the Assembly of Heads of State of the AU. 2 3

4

5 6 7

Articles 47–54 of the African Charter. Communication 227/1999, Democratic Republic of the Congo v. Burundi, Rwanda and Uganda, Twentieth Annual Activity Report of the African Commission on Human and Peoples’ Rights, January–June 2006, Annex IV. The first digit is the number of the case received, the second is the year. The first digit does not restart at 1 at the beginning of each new year. Thus 3/88 was the third case ever received by the Commission, and it was received in 1988. For discussion of the admissibility conditions, see Chapter 3. See the time limits below. 8 Rule 119(3) of the African Commission’s Rules of Procedure. See below.

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Types of evidence and their collection Article 46 of the African Charter permits the Commission to ‘resort to any appropriate method of investigation’, and to call upon the SecretaryGeneral of the OAU ‘or any other person capable of enlightening it’. This is a wide provision that provides the Commission with, potentially, a great deal of flexibility and discretion in all aspects of its work,9 enabling it to obtain information from a variety of sources as it deems appropriate.10 Indeed, it has displayed a willingness to accept any form of evidence such as ‘documentary proofs of the violation . . . for example, letters, legal documents, photos, autopsies, tape recordings, etc. to show proof of the violation’,11 as well as statements provided during oral hearings.

Written material In coming to its decisions, however, the Commission has, as have other international bodies,12 relied primarily on written documents. Besides written correspondence from the parties, this has included copies of the relevant laws,13 court judgments,14 post-mortem reports,15 9 10

11

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13 14 15

Rules 71–6 enable the Commission to consult or invite the participation of States, specialised institutions, intergovernmental organisations, NGOs and others. Inter-American organs have also accepted a wide variety of forms, including immigration cards, passport applications, dental records, opinions of pathologists on autopsies, explanations from the Bar Association and opinions of handwriting experts: see Inter-American Court, Fair´en Garbi and Sol´ıs Corrales, Series C, No. 6, Judgment of 15 March 1989, paras. 38–40; and Vel`asquez Rodr´ıguez, Series C, No. 4, Judgment of 29 July 1988, para. 29. The ICJ will consider submissions, applications, oral and other documents: see Nuclear Tests Cases, ICJ Reports (1974) 253, 457, paras. at 466–7. See also paras. 436 et seq. African Commission on Human and Peoples’ Rights, Information Sheet No. 2: Guidelines on the Submission of Communications, p. 17. Indeed, the recent use of videos by some complainants has been welcomed by the Commission. In relation to the Inter-American Convention, see C. Cerna, ‘The Inter-American Commission on Human Rights: Its Organisation and Examination of Petitions and Communications’ in D. Harris and S. Livingstone (eds.), The Inter-American System of Human Rights (Oxford: Clarendon Press, 1998), pp. 65–114 at p. 97; Inter-American Court, God´ınez Cruz, Series C, No. 5, Judgment of 20 January 1989, at para. 40; Inter-American Court, Fair´en Garbi and Sol´ıs Corrales, para. 47. See also Ireland v. United Kingdom, European Human Rights Reports 2 (1978) 25, para. 161. E.g., Communication 40/90, Bob Ngozi Njoku v. Egypt, Eleventh Activity Report 1997– 1998, Annex II. Ibid. Communications 147/95 and 149/96, Sir Dawda K. Jawara v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V.

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photocopied newspaper articles describing the judgments,16 transcripts of judgments,17 affidavits,18 interviews with alleged victims,19 expert opinion,20 opinion from NGOs,21 ‘scholarly’ articles22 and UN documents.23 The Commission has also accepted information from the media. Article 56(4) requires that communications are ‘not based exclusively on news disseminated through the mass media’, and the Commission has said, albeit in relation to proving a prima facie case for admissibility, that ‘the author must be able to investigate and ascertain the truth of the facts before requesting the Commission’s intervention’.24 In Communications 147/95 and 149/96, Sir Dawda K. Jawara v. The Gambia, although the Government alleged the allegations were based on the media, the Commission declared that the important issue was not whether the information was obtained from the media ‘but whether the information is correct. Did the complainant try to verify the truth about these allegations? Did he have the means or was it possible for him to do so, given the circumstances of the case?’ The Commission found, on the facts of the case, the communication to be admissible. A similar decision was reached in a case against Zimbabwe, drawing upon this earlier decision.25 The International Court of Justice has taken a flexible approach to this, being willing to take into 16

17 18 19

20

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22 23 24 25

Communication 40/90. See the treatment of press clippings by the Inter-American Court in Vel`asquez Rodr´ıguez, para. 146; Nicaragua Case (Merits), ICJ Reports (1986) 14, paras. 62–4. Communication 212/98, Amnesty International v. Zambia, Twelfth Activity Report 1998– 1999, Annex V, para. 28. Ibid., para. 28. E.g., Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra-Leonean refugees in Guinea) v. Republic of Guinea, Twentieth Annual Activity Report January–June 2006, Annex IV, para. 40. Communication 71/92, Rencontre Africaine pour la Defense de Droits de l’Homme v. Zambia, Tenth Activity Report 1996–1997, Annex X, para. 16, where a letter from an expert on refugee law at Oxford University was submitted and cited. The ICJ does not often look at expert opinion, although it can do so: Corfu Channel Case (United Kingom v. Albania) (Merits), ICJ Reports (1949) 4, para. 9. Communications 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda and Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V, para. 39, letter from Olisa Agbakoba on ‘Preliminary Objections and Observations to the Mission of the Commission’. Communications 105/93, 128/94, 130/94 and 152/96, para. 41. E.g., Communication 227/1999. African Commission on Human and Peoples’ Rights, Information Sheet No. 3, Communication Procedure, p. 9. Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, TwentyFirst Annual Activity Report of the African Commission on Human and Peoples’ Rights, May–November 2006, Annexure III, para. 43.

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account ‘matters of public knowledge which have received extensive coverage’ in the media,26 but not if the information comes from one source alone.27 Documents and other information may be provided by the parties in their original submissions to the Commission, or may have been prompted by the Commission later in its request for additional information. To what extent the Commission or any human rights body has a duty to seek out information that does not come to it is not clear, although it has been suggested that in human rights proceedings international courts themselves have a ‘duty’ to find the truth.28 In this respect, although not taking the initiative to do so but mostly being prompted by NGOs, the Commission has shown itself willing to obtain information from the holding of oral hearings and, to a certain extent, undertaking on-site visits.

Oral hearings Although there is an explicit right of hearing in relation to inter-State cases in the African Charter and the Commission’s Rules of Procedure,29 no equivalent exists for non-States Parties. However, since hearing an individual at the 16th Session,30 the Commission has developed a practice of offering both parties the opportunity to attend a hearing when the admissibility and merits are considered.31 The Commission has heard from parties in a number of cases, and parties are increasingly making use of this opportunity.32 Although both parties are invited to attend 26 27 28

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US Diplomatic and Consular Staff in Tehran Case (US v. Iran), ICJ Reports (1980) 3, para. 9. Nicaragua Case, para. 41. J. Kokott, The Burden of Proof in Comparative and International Human Rights Law. Civil and Common Law Approaches with Specific Reference to American and German Legal Systems (The Hague: Kluwer Law International, 1998), p. 209, although this is in relation to hearings. This is particularly the case for jus cogens rights, as they require the most protection. Rule 100 of the Rules of Procedure: the Commission is to determine the procedure. Embga Louis Mekongo himself and on his behalf, Communication 59/91, Embga Mekongo Louis v. Cameroon, Eighth Activity Report 1994–1995, Annex VI. ACHPR, Information Sheet No. 3, p. 12. For example, Communication 144/95, William Courson (acting on behalf of Severo Moto) v. Equatorial Guinea, Eleventh Activity Report 1997–1998, Annex II; Communication 65/92, Ligue Camerounaise des Droits de l’Homme v. Cameroon, Tenth Activity Report 1996–1997, Annex X; Communications 105/93, 128/94, 130/94 and 152/96; Communication 71/92; Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional

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a hearing, sometimes only one party will appear,33 which may be due in part to the lack of financial assistance to attend the sessions. NGOs have represented some individuals before the Commission in such oral hearings, even if the organisation is not necessarily the one that submitted the case,34 and the Commission itself has referred cases to NGOs to provide this representation.35 Sometimes high-level delegates from governments have appeared before the Commission.36 The contributions of those appearing have varied from mere repetition of the information supplied in written documents,37 to making a particular written submission or an oral statement without any written documents.38 The procedure at the session is that the hearings will take place in private.39 The Commission will invite the parties to enter the room, and the Chairperson will then introduce the rapporteur Commissioner for the case. This Commissioner will introduce the case to the Commission. Each party will then be given the opportunity to make a statement that lasts minutes, rather than hours. The Commissioners can then ask questions.40 The parties are then asked to leave the room, during which time the Commission will deliberate on its findings in private. The manner in which the process is conducted is aimed to place ‘complainants and the States which are alleged to have violated human and/or peoples’ rights on

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Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998–1999, Annex V. For example, Communication 17/88, Hilaire Badjogoume v. Benin, Seventh Activity Report 1993–1994, Annex IX; Eighth Activity Report 1994–1995, Annex VI, where only the representative of the Government of Benin appeared. For example, see Communication 225/98, Huri-Laws v. Nigeria, Fourteenth Annual Activity Report, 2000–2001, AHG/229 (XXXVII), Annex V, para. 26. See also Communication 97/93, John K. Modise v. Botswana, Seventh Activity Report 1993–1994, Annex IX; Tenth Activity Report 1996–1997, Annex X. For example, Communications 83/92, 88/93 and 91/93, Jean Y. Degli (on behalf of N. Bikagni), Union Interafricaine des Droits de l’Homme, Commission Internationale des Juristes v. Togo, Seventh Activity Report 1993–1994, Annex IX, where the Commission referred the complainant to the Botswana Centre for Human Rights, which had observer status. For example, in Communication 212/98, the Government was represented by the Senior Advocate in the Ministry of Legal Affairs and accompanied by the Deputy Permanent Secretary of the Home Affairs Department and an individual from the Foreign Affairs Department with responsibility for African and OAU relations. For example, Communication 74/92, Commission Nationale des Droits de l’Homme et des Libert´es v. Chad, Ninth Activity Report 1995–1996, Annex VIII, who ‘reiterated the information in the original communication, both verbally and by way of a memoire’. For example, see Communications 105/93, 128/94, 130/94 and 152/96. Rule 106 of the Rules of Procedure. The ICJ follows the procedure of common law countries with examination and crossexamination: see Corfu Channel Case; Land, Island and Maritime Frontier Boundary Dispute Case, ICJ Reports (1990) 92; ICJ Reports (1992) 351.

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an equal footing throughout the proceedings’.41 It is there to enable the State ‘to refute allegations’42 and to give ‘the Commission and the State Party an opportunity to discuss how areas of difficulties could be tackled. The Commission assured the State that it was ready at all times to offer its good offices to assist in matters of human and peoples’ rights.’43 On some occasions, the Commission, often on matters of domestic law,44 has heard witnesses,45 although they have been called by the parties, rather than the Commission itself.46 Whether there has been any incident where the Commission itself has requested the attendance of a witness is not clear. Unfortunately the process as it stands has various difficulties. Although hearings are unlikely to be held if the parties do not press for them, where the complainant is urging the Commission to hold a hearing, the Commission has been reluctant to hold it without the presence of a State delegate. This leaves complainants particularly vulnerable where States have refused or been unable to attend, the Commission then requesting the complainant to delay a hearing until the State can be there. Complainants may have travelled a long way and to several sessions in the hope that the case will be heard. Another difficulty faced is that the submissions from complainant NGOs have focused primarily on getting the summary of the case across, it being felt that not all Commissioners might be particularly familiar with its contents. Questions posed by members of the Commission as a result may not be probing or informative. Add to this situations where complainants and those representing victims are not usually informed of the running order of hearings, or the precise day and time that the case would be examined, as well as the fact that the oral hearings are held after a week of public sessions when many Commissioners may be tired, all of which make the accessibility and usefulness of this procedure questionable. 41 43

44 45 46

42 ACHPR, Information Sheet No. 3, p. 12. ACHPR, Information Sheet No. 3, p. 14. Report of the Mission to Mauritania of the African Commission on Human and Peoples’ Rights, Nouakchott, 19–27 June 1996, Tenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1996–1997, ACHPR/RPT/10th, Annex IX, p. 5, where the Government sent a representative to the session. Communication 97/93, where a witness was called. For example, in Communication 212/98, a relative of one of the victims, Mr William Steven Banda, was heard. The International Court of Justice has the ability to call witnesses if necessary (Article 62(2) of its Rules of Court) as can the parties (Rules 57 and 63). Witnesses are required to give evidence on oath (Article 64). It can also appoint experts to prepare a report for it (see Delimitation of the Maritime Boundary in the Gulf of Maine Area, ICJ Reports (1984) 246) to assist it in examining the technical aspects. In this case, however, the appointment of an expert was provided for in the special agreement.

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Missions Although Commissioners visit particular assigned countries under their promotional mandate, the Commission has also visited States in its protective capacity. The basis on which the Commission decides to make such visits is not problematic in the case of promotional missions, but considerably more so when the aim is protective. Here there is no consistent policy from the Commission as to why it decides to visit one country and not another, but it does appear to choose the more serious cases,47 and in most cases because it has been prompted to do so by recent events and lobbying by NGOs. The Commission has undertaken on-site missions48 to a number of States, among them Togo,49 Sudan, Senegal, Nigeria, Mauritania, Darfur and Zimbabwe. Visits to other States have also been suggested but not undertaken.50 These fact-finding missions are in addition to visits by the special rapporteurs and working groups of the Commission.51 Some of the protective missions are relevant to the communications pending before the Commission, whereas others are not. The relationship between the mission and the communication is often not clear, however, and the Commission has been, one might argue, deliberately, vague about the extent to which it is collecting evidence for a particular case when visiting a country. From the information available,52 members of the Commission’s mission delegation visit various places other than just the capitals, and speak with both civil society, in some cases the complainants, and the authorities. As there is no clear set of guidelines by which the Commission 47

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See R. Murray, ‘On-Site Visits by the African Commission on Human and Peoples’ Rights: A Case Study and Comparison with the Inter-American Commission on Human Rights’, African Journal of International and Comparative Law 11 (1999) 460–73. For discussion of missions in general, see ibid. See Communications 83/92, 88/93 and 91/93, in relation to alleged grave and massive violations. For example, to what was then Zaire, Communications 25/89, 47/90, 56/91 and 100/93 (joined), Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les T´emoins de Jehovah v. Zaire, Ninth Activity Report 1995–1996, Annex VIII, the objective of which was ‘discovering the extent and cause of human rights violations and endeavouring to help the government to ensure full respect for the African Charter’ (ibid., para. 6). See Chapters 12 and 13 below. See, e.g., Executive Summary of the Report of the Fact-Finding Mission to Zimbabwe, 24– 28 June 2002, Seventeenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 2003–2004, Annex II; Report on Mission to Mauritania; and Report on Mission of Good Offices to Senegal of the African Commission on Human and Peoples’ Rights, 1–7 June 1996, Tenth Activity Report 1996–1997, Annex VIII.

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conducts these visits, and its independence and impartiality have been questioned,53 the use of missions in the collection of reliable information is questionable. This is compounded by the paucity of information about the way in which the missions have been conducted, with reports providing only minimal information on which places were visited and who was met, if a report is provided at all. Decisions adopted in relation to a number of cases illustrate the Commission’s difficulty with the relationship between missions and communications. For example, although it was clear that the mission to Mauritania was prompted by communications against that country,54 the Commission held in its decisions that it was a mission: of good offices . . . to discuss the overall human rights situation in the country . . . The mission was undertaken at the initiative of the Commission in its capacity as promoter of human and peoples’ rights. It was not an inquiry mission; and while it permitted the Commission to get a better grasp of the prevailing situation in Mauritania, the mission did not gather any additional specific information on the alleged violations, except on the issue of slavery. The present decision is therefore based on the written and oral declarations made before the Commission over the past six years.55

Similarly, in its decision on communications against Sudan, the Commission held that the mission sent to the country: must be considered as part of its human rights promotion activities and does not constitute a part of the procedure of the communications, even if it did enable it to obtain information on the human rights situation in that country. Consequently, this decision is essentially based on the allegations presented in the communications and analysed by the African Commission.56 53

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See Murray, ‘On-Site Visits’; see also Constitutional Rights Project, Rencontre Africaine des Droits de l’Homme (RADDHO), Missions for Protective Activities (London: Interights, 1997). See Report of the Mission to Mauritania, ‘after receiving communications that revealed disturbing violations of human rights . . . the African Commission . . . decided to send a fact-finding and investigation mission’. Communications 54/91, 61/91, 98/93, 164/97 and 210/98, Malawi African Association; Amnesty International; Ms Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO; Collectif des Veuves et Ayants-droits; Association Mauritanienne des Droits de l’Homme v. Mauritania, Thirteenth Activity Report 1999–2000, Addendum, para. 87. Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International; Comit´e Loosli Bachelard; Lawyers’ Committee for Human Rights; Association of Members of the Episcopal Conference of East Africa v. Sudan, Thirteenth Activity Report 1999–2000, Addendum, para. 46.

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In a more recent case against Zimbabwe, the Commission itself made no reference to the fact that it had undertaken a mission to the country, not even mentioning it in the procedure of the decision.57 It is a pity that the Commission does not seem willing to use these visits to their full potential to obtain information on the cases before them. Such visits could achieve some of the successes of the Inter-American Commission58 and provide the Commission with alternative and insightful information in its decisions and the ability to meet and liaise with key figures in the communications. The Commission lacks the confidence and rigorous procedure to do so.

Rules of evidence One would not wish to advocate strict rules of evidence or to transplant domestic rules ‘automatically’ to the international level,59 but a clearer indication as to how material is dealt with is essential to an understanding of the outcome of the case and the ability of the communication procedure to provide a suitable remedy for the victim. International bodies have acknowledged that, in contrast to domestic laws, there is flexibility in the admission of evidence,60 to which they have often taken an ad hoc approach.61 It has been said that international tribunals ‘generally admit virtually any evidence presented and impose few restrictions on its form . . . the weight varies from judge . . . to judge and is heavily influenced by the judge’s own legal background’.62 Furthermore:

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Communication 245/2002. C. Medina, ‘The Role of Country Reports in the Inter-American System of Human Rights’ in D. Harris and S. Livingstone (eds.), The Inter-American System of Human Rights (Oxford: Clarendon Press, 1998), pp. 115–32; and Cerna, ‘The Inter-American Commission’. See Inter-American Court, Vel`asquez Rodr´ıguez, paras. 132–3; Fair´en Garbi and Sol´ıs Corrales, para. 134. Nicaragua Case at paras. 57–74; Ireland v. United Kingdom, para. 209; see also Highet, ‘Evidence and Proof of Facts’, p. 357; Sandifer, Evidence Before International Tribunals; T. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), pp. 335 et seq.; C. Parry, The Sources and Evidence of International Law (Manchester: Manchester University Press, 1965); D. McGoldrick, The Human Rights Committee, p. 143. S. R. Ratner and J. S. Abrams, Accountability for Human Rights Atrocities in International Law – Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 1997), p. 216. Ibid., p. 217. Highet, ‘Evidence and Proof of Facts’, p. 357: parties before the ICJ ‘have freedom to introduce, more or less, whatever evidence they may consider appropriate to prove their cases’.

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investigatory commissions evince no uniformity of practice with respect to evidentiary principles. Rather, their more informal nature allows them to operate with even less strict rules concerning the admissibility and weight of evidence than those of international tribunals. Standards of proof have varied across commissions, and in some cases their mandates and reports have been completely silent on the issue.63

It is clear, therefore, that there is no one set of international rules of evidence, and that the manner in which evidence is dealt with will vary depending on the particular organ. Criticisms of the African Commission’s apparent failure on some occasions to consider evidentiary matters in any detail must be considered in this context, and, in this sense, the African Commission is not unlike its European, Inter-American or UN counterparts.

Burden of proof Issues of burden of proof64 are important in relation to not only the merits of the case but also at the admissibility stage, most notably concerning exhaustion of domestic remedies. The general approach of the African Commission is that, while the individual complainant has the duty to provide a prima facie case of exhaustion, if the State wishes to contest this or raise the matter, it then has the burden of proving that remedies were adequate or effective.65 These admissibility matters are examined in detail by Professor Frans Viljoen in Chapter 3; however, it is necessary here to deal with the burden of proof relating to the substantive aspects of the case on the merits. The African Commission, as with other international bodies,66 requires that the complainant submit a ‘prima facie case’ in order to be admissible: 63 64 65

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Ratner and Abrams, Accounting for Human Rights Atrocities, p. 218. In general, see Kokott, Burden of Proof. See Communication 40/90; Communication 71/92. The Inter-American Court has warned against presuming against the State: God´ınez Cruz, at para. 62. See also Austria v. Italy, Application No. 788/60, 11 January 1961, Yearbook, vol. 4, pp. 166–8; Donnelly and others v. United Kingdom (first decision), Application No. 5577–5583/72, 5 April 1973, Yearbook, Vol. 16, p. 264. See also Communication 458/91, Mukong v. Cameroon, Decision of 21 July 1994, Revue trimestrielle des Droits de l’Homme (1994) 457–63, CCPR/C/51/D/458/1991, 10 August 1994, Fifty-first Session, before the United Nations Human Rights Committee under the ICCPR. For example, the UN’s Human Rights Committee has said that there is a burden on the author to submit ‘sufficient evidence in substantiation of the allegations as will constitute a prima facie case’: Doc. A/39/40, para. 588; see McGoldrick, The Human Rights Committee, pp. 145–6. See also Nicaragua Case (Provisional Measures), ICJ Reports (1984) 169, para. 437.

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the african charter on human and peoples’ rights For the purpose of seizure and admissibility the author of the communication can confine himself or herself to presenting a prima facie case and satisfying the conditions laid down in Article 56 of the Charter.67

The approach of other international bodies is that the burden will then shift to the government to determine that the allegations are not true.68 The UN Human Rights Committee, for example, has held: the burden of proof . . . cannot rest alone on the author of the communication, especially considering that the author and the State Party do not always have equal access to the evidence and that frequently the State Party alone has access to the relevant information. It is implicit in Article 4(2) of the Optional Protocol that the State Party has the duty to investigate in good faith all allegations of violation of the Covenant . . . especially when such allegations are corroborated by evidence submitted by the author of the communication, and to furnish to the Commission the information then available to it.69

For the African Commission, the response of the government to the allegations dictates the subsequent burden, and the party making the allegations has the burden of proving them.70 So the African Commission has stated that ‘the onus is on the State to prove that it is justified to resort to the limitation clause’.71 However, if ‘there has been no substantive response from the government . . . only a blanket denial of responsibility’, this will not be sufficient to discharge the burden:72 since the government . . . does not wish to participate in a dialogue, [then] the Commission must, regrettably, continue its consideration of the case on the basis of facts and opinions submitted by the complainants alone. 67

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ACHPR, Information Sheet No. 3, pp. 13–14. See also Communication 65/92, Ligue Camerounaise des Droits de l’Homme v. Cameroon, Tenth Activity Report 1996–1997, Annex X, para. 13, and Communication 107/93, Academic Staff of Nigerian Universities v. Nigeria, Seventh Activity Report 1993–1994, Annex IX. For what amounts to a prima facie case, see below. Vel`asquez Rodr´ıguez, para. 79. Bleir v. Uruguay, Doc. A/37/40, p. 130, paras. 13.1–13.3. Similarly, see Inter-American Court, Cantoral Benavides Case, Judgment of 18 August 2000, para. 189; Gangaram Panday Case, Judgment of 21 January 1994, para. 49; Vel`asquez Rodr´ıguez, para. 123. Communication 212/98, para. 42. This is the same before the UN’s Human Rights Committee: see Silva v. Uruguay, Doc. A/36/40, p. 130; Hertzberg v. Finland, Doc. A/37/40, p. 161. This is in line with the approach of other international bodies: see, for example, UN Human Rights Committee, Santullo (Valcada) v. Uruguay, UN Doc. CCPR/C/CP/1 (1984), p. 43; Selected Decisions of the Human Rights Committee, p. 43; Lanza and Perdoma v. Uruguay, Doc. A/35/40, p. 111; Selected Decisions of the Human Rights Committee, p. 45.

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Thus, in the absence of a substantive response by the government, in keeping with its practice, the Commission will take its decisions based on the events alleged by the complainants.73

What amounts to a ‘substantive response’ was not clarified in this case, although the Commission has stated on other occasions that the State should respond in a ‘convincing manner’74 and ‘submit specific responses and evidence refuting the allegations’, and that ‘a rejection of the allegations by a State is not enough’.75 So in one case the Commission noted that ‘although the present government contends that there were “irregularities” in the elections, it fails to explain what these were’.76 Similarly, in a decision on cases against Sudan, the Government had contested allegations that soldiers who were subsequently executed were given no legal representation during their trial. The Commission held: while there is a simple contradiction of testimony between the government and the complainant, the Commission must admit that in the case of the . . . executed army officers basic standards of fair trial have not been met. Indeed, the Sudanese Government has not given the Commission any convincing reply as to the fair nature of the cases that resulted in the execution of twenty-eight officers. It is not sufficient for the government to state that these executions were carried out in conformity with its legislation. The government should provide proof that its laws are in accordance with the provisions of the African Charter and that in the conduct of the trials the accused’s right to defence was scrupulously respected.77

The Commission found that there was a violation of Article 7 of the African Charter. 73

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Communication 74/92, paras. 19 and 24. This was reaffirmed in Communications 27/89, 46/91, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internationale des Juristes (CIJ), Union Interafricaine des Droits de l’Homme v. Rwanda, Tenth Activity Report 1996–1997, Annex X, para. 20. See also Communications 143/95 and 150/96, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, para. 28. Communications 48/90, 50/91, 52/91 and 89/93, para. 75. ACHPR, Information Sheet No. 3, p. 14. In Communications 140/94, 141/94 and 145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, in relation to detentions in violation of Article 6, the Government alleged that no one was presently being detained without charge. The Commission held: ‘this will not excuse past arbitrary detentions. The government has failed to address the specific cases alleged in the communications’ (ibid., para. 51). A violation of Article 6 was found. Communication 102/93, Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V, para. 47. See further below. Communications 48/90, 50/91, 52/91 and 89/93, para. 66.

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Similarly, where the government makes no response at all to the allegations, the African Commission has stated on numerous occasions that it will ‘take the facts as given’ by the complainant: where allegations of human rights abuse go uncontested by the government concerned, even after repeated notifications, the Commission must decide on the facts provided by the complainant and treat those facts as given. This principle conforms with the practice of other international human rights adjudicatory bodies and the Commission’s duty to protect human rights. Since the government of Zaire does not wish to participate in a dialogue, the Commission must, regrettably, continue its consideration of the case on the basis of facts and opinions submitted by the complainants alone.78

This has been followed in numerous other cases against, for example, Angola,79 Nigeria80 and Sierra Leone.81 In addition, in cases against Sudan, 78

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Communications 137/94, 139/94, 154/96 and 161/97, para. 81. Rule 120(1) of the Rules of Procedure notes that, after admissibility, the Commission makes its consideration ‘in the light of all the information that the individual and State Party concerned have submitted in writing’. There is no further indication in its Rules of Procedure of how the information will be considered. Communication 159/96, Union Interafricaine des Droits de l’Homme, F´ederation Internationale des Ligues des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au S´en´egal and Association Malienne des Droits de l’Homme v. Angola, Eleventh Activity Report 1997–1998, Annex II. (See also Communications 25/89, 47/90, 56/91 and 100/93 (joined), para. 40; Communication 59/91; Communication 103/93, Alhassan Abubakar v. Ghana, Tenth Activity Report 1996–1997, Annex X, para. 10. ‘The Government has not contested the veracity of the complainant’s submissions. In this circumstance, the Commission is obliged to accept this as the facts of the case and therefore finds the Government of Nigeria in violation of Article 7(1)(b) of the Charter’ (Communication 224/98, Media Rights Agenda v. Nigeria, Fourteenth Annual Activity Report, 2000–2001, Annex V, para. 48; Communications 137/94, 139/94, 154/96 and 161/97, para. 101). See also Communications 105/93, 128/94, 130/94 and 152/96; Communication 60/91, Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Communication 101/93, Civil Liberties Organisation in respect of the Nigerian Bar Association v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Communication 148/96, Constitutional Rights Project v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, paras. 12 and 13; Communication 206/97, Centre for Free Speech v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, para. 17; Communication 215/98, Rights International v. Nigeria, Thirteenth Activity Report 1999– 2000, Annex V, para. 31; Communication 151/96, Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, para. 24. See also before the UN Human Rights Committee, J. L. Massera and others v. Uruguay, Doc. A/34/40, p. 124; Selected Decisions of the Human Rights Committee, p. 40. In contrast, see International Court of Justice, Corfu Channel Case. In Communication 223/98, Forum of Conscience v Sierra Leone, Fourteenth Annual Activity Report, 2000–2001, AHG/229 (XXXVII), Annex V, para. 20: ‘The Commission notes the

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when considering allegations of executions contrary to Article 4, the Commission held: ‘according to the Commission’s long-standing practice, in cases of human rights violations, the burden of proof rests with the government. If the government provides [no] evidence to contradict an allegation of human rights . . . made against it, the Commission will take it as proven, or at the least probable or plausible.’82 This approach obscures a difficulty: before even coming to this decision, cases are often delayed for years awaiting some response from the State. Although Rule 119(4) of the African Commission’s Rules of Procedure holds that ‘State Parties from whom explanations or statements are sought within specified times shall be informed that if they fail to comply within those times the Commission will act on the evidence before it’, the Commission has extended these limits without hesitation.83 The approach is not consistent as, while these cases suggest that the Commission does not test the validity or reliability of the complainant’s evidence, there have been occasions when it has required something more. Despite a general reluctance to proceed with any decision in the case until the State has responded,84 the Commission has only made limited reference to the need, at least, to question the validity of the complainant’s facts, in one case stating that ‘by relying on the information provided by the complainant, the Commission did not rush into making a decision. The Commission analysed each allegation made and established the veracity thereof’.85 In many cases, however, the Commission has found no violations of the African Charter, suggesting that the complainant’s evidence alone is not sufficient.86 Furthermore, the Commission has on some occasions required corroboration of evidence, for example by suggesting that there

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failure of the competent authorities of the Republic of Sierra Leone to respond to its request for additional information and arguments on the admissibility and merits of the case’, finding in favour of the applicant. It went on to find a violation in this case: see Communications 48/90, 50/91, 52/91 and 89/93. See also Communication 227/1999: ‘by refusing to participate in any of the proceedings . . . Burundi admits the allegations made against it’ (para. 96). For example, in Communication 224/98, although the Commission notified the Government of the case on 19 August 1999, it was prepared to wait until 27 September 2000 for the Government to provide a response. For example, in Communication 251/2002, Lawyers Committee for Human Rights v. Swaziland, Eighteenth Annual Report, 2004–2005, Annex III, the Commission postponed consideration of the case from its Thirty-second Session where it was seized of the facts, after oral statements were then heard from the complainant at its Thirty-fifth Session in May/June 2004, until its Thirty-seventh Session in 2005 to ‘give the respondent State one more chance to makes its submissions’ (para. 17). 86 Communication 251/2002, para. 42. See below.

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should be ‘direct evidence’ to support facts alleged,87 say, from other sources,88 that violations should be ‘many reported’,89 that the evidence should be ‘ample’,90 and that the ‘veracity’ of material should be checked.91 The Commission has suggested that it is its responsibility to investigate the facts further,92 although the extent to which it has taken a proactive role is questionable. A more careful approach is evident from other international mechanisms, which have required, for example, that the evidence produced by the complainant ‘does not lead to a different conclusion’,93 or ‘so long as the contrary is not indicated by the record or is not compelled as a matter of law’94 or that the complainant’s version of the facts must show ‘consistency, specificity and credibility’.95 There has been some suggestion by the Inter-American bodies that facts which have not been contested by the State, which otherwise are corroborated by it, may be accepted in evidence.96

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Communications 137/94, 139/94, 154/96 and 161/97, para. 96. In cases against Sudan, the Commission stated that alleged executions ‘are supported by evidence collected by the UN Special Rapporteur’: Communications 48/90, 50/91, 52/91 and 89/93, para. 8. See also para. 48. 90 Communications 27/89, 46/91, 49/91 and 99/93. Ibid. ‘[T]he fact that the complainant’s allegations were not contested, or were partially contested by the State does not mean that the Commission will accept their veracity’ (ACHPR, Information Sheet No. 3, p. 15). Ibid. Article 39 of the Rules of Procedure of the Inter-American Commission: ‘The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the maximum period set by the Commission under the provisions of Article 38 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion.’ Vel`asquez Rodr´ıguez, para. 138; see also Communication 464/91 and 482/91, Peart and Peart v. Jamaica; Report of Human Rights Committee, 6 May 1999, Doc. A/50/40, Vol. II. Report 13/96, Case 10.948 (El Salvador), 1 March 1996, Annual Report of the InterAmerican Commission on Human Rights 1995, OEA/Ser.L/V/II/91, Doc. 7 rev., 28 February 1996, pp. 101–12; see also the Inter-American Court’s Vel`asquez Rodriguez decision, paras. 20, 143 and 146. See Cerna, ‘The Inter-American Commission’, p. 98: ‘the determination of consistency is a matter of the logical/rational comparison of information furnished by the petitioner, to establish that there is no contradiction between the facts and/or the evidence submitted’; furthermore, ‘credibility . . . is determined by assessing the version submitted including its consistency and specificity, in evaluating the evidence furnished, taking into account public and well-known facts and any other information the Commission considers pertinent’. Specificity is ‘a corollary of those two factors’, (para. 20). See, for example, Report 63/99, Case 11.427, Victor Rosario Congo v. Ecuador, 13 April 1999, Annual Report of the Inter-American Commission of Human Rights 1998, Vol. I, OEA/Ser.L/V/II/102, Doc. 6 rev., 16 April 1999, para. 33.

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While one can sympathise with the African Commission’s difficulties where the only information before it is that provided by the complainant, some questioning of the validity of that evidence is important not only to give at least the appearance of impartiality,97 but also because such matters are ‘of immense practical importance to the functioning’ of the body.98 The easy acceptance of the complainant’s evidence in some cases, and the unwillingness of the Commission to impose time limits on the receipt of information from the individual, despite its ability to do so,99 could be explained as an attempt by the Commission to take account of the weaker position of the individual, relative to the State.100 Other international bodies have suggested that this should particularly be the case if the complainant needed the co-operation of the State to obtain the evidence.101 However, while the Rules of Procedure are stricter for States in setting a three-month time limit for submission of information,102 these also are not enforced. Rather than this relaxed attitude being to prevent ‘the procedural equilibrium and equality of the parties’ being ‘seriously affected’,103 it could have more to do with administrative inefficiency or the desire to maintain the goodwill of the State.104 Where the government admits to the violations alleged by the complainant, the Commission comes easily to a decision: all parties agree that Mr Mazou was held beyond the expiry of his sentence. No judgment was passed to extend his sentence. Therefore the detention is arbitrary.105 97

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As Franck has stated in relation to the International Court of Justice, ‘[t]he nonappearance of a party thus presents a particular evidentiary challenge to the Court, since the appearing party has no formal competition in presenting evidence. Meeting this challenge is a necessary part of the Court’s defence of its credibility’ (Franck, Fairness in International Law, p. 337. See McGoldrick, The Human Rights Committee, p. 145. The Commission has a discretion to do so: Rule 119(3) of the Rule of Procedure. In relation to those for merits, Rule 119(2) of the the Commission’s Rules of Procedure require that the State submit within three months ‘explanations or statements elucidating the issue under consideration and indicating, if possible, measures it was able to take to remedy the situation’. Also suggested by the Human Rights Committee: see Communication 458/91. E.g., Vel`asquez Rodr´ıguez, paras. 135–6. Rules 104 and 117(1) and (4) of the Rules of Procedure. 104 God´ınez Cruz, para. 39. See note 81 above. Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, Eighth Activity Report 1994–1995, Annex VI; Tenth Activity Report 1996–1997, Annex X.

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Similarly, despite being unwilling to make any pronouncements on violations as the result of its mission, in the subsequent decisions against Mauritania adopted several years after the mission report, the Government was willing to accept that serious violations occurred, and the Commission found numerous violations of the African Charter.106 The difficulty has arisen, however, where the government does dispute facts on which the complaint is based. This is where the approach of the Commission is mixed. Communication 40/90, Bob Ngozi Njoku v. Egypt related to the treatment of Mr Njoku at Cairo airport, although the communication detailed by the Commission did not expressly mention any specific Articles of the African Charter alleged to have been violated. The Government agreed that he was arrested on the date in question but did not agree with other specific points. These included allegations by the complainant that a suitcase that did not belong to him, and which contained drugs, was assigned to him at the airport. The complainant also said that he had made a statement to this effect in the presence of two Nigerian diplomats, all three signing a written document that was not translated, the Government contending that the statement contained the confession for the possession of the drugs. The Government also disagreed with the complainant that the lawyer assigned to him was ineffective. It was not clear from the Commission’s decision if the Government contested the allegations that the complainant was tried in camera with no translator. The complainant argued that the laws under which he was sentenced were inapplicable to him; the Government argued it was actually applying a less harsh rule than was available. The Commission found no violations of the African Charter. It noted that, although ‘the rest of the communication contains serious divergences as regards the information provided by the parties’, it did not consider that its task was to ‘judge the facts. This is the responsibility of the Egyptian courts.’ The Commission then affirmed that its role: in such a case is to ensure that during the process from the arrest to the conviction of Mr Ngozi Njoku, no provision of the African Charter . . . was violated. It is also incumbent on it to ensure that the defendant State respected and indeed enforced its own law in total good faith. To all these questions the Commission responded in the affirmative.107

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Similarly, Communication 102/93, para. 46: government statements ‘accord with the complainant’s argument that the question of the election can no longer be the subject of meaningful negotiation’. Communications 54/91, 61/91, 98/93, 164/97 and 210/98. Communication 40/90, para. 61.

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The Commission gave no indication of what methods and approach it employed to arrive at this conclusion. The proviso at the end of the decision, that it mandated one of its Commissioners to ‘pursue his good offices with the Egyptian Government with a view to obtaining clemency for Mr Njoku on purely humanitarian grounds’, suggests a certain amount of sympathy with the complainant’s cause. Its finding implies that it did not wish to risk any non-co-operative action from the Government by finding a violation, but instead pursued this ‘amicable resolution’ approach and left the case, in effect, open to its scrutiny behind the scenes. The same approach has been taken in reports of the Commission’s protective visits. In relation to the visit to Mauritania, the Commission was asked to consider allegations of slavery that were disputed by the Government, stating that ‘to hold, like “SOS-Slavery”, that slavery remains a living reality which touches 60 per cent of the population of Mauritania is not credible. One can only admit to the existence of several rare cases in the remote countryside isolated from the competent authorities.’108 It was willing to conclude, however, that there were ‘vestiges of slavery’,109 that measures already taken by the Government should be ‘amplified and deepened’,110 and that ‘in sum, the promotion of women’s rights is deficient in the country and merits particular attention’.111 It did not, however, find any violations of the Charter in the context of its mission report. In contrast, however, there are several cases where the Commission has been more robust. As seen above, there has been some suggestion from the Commission that, once the State contradicts the complainant, it bears the burden of proof. So in one case against Zambia, the Government ‘disputes the characterisation of the expulsions as “en masse” by arguing that the deportees were arrested over a two-month period of time, at different places, and served with deportation orders on different dates . . . Zambia, however, cannot prove that the deportees were given the opportunity to seek appeal against the decision on their deportation’.112 A way of explaining these different approaches may rest on the amount of co-operation that is available from the State. The African Commission has stated that the African Charter contains a duty on the State to co-operate with it. Where there were allegations of mass expulsion of West African nationals from Angola, the African Commission stated that 108 109 111

There is no indication the Commission visited such areas: see Report of the Mission to Mauritania. 110 Ibid., p. 20. Report of the Mission to Mauritania. 112 Ibid., p. 22. Communication 71/92, para. 27.

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Article 57113 of the Charter ‘implicitly indicates that the State Party to the said Charter against which the allegation of human rights violations is levelled is required to consider them in good faith and to furnish the Commission with all information at its disposal to enable the latter to come to an equitable decision’.114 It found in this case that ‘in view of the defendant State’s refusal to co-operate with the Commission, the latter can only give more weight to the accusations made by the complainants and this on the basis of the evidence furnished by them’.115 Conversely, where the State has failed to co-operate or take the allegations seriously, the Commission has been more willing to rely on the complainant’s evidence. It could, therefore, perhaps be implied that the burden on the complainant is lessened if the State does not co-operate with the Commission. As has been suggested in relation to the UN’s Human Rights Committee: As for the obligations on the State Party [to supply evidence] it is unfortunate that the Human Rights Committee’s approach can for the most part only be gleaned from cases in which the State Party concerned has generally proved uncooperative. Therefore . . . many of the Human Rights Committee’s views effectively take the form of a judgment by default and . . . decisions against States which do not co-operate have been a ‘one-sided affair’.116

Where the State does co-operate, however, the more the burden will be placed on the applicant to prove the allegations, for example by ‘substantiating’ them. In Communication 205/97,117 the Commission initially held that where allegations of torture and inhuman treatment were not ‘substantiated’, ‘in the absence of specific information on the nature of the acts complained of, the Commission is unable to find a violation’.118 However, having considered that the Government failed to respond to any request for its reaction, it ‘must take the facts as given’ and it therefore found a violation of Article 5.119 Similarly, in Communications 147/95 and 149/96, the Commission noted that the ‘burden of proof is on the complainant to furnish the Commission with evidence of his allegations’ and that ‘concrete proof’ was required.120 It was unwilling to find violations of Articles 4 and 5. 113 114 116 117 118

This reads: ‘Prior to any substantive consideration, all communications shall be brought to the knowledge of the State concerned by the Chairman of the Commission.’ 115 Communication 159/96. Ibid. McGoldrick, The Human Rights Committee, p. 59. Communication 205/97, Kazeem Aminu v. Nigeria, Thirteenth Activity Report 1999– 2000, Annex V. 119 120 Ibid., para. 16. Ibid., paras. 24–6. Ibid., paras. 53 and 56.

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One should be wary of coming to any firm conclusions, on this basis, about the approach of the Commission, given the lack of detail provided by the cases. Thus, in Communication 71/92, the Government contested the allegations that deportees were arrested and assembled in order to be expelled, arguing it was done in order to verify their nationality and give them time to contact their lawyers. The Commission held in favour of the complainants but without a clear indication of how it arrived at this conclusion. Similarly, in Communication 103/93, where there was a dispute over whether escaped prisoners returning to Ghana would face arrest and imprisonment, the Commission held ‘the facts provided are insufficient to find that the complainant’s right to return to his country has been violated’, with no further reasoning.

Standard of proof While the applicant has to provide a prima facie case for the purposes of admissibility, it is not clear if this is all that is required for the Commission to find a case on the merits in his or her favour. What constitutes a prima facie case is not clear, although the Commission has said that an ‘allegation in a general manner is not enough’,121 and: the communication should invoke the provisions of the African Charter alleged to have been violated and/or principles enshrined in the OAU Charter. A communication which does not indicate a prima facie violation of the Banjul Charter or some of the basic principles of the OAU Charter such as ‘freedom, equality, justice and dignity’, will not be examined.122

Cases have been held inadmissible on this basis for failing to state the violations suffered,123 for being ‘vague’124 or ‘incoherent’,125 and for failing to provide a certain degree of specificity.126 In one case, a report was submitted relating to violations in a number of countries. The Commission held that it did not give specific places, dates and times of alleged 121

122 123 124 125 126

See Communication 57/91, Tanko Bariga v. Nigeria, Seventh Activity Report 1993–1994, Annex IX; Communication 1/88, Frederick Korvah v. Liberia, Seventh Activity Report 1993–1994, Annex IX, p. 8; and Communication 63/92, Congress for the Second Republic of Malawi v. Malawi, Seventh Activity Report 1993–1994, Annex IX. ACHPR, Information Sheet No. 3, p. 8. Communication 13/88, Hadjali Mohamad v. Algeria, Seventh Activity Report 1993–1994, Annex IX. Communication 35/89, Seyoum Ayele v. Togo, Seventh Activity Report 1993–1994, Annex IX. Communication 57/91; Communication 142/94, Muthuthirin Njoka v. Kenya, Eighth Activity Report 1994–1995, Annex VI. Communication 65/92.

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incidents sufficient to permit the Commission to intervene or investigate. In some cases, incidents are cited without giving the names of the aggrieved parties.127 Beyond this prima facie hurdle, if the government provides a response to the allegations, and therefore the burden shifts back to the complainant to prove the case,128 there are a number of different standards of proof that could be applied. These have included, for example, that allegations be ‘valid and logical’,129 that there is ‘concrete’130 or ‘compelling’131 evidence, that there is evidence ‘from all appearances’,132 or that the facts are ‘pertinent’,133 or, even further, that the position must be accepted ‘in its entirety’.134 In one case, the African Commission referred to several different standards: ‘elements likely to reasonably lead to such a conclusion’,135 as well as ‘to clearly establish’ a violation,136 and a ‘clear and precise understanding of the case before it’. The communication was declared admissible, implying that the evidence did amount to at least a prima facie case. However, in its consideration of the merits, the Commission found no violations. Although this may suggest that something more is required than a prima facie case, this is not a clear-cut conclusion, as there were facts in the case that did not appear to have been dealt with by the Commission, such as allegations relating to Article 20(1), which, on the face of the information provided in the decision, were not contested. The outcome of the case may, therefore, have more to do with the fact that the parties did not co-operate with the Commission in its request for information and its unwillingness to deal with the case further as a result: the Commission deplores the silence maintained by the parties in spite of its repeated request for information relating to the exhaustion of local remedies and other procedural aspects of the case. It is of the view that such lack of co-operation does not help the Commission to have a clear and precise understanding of the case before it.137 127 128 129

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131 133 135

Communications 104/93 and 109–126/94, Centre for Independence of Judges and Lawyers v. Algeria and others, Eighth Activity Report 1994–1995, Annex VI. See above. Communication 44/90, Peoples’ Democratic Organisation for Independence and Socialism v. The Gambia, Tenth Activity Report 1996–1997, Annex X, para. 16, although this term was one initially employed by the Government. Communication 75/92, Katangese Peoples’ Congress v. Zaire, Eighth Activity Report 1994– 1995, Annex VI; Communication 198/97, SOS-Esclaves v. Mauritania, Twelfth Activity Report 1998–1999, Annex V. 132 Communication 212/98, para. 37. Communication 198/97, para. 15. 134 Report of the Mission of Good Offices to Senegal, p. 13. Ibid. 136 137 Communication 144/95. Ibid. Ibid.

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What this variety of approaches indicates is that the African Commission may adopt a number of different standards. The Inter-American bodies have referred to standards of ‘convincing proof’,138 a ‘tend[ency] to show’,139 or even ‘absolute certainty’.140 The European Court of Human Rights has required a higher standard of ‘beyond reasonable doubt’ in some inter-State cases,141 and the UN Human Rights Committee ‘has not made any general comment on the matter of the standard of proof other than that of a prima facie requirement at the admissibility stage . . . However, the general approach of the [Committee] would suggest that it is applying something approximating to proof on a “balance of probabilities” rather than a “beyond reasonable doubt” standard.’142 A variation in standard could be explained by the differing circumstances of the particular case. The International Court of Justice, for example, has suggested that the more serious the allegations, the higher the ‘degree of certainty’ required, and thus the more the facts will be considered.143 Similarly, in relation to disappearances, before the InterAmerican organs, if there is ‘sufficient evidence that the arrest was carried out by State agents acting within the general framework of an official policy of disappearances, it shall be presumed that the victim’s disappearance was brought about by acts of . . . State agents, unless that State gives proof to the contrary’.144 In this respect, one could discern a particular standard from the wording of Article 58 of the African Charter relating to serious or massive violations.145 This suggests the appropriate standard is as implied by the terms ‘when it appears’, after the Commission 138 139 140 141 142

143 144

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Vel`asquez Rodr´ıguez, para. 10, noting Resolution 22/86 of the Commission, 18 April 1986. God´ınez Cruz, para. 125. God´ınez Cruz, para. 11, but also that it was ‘impossible to identify the persons allegedly responsible’. Denmark, Norway, Sweden and The Netherlands v. Greece, Yearbook of the Convention (1969) 196, para. 30. McGoldrick, The Human Rights Committee, p. 150. Before international criminal tribunals, where one would expect the standard to be higher given the criminal nature of the procedure, the standard of proof applied was that of beyond reasonable doubt: Internation Court Tribunal for the Former Yugoslavia, Furundzija Case, para. 120. Corfu Channel Case. Report 52/99, Case 10.544, Ra´ul Zevallos Loayza, V´ıctor Padilla Lujan and Nazario Taype Huamani; Case 10.745, Modesto Huamani Cosigna; Case 11.098, Rub´en Aparicio Villaneuva v. Peru, 13 April 1999, Annual Report of the Inter-American Commission on Human Rights 1998, OEA/Ser.L/V/II/102, Doc. 6 rev., 16 April 1999, para. 64. No other indication is given in the African Charter of how communications that do not amount to serious or massive violations should be assessed.

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has deliberated, that one or more communications ‘apparently relate to special cases which reveal the existence of a series of serious or massive violations’.146 The Inter-American Court has suggested that the standard may vary depending on the right being violated, noting the ‘special seriousness’ of finding a State liable for a practice of violations, which ‘requires the Court to apply a standard of proof which considers the seriousness of the charge and which, notwithstanding what has already been said, is capable of establishing the truth of the allegation in a convincing manner’.147 There is, however, no similar pattern in the case law of the African Commission. Its comment that ‘the responsibility of the government is heightened in cases where the individual is in its custody and therefore someone whose integrity and well-being is completely dependent on the activities of the authorities’148 could suggest that such situations may affect the standard of proof. As the European Commission on Human Rights held: ‘taking into account the applicant’s particular vulnerability while he was unlawfully held in police custody, the Commission declared itself fully satisfied that he had been subjected to physical violence which amounted to inhuman and degrading treatment’.149

Admissibility and issues of weight The Commission has, as seen, faced difficulties where the alleged facts are disputed by the government. At the domestic level, weighing up the facts is usually a task for the jury, with issues of admissibility of particular types of evidence being a matter for the judge.150 Where the judicial or quasi-judicial body is acting as both decider of facts and law, as is the

146 147

148 149 150

See Communications 27/89, 46/91, 49/91 and 99/93, para. 15. See also Communications 25/89, 47/90, 56/91 and 100/93 (joined), para. 35. Inter-American Court, Fair´en Garbi and Sol´ıs Corrales, paras. 123 and 131; see also Vel`asquez Rodr´ıguez, para. 129. See also M. Shaw, International Law (Cambridge: Cambridge University Press, 1997), p. 764, citing the dissenting opinion of Judge Shahabuddeen in Qatar v. Bahrain, ICJ Reports (1995) 6, para. 63. In relation to the UN Human Rights Committee, ‘there may be some flexibility within this standard depending on the seriousness of the allegations involved’, citing Ireland v. United Kingdom; McGoldrick, The Human Rights Committee, p. 150. Communications 105/93, 128/94, 130/94 and 152/96, para. 91. Ribitsch v. Austria, Series A, No. 336, European Human Rights Reports 21 (1995) 253, para. 36. C. Tapper, Cross and Tapper on Evidence (London: Lexis Nexis, 1999).

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case with the African Commission and other international human rights bodies, the two elements may overlap.151 In cases where the facts have been considered by the national courts, the approach of the African Commission has been that it will not substitute its judgment for that of the domestic tribunal.152 The Commission has said that it is not a ‘court of fourth appeal’ from national bodies and, therefore, cannot: in any way, substitute [its view for that of] the police and judicial organs of the concerned country, nor play the role of detective, [although] it nevertheless remains that [the Commission] must evaluate the adequacy of the means of inquiry made by national organs and the credibility of the conclusions adopted by national investigative organs.153

The task of the Commission, therefore, is to examine the case in the light of human rights principles under the relevant instrument.154 The Commission itself, in examining communications, has stressed, following the approach of other international organs, that its task is to apply the standards of the instrument to the case, not to deal with issues of fact:155 After studying the arguments presented by both parties, and bearing in mind the principles of international human rights law which is basically aimed at protecting the individuals from State’s encroachment, the Commission may then make a decision . . . [A] decision on the merits is an application of the international human rights law and an interpretation of the Charter vis-`a-vis the allegations alleged by the victim. It is an examination of these allegations and all the arguments submitted by the parties within the context of the African Charter in particular and international human rights law in general.156

This accords with other international bodies that accept the findings of the national courts unless there are ‘cogent’ or there other reasons to reject 151

152 153

154 155 156

In fact, even where different entities are carrying out the functions, the dividing line between weight and admissibility is not always clear-cut: see Franck, Fairness in International Law and Institutions, p. 335: ‘the ICJ is a court of both first and last resort. As the former, it must weigh evidence, may hear witnesses, and establishes a probable factual scenario. As the latter, it weighs and refines legal principles and seeks consistency.’ Communication 40/90. Report of the Special Rapporteur on Extrajudicial Executions. In Communication 212/98, para. 32, the Commission held that it ‘was not competent to substitute the judgments of the Zambian courts, especially on matters of fact’. For example, Communications 105/93, 128/94, 130/94 and 152/96. See, for example, Nicaragua Case, para. 110; Nuclear Tests Cases, paras. 466–7. ACHR, Information Sheet No. 3, pp. 12 and 15.

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them.157 The international bodies are not, however, bound by the findings of the national courts.158 Domestic law is taken as a matter of fact. Several of the other international bodies have made the distinction between the roles of their Commission as opposed to their Court, with the latter being the arbiter of the law.159 This may be a consideration for the African Commission in the future, with the coming into operation of the African Court on Human and Peoples’ Rights,160 but at present, as is the case with the UN Human Rights Committee, the African Commission must undertake both tasks. It is for the international body to decide issues of admissibility of evidence.161 Although there is no indication that the African Commission has rejected evidence, certain criteria apply. It has indicated in some cases that sources should be independent,162 that evidence be ‘well founded’163 and allegations are ‘based on unquestionable criteria’.164 In assessing the information provided by the government, a number of elements must be taken into account, including the ‘character of inquiry . . . and its objectivity . . . [and] applicable procedures, particularly those which concern the collection and evolution of elements of proof’.165 Whether some types of evidence have more value than others has been an issue in a recent case before the African Commission. While it has so far not questioned objections by one party to the other’s witnesses,166 it has considered the ‘validity’ 157 159

160 161

162 163

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158 Ribitsch v. Austria, para. 112. Ibid. See A. Trindade, ‘The Operation of the Inter-American Court of Human Rights’ in D. Harris and S. Livingstone (eds.), The Inter-American System of Human Rights (Oxford: Clarendon Press, 1998), pp. 133–51 at pp. 148–9, in relation to the Inter-American bodies. See also Akdivar v. United Kingdom, European Human Rights Reports 23 (1997) 143, para. 99; McCann and others v. UK, Series A, No. 324, Judgment of 27 September 1995, p. 50, para. 168; Ribitsch v. Austria. For discussion on the Court, see Chapter 14 below. Vel`asquez Rodr´ıguez, para. 24. The term ‘admissibility’ should not be confused with considerations under Article 56 of the African Charter. Such issues are dealt with in Chapter 3. Communication 67/91, Civil Liberties Organisation v. Nigeria, Seventh Activity Report 1993–1994, Annex IX. African Commission on Human and Peoples’ Rights, Report on Extrajudicial, Summary or Arbitrary Executions, Tenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1996–1997, Annex VI. 165 Ibid. Ibid. Regarding the International Court of Justice, see Nicaragua Case. The Inter-American Court has not permitted the argument of the Government that witnesses testifying against the Government were therefore disloyal to the State to succeed, and this was particularly the case in the context of human rights law: Inter-American Court, Fair´en Garbi and Sol´ıs Corrales, paras. 139–45, or that those witnesses who were related to the victims had

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or authenticity of documents.167 In Communications 147/95 and 149/96, the Commission considered allegations of extrajudicial executions. In relation to the post-mortem reports submitted by the Government the Commission held that: it is not for the Commission to verify the authenticity of the post-mortem reports or the truth of the government’s defence. The burden is on the complainant to furnish the Commission with evidence of his allegations. In the absence of concrete proof, the Commission cannot hold the latter to be in violation of Article 4 of the Charter.168

This would suggest that there may be a presumption of the veracity of such documents until the complainant can prove otherwise. In general, the Commission is not willing to consider the probative value of each statement, unlike the International Court of Justice, for example, which ‘is prepared to attach particular probative value to statements from high-ranking official political figures “when they acknowledge facts or conduct unfavourable to the State represented by the person making them”’.169 There is some suggestion, however, that comments by States Parties, on the other hand, may be subject to some scrutiny; for example, in Communication 209/97, Africa Legal Aid v. The Gambia, the Commission requested its Secretariat to ‘inquire as to the veracity of the statement of the State Party’.170 The Commission has, however, included the contents of delegate’s speeches, albeit positive to the State, in its decisions.171

167 168 169

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an interest in the case to justify their not being heard: Vel`asquez Rodr´ıguez, para. 111. See also Prosecutor v. Tadic, Case IT-94–1, Trial Chamber II, paras. 540–1, where the Trial Chamber rejected the argument that witnesses who are members of the conflict are unreliable. See Inter-American Court, Vel`asquez Rodr´ıguez, para. 140; and Nicaragua Case. Ibid., para. 53. See Shaw, International Law, p. 764; Nicaragua Case at 41, which further states: ‘[with regards to] affidavits and sworn statements made by members of a Government, the Court considers that it can certainly retain such parts of this evidence as may be regarded as contrary to the interests or contentions of the State to which the witness has allegiance; for the rest such evidence has to be treated with great reserve’. Communication 209/97, Africa Legal Aid v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V, para. 10. In Communications 105/93, 128/94, 130/94 and 152/96, paras. 78–82, the Government raised a defence in its oral statement that ‘it is in the nature of military regimes to provide for ouster clauses’, without which the amount of litigation ‘would make it too cumbersome for the government to do what it wants to do’. The Commission rejected this and held a violation of Article 7(1) of the African Charter.

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There has not yet been a situation where the Commission has had to deal with evidence that has been improperly obtained.172 As to incapacity of parties, in Communication 65/92, Ligue Camerounaise des Droits de l’Homme v. Cameroon, the Commission was required to consider an allegation by the Government that aspects of the case submitted by Mr Vitine relating to his claims of persecution by former police colleagues should be declared inadmissible ‘because the author did not appear to be in possession of his full mental faculties’.173 The Commission did not consider this issue directly, instead finding the complaint inadmissible for failing to present a prima facie case. Similarly, in Communication 142/94, Muthuthirin Njoka v. Kenya,174 the allegations related to the illegal admission of the individual to a mental hospital, torture, imprisonment of his sons and family and confiscation of property. The Commission declared the complaint to be ‘incoherent’, ‘vague’ and inadmissible, noting that ‘the author alleges . . . that his suits have been pending in court for nine years. One was against Kenya claiming the sum of 7.5 billion Kenyan shillings for the wrongful implementation of colonial statutes and . . . for wrongfully passing those legislations’ and there was correspondence to the World Health Organization seeking the definition of mental capacity, and to the OAU requesting that ‘sentences imposed on my sons’ be quashed and they be released. There has been some indication by the African Commission that circumstantial evidence may not be accepted. In Communication 144/95, it held that: the information relating to the arrest of another opposition leader contained in the complainant’s submission is rather circumstantial and does not enable the Commission to clearly establish that Mr Moto was arrested because of his political opposition to the government of the day. The information does not also indicate how Mr Moto allegedly tried to express his political opinions or set up associations with other persons. In view of the foregoing, the Commission is of the view that the violation of the abovementioned provisions of the Charter has not been established.175 172

173 174 175

See, for example, before other international bodies: Corfu Channel Case, paras. 32–6. Note also Rule 95 of the Rules of Procedure and Evidence of the Yugoslavia Tribunal: ‘No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or its admission is antithetical to, and would seriously damage, the integrity of the proceedings.’ Ibid. These aspects were then submitted as a separate case: Communication 106/93, Amuh Joseph Vitine v. Cameroon, Seventh Activity Report 1993–1994, Annex IX. Communication 142/94, previously Communication 56/91. Communication 144/95.

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This is contrary to the approach of other regional bodies where different types of evidence may be more appropriate for different allegations, and that circumstantial evidence may thus be admissible in some situations, ‘so long as they lead to conclusions consistent with the facts’.176 So, for example, when there are disappearances and ‘an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim’,177 or ‘when human rights violations imply the use of State power for the destruction of direct evidence’, it would admit circumstantial evidence, as this may ‘be the only means available’.178 The African Commission has said nothing expressly about hearsay.179

Aims of the communication procedure One could argue that the approach of the Commission to analysing the information provided to it in communications is ad hoc and incoherent. It is possible, however, that its approach can be better understood by considering the aims of the communication procedure as a whole. To determine the aim of the communication procedure is central to an assessment of how international bodies deal with evidence: the decision-makers should ideally determine the purposes for the information and the forum in which it is to be used (e.g. criminal trial vs. investigatory commission) before investigators are given the task of developing evidence.180

Despite the fact that the African Commission is not a prosecutorial body, and therefore ‘less stringent evidentiary rules and requirements of these processes inevitably render the evidence gathering task somewhat easier’,181 the: credibility and success will still depend on careful and prudent investigatory techniques. The major challenge in evidence-gathering for nonprosecutorial processes is to ensure that investigators carry it out with sufficient regard for the possibility of subsequent prosecutions, so that their activities do not taint important evidence and jeopardise the success of those prosecutions.182 176

177 179 180 181

Vel`asquez Rodr´ıguez, paras. 130–1. See also Inter-American Court, Fair´en Garbi and Sol´ıs Corrales, para. 133. See also Inter-American Commission, Report 2/06, Miguel Orlando Muˇnos Guzm´an v. Mexico, 28 February 2006, paras. 22–28. 178 Ibid. God´ınez Cruz, para. 155. See Decision on Defence Motion on Hearsay by International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadic, Case IT-94–1, Trial Chamber II, 5 August 1996. Ratner and Abrams, Accounting for Human Rights Atrocities, p. 218. 182 Ibid., p. 220. Ibid.

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At times, the Commission has had difficulty with defining the aim of its communication procedure. It has said that its ‘main goal . . . is to initiate a positive dialogue, resulting in an amicable resolution between the complainant and the State concerned, which remedies the prejudice complained of’,183 and it is clear that neither the Commission nor other international human rights procedures intend to find the ‘guilt’ of the State as such.184 There is, however, a tension between the finding of a violation and the provision of a remedy to the victim on the one hand, and the need to maintain a dialogue with the State on the other. There has been only one occasion where the Commission has said that, ‘given that the process of arriving at an amicable resolution can take a substantial period of time, the Commission believes it is important to make a statement on the question of law raised by the communication’, going on to find violations of the African Charter.185 Other jurisprudence of the Commission implies an either/or approach, for example with the outcome of the communication being an ‘amicable resolution’ in which no decision is made as to whether any Articles of the African Charter were actually violated.186 Whether the case is declared to be amicably resolved may be academic, but it has practical implications. There is some indication that the ability of, in particular, the investigative missions to collect and use information has been sacrificed by a desire not to upset the State. The stated aims of the missions have been ‘fact-finding . . . in order to try and settle matters amicably’,187 ‘to bring an end to the situation’188 and ‘not to decide whether what was encountered was wrong or right, but above all, to listen to all sides with the objective of bringing clarification to the Commission in its contribution to the search for an equitable solution through dialogue’.189 However, while the missions were undertaken in response to communications, most of the mission reports found violations of the African Charter, 183

184 185 186 187 188

E.g., Communications 25/89, 47/90, 56/91 and 100/93 (joined), para. 39. See also ACHPR, Information Sheet No. 3, p. 13: ‘once a communication has been declared admissible, the Commission puts itself at the disposal of the parties in a bid to secure a friendly settlement of the dispute. The Commission offers its good offices for friendly settlement at any stage of the proceedings.’ Inter-American Court, Fair´en Garbi and Sol´ıs Corrales, paras. 135–6. See also Ribitsch v. Austria, para. 111. Communication 71/92, para. 18. See Communication 40/90, discussed fully above. African Commission on Human and Peoples’ Rights, Mauritius Plan of Action 1996– 2001, April 1999, para. 38. 189 Report of the Mission to Mauritania, p. 4. Ibid., p. 6.

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leaving the cases to be settled, if at all, when the communications were decided years later.190 Furthermore, in the subsequent decisions, as has been seen, the Commission was careful to state that the mission was not part of the communication procedure.191 In some cases, the Commission has been more careful in ensuring that an amicable resolution is satisfactory to both parties. In Communication 133/94,192 the Commission noted that ‘for its part, the respondent State transmitted to the Commission documents strongly suggesting that arrangements made to obtain a lasting settlement of the demands of the victims of the violations blamed on the armed forces had been established and consequently calls on the Commission to declare the case inadmissible’.193 The Commission met with the complainant and clarified that a settlement had been reached. Similarly, in the cases against Mauritania, although the Government had admitted that there had been violations, the Government claimed that it had resolved many issues, and others were in the process of being settled. The Commission held that: though the . . . declaration by the government representative could have constituted a basis for an amicable settlement, such a solution could only take place with the agreement of both parties. However, at least one of the complainants has clearly indicated that a resolution can only be reached on the basis of some specific conditions, of which none has so far been met to its satisfaction. While it appreciates the government’s good will . . . the Commission has an obligation to adjudge on the clearly stated facts contained in the various communications.194

One might expect that an amicable resolution would require less stringent consideration of the evidence provided than a finding of a violation of the African Charter. The impression is that, certainly in the earlier cases, an amicable resolution was an easy solution to a situation where there were difficulties with the evidence. It is therefore essential that the Commission is clear about the reasons for collecting information, its relationship to communications and the eventual outcome of these communications. 190 191 192 193 194

For a detailed analysis of the missions, see Murray, ‘On-Site Visits’. See above. Communication 133/94, Association pour la D´efense des Droits de l’Homme et des Libert´es v. Djibouti, Thirteenth Activity Report 1999–2000, Annex V. Ibid., para. 16. Communications 54/91, 61/91, 98/93, 164/97 and 210/98, para. 89.

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Conclusion One should be wary of applying the criticisms, such as the lack of formality, often directed at the African Commission, in an area such as this where flexibility is a feature of international mechanisms. It is arguable that a greater degree of discretion should be permitted to individuals in their submission of communications, on the basis that they are carrying out a function that has wider implications than just the outcome of their particular case, and where they could be seen as agents of the public interest.195 The African Commission does now take its role more seriously in its consideration of communications. However, in cases where there is conflicting evidence, there is still considerable suspicion that the Commission’s willingness to find violations, or otherwise, depends more on the co-operation of the State than on the human rights issues at stake. While its attempts to ensure its good relationship with States are essential to the success of the communication procedure, the Commission must ensure that it deals with the allegations adequately. This can be achieved through, for example, more detailed reasoning and a willingness to be open to examining the facts on which the allegations are made. To do so is necessary if it is to maintain its credibility and thereby avoid the appearance that it is bowing to government pressure. 195

J. Kokott, The Burden of Proof, p. 210, and the reference therein.

5 Civil and Political Rights in the African Charter on Human and Peoples’ Rights: Articles 1–7 bronwen manby

The bulk of the African Commission’s jurisprudence relates to Articles 1 to 7 of the African Charter on Human and Peoples’ Rights (ACHPR), the core civil and political rights that have longest-standing recognition in international and domestic jurisprudence around the world. This chapter considers the decisions relating to the general obligations of Member States to recognise and give effect to the rights in the African Charter, to non-discrimination and equal protection of the law, to life, to dignity, to liberty and to a fair trial. It concludes by briefly considering the record of the Commission and the African Union (AU) in monitoring and enforcing implementation of these decisions.

State obligations Article 1: The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them. Article 2: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter. . . . Article 25: States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood. Article 27: . . . (2) The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.1 1

Taken from the African Charter.

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The general obligations that the African Charter places on States are to recognise the rights contained in the Charter, to take measures to give effect to them and to promote the respect of the rights by other people. The provisions of Articles 1, 2 and 25 in relation to State obligations broadly mirror those of other international human rights documents; in some respects the language is weaker, but the Commission has found no difference in practice from the obligations imposed by, for example, the International Covenant on Civil and Political Rights (ICCPR).2 Though not explicitly described in the African Charter using the four-part formulation usually employed by academics – respect, protect, promote, fulfil – the Commission’s jurisprudence and other statements have generally confirmed that States are obliged to forbear from interfering in the enjoyment of rights themselves (respect); to ensure that others also respect them (protect); to educate people about their rights (promote); and to take positive measures to achieve full realisation of rights (fulfil).3 The Commission has also endorsed the standard international law principle that a new government inherits the previous government’s international obligations in relation to human rights violations.4 One of the Commission’s earliest resolutions, adopted in 1989, recommended that African States incorporate the provisions of the African Charter into their constitutions and national laws;5 this call was repeated in the two African ministerial conferences on human rights held in Mauritius in 1999 and Rwanda in 2003.6 In fact, at the most basic level of legal recognition of the African Charter’s provisions, most African countries have bills of rights that provide similar guarantees to those in the African Charter. In many, the African Charter forms an integral part of domestic law. The francophone and lusophone countries follow the civil law monist interpretation of international law obligations, by which duly 2

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The ICCPR provides for States to ‘respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant’ (Article 2(1)), rather than simply to ‘recognise’ those rights, as in the ACHPR. In Communication 155/96, The Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria, Fifteenth Activity Report 2001–2002, Annex V, the Commission explicitly employed this four-fold analysis of States’ responsibilities. Communications 64/92, 68/92 and 78/92, Krischna Achuthan, Amnesty International, Amnesty International v. Malawi, Seventh Activity Report 1993–1994, Annex IX; Eighth Activity Report 1994–1995, Annex VI, para. 12; Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistence Project v. Nigeria, Fourteenth Activity Report 1999–2000, Annex V. Resolution on the Integration of the Provisions of the African Charter on Human and Peoples’ Rights into National Laws of States, fifth Ordinary Session, Benghazi, Libya, 1989. Grand Baie (Mauritius) Declaration and Plan of Action, April 1999, para. 14; Kigali Declaration, May 2003, para. 25.

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ratified treaties automatically have domestic effect. In addition, several of these countries refer to the African Charter in their constitutions.7 Most anglophone countries follow the common law dualist system, by which specific legislation is required to incorporate international treaties into domestic law, and the African Charter has generally a lower status, though many constitutions refer to international obligations and jurisprudence as of persuasive effect.8 In some, including Nigeria, legislation has been adopted to incorporate the African Charter into national law, though even in Nigeria the Supreme Court has ruled that the provisions of the African Charter cannot override those of the Constitution.9 The Namibian Constitution, exceptionally, provides that ‘the general rules of public international law and international agreements binding on Namibia shall form part of the law of Namibia’.10 Nevertheless, a number of African constitutions include provisions that are not in conformity with the African Charter. For example, the Ugandan Constitution provides for extended pre-trial detention for serious offences; the Nigerian Constitution continues, under a civilian government, to exclude court examination of several laws; and several African constitutions exempt customary law from constitutional nondiscrimination provisions.11 7

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For example, the Preamble to the 1990 Benin Constitution states that the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights ‘make up an integral part of this present Constitution and of Beninese law and have a value superior to domestic law’. For example, the South African Constitution provides in Article 233 that: ‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’ The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983, adopted by the civilian government in office between 1979 and 1983, incorporated the African Charter into national laws. However, in the famous case of Abacha and others v. Fawehinmi, African Human Rights Law Reports (2001) 172 (NgSC 2000), heard under military rule, the Nigerian Supreme Court overruled the Court of Appeal to find that the African Charter could not be superior to the constitution, but had status as just another piece of national legislation. See A. A. Oba, ‘The African Charter on Human and Peoples’ Rights and Ouster Clauses under the Military Regimes in Nigeria: Before and After September 11’, African Human Rights Law Journal (4)2 (2004) 275–302. Article 144 of the Namibian Constitution. Article 23(6)(c) of the Constitution of the Republic of Uganda 1995 provides that for more serious offences a person may be held in pre-trial detention for 360 days before the case is committed to the High Court; Article 315(5) of the Constitution of the Federal Republic of Nigeria 1999 provides that: ‘Nothing in this Constitution shall invalidate’ a set of four enactments, including most controversially the National Security Agencies Act and the Land Use Act, which are therefore removed beyond the consideration of the Nigerian courts under the Bill of Rights. See also, A. An-Na’im (ed.), Human Rights under African

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The Commission has elaborated, not always consistently, on States’ general responsibilities in its jurisprudence. In Jawara v. The Gambia, the Commission considered the suspension of The Gambian Bill of Rights following a coup d’´etat, and noted that ‘a violation of any provision of the Charter automatically means a violation of Article 1. If a state party to the Charter fails to recognise the provisions of the same, there is no doubt that it is in violation of this article.’12 Although it has not specifically noted a violation of Article 1 in every subsequent case when it has found on behalf of the complainant (as would be logical), the Commission has found a violation of Article 1 in diverse cases involving the overruling of elections,13 the existence of emergency laws14 and the failure to implement an earlier decision of the Commission.15 In a case against Burundi concerning the death penalty, the Commission ‘recall[ed] the fundamental principle enshrined in Article 1 of the Charter, that not only do the state parties recognise the rights, obligations and freedoms proclaimed in the Charter, they also commit themselves to respect them and take measures to give effect to them’.16 This expansive interpretation of Article 1 seems to have changed, under the influence of the jurisprudence of the European Court of Human Rights. In a case against Botswana, in which the Commission found for the State, it applied a narrower interpretation, by which ‘[t]he only instance that a State Party can be said to have violated Article 1 is where the State does not enact the necessary legislative enactment’ to give effect to the African Charter.17 Following this line in a more recent case

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Constitutions: Realising the Promise for Ourselves (Pennsylvania: University of Pennsylvania Press, 2003); F. Viljoen, ‘Application of the African Charter on Human and Peoples’ Rights by Domestic Courts in Africa’, Journal of African Law 43(1) (1999) 1–17. Communications 147/95 and 149/96, Sir Dawda K. Jawara v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V, para. 46. Communication 102/93, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998–1999, Annex V. Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International, Comit´e Loosli Bachelard; Lawyers’ Committee for Human Rights; Association of Members of the Episcopal Conference of East Africa v. Sudan, Thirteenth Activity Report 1999–2000, Addendum. Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998–1999, Annex V. Communication 231/99, Avocats sans Fronti`eres (on behalf of Ga¨etan Bwampamye) v. Burundi, Fourteenth Activity Report 2000–2001, Annex V; see also Communication 211/98, Legal Resources Foundation v. Zambia, Fourteenth Activity Report 2000–2001, Annex V. Communication 240/2001, Interights et al (on behalf of Mariette Sonjaleen Bosch) v. Botswana, Seventeenth Activity Report 2003–2004, para. 51, citing the case of Young, James and Webster v. UK, European Court of Human Rights 4 [1981] (13 August 1981).

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against Swaziland – relating to a royal proclamation dating from 1973 that repealed the 1968 Constitution (including its Bill of Rights) and declared that the king had assumed all legislative, executive and judicial power – the Commission stated that ‘by ratifying the Charter without at the same time taking appropriate measures to bring domestic laws into conformity with it, the respondent State’s action defeated the very object and spirit of the Charter and thus violating Article 1 thereof’.18 Early on in its jurisprudence, the Commission explicitly affirmed the State’s duty to protect citizens from violations: ‘[i]f a state neglects to ensure the rights in the African Charter, this can constitute a violation, even if the state or its agents are not the immediate cause of the violation’.19 More recently, in the heavily contested Communication 245/2002 brought against Zimbabwe and decided by the Commission in 2006 at its 39th Ordinary Session,20 the Commission engaged in a lengthy debate of the definition of non-State actors (in connection with the role of the Zimbabwe Liberation War Veterans Association) and the extent of the State’s responsibility for their acts. It reaffirmed, with reference to the Inter-American Court’s judgment in the Vel´asquez Rodr´ıguez case,21 that States must ‘prevent, investigate and punish acts which impair any of the rights recognised under international human rights law’,22 but found on the facts both that the War Veterans were a non-State actor and that the State had taken adequate measures to deal with the alleged human rights violations.23 In general, no doubt due to the Zimbabwean Government’s campaign against its work, the Commission applied much-higher-than-usual standards of evidence to its findings of fact in the case (and found no violation of Articles 2, 3, 4 or 5). The Commission, however, did find that a ‘clemency order’ that prevented prosecution and set free perpetrators of ‘politically motivated crimes’ with the exception 18 19 20

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Communication 251/02, Lawyers for Human Rights v. Swaziland, Eighteenth Activity Report 2005, para. 51. Communication, 74/92, Commission Nationale des Droits de l’Homme et des Libert´es v. Chad, Ninth Activity Report 1995–1996, Annex VIII, para. 20. Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Twentyfirst Activity Report 2007, Annex III. The decision on the communication was included in the Commission’s 20th Activity Report as presented to the Executive Council of Ministers meeting at the AU summit in Banjul in July 2006, but was excluded from the version adopted by the Executive Council and Assembly of Heads of State and Government. The decision was eventually adopted at the January 2007 summit in Addis Ababa, in the Twenty-first Activity Report, with the comments of the Zimbabwe Government annexed: see further below, on implementation and enforcement of the Commission’s decisions. Vel´asquez Rodr´ıguez v. Honduras, Series C, No. 4, Human Rights Law Journal 9 (1988) 212. 23 Communication 245/2002, para. 146. Ibid., para. 164.

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of murder, robbery, rape, and some others, was in violation of Article 1 (as well as Article 7(1)).24 The decision reaffirmed a statement in a much earlier case against Mauritania, that ‘an amnesty law adopted with the aim of nullifying suits or other actions seeking redress that may be filed by the victims or their beneficiaries . . . cannot shield that country from fulfilling its international obligations under the Charter’.25 The African Charter has no general derogation clause,26 unlike the ICCPR, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights, and the Commission has confirmed that States cannot derogate from the African Charter in any circumstances, including during a state of emergency or civil war.27 The Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa adopted by the Commission in 2003 also include a comprehensive non-derogation clause: ‘No circumstances whatsoever, whether a threat of war, a state of international or internal armed conflict, internal political instability or any other public emergency, may be invoked to justify derogations from the right to a fair trial.’28 The Commission has confirmed this position in its jurisprudence.29 (By contrast, for example, only some elements of the right to a fair trial are non-derogable under the American and European conventions on human rights or the ICCPR.30 ) Thus, the Commission found in cases against Nigeria that ‘the only legitimate reasons for limitations to the rights and freedoms of the African 24 25

26 27 28 29 30

Ibid., paras. 208 and 211. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, Malawi African Association; Amnesty International; Ms Sarr Diop; Union Interafricaine des Droits de l’Homme and RADDHO; Collectif des Veuves et Ayants-Droits; Association Mauritanienne des Droits de l’Homme v. Mauritania, Thirteenth Activity Report 1999–2000, Addendum, para. 83. In 2006, the Commission ruled a case inadmissible for non-exhaustion of domestic remedies against Senegal, relating to the amnesty law known as the Loi Ezzan. Communication 304/2005, FIDH, National Human Rights Organisation (ONDH), and Rencontre Africaine pour la D´efense des Droits de l’Homme (RADDHO) v. Senegal, Twenty-first Activity Report 2007, Annex II. Some Articles of the Charter have internal ‘clawback’ provisions contained within them; there are no such internal limitations in Articles 1 to 7. Communications 48/90, 50/91, 52/91 and 89/93; Communication 74/92; Communications 147/95 and 149/96. Guidelines and Principles on the Right to Fair Trial and Legal Assistance in Africa, Section R. Communication 218/98, para. 27. See M. A. Baderin, ‘Recent Developments in the African Regional Human Rights System’, Human Rights Law Review 5(1) (2005) 117–49, p. 127–8.

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Charter are found in Article 27(2)’,31 a general limitation clause providing for all rights in the African Charter to be exercised ‘with due regard to the rights of others, collective security, morality and common interest’. The Commission has interpreted this clause to place the onus on the State to provide the justification for limiting rights: once the complainant has shown a prima facie violation, the government then has to show that a limitation on that right is acceptable. ‘The reasons for possible limitation must be founded in legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained. Even more important, a limitation may never have as a consequence that the right becomes illusory.’32 Accordingly, restrictions on freedom of expression to prevent criticism of the government were not legitimate. ‘Governments should avoid restricting rights, and take special care with regard to those rights protected by constitutional or international human rights law. No situation justifies the wholesale violation of human rights. In fact, general restrictions on rights diminish public confidence in the rule of law and are often counterproductive.’33

Non-discrimination and equal protection Article 2: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. Article 3: (1) Every individual shall be equal before the law. (2) Every individual shall be entitled to equal protection of the law. Article 18: . . . (3) The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. (4) The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.34 31

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Communications 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V, para. 68. 33 Ibid., paras. 69–70. Communication 102/93, para. 58. The wording ‘in keeping with their physical or moral needs’, odd in English, appears to come from the French; a better translation of the French meaning would be ‘physical or mental needs’.

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the african charter on human and peoples’ rights Article 28: Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.35

The African Charter’s provision on non-discrimination (Article 2) mirrors the ICCPR word-for-word, except for the addition of ‘ethnic group’ to the listed grounds on which discrimination is forbidden, and the substitution of ‘fortune’ for ‘property’. (No cases have been brought to cause the Commission to consider the implications, if any, of the latter change in wording.) Article 2 is also supplemented by Article 18 (relating to the family as ‘the natural unit and basis of society’), which requires the State to ‘eliminate’ discrimination against women, and also for the ‘aged and the disabled’ to have the right to ‘special measures of protection’.36 Article 3, meanwhile, provides for a general right to equal treatment in law; differing in this respect from the ICCPR and the European Convention, for example, which only provide for non-discrimination in relation to the rights set out in the treaty.37 There is little explicit jurisprudence on Article 3, since most cases where it might be relevant have been brought and decided in relation to the provisions of Articles 2 or 7.38 However, in a case decided in 2006, the Commission explicitly used the wider application of Article 3 to find that the failure of the Minister of Finance of the Republic of Congo to honour a national court judgment was a violation of Article 3, but not Article 2.39 The Commission has explicitly affirmed that non-discrimination applies equally in relation to economic and social rights as to civil and political rights. So, for example, a Declaration on Economic and Social Rights adopted by a seminar in Pretoria in September 2004, and endorsed by a resolution of the Commission at its 36th Ordinary Session, states 35 36

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Taken from the African Charter. The African Charter, unlike the South African Constitution for example, only provides for two groups to benefit from measures of affirmative action; the Commission has not had the opportunity to consider any further argument on this point. In its General Comment 18, however, the Human Rights Committee has stated that the non-discrimination provisions provide not only in relation to the rights listed in the ICCPR. Cases where a violation of Article 3 has been found include Communication 97/93, John K. Modise v. Botswana, Seventh Activity Report 1993–1994, Annex IX; Tenth Activity Report 1996–1997, Annex X; Fourteenth Activity Report 2000–2001, Annex V, in relation to the denial of citizenship; Communication 224/98, Media Rights Agenda v. Nigeria, Fourteenth Activity Report 2000–2001, Annex V, relating to arbitrary detention; and Communication 211/98, on the right to run for office. Communication 253/2002, Antoine Bissangou v. Republic of Congo, Twenty-first Activity Report 2007, Annex II, paras. 68–72.

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that: ‘non-discrimination and equal treatment are the key components of economic social and cultural rights, since vulnerable and marginal groups including refugees and internally displaced persons are disproportionately affected by a failure of the state to respect, protect and fulfil these rights.’40

Race, ethnic group, colour, language, national origin Most communications brought to the Commission complaining of discrimination and lack of equal treatment relate, broadly speaking, to race and ethnic group. In the most egregious of several cases brought against Mauritania on these grounds, Malawi African Association and others v. Mauritania, the Commission referred to the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and noted that ‘for a country to subject its own indigenes to discriminatory treatment only because of the colour of their skin is an unacceptable discriminatory attitude and a violation of the very spirit of the African Charter and of the letter of its Article 2’.41 In another case that was denied substantive consideration for non-exhaustion of domestic remedies, the Commission also noted that the facts argued, concerning the continued existence of slavery in Mauritania, would have shown a violation of Articles 2, 3 and 5, if true.42 Similarly, in a case brought against Rwanda in 1989, relating to targeted killings of Burundian refugees and Rwandans from the Tutsi ethnic group, the Commission commented that: ‘[t]he denial of numerous rights to individuals on account of their nationality or membership of a particular ethnic group clearly violates Article 2’.43 One of the most politically charged cases heard by the Commission, the inter-State communication brought by the Democratic Republic of Congo against Burundi, Rwanda and Uganda in connection with their armed cross-border interventions in 1998 and subsequently, also led to a finding that the ‘killings, massacres, rapes, mutilations and other 40

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Resolution on Economic, Social and Cultural Rights in Africa, Thirty-sixth Ordinary Session, Dakar, ACHPR/Res.73(XXXXVI)04. (Although this resolution appears on the ACHPR website, its status is in fact unclear, since it was included in the annexes to the draft 18th Activity Report, but not in the final version adopted by the AU summit.) See also Communication 241/2001, Purohit and Moore v. The Gambia, Sixteenth Activity Report 2002–2003, Annex VII, on the right to health. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, para. 131. Communication 198/97, SOS Esclaves v. Mauritania, Twelfth Activity Report 1998–1999, Annex V. Communications 27/89, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internationale des Juristes (CIJ), Union Interafricaine des Droits de l’Homme v. Rwanda, Tenth Activity Report 1996– 1997, Annex X.

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grave human rights’ by the respondent State’s armed forces were ‘directed against the victims by virtue of their national origin’ and as such were violations of Article 2 (as well as Articles 4 and 5).44 Founding its decisions on Article 2 as well as Article 1245 , the Commission has ruled against both Angola and Zambia in cases relating to individual deportations or mass expulsions on the basis of ethnicity.46 Similarly, in 2004, the Commission adopted a decision finding the Guinean Government in violation of Article 2 (among others, including Article 12), for ‘massive violations of the rights of refugees’ that followed a speech by Guinean President Lansana Conte in which he incited soldiers and civilians to attack Sierra Leonean refugees.47 The Commission found against the Zambian Government’s notorious constitutional amendment – patently aimed at preventing former President Kenneth Kaunda from running for president again – that required anyone who wanted to contest for the office of the president to prove that both parents were Zambians by birth or descent, and ruled the provision in violation of Articles 2 and 3.48 The Commission has founded other activities on the right to nondiscrimination and equal protection, including the creation of a special rapporteur on refugees, asylum seekers and internally displaced persons in Africa,49 as well as the establishment of a working group on the rights 44 45

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Communication 227/99, Democratic Republic of Congo v. Burundi, Rwanda, Uganda, Twentieth Activity Report 2006, Annex IV, para. 80. Article 12, relating to freedom of movement and the right to seek asylum, also provides: ‘(4) A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. (5) The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.’ Communication 159/96, Union Interafricaine des Droits de l’Homme, F´ed´eration Internationale des Ligues des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au S´en´egal and Association Malienne des Droits de l’Homme v. Angola, Eleventh Activity Report 1997–1998, Annex II; Communication 71/92, Rencontre Africaine pour la D´efense des Droits de l’Homme v. Zambia, Tenth Activity Report 1996–1997, Annex X; Communication 212/98, Amnesty International v. Zambia, Twelfth Activity Report 1998–1999, Annex V. Communication 249/2002, African Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Republic of Guinea, Twentieth Activity Report 2006, Annex IV. This decision of the 36th Ordinary Session 2004 was included in the draft 18th Activity Report presented to the AU summit, but not in the final 18th Activity Report adopted by the AU Assembly; it was finally published in the 20th Activity Report, adopted at the Banjul summit of the AU in 2006, as AU doc. EX.CL/279(IX). Communication 211/98. Resolution on the Mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa, ACHPR/Res.72(XXXVI)04.

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of indigenous peoples.50 The ministerial meetings on human rights held by the Organisation of African Unity (OAU) and its successor the African Union (AU), in Mauritius in 1999 and Rwanda in 2003, also urged tolerance of differences among Africa’s peoples, and condemned racism and xenophobia.51

Sex Perhaps surprisingly, the Commission has not had the opportunity to consider any cases brought before it arguing discrimination on the basis of sex, though discriminatory aspects of customary law and citizenship law (in particular) have been the basis for extensive litigation at national level52 and before international treaty bodies.53 However, with the lobbying and assistance of several effective women’s rights organisations, the Commission has shown a commendable commitment to respect for gender equality and women’s rights. The composition of the Commission itself, which (in line with official AU policy) has progressively achieved an equal balance of women and men, is in advance of similar international bodies,54 and the Commission has had a Special Rapporteur on Women’s Rights since April 1998 (albeit with limited impact).55 50

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See, among other documents, Resolution on the Adoption of the Report of the African Commission’s Working Group on Indigenous Populations/Communities, ACHPR/Res.65(XXIV)03. Grand Baie (Mauritius) Declaration and Plan of Action, April 1999, para. 5; Kigali Declaration, May 2003, para. 10. For example: Attorney General v. Dow, African Human Rights Law Reports (2001) 99 (BwCA 1992): citing Article 2 of the African Charter in support of a finding against discriminatory citizenship laws; Ephraim v. Pastory, African Human Rights Law Reports (2001) 236 (TzHC 1990): citing the African Charter and ICCPR as well as the Tanzanian Constitution to hold customary rules of inheritance invalid; and Magaya v. Magaya, Law Reports of the Commonwealth 3 [1999] 35; Commonwealth Human Rights Law Digest 2 (1999) 414: unsuccessfully asking the Zimbabwe Court of Appeal to overturn a magistrate’s decision that a woman could not inherit, since the constitution exempted customary law from its non-discrimination provisions. Aumeeruddy Cziffra and others v. Mauritius (HRC 1981) African Human Rights Law Reports (2000) 3, related to immigration law discrimination against women. As of mid-2006, five of eleven commissioners, including the Chairperson, were women, in accordance with a decision of the AU at its inaugural summit in 2002 to achieve gender parity in all AU institutions. At the same time, none of the seven members of the InterAmerican Commission on Human Rights was a woman, and only one of seven judges on the Inter-American Court; while of the forty-five members of the European Court of Human Rights (one for each contracting State), twelve were women. J. Harrington, ‘Special Rapporteurs of the African Commission on Human and Peoples’ Rights’, African Human Rights Law Journal 1(2) (2001) 247–67, p. 265–6, and Chapter 13

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Most importantly, in 2000, the Commission adopted a draft of the document that eventually became the Protocol to the Charter on the Rights of Women in Africa. Though the draft adopted by the Commission owed its existence almost wholly to the efforts of the non-governmental organisations with observer status (Commissioner Victor Dankwa, given the responsibility to consider the issues surrounding a protocol, concluded that there was no need to adopt one56 ), and left much to be desired in its quality, the Protocol could not have ultimately come into existence without the Commission’s support. The final version as adopted by the AU Assembly in 2003 contains a comprehensive statement of women’s rights, including extensive non-discrimination provisions, as well as specific protections against harmful traditional practices and violence against women in public or private places. No cases have yet been brought before the Commission on interpretation of the Protocol’s provisions.

Religion In a case brought by Amnesty International against Sudan in relation to Shari’a law, the Commission referred to Article 2 (as well as Article 8, on freedom of conscience) to find that it is ‘fundamentally unjust that religious laws should be applied against non-adherents of the religion. Tribunals that apply only Shari’a are thus not competent to judge nonMuslims, and everyone should have the right to be tried by a secular court if they wish.’57 The case also considered persecution of non-Muslims in Sudan in order to cause their conversion.

Political or other opinion The Commission has invoked Articles 2 or 3 in several cases of arbitrary detention or deportation on political grounds. In Aminu v. Nigeria, for example, ‘rampant arrests’ on political grounds deprived the complainant of his right to equal protection.58 Among the several reasons for which it found Eritrea in violation of the African Charter in connection with

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below. See also R. Murray, ‘A Feminist Perspective on Reform of the African Human Rights System’, African Human Rights Law Journal 2 (2001) 205–24. Statement of Commissioner Dankwa at the Twenty-first Ordinary Session of the Commission, Nouakchott, April 1997 (author present at session). Communications 48/90, 50/91, 52/91 and 89/93, para. 73. Communication 205/97, Kazeem Aminu v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, para. 15; see also Communications 140/94, 141/94 and 145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V. Communication 144/95, William Courson (acting on

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the detention without charge for eighteen months (at the time of the decision) of eleven former government officials, was that they were held only on the grounds of their political beliefs.59 In a case against Zambia, the Commission explicitly referred to the Zambian Government’s duty to ensure the rights of the African Charter to ‘all persons within their jurisdiction irrespective of political or any other opinion’, to find that the arbitrary removal of citizenship was a violation of Article 2.60 The importance of non-partisan application of the law in charged political environments has also been noted by the Commission in other circumstances. In the report on its 2002 fact-finding mission to Zimbabwe, for example, the Commission urged the Government to make ‘every effort . . . to avoid any further politicisation of the police service’ so that the police should ‘abide by the values of the Constitution and enforce the law without any fear or favour’.61

Other status In one of its most interesting and original decisions, the Commission ruled in the case of Purohit and Moore v. The Gambia that the lack of an accessible remedy to individuals compulsorily detained on mental health grounds – largely poor people picked up off the streets – violated Articles 2 and 3 of the African Charter in relation to anti-discrimination and equal protection of the law. The Commission found that, although there were nominally remedies available to individuals detained under the 1917 Lunatics Detention Act, these ‘can only be available to the wealthy and those that can afford the services of private counsel’ and as such ‘fail[ed] to meet the standards of anti-discrimination and equal protection of the law’.62 While it did not explicitly refer to the concept in its reasoning, this is perhaps a finding of discrimination on the basis of fortune. Although it has not had to decide a case relating to discrimination against those infected with HIV or suffering from AIDS, the Commission adopted a resolution in 2001 stating that HIV/AIDS is a human rights issue, and that those infected should be protected against

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behalf of Severo Moto) v. Equatorial Guinea, Eleventh Activity Report 1997–1998, Annex II also considered allegations of detention on the basis of political opinion, but the complaint was rejected on grounds of insufficient information to establish the facts. Communication 250/2002, Liesbeth Zegveld and Mussie Ephrem v. Eritrea, Seventeenth Activity Report 2003–2004, Annex VII. Communication 212/98, para. 44. Executive Summary of the Report of the Fact-finding Mission to Zimbabwe, 24–28 June 2002, published in the Seventeenth Activity Report 2004, Annex II. Communication 241/2001, para. 53.

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discrimination.63 The AU Ministerial Declarations made at Grand Baie and Kigali also enjoin respect for rights of disabled persons and those with HIV/AIDS.64 The only communication brought to the Commission regarding discrimination on the grounds of sexual orientation – challenging Zimbabwe’s criminalisation of same-sex behaviour – was withdrawn by the complainant before it could be considered, leaving this vexed question unexamined by the premier African human rights institution.65 Commissioners have, however, asked questions of both Cameroon and Namibia during the examination of State reports in relation to the States’ attitudes to same-sex behaviour; and of South Africa from the other perspective, by Commissioner El Hassan of Sudan, who questioned South Africa in 2005 about the possibility of same-sex marriage seen in light of Article 18(3) of the African Charter relating to the family as the ‘natural unit and basis of society’.66

Right to life Article 4: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.67

For the most part, the African Commission has followed the jurisprudence of the UN Human Rights Committee in deciding cases on the right to life, relating both to summary executions and the death penalty. However, in a few cases, the Commission has considered the right to life in a wider context. In the ground-breaking case of Social and Economic Rights Action Centre v. Nigeria,68 concerning the environmental pollution of the Ogoni territory in Nigeria, the Commission stated that Article 4 implied a right to food, which required the Nigerian Government to protect existing food sources from (amongst other things) environmental pollution.69 In a case 63 64 65 66

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Resolution on the HIV/AIDS Pandemic – Threat Against Human Rights and Humanity, Twenty-ninth Ordinary Session, ACHPR/Res.53(XXIX)01. Grand Baie (Mauritius) Declaration and Plan of Action, April 1999, para. 7; Kigali Declaration, May 2003, paras. 20 and 21. Communication 136/94, William A. Courson v. Zimbabwe, Eighth Activity Report 1994– 1995, Annex VI. See R. Murray and F. Viljoen, ‘Lobbying on Sexual Orientation Issues: The Normative Basis and Procedural Possibilities before the African Commission on Human and Peoples’ Rights and the African Union’, Human Rights Quarterly 29(1) (2007) 86–111. 68 Taken from the African Charter. Communication 155/96. Compare the interesting and much more ambitious rulings in the Indian Supreme Court, drawing on the ‘right to life and liberty’ to imply a right to food; summarised in K. B.

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challenging the embargo imposed against Burundi,70 the complainant alleged violations of Article 4 on the grounds that the embargo prevented the import of essential goods, including fuel required for the purification of water and the preservation of drugs, and the export of tea and coffee, the country’s only sources of revenue. The Commission based its conclusion on the UN Committee on Economic Social and Cultural Rights’ General Comment 8 in relation to sanctions, and stated that there was no violation of Article 4 (or others), since the sanctions were targeted and not indiscriminate (by the time the case was decided, however, the embargo had already been lifted and a peace process commenced, making the decision moot). The Commission has also adopted resolutions referring to the right to life, for example in relation to landmines in 1995.71

Summary executions The Commission comprehensively failed to devise any sort of effective reaction to the most egregious case of violations of the right to life during its existence: the 1994 Rwandan genocide. A series of complaints were brought to the Commission in the late 1980s and early 1990s relating to Rwanda (decided collectively in the case of Organisation Mondiale Contre la Torture and others v. Rwanda,72 after the genocide, in 1996), but the Commission failed to send a mission to the country either in response to these complaints or in light of reports of the worsening situation, despite lobbying by human rights organisations. Moreover, though it adopted resolutions on the situation in Rwanda at its two 1994 sessions, in neither of these sessions did it explicitly name the killings as genocide – reflecting a political paralysis faced with the unfolding events. In April 1994, at its 15th Ordinary Session, the Commission noted ‘the alarming human rights situation in Rwanda characterised by serious and massive human rights violations’;73 in October, the resolution at the 16th Ordinary Session restricted itself to ‘condemn[ing] the inhuman and heinous crimes committed in Rwanda during the recent conflict’, failing to separate the planned slaughter of civilians in the genocide from the civil war, though it

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Mahabal, ‘Comparative Case Law: Focus on India’, ESR Review 5(1) (2004) 7–11 (University of the Western Cape, South Africa). Communication 157/96, Association pour la Sauvegarde de la Paix au Burundi v. Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia, Seventeenth Activity Report 2003–2004, Annex VII. Resolution on Anti-Personnel Land Mines, ACHPR/Res.18(XVII)95. A 1998 resolution on landmines (ACHPR/Res.26(XXIV)98) did not explicitly refer to Article 4. Communications 27/89, 49/91 and 99/93. Resolution on the Situation in Rwanda, April 1994, ACHPR/Res.8(XV)94.

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also supported the establishment of the International Criminal Tribunal for Rwanda.74 No individual complaint has been brought to the Commission in relation to the 1994 Rwandan genocide, probably reflecting a recognition that – despite the principle of State continuity – it is hard to hold the current Government responsible for those particular crimes. In Organisation Mondiale Contre la Torture and others v. Rwanda, however, the Commission found that: ‘[t]he [pre-1994] massacre of a large number of Rwandan villagers by the Rwandan armed forces and the many reported extrajudicial executions for reasons of their membership of a particular ethnic group is a violation of Article 4’.75 The Commission failed to make any reference to the genocide, beyond noting that ‘the situation in Rwanda has undergone dramatic change in the years since the communications were introduced’.76 The main concrete response to the Rwandan genocide was the decision of the Commission’s 15th Ordinary Session, held as the genocide was taking place in April 1994, to appoint a Special Rapporteur on Extra-judicial Executions – a move first proposed at the previous session by Amnesty International but only publicly announced at the 16th Ordinary Session when Rwanda was stated as a priority for the new post.77 The Special Rapporteur, Ambassador Hatem Ben Salem of Tunisia, was, however, a disappointment. Despite the support of several human rights organisations, especially the Institute for Human Rights and Development in Africa, a well-respected Gambian organisation specialising in litigation before the Commission, Ben Salem marked up no achievements during his tenure, from which he resigned in late 2000 following the 28th Ordinary Session. Much to the delight of the participants at a public hearing of the 28th Ordinary Session of the Commission held in Cotonou, Benin in October 2000, Commissioner (and former Chairperson) Isaac Nguema accused Ben Salem of accomplishing ‘zero’ in his role over six years.78 Ben Salem’s response to this and other less explicitly voiced charges was to complain of a lack of resources. Other contributing factors were probably a lack 74 75 76

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Resolution on Rwanda, November 1994, ACHPR/Res.12(XVI)94. Communications 27/89, 49/91 and 99/93, para. 24. Ibid., para. 35. However, the Commission did rule the complaint admissible on the grounds of the massive violations that had taken place, in accordance with Article 58(1): ‘When it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples’ rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases.’ Harrington, ‘Special Rapporteurs of the African Commission’, p. 254. Author present at the session.

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of clarity on mandate and procedures, as well as his position as diplomatic representative of his country (one notoriously resistant to public discussions of human rights abuses).79 When Ben Salem resigned, no replacement was named, as the Commission had decided to review its procedures in relation to special rapporteurs. The Commission’s record on the massive abuses that have occurred in Sudan and the Government’s response to rebel activity in the Darfur province of the country since 2003 is more mixed. The Commission adopted resolutions on Darfur at its 35th Ordinary Session in 2004 and at its 37th Ordinary Session in 2005; the latter quite comprehensive and hard-hitting.80 In mid-2004, the Commission also sent a fact-finding mission to Sudan, led by Commissioner Tom Nyanduga of Tanzania, following which it wrote to the President of Sudan to request ‘provisional measures’ under Rule 111 of the Commission’s Rules of Procedure. These included: ‘a thorough reorganisation of the security forces that were involved in the management of the Darfur crisis’; the provision of resources and expertise to committees investigating violence against women and other human rights violations; the facilitation of access to internally displaced people and of their return to their homes; ensuring access to the AU’s human rights observers; and fair trial for political detainees.81 In late 2004, it also held an extraordinary session on the situation in Darfur at which Commissioner Nyanduga’s report was considered, only the second time that the Commission has done so in response to a human rights crisis. The extraordinary session, which met in South Africa, was prompted by intensive lobbying by NGOs and relied on funding raised by them; despite this, relations between the Commission and the NGOs were quite acrimonious at the session, following what the Commission termed a ‘derogatory letter’ from the NGOs, which accused the Commission of neglecting to hear testimony from victims in 79

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Human rights organisations attending the sessions of the Commission have repeatedly raised the issue of incompatibility of diplomatic and other senior government positions with that of Commissioner, to no avail. See, for example, Human Rights Watch’s submission to the Commission at its 20th Ordinary Session (the tenth anniversary of the African Charter) in Mauritius, October 1996. Resolution on Darfur, ACHPR/Res.68(XXXV)04; Resolution on the Human Rights Situation in Darfur, Sudan, ACHPR/Res.74(XXXVI)05. ‘Request for Provisional Measures following the Fact-Finding Mission of the African Commission on Human and Peoples’ Rights to Sudan (Darfur Region: 9 to 18 July 2004)’, letter from Commission Chairperson Salamata Sawodogo to President Omar El Bashir of Sudan, 25 July 2004. Neither the report nor the letter are available on the Commission’s website.

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Darfur.82 Meanwhile, these activities of the Commission on Darfur (or similar situations) appear to be wholly unlinked to those of the AU Peace and Security Council (PSC) – with which it has no formal relationship – despite the critical human rights situation in Darfur and the existence there of a peace-keeping mission, which was under the authority of the PSC.83 More generally on the issue of impunity for massive human rights violations, including principally the right to life, the Commission jointly hosted a seminar preceding its 19th Ordinary Session in Ouagadougou, 1996, which adopted a ‘Plan of Action Against Impunity’, subsequently endorsed by the OAU Council of Ministers.84 The Commission has also adopted several resolutions on individual countries where widespread summary executions are taking place, calling for accountability for violations of the right to life.85 The OAU ministerial meetings on human rights in Grand Baie and Kigali also called for an end to impunity.86 As noted above in the discussion of Article 1, the Commission has affirmed decisions in other international human rights fora by ruling general amnesties to be in violation of the African Charter. 82

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Statement of the African Commission on Human and Peoples’ Rights on the derogatory letter by the NGOs present in Pretoria, South Africa, Third Extraordinary Session of the African Commission on Human and Peoples’ Rights, 18–19 September 2004. A 2006 ‘brainstorming session’ recommended that the Commission should explore the possibility of the PSC enforcing its decisions: ‘Report of the Meeting of the Brainstorming Meeting on the African Commission on Human and Peoples’ Rights (ACHPR)’: 9–10 May 2006, Corinthia Atlantic Hotel, Banjul, The Gambia, item 4, Recommendation (a). Plan of Action Against Impunity in Africa, adopted in Ouagadougou, Burkina Faso, 23 March 1996, at a meeting convened by the African Commission on Human and Peoples’ Rights, Interafrican Union for Human Rights, International Centre for Human Rights and Democratic Development, Research Group on the Democratic, Economic and Social Development of Africa, Women in Law and Development in Africa, International Commission of Jurists and International Federation of Human Rights; Resolution on the Need to Strengthen the Supremacy of Law in Africa, Sixty-fourth Ordinary Session of the OAU Council of Ministers, Yaound´e, Cameroon, July 1996, CM/Res.1665(LXIV). Strangely, although the Final Communiqu´e of the 19th Ordinary Session of the Commission mentioned the seminar on impunity, the resolution adopted at the session on Respect and Strengthening of the Independence of the Judiciary, (ACHPR/Res.21(XIX)96) did not explicitly endorse the plan of action (though the Council of Ministers resolution suggested it had). ˆ Resolution on Nigeria (ACHPR/Res.70(XXXV)04); Resolution on Cote d’Ivoire (ACHPR/Res.67(XXXV)04; Resolution on the Recent Violence in Kabylia, Algeria (ACHPR/Res.57(XXIX)01). The wording of this last resolution is notably weak, reflecting the fact that an Algerian held the chair of the commission at the time. Grand Baie (Mauritius) Declaration and Plan of Action, April 1999, para. 11 (in relation to genocide in particular); Kigali Declaration, May 2003, para. 6.

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In less egregious examples of extrajudicial executions, the Commission has followed the standard interpretations of international treaty monitoring bodies. Thus, an early case confirmed that police shootings of strikers was a violation of Article 4;87 others noted that the State is responsible for arbitrary executions under its duty to protect, even if government agents did not directly carry out the killings, or it is not clear who perpetrated them.88 More interestingly, in one of the many cases against Nigeria, the Commission found a violation of Article 4 because the complainant had repeatedly gone into hiding due to threats against him: ‘it would be a narrow interpretation of this right to think that it can only be violated when one is deprived of it. It cannot be said that the right to respect for one’s life and the dignity89 of his person, which this Article guarantees, would be protected in a case of constant fear and/or threats, as experienced by [the complainant]’.90

Death penalty The African Charter, unlike other international and regional human rights treaties, is not supplemented by protocols proscribing the death penalty; nor, unlike the ICCPR, does it refer to the death penalty specifically in its text. Furthermore, the language used does not refer to the ‘right to life’ explicitly, but rather to ‘respect for life’.91 The Protocol to the Charter on the Rights of Women in Africa commits States to ensuring that the death penalty is not carried out on pregnant or nursing women,92 and the African Charter on the Rights and Welfare of the Child prohibits the death penalty for crimes committed by children (those under 18 years of age).93 The Commission has declined to make strong statements on the death penalty; its only major public statement on the matter is a 1999 resolution urging States to ‘envisage a moratorium to the death penalty’, to restrict its application to the most serious crimes and to ensure full respect for the rights in the African Charter for persons accused of such 87 88 89 91

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Communications 62/92, 68/92 and 78/92. Communication 74/92; Communications 48/90, 50/91, 52/91 and 89/93. 90 Sic: this is clearly a misprint for ‘integrity’. Communication 205/97. The South African Constitutional Court, in its landmark judgment on the death penalty in S v. Makwanyane and another (CCT/3/94; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)), based an important part of its argument on the unqualified wording of the South African Constitution, which is simply that: ‘[e]veryone has the right to life’, and comparisons with international jurisprudence in this regard (see para. 80 et seq. of the judgment). Article 4(2)(j) of the Protocol to the Charter on the Rights of Women in Africa. Article 5(3) of the African Charter on the Rights and Welfare of the Child.

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crimes.94 In 2005, at its 38th Ordinary Session, the Commission appointed a working group on the death penalty, including two commissioners and five experts, for which it sought public nominations in 2006.95 In practice, the majority of African countries retain the death penalty, and only seven are parties to the optional protocol to the ICCPR aimed at its abolition;96 though fewer countries have recently carried out executions, and some have commuted death sentences to life imprisonment.97 The application of the death penalty in the criminal justice system is in any event hardly seen as a priority by human rights activists in the context of widespread summary executions in many countries. In this context, it is perhaps unsurprising that, in the communication that most directly challenged the death penalty as such, Interights et al. (on behalf of Mariette Sonjaleen Bosch) v. Botswana, the Commission found that its application was not in violation of the African Charter, though it urged States ‘to take all measures to refrain from exercising the death penalty’.98 In line with international jurisprudence, the Commission has confirmed that executions carried out without the full due-process protections of a fair trial are arbitrary.99 Death penalty cases have provided many of the occasions for the Commission to invoke the ‘provisional measures’ established by its Rules of Procedure, in order to request a stay of execution until a communication is decided (under Rule 111(1)) – which it did in the Bosch case – or even where there is no communication before it (Rule 111(3)). Thus, the Commission has sent urgent appeals on behalf of the accused in death penalty cases where there are clear due-process considerations, including several women facing possible death by stoning under the extension of Shari’a law to criminal cases in several states in Nigeria.100 94 95

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Resolution Urging the State to Envisage a Moratorium on the Death Penalty, ACHPR/Res.42(XXVI)99. Call for nomination of independent expert members to serve on the African Commission’s working group on the death penalty in Africa, in advance of the 40th Ordinary Session, November 2006. Mozambique and Namibia outlaw the death penalty in their constitutions. See D. van Zyl Smit, ‘The Death Penalty in Africa’, African Human Rights Law Journal 4(1) (2004) 1–16; L. Chenwi, ‘Breaking New Ground: The Need for a Protocol to the African Charter on the Abolition of the Death Penalty in Africa’, African Human Rights Law Journal 5(1) (2005) 89–102. Notably in Kenya after the accession to power of a new government in 2003. Communication 240/2001. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98; Communications 137/94, 139/94, 154/96 and 161/97; Communication 223/98, Forum of Conscience v. Sierra Leone, Fourteenth Activity Report 2000–2001, Annex V. See Report of the Special Rapporteur of the Rights of Women in Africa, Fifteenth Activity Report 2001–2002, and Communication 269/2003, Interights on behalf of Safia Yakubu

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In the most high-profile execution considered by the Commission – one of the most high-profile executions ever carried out in Africa – the Commission used the provisional measures procedures to request the Nigerian Government to stay the execution of author and minority rights activist Ken Saro-Wiwa and eight colleagues while the Commission considered a complaint brought on their behalf. The request was unsuccessful, along with those of many others. In its ultimate judgment on the case – decided in October 1998, three years later and only after the death of military dictator General Sani Abacha – the Commission described the failure to respond to this request as a ‘blot not easy to erase’, and found the Nigerian Government in violation of Article 4, among others, for lack of due process in the trial leading to the application of the death penalty, as well as for denial of medication during detention.101 The Commission held an extraordinary session on Nigeria in Kampala in December 1995, following the execution, and decided to send a mission to Nigeria. Consideration of the communications relating to the Ken Saro-Wiwa case was postponed pending the completion of the mission, which did not ultimately take place until March 1997 – and when it did, was severely criticised by Nigerian and international human rights groups.102

Right to dignity and recognition of legal status; prohibition of torture Article 5: Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.103

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Husaini et al. v. Nigeria, Eighteenth Activity Report 2004–2005, Annex III (case withdrawn). In each case, an appeal process in Nigeria released the women before any death penalty could be applied. The Commission also appealed unsuccessfully in 1998 on behalf of twenty-two Rwandans convicted in genocide trials and sentenced to death in circumstances raising concern about due process. See N. J. Udombana, ‘Interim Measures: A Comparative Study of Selected International Judicial Institutions’, Indian Journal of International Law 43 (2003) 479–532. Communications 137/94, 139/94, 154/96 and 161/97, para. 115. The fact that this case took so long to decide was a political failure by the Commission, in the context of a universal condemnation of this execution described even by British Conservative Party Prime Minister John Major as ‘judicial murder’. 103 Ibid., paras. 43–4. Taken from the African Charter.

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Article 5 of the African Charter is broad in its application, combining issues that in other human rights treaties are separated into separate Articles.104 One aspect of Article 5, that relates specifically to torture, has received extensive attention from the Commission to elaborate its detailed content, in the form of the Robben Island Guidelines, developed at a workshop sponsored by the Geneva-based Association for the Prevention of Torture and formally adopted at the 32nd Ordinary Session in 2002.105 At the 35th Ordinary Session in 2004, a follow-up committee on the Guidelines was appointed, including non-commissioners as members. The committee has met a couple of times, but little concrete activity had been carried out at the time of writing.

Torture and inhuman treatment or punishment The Commission has decided many cases in which torture or cruel, inhuman or degrading treatment or punishment have been alleged. Many of them have involved egregious examples of ill-treatment. So, for example, in the combined consideration of several communications brought against Mauritania, the Commission dealt, among other things, with allegations of abuses against prisoners, including beatings, burnings, electrical shocks, burial alive in sand until death and the rape of women, none of which were denied by the Government. It held that: ‘Taken together or in isolation, these acts are proof of widespread utilisation of torture and of cruel, inhuman and degrading forms of treatment and constitute a violation of Article 5. The fact that the prisoners were left to die slow deaths . . . equally constitutes cruel, inhuman and degrading forms of treatment prohibited by Article 5.’106 But the Commission has also asserted, in Media Rights Agenda v. Nigeria, a case filed on behalf of the editor of an independent daily newspaper who was held in detention and then convicted for his alleged involvement in a coup d’´etat, that ‘the term “cruel, inhuman or degrading treatment or punishment” is to be interpreted so as to extend to the widest possible protection against abuses, whether physical or mental’.107 Violations of these provisions have been 104 105

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In the ICCPR, Article 7 deals with torture, Article 8 with slavery, and Article 10 with dignity in relation to detention (rather than more generally). Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, ACHPR/Res.61(XXXII)02. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, para. 118. Communication 224/98, para. 71.

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found in cases against the former Zaire,108 Chad,109 Kenya,110 Malawi,111 Rwanda,112 and in several cases related to ill-treatment of detainees or persecution of activists under military rule in Nigeria.113 Several of these cases include reference to denial of access to a detainee’s family: ‘holding an individual without permitting him or her to have contact with his or her family, and refusing to inform the family if and where the individual is being held is inhuman treatment of both the detainee and the family concerned’.114

Prison conditions The Commission has been active in work to improve prison conditions in Africa, basing its mandate on Article 5. Thanks largely to the indefatigable work of Ahmed Othmani of Penal Reform International (PRI), sadly killed in a car crash in 2005, the Commission adopted a resolution on prison conditions in 1995,115 and a Declaration on Prisons and Penal

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Communications 25/89, 47/90, 56/91 and 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, les T´emoins de Jehovah v. Zaire, Ninth Activity Report 1995–1996, Annex VIII, noting a series of ‘serious or massive violations’ under Article 58. Communication 74/92, noting a series of ‘serious or massive violations’ under Article 58. Communication 232/99, John D. Ouko v. Kenya, Fourteenth Activity Report 2000–2001, Annex V: bright light left on for ten months, denial of bathroom facilities and ‘physical and mental torture’. Communications 64/92, 68/92 and 78/92, overcrowding, beating, torture, excessive solitary confinement and lack of medical care. Communications 27/89, 49/91 and 99/93: ‘deplorable conditions’. Communications 137/94, 139/94, 154/96 and 161/97: leg-irons and handcuffs, beatings and denial of medical attention; Communications 140/94, 141/94 and 145/95: armed gangs attacked human rights activists and destroyed their homes; Communications 143/95 and 150/96, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V: detention in dirty, hidden and underground cells, denial of access to medical care and to families; Communication 215/98, Rights International v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V: whippings; Communication 205/97: denial of access to medical treatment and ‘inhuman treatment’; Communication 225/98, Huri-Laws v. Nigeria, Fourteenth Activity Report 2000–2001, Annex V: sordid and dirty cell, denial of access to medical treatment and to family and lawyer, ‘torture’ and ‘rigorous interrogation’. Communications 48/90, 50/91, 52/91 and 89/93, para. 54; the facts of the case also refer to soaking detainees in cold water, deliberate partial flooding of cells, mock executions, prohibition of washing, deliberate burnings with cigarettes and battery acid, binding to cut off circulation to parts of the body, and subjection to continuous noise (para. 5). Resolution on Prisons in Africa, ACHPR/Res.19(XVII)95.

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Reform in Africa in 2003;116 as well as appointing a Special Rapporteur on Prisons and Conditions of Detention in 1996. With the support of PRI, Commissioners E. V. O. Dankwa and especially Vera Chirwa, who succeeded Dankwa as rapporteur in 2000 a year after he became Chairperson of the Commission, each achieved good work and (especially unusual for the Commission) a commendable output of published reports.117 In December 2005, at the 38th Ordinary Session, Vera Chirwa was replaced as Special Rapporteur by Commissioner Mumba Malila.

Shari’a punishments The Commission has considered the issue of punishments claimed to be imposed in accordance with Islamic law in a case relating to provisions of Sudan’s criminal code providing for whipping as a punishment for quite minor offences. In Curtis Francis Doebbler v. Sudan,118 the complainant alleged a violation of Article 5 when eight students found picnicking in a mixed-sex group were charged with committing acts contrary to public morality and were convicted and sentenced to fines of between twentyfive and forty lashes. The lashes were carried out in public, on bare backs, using a wire and plastic whip that leaves permanent scars. In one of its rare (but increasing) explicit references to the decisions of other international treaty monitoring bodies, the Commission referred to European Court of Human Rights jurisprudence that even lashes carried out in private, under medical supervision, and after the exhaustion of appeal remedies, violated similar provisions in the European Convention.119 Following the same line of thinking, the Commission found that ‘there is no right for individuals, and particularly the government of a country, to apply physical violence to individuals for offences’.120 Accordingly, the Commission found a violation of Article 5, and ordered the Sudanese Government to amend its criminal law to abolish the penalty of lashes, as well as to provide compensation to the victims. (The Commission was not asked to and did 116 117

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Resolution on the Adoption of the Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa, ACHPR/Res.64(XXXIV)03. See Harrington, ‘Special Rapporteurs of the African Commission’; F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities’, Human Rights Quarterly 27 (2005) 125–71. See also Chapter 12 below. Communication 236/2000, Curtis Francis Doebbler v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII. Tyrer v. United Kingdom, Series A, No. 26, European Human Rights Reports 2 (1978) 1, para. 30, and Ireland v. United Kingdom, Series A, No. 26, European Human Rights Reports 2 (1978) 25, para. 162, cited in Communication 236/2000, para. 38. Communication 236/2000, para. 42.

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not make any ruling about the justification of physical punishments under Shari’a law itself.)

Slavery Unusually, the African Charter includes consideration of slavery in the same Article as that on torture, linking both to human dignity in a way that reflects Africa’s cruel history as a source of slaves. Perhaps unexpectedly, the African Charter does not include reference to forced or compulsory labour, unlike the ICCPR. Cases brought against Mauritania have repeatedly alleged the continuing practice of slavery in that country, a particularly emotive subject given the racial tensions both within Mauritania and between north and subSaharan African members of the Commission, which have been evident from time to time. In the main decision on these complaints, the Commission found that there are ‘practices analogous to slavery’ that violate Article 5, but declined to find ‘based on the evidence before it’ that ‘there is a practice of slavery’ in Mauritania.121 In another case in which the complainant alleged that he and his siblings had been denied their inheritance on the grounds that their mother was a slave, the Commission noted that ‘the consequences of slavery still persist in Mauritania’, and found a violation of Article 14 of the African Charter on the right to property – but not of Article 5. The Mauritanian commissioner, who might have been expected to recuse himself, submitted a dissenting opinion.122

Human dignity The Commission has, commendably, been prepared to interpret the meaning of human dignity widely, and to draw on a range of sources to back up its findings. In Purohit and Moore v. The Gambia, the Commission found that overcrowded and poor conditions at a mental health facility, and the naming of persons with mental illness or disability as ‘lunatics’ and ‘idiots’, violated the right to dignity. In upholding the complaint, the Commission based its findings on the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, requiring that ‘all persons with mental illness or who are being treated as such, shall be treated with humanity and respect for the 121 122

Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, para. 135. Communication 197/97, Bah Ould Rabah v. Mauritania, Seventeenth Activity Report 2003–2004, Annex VII. The case is one of the more poorly reasoned of the Commission in recent years, perhaps reflecting the political difficulties of adopting a final decision.

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inherent dignity of the human person’.123 The Commission affirmed that ‘[l]ike any other human being, mentally disabled persons or persons suffering from mental illnesses have a right to enjoy a decent life, as normal and full as possible, a right which lies at the heart of the right to human dignity’.124 In the long-running case of Modise v. Botswana, the Commission considered over several years the imposed statelessness of an individual born in South Africa of Batswana parents, prior to the independence of Botswana, and brought up in Botswana. Due to his political activities he was expelled from Botswana in 1978 and declared an undesirable immigrant, and was then subjected to years of deportations backwards and forwards; he eventually had to live for eight years in the nominally independent South African ‘homeland’ of Bophuthatswana, and then for seven months in a ‘no man’s land’ border strip between Botswana and South Africa, before being allowed into Botswana on a permit that was revocable at any time by the Government and that did not allow him to work. The Commission found that this ‘personal suffering and indignity’ violated Article 5.125 Similarly, in Amnesty International v. Zambia, the Commission considered the deportations of two individuals and found that ‘[b]y forcing [the complainants] to live as stateless persons under degrading conditions, the [Zambian] government . . . has deprived them of their family and is depriving their families of the men’s support, and this constitutes a violation of the dignity of a human being, thereby violating Article 5’.126 Rejecting a case brought against the South African Government on behalf of a Rastafarian prevented from registering as an attorney because of convictions for possession of cannabis, the Commission found that there was no violation of Article 5, ‘as [the complainant] or his fellow Rastafari are not the only ones being proscribed from the use or possession of cannabis’.127

123 124 125 126 127

Principle 1(2) of the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care 1991. Communication 241/2001, para. 61. Communication 97/93, para. 91. The decision contradicts itself on the facts of the case in paras. 5 and 91; what is stated here are believed to be the correct facts. Communication 212/98, para. 50. Communication 255/2002, Gareth Anver Prince v. South Africa. The case was decided at the 36th Ordinary Session 2004 and included in the draft 18th Activity Report submitted to the AU Assembly. Strangely (considering that the complaint was rejected, so there could be no political sensitivities), this decision was not included in the final version of the 18th Activity Report adopted by the AU Assembly.

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Liberty Article 6: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.128

Article 6 of the African Charter is comparatively vestigial in its details when read alongside the ICCPR or other regional treaties, or Article 7.129 In particular, there is not much on what constitutes arbitrary detention and what constitutes the rights of arrested persons. The Commission’s jurisprudence on this Article has provided more detail: perhaps the clearest statement is found in Amnesty International v. Sudan, where the Commission stated that ‘this article must be interpreted in such a way as to permit arrests only in the exercise of powers normally granted to the security forces in a democratic society’.130 It is not enough for an arrest to be carried out under a legal provision to satisfy the requirements of Article 6: the law must comply with accepted standards. Thus a decree allowing for arrests for vague reasons, and upon suspicion rather than proven acts, was not in conformity with the African Charter.131 Surprisingly, the Commission has found that suspension of habeas corpus (in common law countries) is not automatically a violation of Article 6, though it compounds violations of Articles 6 and 7.132 Among the grounds that are clearly arbitrary are detentions on the basis of ethnicity or political opinion.133 The Commission has held that it is a violation of Article 6 for a prisoner to be held beyond the expiration of his sentence;134 or a detainee to be held indefinitely;135 or – in a large number of cases brought before it – without charge.136 In all the many communications relating to the notorious Decree No. 2 of 1984 in Nigeria, the Commission repeated its 128 129

130 132 133 134

135 136

Taken from the African Charter. See K. A. Acheampong, ‘Reforming the Substance of the African Charter on Human and Peoples’ Rights: Civil and Political Rights and Socio-Economic Rights’, African Human Rights Law Journal 1(2) (2001) 185–204. 131 Communications 48/90, 50/91, 52/91 and 89/93, para. 59. Ibid. Communications 143/95 and 150/96, paras. 24 and 31. See discussion under Articles 2 and 3 above. Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, Eighth Activity Report 1994–1995, Annex VI; Tenth Activity Report 1996–1997, Annex X; Communication 148/96, Constitutional Rights Project v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V: continued detention of alleged coup plotters after found innocent and also after pardoned. Communications 25/89, 47/90, 56/91 and 100/93; Communications 147/95 and 149/96. Communications 137/94, 139/94, 154/96 and 161/97: detention for a ‘lengthy period’ without charge; Communications 147/95 and 149/96: incommunicado detention without charge; Communication 103/93, Alhassan Abubakar v. Ghana, Tenth Activity Report

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conclusion that: ‘This decree allows the government to arbitrarily hold people critical of the government for up to three months without having to explain themselves and without any opportunity for the complainant to challenge the arrest and detention before a court of law. The decree therefore prima facie violates the right not to be arbitrarily arrested or detained protected in Article 6.’137 Mass arrests and roundups of political or human rights activists and journalists, or of members of a particular ethnic group, have also been condemned under this provision.138 In several cases, the Commission has used its provisional measures procedures to issue appeals on behalf of detained human rights or political activists, a practice that should be expected to increase with the appointment of a Special Rapporteur on Human Rights Defenders at the 35th Ordinary Session.139 In its otherwise ground-breaking decision in the case of Purohit and Moore v. The Gambia, in which it found on behalf of complainants horrified at the conditions of mental health detainees, the Commission found that although the provisions for diagnosis and compulsory detention of the mentally ill fell short of international norms, they did not violate Article 6, ‘because Article 6 of the African Charter was not intended to cater for situations where persons in need of medical assistance or help are institutionalised’.140

Right to a fair trial Article 7: (1) Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and

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1996–1997, Annex X: detained without charge for seven years; Communication 232/99, detained ten months without trial; Communications 64/92, 68/92 and 78/92: detained for twelve years without trial; Communication 224/98: not informed of charges for two months; Communications 140/94, 141/94 and 145/95: detention without charge of prodemocracy advocates; Communications 222/98 and 229/99, Law Office of Ghazi Suleiman v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII: no reason given for arrest, held without charge with no contact from lawyers or families; Communication 250/02: held incommunicado without charge. Communications 137/94, 139/94, 154/96 and 161/97; the same finding was repeated in many of the other Nigerian cases cited above. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98; Communications 27/89, 49/91 and 99/93. See Seventeenth Activity Report 2004; in 2004, the Special Rapporteur sent appeals to Sudan on behalf of two detained human rights activists; see Eighteenth Activity Report 2005. Communication 241/2001, para. 68.

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guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. (2) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender. Article 26: States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.141

The provisions of Article 7 of the African Charter relating to fair trial are notably more detailed than Article 6; but still less so than the equivalent in Article 14 of the ICCPR: missing from Article 7 are explicit provisions relating to the rights to a public hearing and to interpretation, and the rights against self-incrimination and double jeopardy.142 In practice, however, the Commission has interpreted Article 7 in light of the jurisprudence of the Human Rights Committee (though not always referenced). In addition, a 1992 resolution on the right to fair trial,143 and, more importantly, the detailed and comprehensive Principles and Guidelines on the Right to Fair Trial and Legal Aid in Africa, largely developed by Interights and adopted by the Commission in 2003, provide authoritative guidance on interpretation of the African Charter and greatly amplify its wording.144 Perhaps because of the greater level of detail, most cases touching on abuses that could be held to be violations of Articles 6 or 7 have been decided under Article 7. Nevertheless, most of the cases brought to the Commission were decided before the Principles and Guidelines were adopted, and relate to relatively easily decided egregious violations 141 142

143 144

Taken from the African Charter. See Acheampong, ‘Reforming the Substance of the African Charter on Human and Peoples’ Rights’; R. P. Barnidge, ‘The African Commission on Human and Peoples’ Rights and the Inter-American Commission on Human Rights: Addressing the Right to an Impartial Hearing on Detention and Trial within a Reasonable Time and the Presumption of Innocence’, African Human Rights Law Journal 4(1) (2004) 108–20. Resolution on the Right to Recourse and Fair Trial, ACHPR/Res.4(XI)92. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa 2003.

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of Article 7, leaving the boundaries between a fair and unfair trial in the African context largely unexplored in case law.

Article 7(1)(a) – appeal to competent national organs Article 7(1)(a), with its reference to ‘the right to an appeal to competent national organs’, includes both the initial right to seize a court with a matter, as well as the right to appeal from a first instance decision to higher tribunals. Thus, for example, in several cases relating to deportations or denial of citizenship, the Commission has held that there must be a right to challenge expulsion on an individual basis.145 The Commission also found against the Nigerian Government in a case relating to the setting aside of domestic court orders in favour of the publishers of several newspapers whose premises had been occupied by the security forces, and subsequent decrees proscribing more than thirteen newspapers ‘[t]o have a duly instituted court case in the process of litigation nullified by executive decree forecloses all possibility of jurisdiction being exercised by competent national organs’.146 The failure of Gambian law to provide mental health detainees with any right to challenge their detention was also in violation of Article 7(1)(a) and (c), as recognised in the UN Principles for the Protection of Persons with Mental Illness.147 The Commission has also affirmed the right to an effective appeal from a first instance decision.148 In a case against Mauritania, the Commission set out its view that ‘from all indications, the Court of Appeal confirmed the verdicts without considering all the elements of fact and law. Such a practice cannot be considered a genuine appeal procedure. For an appeal to be effective, the appellate jurisdiction must, objectively and impartially, consider both the elements of fact and of law that are brought before it. Since this approach was not followed in the cases under consideration . . . there was a violation of Article 7(1)(a) of the Charter.’149 By contrast, in the more recent case of Interights and others v. Mauritania, relating to the dissolution of an opposition political party, the Commission found no violation of the Article on the grounds that the evidence of 145 146 147 148 149

Communication 159/96; Communication 97/93; Communications 27/89, 49/91 and 99/93; Communication 71/92. Communications 140/94, 141/94 and 145/95, para. 33. Communication 241/2001, para. 72. Communications 137/94, 139/94, 154/96 and 161/97; Communication 223/98; and Communication 103/93: no right of a higher court to reconsider the decision of a lower court. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, para. 94.

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‘collusion’ between administrative and judicial authorities presented to it was insufficiently compelling.150 In a 2006 case decided against the Republic of Congo, the Commission followed the European Court of Human Rights to rule that ‘the right to be heard guaranteed by Article 7 of the African Charter includes the right to the execution of a judgment’.151 In one of the few cases alleging a run-of-the-mill injustice of legal procedure rather than a flagrant abuse, the Commission ruled against Tanzania in a case in which a woman’s right to any further claim for inheritance rights was forfeited when she and her counsel both failed to appear at one High Court hearing. The Commission noted that ‘the substantive rights enshrined in the African Charter rely on procedural rules for their enjoyment’, so that the strict application of procedural rules ‘should not result in frustrating the very obligations the Member States undertook in committing themselves under the African Charter’.152 Many of the cases brought under Article 7(1)(a) have involved military decrees and other laws purporting to oust the jurisdiction of the courts to hear claims that fundamental rights have been abused. The existence of such ouster clauses is sufficient for the Commission to rule without further argument that the requirement that domestic remedies be exhausted before it can have jurisdiction of a case has been achieved. Since the Nigerian military has been one of the most prolific users of such provisions,153 Nigeria has also been one of the best-represented countries before the Commission, with numerous cases ruling that a government may not pass laws preventing its own courts from examining the constitutionality of an executive act; perhaps most importantly in the case of a suspension of habeas corpus.154 The Commission also found against Swaziland for 150

151 152

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Communication 242/2001, Interights, Institute for Human Rights and Development in Africa and Association Mauritanienne des Droits de l’Homme v. Mauritania, Seventeenth Activity Report 2003–2004, Annex VII, paras. 44–6. Communication 253/2002, para. 75. Communication 243/2001, Women’s Legal Aid Centre (on behalf of Sophia Moto) v. Tanzania, Thirty-sixth Ordinary Session 2004, draft 18th Activity Report, para. 45. The status of this decision is unclear, since it was not included in (or specifically excluded from) the final version of the 18th Activity Report adopted by the AU summit. Oba, ‘The African Charter on Human and Peoples’ Rights and Ouster Clauses’. Despite a transition to civilian government, the Nigerian constitution still purports to oust the jurisdiction of the courts in several areas. See in particular, Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Communication 129/94, Civil Liberties Organisation v. Nigeria, Ninth Activity Report 1995– 1996, Annex VIII; Communication 102/93; Communications 105/93, 128/94, 130/94

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a decree ousting the jurisdiction of the courts to grant bail and other matters; the national courts of Swaziland also cited Article 7 as an aid to interpretation in order to rule that the decree was invalid.155

Article 7(1)(b) – presumption of innocence The African Charter, unlike the ICCPR, includes no specific right to silence and to non-self-incrimination, but the Commission has held these rights to be included in the general right to be presumed innocent.156 Thus, in Malawi African Association and others v. Mauritania, the Commission condemned the fact that ‘the presiding judge declared that the refusal of the accused persons to defend themselves was tantamount to an admission of guilt’, as well as the use of confessions obtained by force in reaching a verdict.157 Sudan was also found in violation of this provision when public officials had openly asserted the guilt of individuals facing trial.158 Detention on suspicion as vague as that an individual ‘may cause problems’ is also a violation of the right to be presumed innocent.159 However, in a case relating to the death penalty in Botswana, the Commission, referring to European Court decisions, found that a misdirection by the trial judge in relation to the burden of proof was not a violation of the presumption of innocence, given that the Court of Appeal had ‘meticulously evaluated the evidence’ and was satisfied that, despite the misdirection, there was sufficient basis to convict the applicant.160 In yet another case relating to detention by the Nigerian Military Government, brought on behalf of a journalist, the Commission noted that the African Charter contains no express provision for the right to a public trial. However, invoking Articles 60 and 61 of the African Charter, allowing it to draw inspiration from international law, the Commission referred to General Comment 13 of the UN Human Rights Committee to find that

155 156 157 158 159

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and 152/96; Communications 143/95 and 150/96; Communication 151/96, Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V. Communication 251/2002; Gwebu and another v. Rex, African Human Rights Law Reports (2002) 229 (SwCA 2002). Communication 218/98. See also Barnidge, ‘The African Commission on Human and Peoples’ Rights’. Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, para. 95. Communications 222/98 and 229/99, para. 56. Communication 39/90; the same facts were also considered by the UN Human Rights Committee in the case of Mazou v. Cameroon (HRC 2001) African Human Rights Law Reports (2001) 8. Communication 240/2001, para. 28 and 29.

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the Government’s assertion of national security reasons to exclude the public both failed to provide evidence of ‘exceptional circumstances’ that could justify such a restriction, and was in violation of the presumption of innocence.161

Article 7(1)(c): Right to defence and counsel of one’s choice The Commission’s jurisprudence relating to the right to defend oneself in court, including the right to choose one’s own counsel, has related largely to relatively high-profile and elite figures, who indeed have the means and connections to obtain a high-quality legal defence. In the African context, it is unrealistic to expect that every criminal case could include the representation of the defendant by a fully qualified and admitted lawyer: the Commission has not had the opportunity to deliberate on what exactly would be adequate representation in an ordinary criminal case. However, the 2003 Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa clearly set out that: ‘The accused or a party to a civil case has a right to have legal assistance assigned to him or her in any case where the interests of justice so require, and without payment by the accused or party to a civil case if he or she does not have sufficient means to pay for it.’162 In cases before it, following international precedent, the Commission has condemned denial of access to lawyers for detainees,163 harassment of defence counsel,164 the absence in law or fact of the right to counsel at all165 and the assignment of military lawyers rather than allowing 161 162

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Communication 224/98, paras. 51 and 52. Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, Section H(a). Section H also provides detailed further guidance, including that: ‘(b) The interests of justice should be determined by considering: (i) in criminal matters: (1) the seriousness of the offence; (2) the severity of the sentence. (ii) in civil cases: (1) the complexity of the case and the ability of the party to adequately represent himself or herself; (2) the rights that are affected; (3) the likely impact of the outcome of the case on the wider community. (c) The interests of justice always require legal assistance for an accused in any capital case, including for appeal, executive clemency, commutation of sentence, amnesty or pardon.’ Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98; Communication 224/98; Communication 206/97, Centre for Free Speech v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V. Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Communications 137/94, 139/94, 154/96 and 161/97. Communication 231/99: Court of Appeal rejected application for adjournment of death penalty case on grounds of lawyer not present; Communications 62/92, 68/92 and 78/92:

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a free choice of counsel.166 In Malawi African Association and others v. Mauritania, the Commission found that the right to defence encompassed the right to interpretation of proceedings: ‘the right to defence should also be interpreted as including the right to understand the charges being brought against oneself. In the trial . . . only 3 of the 21 accused spoke Arabic fluently, and this was the language used during the trial. This means that the 18 others did not have the right to defend themselves.’167

Article 7(1)(d) – trial within reasonable time by an impartial tribunal Violations of the right to trial within a reasonable time have been found in a large number of cases, most of them clearly egregious abuses; again, there is little interpretation of the boundaries of what is a reasonable time. Thus, indefinite or extended detention without charge or trial is a violation of this Article.168 In one of the rare non-political cases brought to the Commission, a failure even to bring charges within two years of detention on suspicion of serious crime was a violation.169 In a case involving an appeal for reinstatement of a magistrate who had served five years in prison for allegedly hiding his brother, who was accused of involvement in a coup d’´etat, the Commission found that a two-year delay without any response from the Supreme Court violated Article 7(1)(d), ‘given that the case concerns [the complainant’s] ability to work in his profession’.170 Referring to this decision in a similar case brought against Burkina Faso, the Commission easily found that fifteen years with no action being taken to decide a case was a denial of justice and of Article 7(1)(d);171 and, again, on similar facts where proceedings were pending before the Appeal Court

166 167 168

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denied legal representation; Communication 222/98 and 229/99: lawyer not authorised to appear in court. Communication 218/98; Communications 48/90, 50/91, 52/91 and 89/93, para. 64. Communications 54/91, 61/91, 98/93, 164–196/97, and 210/98, para. 96. Communications 62/92, 68/92 and 78/92: indefinite detention; Communications 147/95 and 149/96: indefinite detention; Communication 74/92: indefinite detention; Communication 103/93: detained for seven years without charge or trial. Communication 153/96, Constitutional Rights Project v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V. Communication 39/90. Communication 204/97, Mouvement Burkinab´e des Droits de l’Homme et des Peuples v. Burkina Faso, Fourteenth Activity Report 2000–2001, Annex V.

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since 1995, Benin was found in violation of Article 7(1)(d) in a decision made in 2004.172 Similarly, the Commission has heard multiple cases concerning the lack of impartiality of courts or tribunals. Under this provision, it has repeatedly affirmed that military or special tribunals violate the African Charter when used against civilians, and where they are chiefly composed of members of the armed forces or of the executive branch of government: ‘regardless of the character of the individual members of such tribunals, its composition alone creates the appearance of, if not actual, lack of impartiality’.173 Thus – referring to the UN Basic Principles on the Independence of the Judiciary and the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa – military courts ‘should not, in any circumstances whatsoever, have jurisdiction over civilians. Similarly, special tribunals should not try offences that fall within the jurisdiction of regular courts.’174 Furthermore, when the Government had dismissed ‘over one hundred judges who were opposed to the formation of special courts and military tribunals’, this ‘deprive[d] courts of the personnel qualified to ensure that they operate impartially [and] thus denie[d] the right to individuals to have their case heard by such bodies’.175 Where military tribunals judge soldiers, they are subject to ‘the same requirements of fairness, openness, justice, independence and due process as any other process’.176

Article 7(2) – no retroactive laws Purportedly retroactive laws are a violation of the African Charter, even if no individual victim can be proved: ‘Article 7(2) must be read to prohibit not only condemnation and infliction of punishment for acts which did not constitute crimes at the time they were committed, but retroactivity 172 173

174 175 176

Communication 199/97, Odjouoriby Cossi Paul v. Benin, Seventeenth Activity Report 2003–2004, Annex VII. Communication 60/91, Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and others) v. Nigeria, Eighth Activity Report 1994–1995, Annex VI, para. 12. There were similar holdings in Communication 87/93; Communications 137/94, 139/94, 154/96 and 161/97; Communication 151/96; Communication 223/98, Communications 54/91, 61/91, 98/93, 164/97 – 196/97 and 210/98; Communication 39/90; Communication 206/97. Communication 224/98, para. 62. Communications 48/90, 50/91, 52/91 and 89/93, para. 69; see also Communications 222/98 and 229/99. Communication 218/98, para. 44.

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itself. It is expected that citizens must take the laws seriously. If laws change with retroactive effect, the rule of law is undermined since individuals cannot know at any moment if their actions are legal.’177 The retroactive creation of offences is thus a violation.178

Article 26 – judicial independence As the Commission noted in one of the many cases involving the Nigerian military government’s suspension of due process guarantees and institution of military or special tribunals, ‘Article 26 of the African Charter reiterates the right enshrined in Article 7 but is even more explicit about States Parties’ obligations . . . While Article 7 focuses on the individual’s right to be heard, Article 26 speaks of the institutions which are essential to give meaning and content to that right. This Article clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual’s rights against the abuses of State power.’179 In a more recent case against Swaziland, the Commission also endorsed the UN Basic Principles on the Independence of the Judiciary and the International Bar Association’s Minimum Standards of Judicial Independence, to find against the Government.180 The importance of judicial independence has been repeatedly emphasised by the Commission in a general 1996 resolution181 and in country resolutions182 , as well as in reports of fact-finding missions.183 The OAU ministerial meetings on human rights in Grand Baie and Kigali also supported these statements.184

177 178

179 180 181 182 183 184

Communications 105/93, 128/94, 130/94 and 152/96, para. 59. Ibid. See also Communications 147/95 and 149/96; Communication 101/03. However, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa do not mention retroactive laws. Communication 129/94, para. 14. See also Communications 137/94, 139/94, 154/96 and 161/97. Communication 251/02, para. 55. Resolution on the Respect and the Strengthening of the Independence of the Judiciary, ACHPR /Res.21(XIX)96. For example, resolutions on Burundi (ACHPR/Res.24(XIX)96) and on Nigeria (ACHPR/Res.11(XVI)94 and ACHPR/Res.16(XXII)95). Executive Summary of the Report of the Fact-finding Mission to Zimbabwe, 24–28 June 2002 (Seventeenth Activity Report 2004). Grand Baie (Mauritius) Declaration and Plan of Action, April 1999, paras. 4 and 8(k); Kigali Declaration, May 2003, para. 5.

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Implementation and enforcement of the Commission’s decisions In 1998, at its 24th Ordinary Session, the Commission adopted a document on ‘Non-Compliance of State Parties to Adopted Recommendations of the African Commission: A Legal Approach’, with an annexed Draft Resolution on the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights, for adoption by the OAU Assembly of Heads of State and Government.185 The Commission noted that ‘the attitude of State Parties . . . has been to generally ignore its recommendations’.186 At the same time, the Commission noted that the OAU Assembly ‘has always adopted the Commission’s reports without debate’, while States affected by decisions or recommendations had never raised any objection. Since that session, the record of States implementing the Commission’s decisions has not improved. Even in cases such as those affecting Rwanda, Nigeria or Malawi, where an important political transition installed a government that might be expected to respect human rights obligations, few steps have been taken to implement the Commission’s recommendations in the shape of specific legal reform, even if the most egregious laws (such as Nigeria’s Decree No. 2 authorising detention without charge) have been repealed. In particular, compensation has rarely been paid to victims of previous regimes. A study of forty-four decisions from the Commission’s 7th to 16th Activity Reports found that in at least half of the cases, the Government concerned had taken no specific implementation measures in response to findings against it.187 Although States are questioned about the implementation of decisions if and when they present State 185

186 187

Doc/OS/50b (XXIV), available in C. Heyns (ed.), Human Rights Law in Africa, Vol. IV 1999 (The Hague: Kluwer Law International, 2002), pp. 219–22. This ‘draft resolution’ was apparently never formally adopted. Ibid., para. 5. L. Louw, ‘An Analysis of State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights’ (thesis submitted in fulfilment of the requirements for the degree of Doctor of Laws at the University of Pretoria, South Africa, January 2005). It is hard to give precise figures on implementation, since, in some cases, steps were taken in response to domestic court decisions that mirrored the Commission’s; in other cases, a change of regime unrelated to the Commission’s ruling led to laws being repealed and prisoners released; in yet other cases, no information was available, or the Commission’s recommendations were sufficiently vague as to make measuring implementation more or less impossible. In a bare handful of cases did the government act in favour of victims, or change laws directly in response to the Commission’s findings (these include cases against Zambia, Sierra Leone and Botswana).

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reports to the Commission, this process too has no follow-up in case of unsatisfactory response: indeed, State representatives attending the Commission’s sessions are sometimes even unaware that there have been previous decisions against their country. States have also regularly ignored the Commission’s request for ‘provisional measures’ to be undertaken, including requests for stays of execution in cases pending the Commission’s decision, and for a range of actions by the Sudanese Government relating to egregious violations taking place in Darfur.188 At the same time, the record of the AU (which replaced the OAU in 2002) in adopting the Commission’s reports has drastically worsened. Recent reports have been debated, but with only negative effect: the adoption (and thus publication) of the 17th Activity Report was delayed by six months, from July 2004 to January 2005; the 18th Activity Report of the Commission was adopted by the AU Assembly in July 2005 in a version substantially rewritten from that adopted by the Commission itself, leaving in limbo as to legal status several decisions and resolutions omitted from the final version;189 the resolutions adopted at the 38th Ordinary Session of December 2005 and contained in the 19th Activity Report were rejected by the Assembly at the Khartoum summit in January 2006 (even though they had already been made public by the Commission);190 the 20th Activity Report was adopted at the Banjul summit in July 2006, 188

189

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Communications 137/94, 139/94, 154/96 and 161/97; Communication 240/2001; Request for Provisional Measures following the Fact-Finding Mission of the African Commission on Human and Peoples’ Rights to Sudan (Darfur Region: 9–18 July 2004), letter from Commission Chairperson Salamata Sawodogo to President Omar El Bashir of Sudan, 25 July 2004. In relation to decisions on communications, the two versions are completely different: the draft 18th Activity Report included decisions on the merits in relation to cases on Tanzania, Guinea, and South Africa; the final version, as adopted by the AU Assembly, included none of these decisions, but instead included a decision on the merits in relation to Swaziland. Those involved in the cases not ultimately included have not been able to find out why their cases were deleted from the final report. There were several other notable differences between the reports, including the omission of several apparently uncontroversial resolutions adopted by the Commission (on the mandates of the special rapporteurs on refugees, asylum seekers and displaced persons, and on freedom of expression; and on economic, social and cultural rights). The decision on Guinea was included in the 20th Activity Report adopted at the July 2006 Banjul summit, but those on South Africa (Communication 255/2002, Gareth Anver Prince v. South Africa) and Tanzania (Communication 243/2001, Women’s Legal Aid Centre (on behalf of Sophia Moto) v. Tanzania) remain officially unpublished. Final Communiqu´e of the Thirty-eighth Ordinary Session, 5 December 2005; Decision on the Nineteenth Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.101(VI). Up to 2005, the Commission prepared annual activity reports for submission to the OAU/AU’s annual summits; the 19th and 20th Reports,

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with the December 2005 resolutions included as well as extensive State submissions upon them,191 but with the exception of a decision on Zimbabwe (which was not adopted until the January 2007 summit in Addis Ababa, after the Zimbabwean Government’s comments had been formally annexed to the decision).192 Reflecting this controversy, the debate on the Commission’s activity reports took more than three hours at both the January and July 2006 meetings of the Executive Council of Ministers.193 In large part, these problems have derived from the lobbying of Zimbabwe, whose Government has formed the focus of increasing attention by the Commission as the human rights situation in the country has worsened since 2000. In particular, Zimbabwe waged a long war of attrition against the adoption of the Commission’s report on its 2002 factfinding mission to Zimbabwe, and against the finalisation of rulings on the increasing number of communications submitted against it. An executive summary of the fact-finding mission was finally published in the 17th Activity Report in January 2005 with Zimbabwe’s comments annexed; the draft 18th Activity Report indeed included a two-page chronology of the steps the Commission had taken to allow the Government of Zimbabwe to comment on this draft report (not included in the version of the 18th Activity Report adopted by the AU Assembly). The draft 19th Activity Report submitted to Khartoum also included resolutions on Uganda, Ethiopia, Eritrea, DRC and Sudan (Darfur); and Zimbabwe was joined in its opposition to the report by these countries. This concerted opposition from a few Member States has had a serious impact on the Commission’s work, preventing the publication of decisions and inappropriately requiring the Commission to add State comments to its decisions and resolutions. In the final 18th Activity Report, as adopted by the Assembly, parties to communications (that is, including the complainant) were reminded that they ‘should abide by the recommendations

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however, cover a six-month period each, belatedly reflecting the AU’s July 2004 decision to hold summits bi-annually. The response of Ethiopia to the two page resolution runs to forty-four pages, whereas Ethiopia has never submitted its State report under Article 62 of the African Charter. Decision on the Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.310(IX). The excluded decision was Communication 245/2002, one of thirteen outstanding complaints against Zimbabwe as of May 2006. See discussion in I. Kane and N. Mbelle, Towards a People-driven African Union: Current Obstacles and New Opportunities (London: AfriMAP, AFRODAD and Oxfam, January 2007). In 2003, the Assembly decided to mandate the Executive Council to assess the work of the Commission; Assembly/AU/Dec.6(II).

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of Article 59 of the Charter prohibiting the publication of these decisions as long as it has not yet been authorised by the Assembly of Heads of State and Government’.194 The decision of the Assembly relating to the 19th Activity Report calls on the Commission ‘to ensure that, in future, it enlists the responses of all States parties to its Resolutions and Decisions before submitting them to the Executive Council and/or the Assembly for consideration’.195 The decision of the AU Executive Council of Ministers adopting the 20th Activity Report ‘invites’ States to provide ‘observations’ on the Commission’s decisions – as though States that are the subject of complaint had not already had the full right to argument and representation during the Commission’s hearings on the case.196 The 21st Activity Report indeed included Zimbabwe’s comments on the ruling against it.197 These problems for the Commission have to some extent derived from interpretation of Article 59 of the African Charter. Article 59(1) provides that: ‘All measures taken within the provisions of the present Chapter [relating to consideration of individual communications and responses to ‘a series of serious or massive violations’] shall remain confidential until such time as the Assembly of Heads of State and Government shall otherwise decide.’ For many years, this provision was held to prevent the Commission from adopting almost any public document; though from the mid-1990s, the Commission’s interpretation of the Article had begun to relax, in the face of the impossibility of obtaining any traction on human rights issues in the absence of the one major tool of human rights organisations: that of publicity (it was only in 1994, in its 7th Activity Report, that the Commission for the first time published its decisions on individual communications). However, Article 59(2) and (3) state that the Commission’s decisions and activity reports ‘shall be published’ after adoption by the Assembly. Despite this requirement, no activity reports since the 16th Activity Report were available on the Commission’s website

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Eighteenth Activity Report of the African Commission on Human and Peoples Rights, Executive Council of the African Union EX/CL/199(VII), July 2005, para. 55. Decision on the Nineteenth Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.101(VI). Decision on the Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.310(IX). Decision on communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, and Zimbabwe’s response to the decision, Annex III to the Twenty-first Activity Report of the African Commission on Human and Peoples’ Rights, EX/CL/322(X), January 2007.

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as of January 2007.198 Fact-finding reports based on missions by the commissioners, except of the Special Rapporteur on Prisons and Conditions of Detention, are also not available online, and the Commission’s Secretariat commonly does not respond to requests for copies, unless the requesters have inside contacts.199 It has, to a large extent, been left to academic institutions (such as the University of Pretoria’s Centre for Human Rights) and human rights organisations (such as the Banjul-based Institute for Human Rights and Development in Africa) to provide documentation of the Commission’s activities; and even so, much information about the Commission’s workings – including documents considered in public hearings – can only be obtained by physically attending the Commission’s sessions. The recent assault on the Commission’s work can only reinforce the Commission’s existing tendency to operate on the basis of ‘oral tradition’, without any serious attempt at formal written record-keeping. The political defeat represented by the treatment of the recent activity reports is a worrying one, with serious implications for the Commission’s work to defend human rights on the continent. The Commission has made some attempts to respond to protect its own autonomy: a ‘brainstorming meeting’ organised in May 2006 by the AU Commission and the African Commission, with representation from the AU Commission Departments for Political Affairs and Peace and Security, as well as the Pan-African Parliament and civil society, requested the AU Executive Council to recommend that the Assembly ‘revisit its decision’ on the 19th Activity Report adopted in Khartoum.200 The meeting also noted the ‘necessity to establish a follow-up mechanism on the publication of the Activity Reports of the ACHPR’, and suggested that the AU Peace and Security Council could be one route to enforce the Commission’s 198 199

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They are available, however, at the website of the Centre for Human Rights at the University of Pretoria: www.chr.up.ac.za. Both the reluctance to relax the interpretation of Article 59 and the absence of a proper record of the Commission’s activities were noted, for example, in Human Rights Watch’s submission to the Commission at its 20th Ordinary Session (the tenth anniversary of the African Charter) in Mauritius, October 1996. See also Amnesty International, The Role of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, AI Index: IOR 63/005/1997, 1 November 1997. While a website for the Commission was eventually established, after many years of lobbying by human rights organisations attending the Commission’s sessions, it remains incomplete even in relation to documents required to be published by the African Charter. Report of the Brainstorming Meeting on the African Commission on Human and Peoples’ Rights, 9–10 May 2006, Banjul, The Gambia, Item 1, Recommendation (i).

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decisions.201 There is a long way to go before the recommendations of this meeting are implemented: the July 2006 Banjul summit of the AU, in some respects, made the situation worse.

Conclusion Even though the bulk of its decisions concern Articles 1 to 7 of the African Charter, the Commission has not in general used the opportunities presented by these cases to go much beyond following international precedent on similar provisions to interpret the African Charter (often without recognition of the sources it is relying on). However, the Commission has been willing to ignore weak drafting in the African Charter in order to bring the rights it enshrines into equality with those in other instruments, and some recent decisions – on the rights of mental health detainees, for example – do break new ground. As greater attention has been paid to its decisions, especially by States, the Commission has also steadily developed its reasoning, so that the style of early cases, which simply stated violations without further argument, is a thing of the past. Some recent decisions run to several tens of pages. Nevertheless, the quality of the Commission’s jurisprudence remains variable, the weaker decisions or resolutions (a 2004 case on Mauritania, for example; or a 2001 resolution on Algeria) often reflecting political divisions within the Commission itself; or (as in the case of the decision on Communication 245/2002 against Zimbabwe) opposition from States accused of violations. The major attention paid to the Commission’s reports during discussions at the AU summits in 2006, the twentieth anniversary year of the Charter, is to some extent a compliment to the greater rigour and importance of its proceedings. Yet the difficulties encountered at those meetings also indicate the extent to which the Commission remains dependent on the political will of AU Member States for its functioning and the enforcement of its decisions. As it enters its third decade, the Commission must still fight to receive the respect and status that it should have by right. 201

Ibid., para. 20 and Item 4, Recommendation (a).

6 Civil and Political Rights in the African Charter: Articles 8–14 kolawole olaniyan

Introduction Nearly twenty years ago, on 21 October 1986, the African Charter on Human and Peoples’ Rights (‘African Charter’ or ‘the Charter’)1 came into force, having been ratified by twenty-six Member States of the then Organization of African Unity (OAU), now the African Union (AU). With the adoption of the Charter five years earlier, on 27 June 1981, Africa became the third region to have its own human rights convention, after Europe and the Americas.2 However, the Charter introduced striking innovations by the normal canons of international human rights law – entrenching the concept of ‘peoples’ rights,3 in addition to civil and political rights and economic, social and cultural rights – all in one single

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African Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3/Rev.5 (entered into force 21 October 1986), International Legal Materals 21 (1982) 58. The Charter was adopted by the 18th Ordinary Session of the Assembly of Heads of State and Government of the OAU in Nairobi in June 1981. All fifty-three OAU/AU States are now parties. Though it was a significant contribution to African human rights discourse, the adoption of the Charter by African governments at that time was deemed ‘hypocritical’, given that many, if not all, of the governments that endorsed the Charter were imposing control over their own societies in a manner that systematically ignored or repudiated the very essence of the Charter, that being respect for the rights of individuals or groups. Nevertheless, despite initial doubts about the ability of the Charter to resolve the human rights challenges in Africa at that time, the African human rights system has shown signs of maturing into a pan-African judicial system, capable (with necessary resources and political will) of contributing to the establishment of a culture of human rights throughout the continent. Articles 19–24 of the African Charter. See also R. Kiwanuka, ‘The Meaning of “People” in the African Charter of Human and Peoples’ Rights’ American Journal of International Law 82 (1988) 80, p. 82; T. van Boven, ‘The Relations between Peoples’ Rights and Human Rights in the African Charter’, Human Rights Law Journal 7 (1986) 183, p. 194.

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document.4 Like any other human rights treaty, the African Charter imposes an obligation on States Parties to take specific legal and other measures to give effect to the rights and freedoms it guarantees, and to provide effective remedies in case of violations. It is the primary responsibility of each State Party to implement the Charter in its domestic laws, but the Charter also establishes an implementing mechanism, the African Commission on Human and Peoples’ Rights (‘African Commission’ or ‘the Commission’) to monitor the extent to which States Parties are complying with their treaty obligations. The text of the African Charter comprises a Preamble and sixty-eight Articles, and is divided into two parts: the first part contains a list of substantive human and peoples’ rights guarantees, as well as duties; the second establishes the African Commission and elaborates its mandates. The human rights recognised by the Charter are covered by Articles 3 to 17; peoples’ rights covered by Articles 19 to 24 and individual duties are covered by Articles 27 to 29. The Commission’s tasks, mandates and procedures are elaborated in the subsequent provisions of the Charter. Further work in the OAU/AU has led to the adoption of additional instruments such as the Protocols on the Rights of Women in Africa and on the Establishment of the African Court on Human and Peoples’ Rights, building on and clarifying the Charter’s provisions. Although paragraph 7 of the Preamble to the African Charter emphasises the universal, indivisible and interdependent and interrelated nature of human rights, the Charter guarantees, for the most part, civil and political rights such as the right to life and integrity of the person; to fair trial; to participate freely in the government of one’s country; to property; freedom from inhuman or degrading treatment, slavery and the slave trade; freedom of conscience and religion; freedom of expression, of association, of assembly and of movement. Because civil and political rights form the bulk of substantive human rights guarantees in the Charter, most of the African Commission’s statements and jurisprudence have reflected this category of human rights. Civil and political rights are of paramount importance, not only because they are necessary for the establishment of individual autonomy, but also because they empower an individual to participate and contribute to the political process of her/his country. They are the yardstick 4

See generally, E. Ankumah, The African Commission on Human and Peoples’ Rights: Practice and Procedures (The Hague: Martinus Nijhoff Publishers, 1996); V. Nmehielle, The African Human Rights System: Its Laws, Practice and Institutions (The Hague: Martinus Nijhoff, 2001).

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of democratic standards and rule of law: representative government and development will be mere dreams without them. Nevertheless, it has to be stressed that the focus here on civil and political rights is merely for analytical convenience, and should not be taken as suggesting a hierarchy of human rights. This writer shares the vision of an international legal order embracing not only civil and political rights but also economic, social and cultural rights. Classification of human rights has been shown not to be entirely accurate or practical. In any event, of what use it is for a man to be saved from torture or the death penalty only to be ‘killed’ by poverty, ignorance, famine or disease? It is paradoxical that the affirmation that all ‘human rights are universal, indivisible and interdependent and interrelated’ is now, fifty-eight years after the adoption of the Universal Declaration of Human Rights, still largely an abstract concept. With this understanding in mind, this chapter analyses the jurisprudence of the African Commission, focusing only on the civil and political rights contained in Articles 8 to 14 of the African Charter.

Freedom of conscience and religion Article 8 of the African Charter provides: 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.5

Freedom of conscience and religion is of paramount importance, not least because its enjoyment adds value to the dignity and self-respect of the individual. It is also an essential complement to the guarantee of the right to freedom of expression and opinion. A guarantee of freedom of conscience and religion would seem to imply that the State should not interfere with an individual’s profession of belief (whether of a religious or non-religious nature) or thought. Questions concerning Article 8 have normally arisen in cases concerning religious beliefs, but there are a few exceptions. Particular cases that have been held by the African Commission to violate Article 8 include: arbitrary arrests of 5

When ratifying the African Charter, Egypt made a reservation in which it accepted all the provisions of the African Charter ‘with the reservation that Article 8 . . . be implemented in accordance with Islamic Law’. See C. Heyns and M. van der Linde (eds.), Human Rights Law in Africa: International Human Rights Law in Africa (Leiden: Brill, 2004), p. 108. However, the Egyptian reservation would seem to be not in line with international law, and may be incompatible with the object and purpose of the African Charter.

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Jehovah’s Witnesses, appropriation of church property as well as denial of access to education;6 deportation of political opponents;7 application of Shari’a law to non-adherents of the religion;8 and persecution, harassment, arrest and detention of ‘priests and their followers’.9 The Commission, however, has not specifically clarified the phrase ‘subject to law and order’ contained in Article 8. It is not clear from this provision whether domestic or international law is intended. In the Jehovah Witnesses case, the Commission refused to interpret the phrase ‘since the government has presented no evidence that the practice of their religion in any way threatens law and order’. It is unfortunate (and wholly unsatisfactory) that the Commission did not spell out exactly what may constitute a restriction based on ‘law and order’. To criticise the Commission decision is not, of course, to suggest that the DRC authorities did have good reason to do what they did, but greater specificity is crucial to the enjoyment of the right contained in Article 8. It has been stated that the phrase ‘subject to law and order’ ‘defines a substantive norm against which limitation of the right may be tested and as such does not constitute a classical claw-back clause’.10 Another commentator has, however, contested this, arguing that the phrase is indeed nothing more than “a claw-back clause”.11 6

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Communications 25/89, 47/90, 56/91 and 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Hommes, Les T´emoins de Jehovah v. Zaire, Ninth Activity Report 1995–1996, Annex VIII. Communication 212/98, Amnesty International v. Zambia, Twelfth Activity Report 1998– 1999, Annex V, para. 54. Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International, Comit´e Loosli Bachelard; Lawyers Committee for Human Rights; Association of Members of the Episcopal Conference of East Africa v. Sudan, Thirteenth Activity Report 1999–2000, Annex V, para. 73. The African Commission has stated that Article 8 should be considered in relation to Article 2 of the Charter, which provides for equal protection under the laws. According to the Commission, while fully respecting the religious freedom of Muslims in Sudan, the Commission cannot countenance the application of law in such a way as to cause discrimination and distress to others. Since the application of Shari’a law is based on the interpretation of the Muslim religion, it is fundamentally unjust that religious laws should be applied against non-adherents of the religion. In this case, the complainant alleged that non-Muslims suffered persecution in the form of denial of work, food aid and education. It was also alleged that unequal food distribution in prisons forced Christian prisoners to commit blackmail in order to obtain food. According to the Commission, these attacks on individuals on account of their religious persuasion considerably restricted their ability to practice freely the religion to which they subscribed. The Government provided no evidence or justifications that would mitigate this conclusion. Ibid. C. Heyns, ‘Civil and Political Rights in the African Charter’ in M. Evans and R. Murray (eds.), The African Charter on Human and Peoples’ Rights (Cambridge: Cambridge University Press, 2002), p. 137. F. Viljoen, ‘Introduction to the African Commission and the Regional Human Rights System’ in Heyns and van der Linde (eds.), Human Rights Law in Africa, p. 405.

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Clawback clauses are generally seen as obstructing the realisation of the rights under the Charter, or as undermining its very essence. Happily, the African Commission would seem to have clarified the situation by stating a general principle that applies to all the rights and freedoms in the Charter, to the effect that ‘international human rights standards must always prevail over contradictory national law. To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter.’12 Any other interpretation would considerably diminish the effect of the Charter. However, in so far as it concerns the manifestation of one’s religion or belief, Article 8 may also be subject to the provisions of Article 27(2) of the Charter, to the effect that ‘the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest’.13 Nevertheless, any limitations to the rights and freedoms recognised by the Charter, including those in Article 8, have to be fully justified.14 Furthermore, the Commission has stated that ‘government should avoid restricting rights, and take special care with regard to those rights protected by constitutional or international human rights law. No situation justifies the wholesale violation of human rights . . . general restriction on rights diminish public confidence in the rule of law and are often counterproductive.’15 The African Commission’s interpretation of Article 8 has reflected the close relationship between this provision and other provisions of the African Charter, especially those on fair trial, the right to property, the right to education and the right to information and freedom of expression. The Commission has also sought, rather wisely, to interpret Article 8 12

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Communications 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v. Nigeria, Twelfth Activity Report 1998–1999, Annex V, para. 66. See, e.g., ibid., para. 68. See, however, General Comment 22, where the UN Human Rights Committee interpreted almost identical provisions in Article 18(1), to the effect that ‘the fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in Article 4(2) of the Covenant. Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice.’ Nevertheless, ‘Article 18(3) permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed law.’ But this provision is to be ‘strictly interpreted’. Communications 105/93, 128/94, 130/94 and 152/96, paras. 73 and 77; Communication 101/93, Civil Liberties Organization in respect of the Nigerian Bar Association v. Nigeria, Eighth Activity Report 1994–1995, Annex VI, para. 16. Communication 102/93, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998–1999, Annex V, para. 58.

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in light of Article 2 provisions, which require equal protection under law, although the Commission’s reasoning in coming to the conclusions it did in many of the cases discussed above are difficult to discern and would appear somewhat scanty. In many of the Article 8 cases, the Commission has been open and embracing and sympathetic to the complaints that have been brought before it. Nevertheless, the Commission would seem to have missed opportunities to establish the general scope of Article 8, and to come up with a clear, considered and reasoned determination of the issues relevant to Article 8 that have come before it, although this is a long-standing problem running through the Commission’s approach to the interpretation of many of the provisions of the African Charter. Furthermore, while the African Commission’s jurisprudence on Article 8 is encouraging, and has touched on some critical and sensitive issues, such as the scope of application of Shari’a law, it has offered little help in clarifying the scope of the guarantees offered by the Article, i.e., in respect of its content and corresponding obligations on States Parties.16 For example, it is not clear whether Article 8 gives a right to conscientious objection to military service; allows governments to make a determination as to what constitutes a religion; gives an absolute right to change one’s religion (a number of States practising Islam or Shari’a law would seem to suggest otherwise); prohibits limitations on interreligious marriages; prohibits registration of religions; prevents parents from coercing their children into adopting their parents’ religion; allows the wearing of distinctive clothing or headcoverings; or allows polygamy. It would be instructive for the Commission (and the newly established African Court on Human and Peoples’ Rights) to spell out exactly the depth of protection under Article 8, and to throw light on the meaning of the term ‘subject to law and order’ in the context of Article 8 guarantees. Otherwise, the controversy surrounding the exact nature of the limitation might remain unresolved. It is to be hoped that both the Commission and the Court will adopt a more vigorous approach to the protection of one’s religion and belief than 16

For example, in both the European Convention on Human Rights and the American Convention on Human Rights, freedom of conscience and religion include the freedom to change one’s belief or religion or to manifest the same in worship, teaching, practice and observance. Similarly, unlike the African Charter, both treaties provide that this freedom is subject to ‘such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’ (Articles 9 and 12). However, Article 12 of the American Convention grants the right to parents or guardians ‘to provide for the religious and moral education of their children’, in line with their convictions.

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has been displayed by the Commission thus far. They must not shy away from taking a position with respect to those issues that are of particular delicacy. In addition, both institutions should avail themselves of the rich jurisprudence of other human rights supervisory bodies, such the UN Human Rights Committee, the Inter-American Commission and Court of Human Rights and the European Court of Human Rights, to develop their own jurisprudence on Article 8.

The right to information and freedom of expression Under Article 9 of the African Charter: (1) Every individual shall have the right to receive information. (2) Every individual shall have the right to express and disseminate his opinions within the law. Perhaps the guarantee under Article 9 is the most universally recognised human right, even though it may be the least respected, especially in the developing world (including Africa) where seeking and attaining the truth is seen generally as inherently injurious to the existence or survival of governments. Yet, there is no doubt that the right to receive information and the freedom to express one’s opinion is of paramount importance, not only because it oils the engine of a representative democracy, but also because it creates a free and open environment – what Justice Oliver Wendell Holmes has captured as the ‘marketplace of ideas’ – a sine qua non to the full development and self-fulfilment of human personality in society. Thus, the African Commission has stated that ‘the right to freedom of expression is a fundamental individual human right which is also a cornerstone of democracy and a means of ensuring the respect for all human rights and freedoms’.17 Freedom of expression is closely related to freedom of conscience guaranteed by Article 8 (discussed above), and the two Articles have frequently been considered together.18 One should 17

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Preamble to the Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission at its 32nd Ordinary Session held from 17–23 October 2003 in Banjul, The Gambia. See also Communications 140/94, 141/94 and 145/95, Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, para. 36, where the Commission stated that ‘freedom of expression is a basic human right, vital to an individual’s personal development and political consciousness, and participation in the conduct of public affairs in his country’. See, e.g., Communication 212/98, where it was stated that ‘the Commission has to determine whether the ‘deportations, being politically motivated, violate the provisions of

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not suffer any consequences from the State for exercising freedom of expression.19 Article 9, however, lacks the specificity found in other instruments, such as Article 19 of the Universal Declaration of Human Rights, which includes the reference to ‘any media’, or Article 19 of the International Covenant on Civil and Political Rights and Article 13 of the American Convention on Human Rights, both of which refer to the ‘right to seek information’, suggesting obligations on the part of public authority to give information at the request of the citizen. However, through Articles 60 and 61, the Charter allows the African Commission to give consideration to other relevant human rights instruments in its work. Thus, the African Commission has helped to address the problem through its case-law;20 the adoption of a Resolution on the Right to Freedom of Expression in Africa21 and a Declaration of Principles on Freedom of Expression in Africa, as well as the appointment of a Special Rapporteur on Freedom of Expression in Africa.22 It should be noted, however, that despite its utility and importance, freedom of expression, like many other human rights recognised under the Charter, is not absolute. Thus, the exercise of the guarantee found in Article 9 must be “within the law”. The Commission has interpreted this clause contained in Article 9(2) to mean that any restrictions on freedom

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Article 9(2) of the African Charter as the two victims were denied the right to freedom of conscience as stipulated in Article 8 of the Charter’. See, e.g., Communication 140/94, 141/94 and 145/95. But see Kosiek v. Germany, Judgment of 28 August 1986, Series A, No. 105, European Human Rights Reports 9 (1987) 328, where the European Court of Human Rights seems to suggest that while the right remains, the person espousing the particular views must live with the consequences of those views where they are not regulated by the Convention. See, e.g., Communications 48/90, 50/91, 52/91 and 89/93; Communications 147/95 and 149/96, Sir Dawda K. Jawara v. The Gambia, Thirteenth Activity Report 1999– 2000, Annex V; Communication 232/99, John D. Ouko v. Kenya, Fourteenth Activity Report 2000–2001, Annex V; Communications 140/94, 141/94 and 145/95, para. 40; Communication 224/98, Media Rights Agenda v. Nigeria, Fourteenth Activity Report 2000–2001, Annex V. Although Article 9 is silent on what is commonly referred to as freedom of the press, these cases illustrate that the press is well-covered under that provision. Resolution on the Right to Freedom of Expression in Africa, adopted at the 11th Ordinary Session of the African Commission, 2–9 March 1992. Declaration of Principles on Freedom of Expression in Africa, adopted at the 32nd Ordinary Session of the African Commission, 17–23 March 2002. In a similar vein, the Commission appointed, during its 36th Ordinary Session in December 2004 in Dakar, a Special Rapporteur on Freedom of Expression in Africa. See Chapter 10.

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of expression have to be ‘provided by law’.23 This would seem to mirror the clause ‘prescribed by law’ contained in the European Convention on Human Rights;24 or ‘established by law’ contained in the American Convention on Human Rights.25 But the clause is exactly the same as that contained in Article 19(3) of the International Covenant on Civil and Political Rights.26 Further, the provisions of Article 9 will be subject to Article 27(2) of the Charter. As the Commission has explained, the right to freedom of expression carries with it certain duties and responsibilities and it is for this reason that certain restrictions on freedom of expression are allowed.27 Although the limitations on freedom of expression contained in Articles 9(2) and 27(2) would seem to omit important requirements (i.e., that any limitation must be necessary in a democratic society) when compared with other international or regional instruments, the African Commission has attempted to bring the provisions in line with such instruments. Thus, the clause ‘within the law’ contained in Article 9(2) ‘does not, however, mean that national law can set aside the right to express and disseminate one’s opinions guaranteed at the international level; this would make the protection of the right to express one’s opinion ineffective’.28 In the case of Constitutional Rights Project and others v. Nigeria, the Commission emphasised that ‘it is a well settled principle of the African Commission that any laws restricting freedom of expression must conform to international human rights norms and standards relating to freedom of expression and should not 23 24 25

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Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62(XXXII)02, para. 11. Communication 250/2002, Liesbeth Zegveld and Messie Ephrem v. Eritrea, Seventeenth Activity Report, 2003–2004, Annex VII, para. 59. Article 10(2) of the American Convention on Human Rights. See also the case of Sunday Times v. United Kingdom, Judgment of 26 April 1979, Series A, No. 30; European Human Rights Reports 2 (1979–80) 245, where the Court of Human Rights ruled that the crucial factors were not whether the law was written or unwritten, but whether the law was expressed with sufficient clarity to enable the citizen to know, with reasonable certainty, the consequences a given action would entail. The Court also stated that the law must be ‘both accessible and foreseeable’. Article 13(2) of the ICCPR. Article 19(3) of the ICCPR. However, the Human Rights Committee has not expanded much on the requirement that Article 19 restrictions be ‘provided by law’, and it is likely that the provisions would be ‘interpreted in the context of other ICCPR guarantees, i.e., that the limitation must be sufficiently delineated in a State’s Law’. S. Joseph et al. (eds.), The International Covenant on Civil and Political Rights, Cases, Materials and Commentary, 2nd edn (Oxford: Oxford University Press, 2004), p. 525. Communications 140/94, 141/94 and 145/95, para. 40.

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jeopardise the right itself’.29 Consequently, ‘if any person expresses or disseminates opinions that are contrary to laws that meet the [above criteria], there should be due process and all affected persons should be allowed to seek redress in a court of law’.30 The more recent Declaration of Principles on Freedom of Expression in Africa in Principle II(2) provides that ‘any restrictions on freedom of expression shall be provided for by law, serve a legitimate interest and be necessary in a democratic society’. Following on this path, the African Commission has, in a series of cases,31 adopted a somewhat robust approach in its interpretation and application of Article 9 in a way that has ensured that the restraints imposed on freedom of expression do not go beyond the limits necessary for the purposes set out in Articles 9(2) and 27(2), and those that have been subsequently articulated by the Commission. In the case of The Law Offices of Ghazi Suleiman v. Sudan,32 the complainant alleged that he had been stopped by State security officials from travelling to Sinnar, Blue Nile State in the Sudan, to honour an invitation to deliver a lecture on human rights. The complainant also alleged that State security officials threatened to arrest him if he honoured the invitation. The complainant argued that his rights, including under Article 9, had been violated. The Commission upheld the complaint, stating that ‘Mr. Ghazi Suleiman’s speech is a unique and important part of political debate in his country.’ Citing the Inter-American Court, ‘when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to ‘receive’ information and ideas’. The African Commission held that, ‘when information that others are being denied concerns the human rights protected in the African Charter as did each instance in which Mr. Ghazi Suleiman was arrested’.33 According to the Commission, ‘the charges levelled against 29 31

32 33

30 Ibid. Communication 232/99, para. 28. Communications 105/93, 128/94, 130/94 and 152/96; Communications 140/94, 141/94 and 145/95; Communication 212/98; see also Thoma v. Luxembourg, European Human Rights Reports 36 (2003) 21. Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Twenty-first Activity Report 2007, Annex III. See also Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Twelfth Activity Report 1998–1999, Annex V. Communication 228/99, The Law Office of Ghazi Suleiman v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII. Ibid., paras. 46 and 50.

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Mr. Ghazi Suleiman by the government of Sudan indicate that the government believed that his speech threatened national security and public order’.34 But given that his speech ‘was directed towards the promotion and protection of human rights, it is of special value to society and deserving of special protection’.35 The Commission went on to conclude that ‘these challenges to Mr. Suleiman’s freedom of expression by the government of Sudan violate his right to freedom of expression under Article 9 of the African Charter’.36 This case indicates that the Commission is reluctant to allow restrictions on freedom of expression on the basis of a ‘ready-made’ excuse of ‘national security and public order.’ In the case of Zimbabwe Human Rights NGO Forum v. Zimbabwe, the complainants, a coalition of twelve Zimbabwean human rights NGOs, alleged that the victims in the case were abused because they ‘held and sought to impart political views and opinions that were unfavourable to those of the respondent State’.37 The complainants also alleged that they were forced to: attend all night rallies where they were given information on why they should support the political party ZANU (PF) and not the opposition MDC; surrender their parties’ campaign materials; and prevented from communicating to others their parties’ policies. The Government asked the Commission to distinguish the present case from Amnesty International and others v. Sudan,38 because in these latter cases, Government institutions perpetrated the violations. The Commission upheld the Government’s argument, and stated that, ‘in the present communication, the violations alleged to have been committed were done by individuals or organisations not directly connected to the State Party. For this reason, the State cannot be said to have violated Articles 9.’39 It is disappointing that the Commission did not deem it fit to explore other responsibilities the Government might have in this particular case. In Open Society Justice Initiative (on behalf of Pius Njawe Noumeni) v. Cameroon,40 the complainant alleged that despite its application for a licence with the Ministry of Communications of Cameroon, ‘an illegal decision’ banned the operation of a private radio station by the Messager 34 36 38 40

35 Ibid., para. 51. Communications 48/90, 50/91, 52/91 and 89/93. 37 Ibid., para. 53. Communication 245/2002. 39 Communications 48/90, 50/91, 52/91 and 89/93. Communication 245/2002. Communication 290/2004, Open Society Justice Initiative (on behalf of Pius Njawe Noumeni) v. Cameroon, Twentieth Activity Report January–June 2006, Annex IV.

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Group based in Douala. The complainant further alleged that the Ministry was in the habit of processing applications for operational licenses in an arbitrary, illegal and discriminatory manner and had on many occasions refused to grant statutory license to operators of radio stations, and on the contrary resorting to the practice of informally issuing temporary authorization to operate on some frequencies, which did not provide any legal cover to the operators of radio stations but only placed them in a situation of uncertainty since the informal authorization could at any given time be withdrawn.

In these circumstances, the Messager announced in 2003 that it would begin broadcasting programs, but the Ministry banned the operation and sealed up the premises of the radio station. The Commission did not need to decide the merits of the case because the parties agreed a settlement. However, the Commission should have at least considered the compatibility of the operations of the Ministry of Communication with the provisions of the African Charter, especially the allegations of what appeared to be a systemic, widespread and institutional discrimination in the granting of operational licences to operators of radio stations in Cameroon. In Liesbeth Zegveld and Mussie Ephrem v. Eritrea,41 the complainants alleged that eleven former Eritrean government officials, were illegally arrested in Asmara, Eritrea in 2001, in violation of Eritrean laws and the African Charter. They were part of a group of fifteen senior officials of the ruling People’s Front for Democracy and Justice (PFDJ) who had been openly critical of the Eritrean Government policies. In May 2001, they wrote an open letter to ruling party members criticising the Government for acting in an ‘illegal and unconstitutional’ manner. The complainant also alleged that the detainees ‘could be prisoners of conscience, detained solely for the peaceful expression of their political opinions’. The Government argued that the eleven persons had been detained for ‘conspiring to overthrow the legal government of the country’. The African Commission held that ‘the facts as presented [here] leave no doubt that the State did indeed restrict the 11 persons’ right to free expression’. This case illustrates the widespread practice of attacks against opposition political leaders who express critical views about governments’ policies and operations. 41

Communication 250/2002.

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Unfortunately, despite the Commission’s intervention and decision, the case of the ‘group of eleven’ remained unresolved, as the Government continued to disregard its obligations under the African Charter. The above are but a few examples of the many cases in which the Commission has dealt with the substantive guarantees under Article 9, and show a general willingness to develop an understanding of that provision in the light of other experiences from other human rights supervisory bodies such as the Inter-American Court of Human Rights (as was the case in the Ghazi Suleiman case). Indeed, the adoption by the African Commission of the Resolution on the Right to Freedom of Expression in Africa and the Declaration of Principles on Freedom of Expression in Africa, and the appointment of a Special Rapporteur on Freedom of Expression in Africa in 2004 have all helped to address the shortcomings of Article 9. One would argue for a similar approach with respect to other substantive provisions of the African Charter. Nevertheless, greater effort should be made by the Commission and the new African Court of Human Rights to define and develop further the relative scope of Article 9 in terms of content and obligations of States Parties. For example, does Article 9 oblige governments to: allow citizens access to any information concerning the spending of the State or that is required to assist the fight against corruption; or to incorporate the principles of transparency into funding of political parties? Given the systemic and massive corruption in many parts of Africa, and the debilitating effect of this on the enjoyment of the rights and freedoms recognised by the African Charter, both the Commission and the Court will need to pay attention to such issues before any real headway is made. Happily, both institutions can take advantage of the new African Union Convention on Preventing and Combating Corruption, which clearly refers to the African Charter and considers corruption to be a violation of the human rights guaranteed under the African Charter.42

Freedoms of association and assembly Article 10 of the African Charter guarantees the right to freedom of association to the effect that: 42

AU Convention on Preventing and Combating Corruption in Africa, Decision Assembly/AU/Dec.27(II). The Convention was adopted by the Assembly of the AU on 11 July 2003 in Maputo, Mozambique.

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the african charter on human and peoples’ rights (1) Every individual shall have the right to free association provided that he abides by the law. (2) Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.

Article 11 provides that: Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

Although both the freedom of association and freedom of assembly are of paramount importance to one’s effective participation and contribution to society, neither has generated much African Charter jurisprudence. While both freedoms are covered under separate Articles of the Charter, they are closely related. In fact, the approach by the African Commission is often to emphasise this close relationship. In one case,43 the Commission held that ‘there is a close relationship between the right to freedom of expression and the rights to association and assembly. Because of that relationship, the actions of the government not only violated the rights to freedom of assembly and association, but also implicitly violated the right to freedom of expression.’44 Because of the close connection between freedom of association and freedom of assembly, both freedoms will be discussed together here.

Freedom of association Freedom of association ‘permits persons formally to join together in groups to pursue common interests’.45 Such groups may include bar associations, students’ unions, medical associations, political parties or trade unions. Freedom to associate with others in common pursuits or for certain lawful purposes is essential to the proper functioning of a representative democracy. However, compared to both Article 11 of the European Convention on Human Rights and Article 22 of the International Covenant on Civil and Political Rights, which expressly mention trade unions as a form of association, Article 10 is silent on the forms of association that may be allowed. Nevertheless, a review of the Commission’s jurisprudence on Article 10 would seem to suggest that the 43 44

Communications 137/94, 139/94, 154/96 and 161/97. 45 Ibid. Joseph et al., The International Covenant on Civil and Political Rights, p. 575.

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Commission may be sympathetic to a broad interpretation of the right to freedom of association. In one case, the African Commission, quoting its Resolution on the Right to Freedom of Association,46 held that the regulation of the exercise of the freedom should be consistent with the State’s obligations under the African Charter.47 The Commission has also stated that governments should not ‘enact provisions which would limit the exercise of this freedom’, or ‘override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international standard’. In Sir Dawda K. Jawara v. The Gambia,48 the Commission held that the ban on political parties ‘is a violation of the complainant’s rights to freedom of association guaranteed under Article 10(1) of the Charter’. In a case against Swaziland, the Commission found that the King’s Proclamation outlawed the formation of political parties or any similar structure, observing that ‘political parties are one means through which citizens can participate in governance either directly or through elected representatives of their choice. By prohibiting the formation of political parties, the King’s Proclamation seriously undermined the ability of the Swaziland people to participate in the government of their country and thus violated Article 13 of the Charter.’49 From the above reasoning, the African Commission is of the view that the Kingdom of Swaziland, by its Proclamation of 1973 and the subsequent Decree No. 3 of 2001, violated Articles 1, 7, 10, 11, 13 and 26 of the African Charter.50 In Amnesty International v. Zambia,51 the Commission found that the deportation of two businessmen was politically motivated, and ruled that because they were prevented from joining a political party, the Government of Zambia had denied them the exercise of their right to freedom of association. In Civil Liberties Organization v. Nigeria,52 the complainant protested against the Legal Practitioners’ Decree, which vested control of a body (called the Body of Benchers) responsible for the Bar Association in the Government. The Commission decided that the Decree violated Article 10 of the African Charter. As the Commission explained, ‘the Body of Benchers is dominated by representatives of the government and has wide discretionary powers. This interference with the free association of the 46 47 48 49 50

Resolution on the Right to Freedom of Association, para. 3. Communication 225/98, Huri-Laws v. Nigeria, Fourteenth Activity Report 2000–2001, Annex V. Communications 147/95 and 149/96. Communication 251/2002, Lawyers for Human Rights v. Swaziland, Eighteenth Activity Report 2004–2005, Annex III. 51 52 Ibid. Communication 212/98. Communication 101/93.

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Nigerian Bar Association is inconsistent with the Preamble of the African Charter in conjunction with UN Basic Principles on the Independence of the Judiciary and thereby constitutes a violation of Article 10 of the African Charter.’53 The Commission has emphasised that ‘freedom of association is enunciated as an individual right and is first and foremost a duty for the State to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without State interference, in associations in order to attain various ends.’54 The Commission found that: The Process and Transitional Powers Act 1989 prohibits, in section 7, effecting, without special permission, any assembly for a political purpose in a public or private place. This general prohibition on the right to associate in all places is disproportionate to the measures required by the Government to maintain public order, security and safety. In addition, there is evidence from the complainants, which is not contested by the government, that the powers were abused. In the absence of information from the government the Commission must give weight to the facts submitted by the complainant. Accordingly, the Commission holds a violation of Article 10(1).55

Perhaps the case of Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v. Islamic Republic of Mauritania,56 more than the previously cited cases, best illuminates the Commission’s approach to the right to association: It is worthy of note that the freedom of expression and the right to association are closely linked because the protection of opinions and the right to express them freely constitute one of the objectives of the right of association. And this amalgamation of the two norms is even clearer in the case of political parties, considering their essential role for the maintenance of pluralism and the proper functioning of democracy. A political group should therefore not be hounded for the simple reason of wanting to hold public debates, with due respect for democratic rules, on a certain number of issues of national interest. The dissolution of UFD/Ere nouvelle political party by the Respondent State was not proportional to the nature of the breaches and offences committed by the political party and is therefore in violation of the provisions of Article 10(1) of the African Charter.57 53 56

57

54 55 Ibid., para. 16. Ibid., para. 14. Ibid. Communication 242/2001, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v. Islamic Republic of Mauritania, Seventeenth Activity Report 2003–2004, Annex VII. Ibid.

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There are at least three permissible limitations to the right to freedom of association under the African Charter: the first and second are contained in Article 10(1), and the third in Article 27(2). Article 10(1) guarantees freedom of association to everyone if he/she abides by the law. This expression is somewhat different from many of the so-called clawback clauses contained in the African Charter, but the Commission’s approach to Article 10 would seem to underline their substantive similarities. As such, the interpretation of Article 10(1) has been consistent with what the Commission has said with regard to limitations (or clawback clauses) found in other provisions of the Charter. Moreover, Article 10(2) states that no one may be compelled to join an association, suggesting a positive obligation to protect individuals from coerced association. This may, for example, entail some right to refuse to associate with groups with which one disagrees. However, the first sentence of Article 10(2) subjects the enjoyment of this freedom to the ‘obligation of solidarity’. This restriction is contained in Article 29(4), which inter alia imposes a duty on every individual to preserve or strengthen social and national solidarity if this is threatened. The Commission has not yet interpreted the phrase ‘obligation of solidarity’, but it is likely that the Commission’s approach will mirror its interpretation of clawback clauses, which would help underline the essence, object and purpose of the human rights and freedoms guaranteed under the African Charter. Otherwise, Article 10(2) would hardly serve its purposes or offer adequate protection. Indeed, the Commission’s view of Article 27(2), which requires the right to be enjoyed subject to the rights of others, collective security, morality and common interest, may be indicative of how the Commission would interpret the phrase in the future: for the African Commission the only legitimate reasons for restricting the rights and freedoms contained in the Charter are those stipulated in Article 27(2), namely that the rights shall be exercised with due regard to the rights of others, collective security, morality and common interest. And even in this case the restrictions should be based on legitimate public interest and the inconvenience caused by these restrictions should be strictly proportional and absolutely necessary for the benefits to be realised.58

Freedom of assembly Freedom of assembly guarantees the right of persons to gather intentionally and temporarily for a specific purpose.59 Article 11 guarantees 58 59

Ibid., para. 78. Joseph et al., The International Covenant on Civil and Political Rights, p. 568.

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the right to ‘assembl[e] freely with others’, but unlike Article 11 of the European Convention on Human Rights and Article 21 of the International Covenant on Civil and Political Rights, this freedom is not confined to ‘peaceful assemblies’. This would seem to suggest that assemblies that turn violent may be covered. However, the drafters of the Charter intended that ‘peaceful assembly’ could be inferred from the second sentence of Article 11, which subjects the right to assembly to ‘necessary restrictions provided for by law’. Such laws may aim to promote national security, the safety, health, ethics and rights of others. Nevertheless, although reflecting some differences of form, this limitation mirrors (in substance) those found in many of the provisions of the Charter, and it is likely that the Commission’s interpretation of the limitation in Article 11 will be consistent with its general approach to limitations under the Charter. As is the case with many of the provisions of the African Charter, the African Commission’s jurisprudence on Articles 10 and 11 has not yet been fully developed. Several of the cases that have thus far been decided by the Commission relating to these Articles have exhibited some poor reasoning, and have not helped throw light on the scope of their application. It is to be hoped that the new African Human Rights Court will adopt a more considered approach to the interpretation of the African Charter, which would help address this recurring problem. Moreover, the bulk of the Commission’s jurisprudence on Articles 10 and 11 has involved cases concerning political participation and political parties. There are strong reasons for a broad and expansive interpretation of Articles 10 and 11, given the scale of violations of the guarantees offered by both provisions. The African Commission and the African Human Rights Court will in the future need to address the extent to which political exclusion of the poor from electoral systems, and outright political or electoral malpractice and corruption, can be redressed under both Articles 10 and 11. Both institutions’ contributions in this respect would be particularly valuable, especially in light of the fragile and unstable political systems across Africa.

Freedom of movement Article 12 of the African Charter guarantees freedom of movement in the broadest sense, but not without the typical limitation clauses. It provides that:

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(1) Every individual shall have the right to freedom of movement and residence within the borders of a State provided they abide by the law. (2) Every individual shall have the right to leave any country including their own, and to return to their country. This right may only be subject to restrictions provided for by law for the protection of national security, law and order, public health or morality. (3) Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. (4) A non-national legally admitted in a territory of a State Party to the present Charter may only be expelled from it by virtue of a decision taken in accordance with the law. (5) The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups. In general, Article 12 of the Charter, which is similar to the wording of Articles 13 and 14 of the Universal Declaration of Human Rights (UDHR), guarantees freedom of movement and freedom to choose one’s residence. However, Article 12 is considerably more detailed than the provisions of the UDHR. Article 12 mirrors both Article 12 of the International Covenant on Civil and Political Rights and Article 22 of the American Convention on Human Rights. With respect to Article 12 of the International Covenant on Civil and Political Rights, the Human Rights Committee has stated that the right to reside in a place of one’s choice within the territory includes protection against all forms of forced internal displacement.60 Under the Charter provisions, citizens have a right to obtain travel documents from their State, and aliens may not be expelled from a country without due process of law, precluding arbitrary decisions to expel. In contrast to Article 12 of the International Covenant on Civil and Political Rights (‘the Covenant’), Article 12 of the African Charter expressly prohibits mass expulsion, a recurring problem in many parts of Africa. Although Article 13 of the Covenant deals with procedural rights against expulsion, it does not provide aliens with a guarantee against expulsion. Nevertheless, the Human Rights Committee has stated in its General Comment 15 that mass expulsion would be incompatible with that provision, and it has been observed that ‘the right to liberty of movement constitutes the right to move unhindered throughout the territory of 60

General Comment 27, para. 5.

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the State’.61 Article 12 contains a number of limitations, similar to those already discussed. It can be expected that the limitations contained in Article 12 will be interpreted the same way they have been in the context of other African Charter rights. Most of the cases that have been considered by the Commission on Article 12 relate to the rights of non-citizens, though cases involving citizens have also been dealt with. Moreover, the Commission’s jurisprudence on Article 12 has frequently referred to the principle of non-discrimination in Article 2. Here the Commission has stated that ‘Article 2 “lays down a principle that is essential to the spirit of this convention, one of whose goals is the elimination of all forms of discrimination and to ensure equality among all human beings’.62 Regarding Article 12(5), the Commission stated in Rencontre Africaine pour la D´efense des Droits de l’Homme v. Zambia, that ‘those who drafted the Charter considered large scale expulsion as a special threat to human rights’. The Commission concluded that, ‘in consequence, the action of a State targeting specific national, racial, ethnic or religious groups is generally qualified as discriminatory in this sense as it has no legal basis’.63 The case of Amnesty International v. Zambia64 involved the deportation of William Banda and John Chinula, both of whom had resided in Zambia for many years. Mr. Banda unsuccessfully challenged his deportation in the Zambian courts, but was denied access to the administrative proceedings that should have been available to him under the Citizenship Act. The Commission found that this violated both Articles 7 and 12(4) of the Charter. Similarly, in Democratic Republic of the Congo v. Burundi, Rwanda and Uganda,65 the un-refuted allegation of mass transfer of persons from the eastern provinces of the DRC to camps in Rwanda was found by the Commission to violate the right to freedom of movement, and the right to leave and to return to one’s country under Article 12(1) and (2) of the Charter. In Alhassan Abubakar v. Ghana,66 the complainant, a Ghanaian citizen, was residing in Coˆ te d’Ivoire when he was arrested for 61 62 63 64 65 66

Joseph et al., The International Covenant on Civil and Political Rights, p. 349. Communications 54/91, 61/91, 164/97–196/97 and 210/98, Malawi African Association and others v. Mauritania, Thirteenth Activity Report 1999–2000, Annex V, para. 131. Communication 71/92, Rencontre Africaine pour la D´efense des Droits de l’Homme v. Zambia, Eleventh Activity Report 1997–1998, Annex X, para. 15. Communication 212/98. Communication 227/99, Democratic Republic of the Congo v. Burundi, Rwanda and Uganda, Twentieth Activity Report January–June 2006, Annex IV. Communication 103/93, Alhassan Abubakar v. Ghana, Tenth Activity Report 1996–1997, Annex X.

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allegedly co-operating with political dissidents. He was detained without charge or trial for seven years until his escape from a prison hospital in 1992. His sister and wife were later arrested in his place, and were held for two weeks in an attempt to get information on the complainant’s whereabouts. Furthermore, the case of Organisation Mondiale Contre La Torture v. Rwanda involved the expulsion from Rwanda of Burundian nationals who had been refugees in Rwanda for several years. Prior to their expulsion, the complainants were not allowed to defend themselves before a competent court. The Commission found that the complainants were arrested, detained, and expelled based on grounds of ethnic origin alone. According to the Commission, ‘Article 12 should be read as including a general protection of all those who are subject to persecution, that they may seek refuge in another state.’67 The Commission found a violation of Article 12(4) prohibiting the arbitrary expulsion of such persons from the country of asylum. The Commission also ruled that the mass expulsion of the complainants based on their nationality violated Article 12(5). In a similar case, Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia, involving the expulsion of about 517 West Africans by the Government of Zambia on the grounds of residing in Zambia unlawfully, the Commission stressed that: ‘Article 12 imposes an obligation on the contracting states to secure the rights protected in the Charter to all persons within their jurisdiction, nationals and non-nationals.’68 The Commission found a violation of Article 12(5), stating that the deportees were expelled because of their nationality. The case of F´ed´eration Internationale des Ligues des Droits de l’Homme v. Angola involved the expulsion of West African nationals from Angola in 1996. While acknowledging the economic challenges faced by Africa, including Angola, the Commission cautioned against the practice of many States to protect their nationals and economies from non-nationals, stating that mass expulsions of any category of persons, whether on the basis of nationality, religion, ethnic, racial, or other considerations violates human rights.69 In African Institute

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68 69

Communications 27/89, 46/91, 49/91 and 99/93, Organisation Mondiale Contre La Torture and the Association Internationale des Juristes Democrates and others v. Rwanda, Tenth Activity Report 1996–1997, Annex X. Communication 71/92, para. 22. Communication 159/96, Union Interafricaine des Droits de l’Homme, F´ed´eration Internationale des Ligues des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au S´en´egal and Association Malienne des Droits de l’Homme v. Angola, Eleventh Activity Report 1997–1998, Annex II, para. 17. A violation of Article 14 was also found, because the Commission found that the expulsion of the West Africans resulted in some of them losing the property they owned in Angola.

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for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v. Republic of Guinea, the Commission stated that it was: [a]ware that African countries generally and the Republic of Guinea in particular, face a lot of challenges when it comes to hosting refugees from neighbouring war torn countries. In such circumstances some of these countries often resort to extreme measures to protect their citizens. However, such measures should not be taken to the detriment of the enjoyment of human rights. When countries ratify or sign international instruments, they do so willingly and in total cognisance of their obligation to apply the provisions of these instruments. Consequently, the Republic of Guinea has assumed the obligation of protecting human rights, notably the rights of all those refugees who seek protection in Guinea.70

The Commission has found that the violation of Article 12 could lead to violations of other African Charter rights, as happened in the Union Interafricaine des Droits de l’Homme and others v. Angola case.71 However, most of the cases that have been considered by the Commission under Article 12, as with most provisions of the African Charter, have been based on poor reasoning, and without sufficient articulation of the legal issues involved. Most of the Commission’s cases on Article 12 have related to the expulsion of citizens and non-citizens alike, but another related problem in Africa that is yet to be fully explored by the Commission, but which might be covered by the protection offered by Article 12, is the right to return for refugees seeking voluntary repatriation. The application of Article 12 might also help to redress the practice in some African countries, which restricts the right of women to travel or leave their countries of origin in the absence of the consent of their husbands.

Right to participate in the government of one’s country Article 13 provides: (1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

70

71

See also Communication 73/92, Mohammed Lamine Diakit´e v. Gabon, Thirteenth Activity Report 1999–2000, Annex V. Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v. Guinea, Twentieth Activity Report January–June 2006, Annex IV, paras. 67 and 68. See note 67.

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(2) Every citizen shall have the right of equal access to the public service of his country. (3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law.72 Under Article 13, the citizen shall exercise political power either directly or through freely chosen representatives. Free elections (i.e., a genuine choice) are thus a condition of an effective political participation referred to in the first sentence of Article 13. However, in contrast to Article 25 of the International Covenant on Civil and Political Rights, which expressly mentions ‘periodic election’ as the means of choosing one’s representatives, the Charter does not indicate how the representatives will be chosen. Nevertheless, the Commission’s adoption of a resolution during its 19th Ordinary Session would seem to rectify the problem. The Resolution on Electoral Process and Participatory Governance states that ‘elections are the only means by which people can elect democratically the government of their choice in conformity with the African Charter on Human and Peoples’ Rights’,73 while also requiring governments to take measures to ensure the credibility of electoral processes. The Commission has found that the following cases violate Article 13: the dissolution of political parties;74 banning of ministers and members of Parliament from taking part in any political activities after a military coup;75 and deportation of an immigrant soon after he founded an opposition political party.76 The Commission has also found legislation excluding Zambians who cannot prove that both their parents were Zambians by birth or descent from contesting the office of president to be contrary to Article 13.77 It has also said that: According to the interpretation given by the African Commission to freedom of expression and to the right of association as defined in the African 72

73 74 76 77

Article 13 should be closely read together with Article 20, which provides that ‘all peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.’ Resolution on Electoral Process and Participatory Governance, ACHPR/Res.23(XIX)96, para. 1. 75 Communication 242/2001. Communications 147/95 and 149/96, para. 67. Communication 97/93, John K. Modise v. Botswana, Seventh Activity Report 1996–1997, Annex IX. Communication 211/98, Legal Resources Foundation v. Zambia, Fourteenth Activity Report 2000–2001, Annex V.

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the african charter on human and peoples’ rights Charter, States have the right to regulate, through their national legislation, the exercise of these two rights. Articles 9(2), 10(1) and 13(1) of the African Charter all specifically refer to the need to respect the provisions of national legislation in the implementation and enjoyment of such rights. In this particular case, the relevant provisions of Mauritanian laws that had been applied are Articles 11 and 18 of the Constitution and Articles 4, 25 and 26 of the Decree 91–024 of the 25th July 1991 relative to Political Parties. However these regulations should be compatible with the obligations of States as outlined in the African Charter.78

In Lawyers for Human Rights v. Swaziland, the Commission also stated that:79 The complainant also alleges violation of Article 13 of the African Charter claiming that the King’s Proclamation of 1973 restricted participation of citizens in governance as according to the complainant the import of sections 11 and 12 of the Proclamation is that citizens can only participate in issues of governance only within structures of the Tinkhundla. [The Commission holds] that the King’s Proclamation clearly outlaws the formation of political parties or any similar structure. Political parties are one means through which citizens can participate in governance either directly or through elected representatives of their choice. By prohibiting the formation of political parties, the King’s Proclamation seriously undermined the ability of the Swaziland people to participate in the government of their country and thus violated Article 13 of the Charter.80

Similarly, the case of Constitutional Rights Project and Civil Liberties Organisation v. Nigeria81 involved the annulment of a presidential election regarded as the freest in the history of Nigeria. On 12 June 1993, a presidential election was held in Nigeria. Both foreign and local media confirmed that the election was free and fair. Three days later, the National Electoral Commission began announcing the election results. The National Electoral Commission announced the results from fourteen States, including the Federal Capital Territory, Abuja, before it was restrained by an Abuja High Court from announcing the election results. On 23 June, the Federal Military Government announced the annulment of the 12 June election results. Various reasons were given for this action. The complainants alleged these reasons included the fact that the Military 78 79 81

Communication 242/2001, paras. 76 and 77. 80 Communication 251/2002. Ibid. Communication 143/96, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V.

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Government was not happy that Abiola, the Social Democratic candidate, appeared to have won the election. Dissatisfied with the decision of the Federal Military Government to annul election results, Abiola, together with the Governors of all the States controlled by the Social Democratic Party, went to the Supreme Court to seek redress. Shortly thereafter the Federal Military Government promulgated several Decrees ousting the jurisdiction of the courts and restating the decision of the Nigerian Government to annul the election results. The Commission stated that: To participate freely in government entails, among other things, the right to vote for the representative of one’s choice. An inevitable corollary of this right that the results of free expression of the will of the voters are respected; otherwise, the right to vote freely is meaningless. In light of this, the annulment of the election results, which reflected the free choice of the voters, is in violation of Article 13.1. Article 20.1 of the Charter provides: [All peoples] shall freely determine their political status . . . according to the policy they have freely chosen. The right of a people to determine their ‘political status’ can be interpreted as involving the right of Nigerians to be able to choose freely those persons or party that will govern them. It is the counterpart of the right enjoyed by individuals under Article 13. The election at issue here, held in conditions adjudged to be free and fair by international observers, was an exercise of the right of Nigerians to freely determine this political status. The subsequent annulment of the results by the authority in power is a violation of this right of the Nigerian people.82

Article 13 guarantees remain critical and current to achieving transparent and accountable governance in Africa, where African people generally do not count in the political arrangements and running of their own countries. Unfortunately, despite some encouraging decisions on some of the Article 13 cases mentioned above, the Commission’s contribution to addressing this problem has been very minimal. The Commission will need to be more proactive and creative in its interpretation of Article 13 if the application of the provision is to contribute to resolving some of the present-day circumstances and challenges confronting Africa. Moreover, it is unclear whether Article 13 applies only to nationals of a State Party or to both nationals and non-nationals, and the Commission jurisprudence has not really helped to clarify this. In view of the use of the term ‘every 82

Communication 102/93, para. 50.

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individual’ in Article 13 (3) (in contrast to Article 13(1) and (2) that uses the term ‘every citizen’), the Commission will need to resolve whether Article 13(3) of the Charter only confers upon citizens of a State Party the ‘right of access to public property and services’, or to all people within a State Party territory or jurisdiction. Another issue that should preoccupy the African Commission and the new African Court of Human Rights in the near future is the extent to which Article 13 embraces the concept of democratic accountability and the sort of redress open to citizens in cases of undemocratic and unaccountable exercise of governmental power, i.e., ‘sit-tight’ leaders who seek to perpetuate themselves in power through constitutional amendment or political manipulation, as is currently the case in many parts of Africa, including Egypt, Gabon, Libya, Nigeria, Togo (until the death of Gnasingbe Eyadema in 2005), Uganda and Zimbabwe.

Right to property Article 14 of the Charter, which guarantees the right to property, reinforces the notion of universality, indivisibility and interrelatedness of human rights, because the right has both civil, political and economic, social and cultural rights dimensions. Article 14 provides: The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

Simply put, Article 14 obliges States Parties to refrain from arbitrarily interfering in one’s possession of property. States Parties are also required to protect interference with the right to property by third parties. The right to property can only be denied in the ‘interest of public or the community’ and any denial must comply with the ‘provisions of appropriate laws’. These limitations would seem to be sweeping inroads into the enjoyment of the right to property, especially in the absence of express reference to adequate compensation. However, reading Article 14 together closely with Article 21, which guarantees the right of peoples to freely dispose of their wealth and natural resources and provides that ‘in case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation’, would seem to address this problem. Further, the Commission’s jurisprudence has shown, somewhat, a willingness to strike a fair balance between the demands of the ‘general

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interest of the community’ and the requirements of the protection offered in Article 14. But a combined reading of the two Articles raises another question: whether the right to property is an individual right only, or is both an individual and a peoples’ right. It is submitted that in its broadest sense, the right to property is one that can be enjoyed either individually or collectively. However, in contrast to Article 14, Article 23 of the American Convention on Human Rights not only requires the payment of ‘just compensation’ in case of deprivation of the right to property, but the provision also prohibits ‘usury and other forms of exploitation of man by man’. Compared to some provisions of the Charter, cases involving Article 14 are few, but the Commission has frequently found violations in those that have come before it. In Democratic Republic of the Congo v. Burundi, Rwanda and Uganda,83 the Commission stated: The looting, killing, mass and indiscriminate transfers of civilian population, the besiege and damage of the hydro-dam, stopping of essential services in the hospital, leading to deaths of patients and the general disruption of life and state of war that took place while the forces of the Respondent States were occupying and in control of the eastern provinces of the Complainant State are in violation of Article 14 guaranteeing the right to property.

In a case against Nigeria,84 the complainants alleged that decrees issued in 1994 by the Military Government of Nigeria proscribed the Guardian, Punch and The Concord newspapers from publishing and circulating in Nigeria.85 The Military Government had earlier closed down the Guardian and the Concord publications, whose premises were still being occupied and sealed up by armed security personnel and policemen. However, the Government did not offer any explanation for the sealing up of the premises of many publications, but maintained the seizure in violation of direct court orders. Those affected were not previously accused or convicted in court of any wrongdoing. The Commission stated that: 83 85

84 Communication 227/99. Communications 140/94, 141/94 and 145/95, para. 54. The Decrees are titled: The Concord Newspapers and African Concord Weekly Magazine (Proscription and Prohibition from Circulation) Decree No. 6; The Punch Newspapers (Proscription and Prohibition from Circulation) Decree No. 7; and the Guardian Newspaper and African Guardian Weekly Magazine (Proscription and Prohibition from Circulation) Decree No. 8, all of 1994.

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the african charter on human and peoples’ rights The right to property necessarily includes a right to have access to one’s property and the right not to have one’s property invaded or encroached upon. The Decrees which permitted the Newspapers premises to be sealed up and for publications to be seized cannot be said to be ‘appropriate’ or in the interest of the public or the community in general. The Commission holds a violation of Article 14. In addition, the seizure of the magazines for reasons that have not been shown to be in the public need or interest also violates the right to property.86

In Huri-Laws v. Nigeria,87 five staff of The Civil Liberties Organisation (CLO) were arrested and detained at the Awolowo Road office of the State Security Services (SSS). Three were released the same night, while two were detained for two days and nights. The complainant alleged further that all but one computers were released, and alleged, among others, a violation of Article 14 of the Charter. The Commission held that ‘Article 14 implies that owners have the right to undisturbed possession, use and control of their property however they deem fit.’88 The Commission would seem to have taken a broad view of the term ‘property’ in Article 14, judging from the cases that have come before it. In the Democratic Republic of the Congo v. Burundi, Rwanda and Uganda case, for example, the Commission held that the occupying forces of the respondent States, which committed looting and killing, etc. while in occupation and control of the DRC, violated Article 14.89 Denial of access to property violates Article 14, as does the unjustifiable seizure of news magazines in Nigeria. However, there is manifestly a need for the Commission to advance its work in this area. One key issue that the Commission and the new Court will need to address is whether Article 14 per se gives rise to compensation, since this is not expressly mentioned under the provision. Unfortunately, the Commission’s approach to compensation generally remains unsatisfactory (and clearly inconsistent with international standards), and one hopes that the Court would take a more progressive approach to compensation, and will not allow expropriation without adequate compensation. This would be entirely consistent with the object of a provision designed to protect a right to property, as with Article 21 of the African Charter, which refers to ‘the right to adequate compensation’ in cases of ‘spoliation of resources of a dispossessed people’. The Commission would also have to determine the extent to which customary rules relating to property 86 88

Ibid., para. 77. Ibid., para. 52.

87 89

Communication 225/98. Communication 227/99.

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inheritance in Africa, which in some respects discriminate against women, are consistent and compatible with Article 14 guarantees. The Commission should broaden its interpretation of the right to property not only to ensure a full enjoyment of property rights for those who are in a position to acquire property, but also to guarantee to individuals and peoples a certain minimum of property required for living a life in dignity. As one commentator puts it, ‘a perception of human rights as an interdependent and indivisible whole calls for a wider interpretation of the right to property. If the realization of property rights only entails a right to own property for those who are in a position to acquire property and a protection against arbitrary interference in these existing property rights, it can hardly be claimed that the entire right to property is effectively realized.’90 It is to be hoped that the Commission will in the future find it useful to begin the adoption of General Comments dealing with the interpretation of not only Article 14 but also other Articles contained in the African Charter.

Conclusion The relatively modest achievements of the African Commission in its nineteen years of existence have exceeded all expectations. Derided and mocked right from the onset as ‘a fac¸ade, a yoke that African leaders have put around [Africans’] necks’,91 the African human rights system has shown great potential over the years, suggesting that many of the views expressed by the doubting Thomases have been overstated or mistaken. Obviously many challenges remain, but any independent observer of the system will agree that significant improvements have been made not only because of the recent establishment of the African Court on Human and Peoples’ Rights (also viewed as unrealistic only a few years ago), but also the development and elaboration of the African Charter through the adoption of protocols, declarations and resolutions. The African Commission continues to strive, especially through its individual complaint procedure, to address the numerous human rights problems confronting Africa. Despite the financial and political hindrances the Commission has had to grapple with in past years, its jurisprudence and case-law, especially 90 91

C. Krause, ‘The Right to Property’ in A. Eide et al., Economic, Social and Cultural Rights (The Hague: Martinus Nijhoff, 1995), pp. 156–57. M. Wa Mutua, ‘The African Human Rights System in Comparative Perspective’ in Review of the African Commission on Human and Peoples’ Rights 3 (1993) 5, p. 11.

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on civil and political rights, shows that the prospects for the future are great. Notwithstanding the minimal success of the individual complaint procedure, however, the Commission still faces a number of problems, which have tended to undermine its effectiveness as a human rights supervisory body. The Commission (and the new Court) will need to assert its authority more, and while the ‘governmentalisation’ of the membership of the treaty bodies is not peculiar to the Commission, its members must exercise a greater level of independence than is the case at the moment. If they fail to do so, many will question whether the Commission is worthy of the attention it is currently being given by human rights non-governmental organisations, scholars and others, both regionally and globally. The Commission will need to be more creative, rigorous and analytical in its interpretative functions of the Charter if it is to breathe life into some of the excessively broad and general provisions of the Charter. One way the African Commission could advance its creative or interpretative functions is to begin the adoption of General Comments, which would help to develop a better understanding of the normative content and breadth of protection offered by the African Charter. With the establishment of the African Court on Human and Peoples’ Rights, there is now a real chance to optimise the value and potential of the Charter as a true human rights instrument. However, the credibility of both the African Commission and the Court as enforcement mechanisms will depend on how effectively they deal with complaints against recalcitrant African States. Perhaps the biggest problem of an enduring nature is the lack of political will and support by African governments. The result has been the lack of capacity of the Commission’s Secretariat (i.e., insufficient legal and professional expertise at the Secretariat) to deal with communications in a timely and effective manner, causing frequent postponement of consideration of communications from session to session. For example, out of fifty-nine cases set down for consideration during the Commission’s 39th Ordinary Session in Banjul, The Gambia in May 2006, only two were dealt with, and even then, these were cases the Commission struck off its register. The remaining communications were deferred to the 40th Ordinary Session, but there is little guarantee that they will be considered then. At the 40th Ordinary Session in Banjul, The Gambia in November 2006, the Commission only managed to deal with three cases, and even then only one ruling was on merit; the remaining two rulings were on admissibility.

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Unfortunately, the Commission of the AU, responsible for meeting the costs of the African Commission’s operations, including the provision of staff, financial resources and services, has not lived up to expectations. The result is that the African Commission on Human and Peoples’ Rights continues to rely on external support for its staffing requirements or finances, but this has proved grossly inadequate to cope with its increasing workload. Disgracefully, the AU allocation for hosting an ordinary session of the Commission has been cut down to just $20,000, which is $50,000 short of the costs of conducting the 2006 sessions. Many States are refusing to host sessions of the Commission, while the record of compliance with requests for adoption of provisional measures under the communication procedure is to say the least, poor. In many cases, States simply refuse to reply to allegations under the communications procedure. Now is the time for African governments to take responsibility and to invest in the long-term future of the African human rights system that they have established. If not, the promise of ‘never again’ will remain unfulfilled, and the expectations of many African men, women and children craving for a change may not be met. If fully supported, the African Charter and its implementing mechanisms are capable of transforming the culture of impunity into that of respect for human rights, and can make a difference in the lives of real people throughout the continent. But the big question is: will African leaders ever show the political and financial commitment necessary for facilitating the development of the normative contents of the African Charter, and therefore ensuring its full realisation and enjoyment both regionally and nationally? Time will tell.

7 Group Rights clive baldwin and cynthia morel

Introduction Though major human rights instruments such as the International Covenant on Civil and Political Rights have recognised ‘peoples’, in no other instrument have the rights of peoples been afforded more concrete scope than in the African Charter on Human and Peoples’ Rights.1 Indeed, peoples’ rights figure prominently within the Charter, with six operative paragraphs dedicated specifically to this area of law. This unique feature of the Charter reflects the values of African societies, where ‘a person is not regarded as an isolated and abstract individual, but an integral member of a community’.2 The Charter’s commitment to both individual and collective rights reaffirms the interdependence of all human rights. In its Preamble, the Charter recognises the rights of peoples as constituting a condition sine qua non of the realisation and guarantee of individual rights.3 Group rights not only facilitate the realisation of other human rights, but many rights have both individual and collective dimensions.4 1

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The African Charter on Human and Peoples’ Rights will be generally cited as the ‘African Charter’, ‘the Charter, or ‘ACHPR’ throughout this chapter. The African Commission on Human and Peoples’ Rights will in turn be referred to as the ‘African Commission’, or ‘the Commission’. R. Kiwanuka, ‘The Meaning of “People” in the African Charter of Human and Peoples’ Rights’ American Journal of International Law 82 (1988) 80. Fifth preambular paragraph of the African Charter: recognizing, on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection, and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights. See also R. Degni-Segui, ‘L’apport de la Charte Africaine des Droits de l’Homme et des Peuples au Droit International des Droits de l’Homme’, Revue Africaine des Droits de l’Homme et des Peuples 2 (1992) 17. For example, in indigenous societies in particular, the individual right to property is satisfied through the exercise of the collective right to land. The right to land in turn facilitates a range of other rights, including the right to food. See General Comment 14 of the UN

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This chapter examines the evolution of group rights under the African Charter on the basis of jurisprudence developed by the African Commission on Human and Peoples’ Rights, as well as resolutions and reports adopted by this regional body.

Peoples as rights-holders under the Charter Although the African Charter devotes six Articles to peoples’ rights – ranging from the rights of equality,5 self-determination and protection of existence,6 to the right of peoples to national resources,7 development,8 peace,9 and to a general satisfactory environment10 – there is no definition of the term ‘peoples’ in the Charter. This omission is not unique to the African Charter. None of the major international treaties have a definition of ‘peoples’, including the United Nations Charter, the cornerstone of the international legal system, which begins with: ‘We the peoples of the United Nations . . .’.11 Only in the context of colonialism is the term ‘peoples’ applied with any formal consensus.12 This lack of clarity over who are the rights holders under Articles 19 to 24 has resulted in questions as to whether these provisions should be considered to be merely aspirational within the African human rights framework. Persistent questioning over the justiciability of ‘solidarity’ Articles also initially threatened to reduce the scope and application of these clauses. However, from the outset, the Commission has pursued an approach that recognised that peoples have distinct, justiciable rights under the

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Committee on Economic, Social and Cultural Rights; General Comment 14 (The right to the highest attainable standard of health) (Article 12) 2000, para. 59 and note 30, UN Doc. E/C.12.2004/4, which also emphasises the collective and individual dimensions of the right to health. 6 7 Article 19. Article 20. Article 21. 9 10 Article 22. Article 23. Article 24. Preamble to the United Nations Charter. Prominent reference to ‘peoples’ are also found in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The understanding of colonised populations, or populations under other forms of alien subjugation as ‘peoples’, is rooted in the Declaration on Granting of Independence to Colonial Countries and Peoples, GA Res.1514(XV), 15 UN GAOR Supp. (No. 16) at 66, UN Doc. A/4684 (1961). See also the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, GA Res.2625 (1970). For additional consideration of the scope on who may be considered as a ‘peoples’ under international law, see Reference re Secession of Quebec, Supreme Court of Canada, Supreme Court Reports 2 [1998] 917, paras. 123–24.

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Charter, and therefore need to be recognised as claimants. Recently, the Constitutive Act of the African Union confirmed that the promotion and protection of human and peoples’ rights is one of its major objectives.13 This approach has been reinforced by the jurisprudence of the Commission, such as in the case of the Katangese Peoples’ Congress v. Zaire, where peoples’ rights were the only issues raised.14 The Commission again affirmed the right of peoples to bring claims under the African Charter in the case of The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria (the Ogoni case), stating that: The African Charter, in its Articles 20 through 24, clearly provides for peoples to retain rights as peoples, that is, as collectives. The importance of Community and collective identity in African culture is recognised throughout the African Charter.15

The Commission further noted that when there are a large number of individuals involved, as in the Ogoni case, it may be impractical for each individual complainant to go before domestic courts, and the need is even greater for the Commission to adjudicate the rights of a people as a collective.16 This principal has again been upheld in the admissibility decision of the Centre for Minority Rights Development (on behalf of the Endorois Community) v. Kenya, where a pastoralist community of nearly 60,000 individuals successfully articulated their land rights issues as a collective.17 Whilst the International Labor Organization (ILO) Convention (No. 169) emphatically underlines that ‘the use of the term “peoples” in [that] Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law’,18 and the ICCPR limits its Optional Protocol to individual petitions 13

14 15 16 17 18

Article 3(h) of the Constitutive Act of the African Union (AU) states one of the objectives of the AU as being to ‘promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’. See Communication 75/92, Katangese Peoples’ Congress v. Zaire, Eighth Activity Report 1994–1995, Annex VI. Communication 155/96, The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Fifteenth Activity Report 2001–2002, Annex V, para. 40. Ibid., para. 43. Communication 276/2003, Centre for Minority Rights Development (on behalf of the Endorois Community) v. Kenya, (pending). Article 1(3) of the Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989 by the General Conference of the International Labor Organization at its 76th Session, entry into force 5 September 1991.

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only (thus rendering peoples’ rights largely illusory), it remains that the African Charter on Human and Peoples’ Rights remains best equipped to afford effective protection to indigenous peoples.19

The African Commission’s understanding of ‘peoples’ Despite the lack of a clear definition of peoples, the Commission has been moving towards one through its practice. When interpreting the Charter, the Commission is required by Article 60 to ‘draw inspiration from international law on human and peoples’ rights’. This does not help the Commission greatly in determining the meaning of peoples, as there is still only a limited consensus on the meaning of ‘peoples’ in international law beyond that of colonised peoples. However, the Commission has developed some key principles. The first is that the term peoples does not mean States, something that is apparent from the texts of the relevant Articles that distinguish between ‘States Parties’ and ‘peoples’. The second is that ‘peoples’ means more than colonised peoples – Article 20 specifically refers to ‘colonised and oppressed peoples’ (emphasis added). What the Commission has done is to recognise three principal meanings of people. First, it has recognised a people to mean the entire people of a country as a collective, as in the case of the Gambian people when it found a violation of Article 20 (right to freely determine their political status) as a result of a military coup.20 Second, and importantly, the Commission has also found that a people can mean a group of people within a State who see themselves as distinct, such as the Katanganese, Ogoni or Endorois in the cases previously cited. This implies that the term ‘people’ includes distinct ethnic groups. Indeed, in one case the Commission stated that to find a violation of a peoples’ right (Article 19) as opposed to an individual right (Article 2), the applicant would need to show that discrimination affected an ‘identifiable group of Zambian citizens by reason of their common ancestry, ethnic 19

20

It must be noted that despite the ICCPR’s Optional Protocol being limited to individual petitions, which renders the consideration of Article 1 cases impracticable, the Human Rights Committee has nonetheless taken the view that Article 1 can be used to inform the interpretation of Article 27 (on minorities) in certain cases. See, for example, Communication 167/1984 Lubicon Lake Band v. Canada 26 March 1990, UN Doc. Supp. No. 40 (A/45/40), p. 1 (1990). Communications 147/95 and 149/96, Sir Dawda K. Jawara v. The Gambia, Thirteenth Activity Report 1999–2000, Annex V, para. 72.

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origin, language or cultural habits’.21 This provides a useful definition of peoples’ if one recognises that this term is not limited to citizens. The third meaning is in relation to indigenous peoples, which will be considered in the following section.

The Commission’s approach to indigenous peoples The Commission has done considerable work in determining what peoples means in the context of indigenous people, and it has benefitted from more general developments in international thinking. A study on discrimination against indigenous people by the UN Special Rapporteur Mart´ınez Cobo produced the following widely-cited working definition of indigenous peoples: Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.22

In view of the pressing need to understand the scope and application of indigenous rights, the African Commission adopted a resolution in 2000 that established a Working Group on Indigenous Populations/Communities (WGIP).23 The omission of the word peoples in the title of the Working Group reflects the contentiousness of the term. However, its mandate was broad-ranging, and called upon the experts appointed to the Working Group to produce a report that would: examine the concept of indigenous communities in Africa; study the implications of the African Charter on Human Rights and the well-being of 21 22

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Communication 211/98, Legal Resources Foundation v. Zambia, Fourteenth Activity Report 2000–2001, Annex V, para. 23. Jose Mart´ınez Cobo, Special Rapporteur, Study of the Problem of Discrimination Against Indigenous Populations, Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, UN Doc. E/CN.4/Sub.2/1986/7/Add.4 (1986). Resolution on Indigenous Populations/Communities, 28th Ordinary Session of the African Commission on Human and Peoples’ Rights, 2000. The mandate was renewed at the 34th and 38th Sessions. See also Chapter 11.

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indigenous communities; consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities; and, finally, submit a report to the African Commission.24 The Working Group has greatly contributed to the development of group rights generally under the Charter, and, more specifically, this process has resulted in the formulation and adoption by the Commission of a definition of indigenous peoples for the African system. This definition sets out four criteria concerning: the issue of occupation and use of a specific territory; the voluntary perpetuation of cultural distinctiveness; self-identification as a distinct collectivity; an experience of subjugation, marginalisation, dispossession, exclusion or discrimination. It should be stressed that it is not necessary for a group to have all four characteristics in order to be deemed an indigenous people.25 The Working Group also delineated some of the shared characteristics of African indigenous groups: [F]irst and foremost (but not exclusively) different groups of huntergatherers or former hunter-gatherers and certain groups of pastoralist; [A] key characteristic for most of them is that the survival of their particular way of life depends on access and rights to their traditional land and the natural resources thereon.26

Although the above definitions vary, they share key characteristics that form the core of any definition of indigenous people, this being that such people have a specific relationship to a defined territory, and it is the protection of the traditional way of life linked to land that is thus lent greatest emphasis.

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Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005). The Report was published in accordance with the Resolution on the Rights of Indigenous Populations/Communities in Africa, adopted by the African Commission on Human and Peoples Rights at its 28th Ordinary Session in October 2000. The report can be accessed at www.iwgia.org. Accessed 17 October 2007. Ibid. The Working Group also referred to the World Bank’s Operational Manual of March 2001, which states that: ‘The term “indigenous peoples”, “indigenous ethnic minorities”, “tribal groups” and “scheduled tribes” describe social groups with a social and cultural identity that is distinct from the dominant groups in society and that makes them vulnerable to being disadvantaged in the development process. Many such groups have a social and economic status that limits their capacity to defend their interest in and rights to land and other productive resources, or that restricts their ability to participate in and benefit from development.’ Ibid., p. 41 (Section 4.1, ‘Characteristics of indigenous peoples in Africa’).

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A work in progress There has been a proliferation of NGO statements at the public sessions of the Commission concerning indigenous peoples, as well as formal resolutions emerging from the NGO fora that precede them.27 The Commission has responded with its own series of resolutions, including those that established the Working Group on Indigenous Populations/Communities and later adopted its findings and recommendations. The Working Group on Indigenous Populations/Communities now also undertakes missions to various countries.28 Concerns relating to the protection of peoples’ rights – by both indigenous and non-indigenous collectivities – are now systematically raised in promotional missions by the Commission,29 and all these developments take place against the background of the wider commitment of the AU towards indigenous issues. The Commission has, then, moved towards an understanding of peoples that embraces the people of a country, distinct ethnic groups or indigenous peoples. The articulation of peoples’ rights before the African Commission nonetheless remains very limited. The following sections will shed light on developments to date, and consider the scope for the further strengthening of group rights under the African Charter.

Article 19 – right to equality Article 19 stands as the first of the six African Charter provisions specifically relating to the rights of peoples, and provides that: All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.

Given the primacy accorded to equality and non-discrimination under international law, it can be inferred that these principles transcend the application of all other group rights under the Charter.30 Indeed, not only is the prohibition against racial discrimination (which underpins 27 28 29

30

See www.iwgia.org/sw249.asp. Accessed 22 September 2007. See, for example, the Mission to the Republic of Namibia, 26 July–5 August 2005. www.iwgia.org. Accessed 17 October 2007. See, for example, the Report of the Working Group on Indigenous Populations/Communities in Africa, Mission to the Republic of Botswana, 15–23 June 2005. Specific mentions relating to the protection and well-being of indigenous peoples are raised at pp. 13, 25, 36, 40–2 and 45–7. The same could be said of the relationship between Article 2 with all other Articles pertaining to individual rights. Indeed, according to the Commission, Article 2 ‘lays down a

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equality) a peremptory norm of international law;31 there is also international jurisprudence, which has found discrimination on the basis of race to amount to inhuman and degrading treatment.32 The African Commission has recognised that ‘equality, or the lack of it, affects the capacity of one to enjoy many other rights’.33 In light of this, it is clear that equality is not subject to progressive realisation, but must, as the Article states, be applied immediately and without exception.

Colonialism and beyond The concept of peoples was originally understood in the context of colonisation and the need for national liberation from foreign domination.34 However, as reflected in the Constitutive Act of the African Union, where the objective of eradicating all forms of colonialism was omitted, Africa has moved beyond the need to eradicate colonialism. The WGIP therefore took the view that the African Charter needed to be understood and interpreted in the light of the current reality of there being a great need for the promotion and protection of the human rights of vulnerable groups and peoples within national States.35 Given the understanding of peoples outlined above, Article 19 must be seen in the context of internal inequality and domination of peoples by others within a State. Apartheid in South Africa serves as one of the most extreme forms of domination of a people over another. The genocide in Rwanda in 1994 also brought into sharp focus how domination of one

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principle that is essential to the spirit of this convention, one of whose goals is the elimination of all forms of discrimination and to ensure equality among all human beings’. See Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des Droits de l’Homme et des Peuples and RADDHO, Collectif des Veuves et Ayants–Droits, Association Mauritanienne des Droits de l’Homme v. Mauritania, Thirteenth Activity Report 1999–2000, Annex V, paras. 129–31. See UN Human Rights Committee, General Comment 18 and the separate opinion of Judge Tanaka in the South West Africa Case (Second Phase), ICJ Reports 6 (1996) 303–4, p. 305. See East African Asians v. United Kingdom, European Commission on Human Rights, European Human Rights Reports 3 (1973) 76. Communication 211/98, Legal Resources Foundation v. Zambia, Fourteenth Activity Report 2000–2001, Annex V, para. 63. See also UN Committee on Human Rights, General Comment 18 (XXXVII/1989). The Organization of African Unity (OAU), the forerunner to the African Union (AU), was founded in 1963 – a time when many African States were attaining independence from colonial rule. One of its five original objectives was ‘to eradicate all forms of colonialism’. WGIP, p. 111.

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people by another in violation of one Charter right (Article 19) may lead to a systematic elimination of another people’s right to existence, and thus violating another (Article 20).36 Whilst domination may be easy to spot, inequality of peoples may be less so. What Article 19 prohibits is discrimination against any peoples, particularly of a systematic nature, and it is therefore closely linked with Article 2 of the Charter. Although discrimination may at times be as obvious as under apartheid, it also manifests itself in less visible or overt forms, but which still have major consequences for the prospects for sustainable development and peaceful relations amongst peoples. Fortunately, international law exists to help the Commission develop its understanding of the meaning of Article 19, the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD) and its interpretation over the years by its monitoring Committee being particuarly useful.37 The starting point in addressing discrimination and inequality is recognising that diversity exists. Flowing from this recognition is the need to accommodate the resulting diversity through the adoption of positive measures that produce the equality of peoples in fact, and which bring about the eradication of assimilationist and discriminatory policies.

Jurisprudence Article 19 remains largely untested before the African Commission. One of the few cases in which Article 19 was raised involved a series of communications against Mauritania in which it was claimed that members of the Black Mauritanians were being murdered, expelled from their lands, 36

37

R. Murray and S. Wheatley, ‘Groups and the African Charter on Human and Peoples’ Rights’ Human Rights Quarterly 25 (2003) 217. Murray and Wheatley note that on one level, many minority rights that can be distilled from the Charter (and in particular from the Articles setting out group rights) can be construed as political claims. At times of political tension, this can result in a form of institutional paralysis within the Commission, as shown by its failure to determine that genocide had occurred in Rwanda (see Communications 27/89, 46/91, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internationale des Juristes (CIJ), Union Interafricaine des Droits de l’Homme v. Rwanda, Tenth Activity Report 1996–1997, Annex X (Documents of the African Commission, p. 551). CERD has taken particular interest in discrimination faced by minority communities in Botswana, on the issue of their access to the House of Chiefs. Recommendations pertaining to the need to address the obstacles to free and fair participation of all ethnic groups at this level were first raised by the CERD in its Concluding Observations of the 61st Session in August 2002. These recommendations were reiterated in the CERD Concluding Observations of the 68th Session in March 2006.

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denied the ability to speak their own languages, ill-treated and tortured in custody, arbitrarily detained and denied fair trial rights and had their goods confiscated.38 Although a report on a mission to the country did not find any clear violations of the Charter, a decision of the Commission reached in May 2000 recognised that: At the heart of the abuses alleged in the different communications is the question of the domination of one section of the population by another. The resultant discrimination against Black Mauritanians is, according to the complainants . . . the result of a negation of the fundamental principle of the equality of peoples as stipulated in the African Charter and constitutes a violation of its article 19.39

On the basis of the facts available to it, the Commission declared itself unable to find a violation. However, it ‘nevertheless identified and condemned the existence of discriminatory practices against certain sectors of the Mauritanian population’.40 This has been interpreted by leading practitioners and academics as confirmation that ‘where the government is unrepresentative, in the sense that it introduces policies which discriminate against a particular section of society, finding a violation of “equality” and “non-domination” under Article 19 is possible’.41 In a further case, Legal Resources Foundation v. Zambia, the Commission found that a constitutional amendment requiring an individual who wished to stand for the presidency to prove that both his or her parents were Zambians by birth or descent violated Article 2 of the Charter (discrimination).42 However, the Commission also found that: [R]ecourse to Article 19 of the Charter was mistaken. The section dealing with ‘peoples’ cannot apply in this instance. To do so would require evidence to the effect of the measure was to affect adversely an identifiable group of Zambian citizens by reason of their common ancestry, ethnic origin, language or cultural habits. The allegedly offensive provisions in the Zambia Constitution . . . do not seek to do that.43

This shows that the difference between Article 19 and Article 2 is a difference between individual and group rights. Article 19 will be violated when there is a systematic discrimination against an identifiable people.

38 39 41 42

Communications 54/91, 61/91, 98/93, 164/97–196/97, and 210/98, paras. 129–31. 40 Ibid., para. 142. Ibid. Murray and Wheatley, ‘Groups and the African Charter’, p. 230. 43 Communication 211/98, para. 63. Ibid., para. 73.

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Indigenous peoples’ way of life As has been seen above, in defining indigenous people, one of the key characteristics present is their relationship with the land. This relationship is not simply a matter of possession and production, as is generally the case for the majority population, but serves as the fundamental basis of indigenous culture and of the material and spiritual life of indigenous communities. In other words, the relationship of indigenous peoples with the land is core to their cultural identity and particular way of life.44 At the heart of the discrimination faced by indigenous peoples is their marginalisation within societies that do not see any value in the particular way of life of indigenous peoples. The Commission, through the WGIP, has recently undertaken a considerable amount of analysis on domination and inequality in the context of indigenous peoples. The WGIP has found that domination can be political, economic or cultural, and that indigenous peoples, whose cultures and ways of life differ considerably from the dominant society, are under threat, in some cases to the extent of extinction.45 The WGIP has concluded that: A key characteristic for most of them is that the survival of their particular way of life depends on access and rights to their traditional land and the natural resources thereon. They suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society. They often live in inaccessible regions, often geographically isolated and suffer from various forms of marginalization, both politically and socially. They are subject to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority. This discrimination, domination and marginalization violate their human rights as peoples/communities, threaten the continuation of their cultures and ways of life and prevent them from being able to genuinely participate in deciding on their own future and forms of development.46

The fundamental nature of Article 19 and the collective right of peoples to equality, non-discrimination and non-domination is thus acutely apparent. The failure by States to treat indigenous peoples on an equal footing with the majority population, and to allow for their cultural diversity and 44 45

See, for example, the final working paper of Special Rapporteur E.-I. A. Daes, ‘Indigenous People and their relationship to the land’, E/CN.4/Sub.2/2001/21. 46 WGIP, p. 15. WGIP, p. 89.

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their particular relationship with the land, has implications not only for the rights of indigenous peoples under Article 19, but, inter alia, under Articles 20 (existence), 21 (natural resources) and 22 (development). Given that the recognition of diversity (including the recognition of different needs) serves as a crucial starting point to addressing such rights violations, the WGIP took the view that ‘political and structural factors . . . must be looked at critically in order to allow these presently marginalized groups to live in a dignified way and to fully realise their potential to make positive contributions to the larger society’.47 Admittedly, this is no small demand. Even in more economically developed countries, the tension between the rights of indigenous peoples and the protection of their way of life, and the overall economic development of the country, is often acutely felt.48 Nevertheless, as the Ogoni case demonstrates, the Commission has shown itself both prepared and capable of upholding the rights of indigenous peoples in the face of their violation in the purported interests of wider society.49

Intent A reading of the Black Mauritanian and Zambia cases has led some observers to conclude that ‘not all discrimination against minorities amounts to a violation of the principle of self-determination . . . there must exist a deliberate state policy of exclusion’ (emphasis added).50 In fact, the African Commission has stated that Article 19 applies in instances where there is ‘evidence to the effect of the measure . . . affect[ing] adversely an identifiable group’ (emphasis added),51 which is considerably wider in scope. This finding resonates with more general developments in international law concerning discrimination, including the International 47 48

49

50 51

WGIP, p. 90. Communication 167/1984, Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, views adopted 10 May 1990, CCPR/C/38/D/167/1984, concerning oil and gas concessions granted in respect of territory that had been continuously inhabited by a Cree Indian Band who had hunted, trapped and fished there. At the same time, the Ogoni case concerned a discrete activity by a commercial entity supported by the Nigerian Government, and was not in fact brought on Article 19 grounds. It is to be hoped that the Commission would show equal willingness to engage with a case brought directly under Article 19, and which concerned not an individual discriminatory activity but, rather, structural discrimination whereby norms and attitudes in societal structures prevented a people from achieving the same rights and opportunities available to the majority population. Murray and Wheatley, ‘Groups and the African Charter’, p. 231. See Communication 211/98, para. 73.

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Convention on the Elimination of Racial Discrimination’s prohibition of any distinction or exclusion which has the ‘purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms’ (emphasis added).52 Focusing on the effect rather than the intent of measures also suggests that the Commission needs to develop an understanding and application of what is known elsewhere in the world as ‘indirect discrimination’, where laws, constitutional provisions or policies that may appear to be neutral on the surface, but are inherently disproportionate in their effect on certain groups, are considered to be discriminatory.53 This will require a greater understanding of how such disproportionate impact can be proven.54

Positive measures In guaranteeing peoples’ enjoyment of ‘the same respect and . . . the same rights’, Article 19 should not be misconstrued and seen as inhibiting forms of special measures to redress the historical disadvantages of certain groups.55 Whilst international jurisprudence has long recognised discrimination in instances where States treat differently persons in analogous situations, without providing an objective and reasonable justification,56 international jurisprudence also recognises that the right not to be discriminated against is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.57 This actually requires States to take positive action to redress inequalities in fact, something that has been recognised in South Africa’s anti-discrimination law, which is the most comprehensive in Africa.58 This area is ripe for investigation and application by the Commission, particularly for the benefit of indigenous peoples who 52 54

55 56 57 58

53 Article 1(1) of the ICERD. See, for example, EU Council Directive 2000/43. Whilst statistical information is increasingly regarded as an acceptable tool in proving indirect discrimination within various jurisdictions, chronic lack of such data in most African States would make the requirement of such data for proof of Article 19 an undue burden on the State and/or applicants. It is imperative that the ACHPR nonetheless be flexible in its approach to Article 19 if it is to be fully operational for the most marginalised of society, who are generally forgotten by statistics. Article 1(4) of the ICERD. Inze v. Austria, European Court of Human Rights, Judgment of 28 October 1987, Series A, No. 126, p. 18, para. 41. Thlimmenos v. Greece, European Court of Human Rights (Grand Chamber), Judgment of 6 April 2000, Application No. 34369/97, paras. 44–6. See South African Promotion of Equality and Prevention of Unfair Discrimination Bill 2000, Chapter 5.

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require the accommodation of suitable alternatives in order to protect and promote their way of life, and to participate effectively in public life.

Further scope Article 19 has not been employed much by civil society, and consequently its full scope remains largely untested. Creative lawyering may nonetheless prove capable of developing the potential of this Article to address inequality between peoples, particularly in such critical areas as language, religion and culture.59 The Legal Resources Foundation v. Zambia case already shows the potential for addressing substantive discrimination in the context of political participation.60 Most importantly, Article 19 gives the Commission scope to apply its findings on systematic discrimination against indigenous peoples, and to determine upon measures to end such inequality and domination.

Article 20 – right to existence Article 20 provides for the right to all peoples to existence and selfdetermination, often seen as the core of the rights of peoples. Although, again, clearly drafted in light of the struggle for liberation from colonial domination, the wording of this Article is much broader than that, and gives very wide-ranging rights to peoples, and provides that: 1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. 2. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural. 59

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Using, Article 27 of the ICCPR as an example of international law, this providing: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’ Communication 211/98. See also UN CERD approach to restrictions against non-Setswana tribes for permanent status to House of Chiefs in Botswana, at note 20, above.

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Existence The first sentence of Article 20 is very straightforward, stating plainly that ‘all peoples have the rights to existence’. However, the Commission has not yet addressed this particular right in any detail. It is clear that, at a minimum, this Article prohibits measures that would amount to genocide according to international law, i.e., the physical destruction of groups.61 Much of the recent development in understanding of the law on genocide has come from the International Criminal Tribunal for Rwanda.62 Broadly speaking, international law forbids the physical destruction of groups, which can include the killing of part of a group; the creation of conditions of life so that it is impossible for a group to live as such; and acts such as the removal of children from a group. Article 20 goes some way beyond this by protecting the rights of a people to ‘existence’, and therefore prohibiting what is sometimes known as ‘cultural genocide’, that is, acts that, although not destroying a group physically, have the effect of destroying the group as such. Examples of such actions would include prohibiting language, cultural practices, or religion; promoting forcible assimilation; and denying identity. Acts such as the removal of peoples from their traditional lands, or dispersing them in such a way that they lose their sense of being a people can also be said to have the effect of denying a peoples’ right to exist.

Self-determination The remainder of Article 20(1) grants all peoples the right to selfdetermination, which the text explains as including the right to choose political status and economic and social development. This is, in effect, a repetition of the common Article 1 found in the two main UN human rights treaties.63 Like the UN Human Rights Committee, the ACHPR has rarely had cause to consider the meaning of the right to self-determination in depth. In one communication, the Congres du Peuple Katangais v. Zaire,64 a group in Katanga (then officially known as Shaba) in south Zaire (now DRC) 61 62

63

See Convention on the Prevention and Punishment of the Crime of Genocide 1948. See, for example, the judgment in the case of Jean Paul Akayesu, the first conviction for genocide (International Criminal Tribunal for Rwanda, Prosecutor v. Jean-Paul Akayesu, Decision of 2 September 1998, available at www.un.org/ictr/english/judgements/ akayesu.html. Accessed 23 Septmeber 2007). 64 That is, the ICCPR and the ICESCR. Communication 75/92.

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argued that that the right to self-determination provided for in Article 20(1) meant that the independence of Katanga had to be recognised. The Commission rejected this argument, stating that: The Commission believes that self-determination may be exercised in any of the following – independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognisant of other recognised principles such as sovereignty and territorial integrity.65

It pointed out that it was under a duty to uphold the territorial integrity of Zaire. However, it went on to say that: In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question . . . the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.

This is a very interesting paragraph for several reasons. It makes it clear that, in normal circumstances, self-determination for a people does not entail the right to independence or the changing of national borders.66 Strangely, it refers to this as an obligation on ‘Katanga’, which was not even a recognised name in Zaire at that time. Katanga was not, and never has been, a party to the Charter. However, this paragraph does strongly imply that if human rights violations against a people were to reach a certain level, the Commission would recognise that that people had the right to independence, presumably as the only way that they could enjoy their right to self-determination in practice. The Commission has not subsequently had cause to pronounce on this particular issue. Internationally, whether the right to selfdetermination can become a right to independence in situations where a people are suffering from severe human rights violations remains highly controversial, but there does seem to be a growing international acceptance of the position suggested by the Commission in the Katanga case.67 Since the Charter came into being, the main instances where the independence of a people have been formally recognised in Africa have been 65 66

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Ibid., para. 4. The OAU Charter strongly emphasised the need to preserve territorial integrity for fear of bloodshed and unending border disputes, which would hinder Africa’s prospects for post-colonial peace and development. See, for instance, OAU Charter, preambular para. 7, Article 2(1)(c) and Article 3(3). See Reference re Secession of Quebec Supreme Court Reports 2 [1998] 217, para. 134.

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Namibia and Eritrea. In both cases, recognition was, by the time that independence was achieved, relatively uncontroversial. Namibia was one of the last cases of decolonisation, and Eritrea eventually achieved independence from Ethiopia by mutual consent, though as an example of a State achieving independence from an African State, it remains unique. However, the Commission has used Article 20 as the basis for its statements on the situation in Western Sahara, where it has supported the UN’s plan for a referendum on ‘self-determination’ for the Saharawi people.68 Of course, Morocco’s non-membership of the OAU and AU has given the Commission more freedom to develop its understanding of what the right to self-determination means in this context than might otherwise have been the case. The Commission has largely focused on political issues when developing its understanding of what self-determination means in situations other than those involving claims for independence. For example, it considered Article 20 in Sir Dawda K. Jawara v. The Gambia, a case concerning a military coup. In finding violations of numerous Articles of the Charter, it found that the coup itself amounted to a violation of Article 20, stating that: The military coup was therefore a grave violation of the right of the Gambian people to freely choose their government as entrenched in Article 20(1) of the Charter.69

The Commission is here considering the ‘Gambian people’ as a whole. In the Katanga case, the Commission linked Article 20 very clearly with Article 13 (the right of citizens to participate in government). In a resolution on Nigeria, it found a violation of both Articles. Linking these two Articles means that the right to political self-determination is both individual and collective. This implies that peoples can claim the right to selfdetermination, but individuals within that people can claim the right to participate in decisions made by the community (i.e., there must be internal accountability, especially for marginalised groups such as women). The application of the right to self-determination to the right to choose economic and social development has not received as much consideration. However, in its Reporting Guidelines for States, the Commission has stated that under Article 20, ‘[a]ll communities are allowed full participation in political activities and are allowed equal opportunities in the economic 68 69

See, for example, Resolution on Western Sahara, Twenty-seventh Ordinary Session 2000. Communications 147/95 and 149/96, para. 73.

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activities of the country both of which should be according to the choices they have made independently’.70 Article 20(1) should therefore be read in conjuction with Article 22(1).

The right to free themselves Article 20(2) provides for the right of ‘colonized or oppressed peoples’ to ‘free themselves’ by ‘any means recognized by the international community’. The extent of this Article has not yet been fully considered. Arguably, the issue of ‘colonized peoples’ no longer exists in AU Member States (with the possible exception of Western Sahara, the British Indian Ocean Territory and Mayotte). The Katanga case would seem to imply that peoples only have the right to claim independence where human rights violations are particularly egregious. Western Sahara is a unique case, where the Government of the Saharawi people has been recognised as an AU Member State, which has no actual control over the territory. Even where oppressed peoples do have the right to liberate themselves from oppression, it is not clear when they have the right to use violence. Article 20(2) makes it clear that general provisions of international law must apply to any right of self-liberation. International law does not give any clear right to use force against oppression. The UN Charter limits the rights of Member States to use force to situations of self-defence against an armed attack, or where the UN Security Council has authorised the use of force to maintain or restore international peace or security.71 Whether non-State actors have the right to use force under any circumstances, in particular that of ‘national liberation’, has been very controversial. The UN General Assembly’s Declaration on the Principles of International Law of 1970, after stating that countries must not use force against selfdetermination, states that: In their actions against, and resistance to, such forcible action in pursuit of exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.72 70 71 72

Guidelines for National Periodic Reports, Second Activity Report of the African Commission on Human and Peoples’ Rights (adopted June 1989), Annex XII, para. III.2. Articles 2(3) and (4), 33, 42 and 51 of the see UN Charter. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UN General Assembly Res. 2625(XXV) of 24 October 1970.

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This might mean that the General Assembly recognised a right to resist force, but a close reading shows that it is actually a right to receive support against the use of force. It is also clear that any people claiming a right, under Article 20 of the Charter, to use force to defend a right of selfdetermination must show that their use of force is consistent with both international law generally, and also with Article 23 of the African Charter, in that any action must take account of the rights of other peoples to peace and security.

The right to assistance Article 20(3) states that all peoples have the right to the assistance of the States Parties in their ‘liberation struggle against foreign domination’. This is clearly written with the colonial struggle in mind, but is potentially more wide ranging. From a reading of Article 20 as a whole, e.g., its reference to ‘colonized OR oppressed peoples’, ‘foreign domination’ should include domination within a State of one people by another. This implies, then, that a people who are suffering political, economic or cultural domination by another, even inside a State, can demand assistance from other African countries in their struggle. Such assistance could be political or economic. It would appear to require all AU States to support collective action, including sanctions when there are major violations of the right of selfdetermination. Whether this Article would entitle peoples to receive military or other assistance from AU members is not clear. Given Article 23, as well as the basic rules of international law on non-interference in the affairs of sovereign States, such a right, even if it existed, would have to be limited to very extreme situations.

Violation of Article 21 – right to free disposition of natural resources Article 21 devotes no less than five paragraphs to the rights of peoples to freely dispose of their wealth and natural resources: 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.

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3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. State parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources, with a view to strengthening African unity and solidarity. 5. State parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.

Right to natural resources The right of all peoples to the free disposition of wealth and natural resources is an absolute right. As the Charter makes clear, ‘in no case shall a people be deprived of it’. Article 21 largely derives from the legacy of colonialism, and serves ‘to remind African governments of the continent’s painful legacy and restore co-operative economic development to its traditional place at the heart of African Society’.73 However the Ogoni decision establishes that multinational companies cannot be deemed solely responsible for unregulated or harmful exploitation of natural resources; inaction on the part of African governments to protect its own people against such exploitation also amounts to a violation of Article 21. Article 21(5) places a clear positive duty on States Parties, and, in light of this, the Commission ruled that ‘governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties’.74 More specifically, the Commission emphasised that ‘this duty calls for positive action on part of governments in fulfilling 73

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Communication 155/96, paras. 56–8. See also Declaration of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, adopted at the 20th Plenary Meeting on 8 September 2001 in Durban, South Africa. The Declaration is also interesting in this regard, for it recognises that ‘Africans and peoples of African descent, and peoples of Asian descent and indigenous peoples were victims of colonialism and continue to be victims of its consequences’, and regrets ‘that the effects and persistence of these structures and practices have been among the factors contributing to lasting social and economic inequalities in many parts of the world today’; para. 14. Ibid., para. 57. See also Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International; Comit´e Loosli Bachelard; Lawyers’ Committee for Human Rights; Association of Members of the Episcopal Conference of East Africa v. Sudan, Thirteenth Activity Report 1999–2000, Addendum.

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their obligation under human rights instruments’ (emphasis added).75 In asserting this positive duty, the African Commission drew from practice of other tribunals, citing in particular the Inter-American Court of Human Rights case of Vel´asquez Rodr´ıguez v. Honduras. This landmark decision held that when a State allows private persons or groups to act freely and with impunity to the detriment of the rights recognised, it would be in clear violation of its obligations to protect the human rights of its citizens.76 The Commission’s finding in the Ogoni case clearly outlines the scope and application of this duty in the context of exploitation of natural resources: In the present case, despite its obligation to protect persons against interferences in the enjoyment of their rights, the Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis. By any measure of standards, its practice falls short of the minimum conduct expected of governments, and therefore, is in violation of Article 21 of the African Charter.77

Natural resources and indigenous peoples Indigenous peoples’ fundamental relationship with the land extends to the natural resources within that land. Thus, for example, the wildlife on the land or in the waters, and the flora and fauna, are essential to the physical survival of indigenous communities through their activities of hunting, fishing and gathering, and also to their spiritual survival through their relationships with particular birds and animals.78 The issue of indigenous peoples’ rights over natural resources was the subject of detailed consideration by the Special Rapporteur, Erica-Irene A. Daes, in her report ‘Indigenous Peoples’ Permanent Sovereignty over 75 76

77 78

Ibid., para. 57. See Inter-American Court of Human Rights, Vel´asquez Rodr´ıgeuz case, Judgment of 19 July 1988, Series C, No. 4. The African Commission also pointed to a similar obligation arising from European Court of Human Rights case-law, as evidenced through the case of X. and Y. v. Netherlands, ECHR, 1985, Series A, No. 92, p. 32. Communication 155/96, para. 58. See, for example, Communication 547/93, Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993 (2000) at para. 9.3, where it was stated that ‘the use and control of fisheries [was] an essential element of [Maori] culture’.

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Natural Resources’.79 As the Special Rapporteur stated, ‘the indigenous ownership of the resources is associated with the most important and fundamental of human rights: the right to life, food and shelter, the right to self-determination and the right to exist as a people’.80 The critical importance of the right to freely dispose of their natural resources to indigenous peoples and their way of life has been recognised in the Report of the Working Group of Experts on Indigenous Populations/Communities, which states: Dispossession of land and natural resources is a major human rights problem for indigenous peoples . . . The establishment of protected areas and national parks has impoverished indigenous pastoralist and huntergatherer communities, made them vulnerable and unable to cope with environmental uncertainty and, in many cases, even displaced them . . . This [loss of fundamental natural resources] is a serious violation of the African Charter (article 21(1) and 21(2)), which states clearly that all peoples have the right to natural resources, wealth and property.81

Even bodies that have not always been known for their regard to indigenous peoples and their rights have started to take note of the essential nature of land and its resources to indigenous peoples. For example, the World Bank’s Operational Directive 4.10 states that ‘[p]articular attention should be given to the rights of indigenous peoples to use and develop the lands that they occupy, to be protected against illegal intruders, and to have access to natural resources (such as forests, wildlife, and water) vital to their subsistence and reproduction’.82 As will be seen in the next section, indigenous peoples have had difficulties in establishing their rights both over land and natural resources, but international and domestic jurisprudence is increasingly moving to a recognition of indigenous peoples’ collective rights to land and the natural resources of that land.

Property and natural resources The African Charter creates two distinct rights: both to property (Article 14) and to the free disposal of wealth and natural resources (Article 21). In the context of traditional lands, the two rights are very closely linked 79 80

E.-I. A. Daes, ‘Indigenous Peoples’ Permanent Sovereignty over Natural Resources, E/CN.4/Sub.2/2004/30. 81 82 Ibid., para. 48. WPIG, p. 20. World Bank Operational Directive 4.10.

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and may be violated in similar ways. Article 21 does not confer a right to property in itself; it merely grants dispossessed peoples the right to recover their property, and so it is important that it is complemented by Article 14, although this assumes that the land in question is recognised as a person or peoples’ property in the first place. Whilst very few pastoralist and huntergatherer communities have ever succeeded in securing legal titles to their land, due to lack of recognition of customary and collective forms of land ownership in national legislation, Article 14 does provide valuable scope for the protection of such tenure if its interpretation is consistent with emerging standards under international law.83 This is crucial given the incremental loss of (often resource rich) traditional lands by indigenous peoples due to the prevailing misconception that the land occupied by the pastoralists and hunter-gatherers is terra nullius.84 The fact that Article 14 formally lies outside of the group rights section of the African Charter should pose no difficulty in this respect, particularly if it is read in light of emerging international jurisprudence. The Awas Tingni v. Nicaragua case serves as a notable example in this respect, as the right to collective land tenure was recognised despite the American Convention on Human Rights originally being considered as solely for the consideration of individual rights.85 It should also be noted that, contrary to all other Articles in the first section of the African Charter, Article 14 makes no reference to who is the rights-holder, thus arguably leaving scope 83

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See, for example, E.-I. A. Daes, Special Rapporteur, ‘Indigenous peoples and their Relationship to Land: Final Working Paper by the Special Rapporteur’, Commission on Human Rights, UN Doc. E/CN.4/Sub.2/2001/12, paras. 31–2. The Special Rapporteur observes that the international community has come to see that the concept that the ‘discovering’ colonial power may take free title to indigenous lands is illegitimate; Alexkor Ltd v. Richtersveld Community, Constitutional Court of South Africa, CCT 19/03, in which the court recognised that the rights of the Richtersveld Community survived the annexation of their traditional land by the British Crown; and Mabo and others v. Queensland, High Court of Australia, Australian Law Reports 107 (1992) 1, in which the Court rejected the principle that pre-existing rights were abolished upon colonisation unless expressly recognised by the colonising State. WGIP, p. 11. The term ‘terra nullius’ has traditionally been taken to mean ‘land belonging to no one’. The WGIP, at p. 11, considered that collective tenure is fundamental. The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-American Court of Human Rights, Judgment of 31 August 2001, Series C, No. 79. The Inter-American Court of Human Rights recognised that the Inter-American Convention protected property rights ‘in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property’, para. 148. Other relevant cases in this regard include Moiwana Village v. Suriname, Judgment of 15 June 2005, Inter-American Court of Human Rights, Series C, No. 145, and Mary and Carrie Dann v. United States, Inter-American Commission on Human Rights, Report No. 75/02, Case No. 11/140.

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for its application to peoples as well as to individuals. If this is the case, it would serve to facilitate the right to recovery of property (restitution) and adequate compensation afforded under Article 21(2).

Intellectual property and natural resources The WGIP has taken the position that depriving indigenous peoples of their lands and natural resources, through, inter alia, the creation of parks and displacement of the peoples, amounts to a violation of Article 21(2). Spoliation, in this sense, must be understood as amounting to ‘the taking of a benefit properly belonging to another’.86 While displacements undertaken in order to create nature reserves will require lawful recovery of property and adequate compensation for the indigenous peoples who have traditionally lived in affected areas, emerging standards would suggest that spoliation also occurs in instances where it is the intellectual property of indigenous peoples that is exploited.87 Special protection of indigenous people in this regard is vital, given the extent to which extractive activities threaten patterns of subsistence, living conditions and cultural practices.88 It is also vital that States are subject to a positive obligation to protect the intellectual property of indigenous peoples, given the widespread practice among governments of denying the civil and political rights of affected communities in order to prevent them from resisting the incursions.89 This problem often emerges when States are faced with the challenge of reconciling their international human rights commitments to indigenous peoples with the requirements of foreign direct investment. 86 87

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Black’s Law Dictionary (2004). See the Mataatua Declaration 1993 and the Charter of the Indigenous-Tribal Peoples of the Tropical Forests 1992. The report of the World Commission on Environment and Development 1987 (known as the Brundtland Report) introduced the concept of sustainable development, which attempts to make economic growth and environmental protection complementary and mutually dependant. The Brundtland Report also emphasised the role of indigenous peoples in preserving biodiversity. The Rio Earth Summit led to the production of vital documents, including Agenda 21 and the Convention on Biological Diversity. Despite their limitations, Agenda 21 and the Convention on Biodiversity can help advance the struggle of peoples in protecting their intellectual and cultural property rights. Agenda 21, particularly Chapter 26, recognises and seeks to strengthen the role of indigenous peoples and local communities in sustainable development. Chapter 26, Section 3 provides that ‘in full partnership’ with indigenous peoples and their communities, governments and, where appropriate, inter-governmental organisations should aim to set in motion a ‘process to empower Indigenous Peoples’. See M. A. Bengwayan, Intellectual and Cultural Property Rights of Indigenous and Tribal Peoples in Asia (London: Minority Rights Group International, 2003). Ibid.

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Indeed, further tensions exist between the intellectual property rights of indigenous peoples and the so-called TRIPs Agreements (Trade-Related Aspects of Intellectual Property Rights agreements).

‘In the exclusive interest of the people’ Article 21(1) stipulates that the exploitation of natural resources can only be undertaken in the exclusive interest of the people. The African Commission has yet to articulate a clear standard of proportionality that would be applicable to this Article. However, the threshold of legitimacy when dispossessing peoples of actual and potential wealth and natural resources would appear to be very high, higher even than the standards developed under Article 14, given the uncompromising language of Article 21(1), and that Article 21 precludes any justification based on ‘public need’. A critical issue in the context concerns the application of the term ‘people’. The interpretation of ‘people’, adopted by the African Commission in the Ogoni case and elsewhere, strongly implies that ‘the interest of the people’ means identifiable peoples/communities traditionally inhabiting an area and benefiting (or having the potential to benefit from) its wealth and natural resources, and who should be seen as having a right to the natural resources in their traditional land.90 In contrast, if Article 21(1) were to be interpreted as referring to the general public, it would be of little potency, as governments always claim to be acting in the interest of the general public.91

Limitations on the right Although Article 21(1) and (2) are written in uncompromising language, they are subject to a number of implied limitations. At first glance Article 21(3) and (4) give States Parties wide control over natural resources. However, reading the Article as a whole, it is clear that this simply means 90

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It should be emphasised that communities benefiting in this fashion would not benefit exclusively – applicable taxes and other levies prescribed by law would also apply. The WGIP stressed the importance of considering the needs and interests of indigenous communities in the face of natural resource exploitation, citing the particular example of large-scale exploitation of natural resources (including crop production), which has been considered a serious violation of Article 21 because it threatens the very existence of some peoples; WGIP, p. 20. Comparisons between the French and English wording of the Charter would at least suggest that Article 21(5) refers to ‘peoples’ and not States, as the French text refers to ‘les populations’.

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that the rights of peoples under Article 21 cannot be used as a reason not to promote international co-operation, particularly amongst African States, provided that that co-operation is based on principles of mutual respect and the ‘principles of international law’. The right of States Parties to ‘free disposal of their wealth and natural resources’ under Article 21(5) is limited to measures to strengthen ‘African unity and solidarity’, i.e., cross-border measures. It cannot be seen as a limitation upon the uncompromising right set out in Article 21(1). Despite these uncertainties, what remains clear is the applicability of the established African Commission principle that ‘the justification of limitations [on rights] must be strictly proportionate with, and absolutely necessary for, the advantages which follow’.92 Furthermore, with respect to proportionality and restrictions on rights, African Commission jurisprudence maintains that, ‘most important[ly], a limitation may not erode a right such that the right itself becomes illusory’ (emphasis added).93 Thus, at the point where the right has become illusory, the limitation cannot be considered proportionate – the limitation is simply a violation of the right. This is a critical issue when people are displaced from their land and therefore lose all access to the natural resources, or when they are denied the benefit of natural resources on their land, such as oil, precious metals or natural beauty (used for tourism). In the context of the creation of nature reserves, the people living within them should retain their rights over the natural resources, even if they freely agree to leave the land.94 Leading experts have concluded that few, if any, limitations on indigenous resource rights are appropriate, because the indigenous ownership of the resources is associated with the most important and fundamental human rights, including the right to life, food, the right to selfdetermination, the right to shelter and the right to exist as a people.95 In this light, numerous experts further concur that the numerous violations that result from forced evictions amount to a gross violation of 92

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Communications 140/94, 141/94 and 145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Thirteenth Activity Report 1999–2000, Annex V, para. 42. Ibid., para. 42. It is important to also note that a range of important procedural safeguards would need to be respected in the case of any displacement, as forced evictions without due process of law are widely recognised as the author of a range of new human rights violations. E-I. A. Daes, ‘Indigenous Peoples’ Rights to Land and Natural Resources’ in N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples and Self-Determination (The Hague: Martinus Nijhoff, 2005), p. 89.

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human rights.96 This conclusion is not limited to instances where the evictions in question are linked to governmental appropriation of indigenous natural resources.97

Article 22 – the Right to Development Introduced as a concept as early as the late 1960s,98 an internationally recognised right to development was substantiated in the 1986 United Nations (UN) Declaration on the Right to Development99 and in the work of the former Independent Expert on the Right to Development.100 The African Charter is unique among human rights conventions in codifying a legally binding right to development upon States, and Article 22 provides that: (1) All peoples shall have the right to their economic, social and cultural development, with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. (2) States shall have the duty, individually or collectively, to ensure the exercise of the right to development. Although the right to development has not been formally adjudicated upon, as such, by any human rights body, the African Commission made clear in the Ogoni case that there was no right under the African Charter that could not be made effective.101 The African Commission’s increasing attention to the right to development in its resolutions, including the specific mandate accorded to the WGIP to analyse the scope and content 96

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Amicus Curiae Brief by the Centre on Housing Rights and Evictions (COHRE) in Support of Communication 276/2003 v. Kenya, African Commission on Human and Peoples’ Rights, 2005 (on file with the authors), para. 8. For further information on the range of other issues relating to forced evictions, visit the The Centre on Housing Rights and Evictions website: www.cohre.org. Accessed 23 September 2007. D. Thiam, ‘L’Afrique demande un droit international [d’un] nouveau’, (1968) 1 Verfassung und Recht in Ubersee 54. Cited in F. Ouguergouz, The African Charter on Human and Peoples Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p. 298. UN General Assembly Res. 41/128, 4 December 1986. See, for example, A. Sengupta, Fifth Report of the Independent Expert on the Right to Development, UN Doc. E/CN.4/2002/WG.18/6, 18 September 2002. Communication 155/96, para. 68: ‘The Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective.’

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of this right with reference to indigenous peoples, leaves little doubt as to the possibility of its being given practical and effective meaning within the African Charter framework.102 At the international level, the right to development is politically contentious and has given rise to intense debate between Northern and Southern States, with Southern States prioritising the scope of international co-operation and the debilitating effects of the inequitable international economic environment for its realisation. This is reflected in the Guidelines for National Periodic Reports to the African Commission, where the right to development (along with Article 21) is described as a tool ‘in ensuring that the material wealth of the countries is not exploited by aliens to no or little benefit to the African countries’.103 The New Partnership for Africa’s Development (NEPAD), which was conceived and developed by African Heads of States through the AU, serves as a partial response to these concerns by introducing a dynamic blueprint for economic, political and social development.104 From the perspective of Northern States, the key elements of the right to development relate to addressing corruption, and generally have regard to the importance of good governance. While there is widespread recognition 102

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The WGIP was mandated to ‘examine the concept of indigenous people and communities in Africa; study the implications of the African Charter on Human Rights and well being of indigenous communities’, with particular regard to rights of equality, dignity, protection against domination, self-determination and promotion of cultural development and identity (the latter being interpreted as falling under Article 22); Resolution adopted in Benin at the 28th Session; See also, WGIP Country Mission to the Republic of Botswana (15–23 June, 2005), which specifically raised issues of human development in relation to the Basarwa. The right to development is also increasingly cited in African Commission resolutions, e.g., the Preamble of the Resolution on the Recent Violence in Kabylia, Algeria (29th Session 2001), requests the concerned Government to be ‘mindful of its obligations in terms of the African Charter to promote human and peoples’ rights and ensure their protection and especially conscious of the rights in the Charter to enjoy the rights and respect to economic, social and cultural development’. Guidelines, Section III, para. 6 (Documents of the African Commission, pp. 49 and 66), where the right to development is also described as a means to ‘monitor the exploitation of natural resources by foreign companies and strictly contrasted to the economic and material benefit accruing to the country’. NEPAD calls for a new relationship of partnership between Africa and the international community, especially the highly industrialised countries. It strives to put an end to the further marginalisation of Africa and intends to bridge the gap between Africa and the developed countries. The human rights component, which is an integral part of the initiative, includes commitments to democratic behaviour and to creating and strengthening national, regional and continental structures that support good governance.

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that the right to development requires both an internationally and a nationally enabling environment,105 the Reporting Guidelines ask States to focus on the domestic application of Article 22.106 It should also be noted that since the first case to formally address Article 22 concerns land rights, this will provide the particular context in which its potential scope of application is likely to be developed.107 The 1986 UN Declaration on the Right to Development highlights two important elements of the right: (1) the right to participate in the development process; and (2) the right to a substantive improvement in wellbeing. Article 2(3) of the Declaration notes that the right to development includes ‘active, free and meaningful participation in development’108 and that peoples shall experience ‘constant improvement of the well-being of the entire population and of all individuals’.109 The right to development is therefore both constitutive and instrumental, or useful as both a means and an end. In terms of litigation, it could therefore be argued that a violation of either the procedural or substantive elements of the right would constitute a violation, and, likewise, that fulfilling only one of these two elements would fail to satisfy its requirements. That being said, in realising the right to development, five main desiderata must be respected, these being that development must be equitable, non-discriminatory, participatory, accountable and transparent. Equity is an especially important ‘over-arching theme’ in the right to development, in that the income or other benefits derived from development must be equally distributed.110 105 106

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Declaration on the Right to Development 1986. See, in particular, Articles 2(3), 3, 5 and 8. The Commission’s mandate to review State reports and communications largely limits its sphere of influence to the domestic level. While the State, acting at the national level, bears the primary duty for ensuring the realisation of the right to development, the African Charter makes clear that the State must act individually or collectively (see Article 22(2) of the African Charter). Communication 276/2003 has been argued before the African Commission in conjunction with Minority Rights Group International. Provisional measures were granted in 2004, and the case succeeded on admissibility in 2005. The case is currently pending on merits. UN Declaration on the Right to Development, UN GAOR, forty-first Session, UN Doc. A/RES/41/128, 1986, Article 2.3 (hereinafter ‘Declaration on Development’). Ibid. A. Sengupta, ‘Development Cooperation and the Right to Development’, Francois-Xavier Bagnoud Center Working Paper No. 12, 2003, available at: www.hsph.harvard.edu/ fxbcenter/FXBC WP12-Sengupta.pdf. Accessed 25 September 2007.

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The right to economic, social and cultural development The African Charter guarantees all peoples the right to social, economic and cultural development, with all three strands being equally important. Indeed, the former UN Independent Expert on the Right to Development, Arjun Sengupta,111 has noted that the right to development necessitates the fulfilment of civil, political, economic, social and cultural rights and freedoms. Sengupta underlines that ‘all these rights are interrelated and independent’.112 Sengupta also highlighted the interdependent nature of the right to development with other rights. The right to development takes the development formula one step further by treating all rights as an integrated whole and the right to development as a comprehensive process for their treatment.113 The violation of the right to development often encompasses numerous violations relating to religion or culture (cultural development) and land or natural resources (economic development). A finding of a violation of the Charter in respect of these rights would be a very strong indication that the right to development had itself been violated. However, Article 22 stands alone and needs to be examined separately.

Development as choice and increasing capabilities Amartya Sen has conceptualised economic, social and cultural development as an increase in overall well-being, measured by what a people are able to do.114 The realisation of the right to development results in increased capabilities and, therefore, an increased range of choice for the beneficiary. The right to development is a corollary of the right to selfdetermination.115 The African Charter particularly highlights the importance of using development to enhance ‘freedom and identity’. 111

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Sengupta was appointed as the Independent Expert on the right to development in 1998 by the UN Commission on Human Rights. He also co-directs the Right to Development Project at Harvard University’s Francois-Xavier Bagnoud Center. A. Sengupta, Third Report of the Independent Expert on the Right to Development, Committee on Human Rights, UN Doc. E/CN.4/2001/WG.18/2, 2001, p. 3. M. E. Salomon and A. Sengupta, The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples (London: Minority Rights Group International, 2003), p. 5. A. Sen, Development as Freedom (Oxford: Oxford University Press, 2000). Article 22(2) of the Declaration on the Right to Development.

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Capabilities can also be measured in more concrete terms, such as the realisation of the right to food, health or education. The concept of capabilities would encompass the ability to secure such needs in a fashion desirable to the beneficiaries of development. In this respect, the Declaration states that the right to development incorporates ‘equality of opportunity for all in their access to basic resources, education, health services, good housing, employment and fair distribution of income’.116 Since development is understood as an improvement in well-being (as measured by capabilities), the right to development ensures the provision of resources essential for survival and well-being. Traditional indigenous land-use systems have been recognised as crucial to such well-being. The Inter-American Commission on Human Rights noted in 1997, for example, that: For many indigenous cultures, continued utilization of traditional collective systems for the control and use of territory are essential to their survival, as well as to their individual and collective well-being. Control over the land refers both to its capacity for providing the resources which sustain life, and to the geographical space necessary for the cultural and social reproduction of the group.117

Thus, as control over land is central to well-being, control over land is crucial to ensuring the right to development.

Violation of choice and capabilities The failure of many African States to recognise economic, social and cultural rights of indigenous peoples and minorities will generally constitute a violation of choice and capabilities, and in turn, a violation of the right to development. This is particularly so when the way of life of indigenous peoples is threatened, regardless of intent. The WGIP has specifically highlighted concern over biased development policies and expansion of areas for agricultural production. In its report, it cautioned against the fact that: 116

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Ibid., Article 8. For example, an integral approach to the right to development would not only translate into the right to receive education but also to receive it in the form that is consistent with the needs of different peoples, e.g., accommodating semi-nomadic communities. Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc.10, rev.1 (1997), p. 115.

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Many African governments have tended to apply development paradigms focusing on assimilationist approaches designed to turn indigenous peoples into sedenterized crop cultivating farmers on the assumption that the ways of life of indigenous peoples have to change because it is ‘primitive’, ‘backward’ ‘unproductive’ and degrading to the environment. Such assimilation processes take many forms and are generally based on prejudice, lack of informed knowledge and power interests of the elites and not on genuine consultations with the peoples in question. The focus on crop production in rural development policies and the increasing expansion of areas under crop production is threatening the livelihoods of indigenous pastoralist and hunter-gatherer communities. The Batwa in Rwanda, Burundi and Uganda have been driven out of their ancestral forest areas. They have been dispossessed of nearly all their land and they do not have any guaranteed rights over the last remaining land. Thus, the Batwa in Rwanda, Burundi and Uganda suffer from a serious lack of land, which is a root cause for the severe poverty, marginalization and discrimination, which they are experiencing.118

The WGIP later emphasised that the loss of key productive resources, which deny indigenous peoples their right to maintain livelihoods of their own choosing, also generally has a devastating effect on their ability to retain and develop their cultures and cultural identity in accordance with their own wishes.119 It is clear that the alienating and disenfranchising effects of assimilationist policies therefore impose an obligation upon States to not only amend any de jure discrimination in national legislation, the obligation arguably also extends to the implementation of positive measures to address de facto discriminatory practices, with a view to ensuring the maximisation of choice and capabilities of all peoples under the protection of the African Charter, rather than only those of the dominant society. Furthermore, when a State embarks on a development project in violation of the right of development of indigenous peoples or other communities, the State must compensate those affected, so as to put them in as good a position as if their rights had never been violated.120 Given that the underlying purpose of the right to development is to increase both choice 118 119

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WGIP, p. 14. Ibid., pp. 25–7. This is mainly due to the holistic way of life of indigenous populations whereby their livelihood and modes of production are intrinsically related to their cultural practices and spiritual beliefs. A. Sengupta, Fourth Report of the Independent Expert on the Right to Development, Commission on Human Rights, E/CN.4/2002/WG.18/2, 2001, p. 14: ‘If a development project, such as constructing a dam, leads to the forced relocation of some people, that forced

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and capabilities, it is clear that ‘[a]n improvement in the realization of the right to development . . . implies that the realization of some rights has improved while no other right is violated or has deteriorated’.121 In light of this, development processes will not be acceptable if they are accompanied by increasing inequity or a lack of improvement in indicators of social development, education, health, gender balance and environmental protection.122

Effective participation and meaningful consultation The right to development requires that the beneficiaries of development participate in the process. Both the Declaration and UN Independent Expert focus on the inclusion of beneficiaries. Article 1(1) of the Declaration identifies the need to ‘participate in, contribute to, and enjoy’ the development process. The UN Independent Expert likewise affirmed the requirement of ‘schemes formulated and implemented at the grassroots level with the beneficiaries participating in the decision-making and implementation, as well as sharing equitably in the benefits’, and added that this ‘implies planning that empowers the beneficiaries’. African governments established this principle for themselves in the 1990 African Charter on Popular Participation in Development and Transformation, which defines ‘popular participation’ as ‘the empowerment of the people to effectively involve themselves in creating the structures and designing the policies and programmes that serve the interests of all as well as to effectively contribute to the development process and share equitably in its benefits’.123 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa further underlines the essential

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relocation constitutes a violation of their rights . . . In that case, compensation has to be paid, in whatever form, in order that losers or those affected can accept the “nominal violation” of their rights and consent to the relocation. It is nominal because after their compensation there should be no real violation, so that those affected believe they have not actually lost and are at least “indifferent” between the pre-violation State and the post violations compensation situation.’ Ibid., p. 5. Sengupta has formulated a development vector to measure the right to development by social indicators – such as food, health, education and housing – to represent economic, social, cultural, political and civil rights as well as economic growth (measured in per capita consumption, output and employment). The total development vector only increases if at least one right increases and no rights decrease; if any single right is infringed upon, the vector contracts. Sengupta, Third Report, p. 3. African Charter on Popular Participation in Development and Transformation, UN Doc. A/45/427, 1990, para. 11.

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role of women in development,124 and in turn, the need to promote gender equality in order to facilitate their integration and full participation as agents and beneficiaries of development as equal partners.125 The right to development, then, clearly requires that the State involve communities in the planning and implementation of projects that will affect their development, and it must obtain the prior and informed consent of communities affected by significant development projects.126 When communities are informed of an impending development project 124

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The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Preamble, para. 6: ‘NOTING that women’s rights and women’s essential role in development, have been reaffirmed in the United Nations Plans of Action on the Environment and Development in 1992, on Human Rights in 1993, on Population and Development in 1994 and on Social Development in 1995.’ Ibid., Preamble, para. 8: ‘REAFFIRMING the principle of promoting gender equality as enshrined in the Constitutive Act of the African Union as well as the New Partnership for Africa’s Development, relevant Declarations, Resolutions and Decisions, which underline the commitment of the African States to ensure the full participation of African women as equal partners in Africa’s development.’ Article 2(c) of the Protocol makes a further call to ‘integrate a gender perspective in their policy decisions, legislation, development plans, programmes and activities and in all other spheres of life’. (The general objectives of this programme are geared towards promoting the understanding, protection and effective implementation of the rights of African women in order to facilitate their integration and full participation as agents and beneficiaries of development.) Standards relating specifically to the principle of Prior and Informed Consent are outlined in CERD General Recommendation XXIII Concerning Indigenous Peoples (para. 4d) and Article 6(2) of the ILO Convention (No. 169), underpinning the principle of ‘good faith’ in consultation processes. The UN Human Rights Committee has also addressed the issue of consent and participation in cases such as Communication 547/93 Apirana Mahuika et al. v. New Zealand, Human Rights Committee, UN Doc. CCPR/C/70/D/547/1993 (2000), paras. 5.7–5.9. The requirement of prior, informed consent has also been delineated in the case-law of the Inter-American Commission on Human Rights. In Mary and Carrie Dann v. United States, the Commission noted that convening meetings with the Community fourteen years after title-extinguishment proceedings began constituted neither prior nor effective participation (para. 146). The Commission further stated that to have a process of consent that is fully informed ‘requires at a minimum that all of the members of the Community are fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives’ (para. 140, emphasis added) (Mary and Carrie Dann v. United States, Inter-American Commission on Human Rights, Report 75/02, Case 11/140, 2002. International development organisations have begun adopting participation and consultation standards with respect to indigenous peoples, e.g., ‘Integrating Human Rights with Development: A UNDP Policy Document’, United Nations Development Programme. The World Bank has also recently updated its Operational Policies on Indigenous People, now requiring that all borrowers from the Bank ‘engage in a process of free, prior and informed consultation . . . [that] results in broad Community support’ by the indigenous peoples affected. Revised Draft Operational Policies on Indigenous Peoples 4.10, World Bank (2004). Programme 1998, Section 2. The standards have been more fully delineated in ‘UNDP and Indigenous

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in a fashion that shows it to be a fait accompli, this will fail to meet the requirement that consultations be held ‘in a form appropriate to the circumstances’.127

Prohibition against coercion, pressure or intimidation It is also inherent in the process element of the right to development that government authorities fulfil their duties of fostering effective participation and obtaining informed consent without placing pressure on communities to accept an unsatisfactory settlement. To be legally effective, consent must be given freely. A report produced for the UN Working Group on Indigenous Populations required that ‘indigenous peoples are not coerced, pressured or intimidated in their choices of development’.128 The African Commission has itself noted the importance of choice to well-being. In the Ogoni case, the Commission observed that the State must show respect for rights-holders themselves and for the ‘liberty of their action’.129 The liberty recognised by the Commission is tantamount to the choice embodied in the right to development. By recognising such liberty, the Commission has arguably begun to embrace the right to development as choice.

Conclusion In light of the above, it is clear that economic growth alone is not enough to constitute the realisation of the right to development: ‘For economic growth to be included as an element of the claims representing the right to development, it must satisfy the basic condition of facilitating the realization of all other rights . . . In other words, policies adopted to increase

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Peoples: A Practice Note on Engagement’, United Nations Development Programme, available at http://regionalcentrebangkok.undp.or.th/practices/governance/ripp/docs/ PolicyOfEngagement.pdf. Accessed 10 October 2007. Article 6(2) of the ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989 by the General Conference of the International Labour Organisation at its 76th Session, entry into force 5 September 1991. A.-I. Motoc and the Tebtebba Foundation, ‘Preliminary Working Paper on the Principle of Free, Prior and Informed Consent of Indigenous Peoples in Relation to Development Affecting their Lands and Natural Resources that they would Serve as a Framework for the Drafting of a Legal Commentary by the Working Group on this Concept’, UN Doc. E/CN.4/Sub.2/AC.4/2004/4 (2004), para. 14(a). Communication 155/96, The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Fifteenth Activity Report 2001–2002, Annex V, para. 46.

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economic growth must be consistent with human rights standards.’130 Equality in the distribution of income or other benefits derived from development is chief among these standards, though policies must also reflect the diversity of needs among peoples protected under the African Charter.131 Only then will there be an increase in peoples’ well-being, as measured by the capacities and choices available. In the words of a former Commissioner, development is above all multidimensional: ‘It is national development. It is political, social and economic development. It is individual and peoples’ development. It is the independence and stability of Africa. It is peace and security in Africa. It is the absence of conflicts and wars. It is Africa’s contribution to the prosperity of its people and the international co-operation at large.’132

Article 23 – right to peace and security Article 23 provides that: 1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter.

This is yet another groundbreaking and potentially very wide-ranging right. Yet it appears to have been very rarely used, with no jurisprudence and very few references made to it. The following sections will look at its various elements. 130 131

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A. Sengupta, Independent Expert, Fifth Report of the Independent Expert on the Right to Development, Commission on Human Rights, UN Doc. E/CN.4/2002/WG.18/6 (2002). Ibid., p. 332. States Parties will be under an obligation to give their peoples an opportunity, i.e., when common heritage is given to the State, it must be divided equally among peoples of the State, including development of opportunities. I. El-Sheikh, ‘The African Union and Human Rights: Preliminary Reflections with Special Reference to the African Commission on Human and Peoples’ Rights (position paper prepared by Dr Ibrahim Ali Badawi El-Sheikh, Member and former Chairperson of the African Commission). On file with authors.

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Peace and security At its most basic level, the right to peace is the right to be free from violence. As this is a right of peoples, this right is clearly aimed at systematic violence against a people as a whole, whether that violence is specifically directed at the people themselves or simply a side-effect arising from other activities (see the discussion above on Article 19). However, the right of a people to ‘security’ is a right to peace. For example, security for a people must include the right to be protected from mass disruption and upheaval.

National The Commission has not addressed the meaning of ‘national’ in Article 23. It clearly refers to cases where the State authorities themselves attack peoples. Other human rights bodies have gone further than this and developed the idea of a positive duty on States to protect people from violence. The European Court of Human Rights has taken the view that State authorities have a duty under the right to life to take reasonable steps to protect individuals within their jurisdiction from attacks by third parties, especially when the State authorities have been informed about the risk of violence.133 The UN Committee Against Torture has found a violation of the Convention Against Torture when police were present but took no action when a village (of the Roma minority) was attacked and burnt down by a group.134 This approach was confirmed by the Commission in one of the few cases where it has addressed Article 23, the Mauritanian case.135 Part of the case concerned attacks on villages of a minority community. The Commission found that this would consititute a violation of Article 23 whether the attacks were carried out by State agents (as was the case) or third parties, stating: As advanced by the Mauritanian government, the conflict through which the country passed is the result of the actions of certain groups, for which it is not responsible. But in the case in question, it was indeed the Mauritanian public forces that attacked Mauritanian villages. And even if they were rebel 133 134 135

See Osman v. United Kingdom, judgment of 28 October 1998, RJD 1998–VIII. Hajrizi Dzemajl et al. v. Yugoslavia, CAT/C/29/D/161/2000. Communications 54/91, 61/91, 98/93, 164/97–196/97, and 210/98.

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forces, the responsibility for protection is incumbent on the Mauritanian State, which is a party to the Charter.136

The use of this approach to the duty on authorities under Article 23 means that all peoples have the right to expect State authorities to take reasonable steps to provide them with peace and security. This includes taking action against third parties. The positive duty on States to protect peoples from attacks by third parties, which is developing under Article 21 (considered above), provides a useful comparitor. It is highly likely that a violation of Article 23 will occur when groups are experiencing systematic or frequent acts of violence against them, and no action at all is taken by the State authorities to address the situation. The right granted to peoples to security at a national level by this Article is potentially very wide indeed, and could easily include, for example, the right not to suffer forced eviction and displacement, which leads to chronic insecurity.

International Article 23 also guarantees the right to ‘international peace and security’ to all peoples. As the Article itself points out, this stems directly from the Charter of the United Nations, which guarantees that all States shall conduct their affairs in peace and in the principle of non-interference in the affairs of others.137 Article 23(2) sets out specific obligations with regard to international peace and security, requiring States to ensure that their territory is not used as a base for ‘subversive or terrorist activities’ and that people to whom they grant asylum do not engage in ‘terrorist activities’ against other African countries.138 However, this is only part of the general right to international peace and security. A violation of 23(2) was alleged by the applicants in Communication 157/96, Association Pour la Sauvegarde de la Paix au Burundi v. Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia, who argued that two of the named countries were supporting ‘terrorism’. However, this part of the application was not addressed by the Commission in its decision. The duty on States not to disrupt peace and security elsewhere has been set out by the International Court of Justice, most notably in Nicaragua v. 136 138

137 Ibid., para. 140. Article 2(4) of the UN Charter. See also Guidelines for National Periodic Reports under the African Charter.

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United States139 and, more recently, in Democratic Republic of Congo v. Uganda.140 States are in violation of their obligations under the UN Charter and customary international law if they disrupt other countries, particularly through armed occupation or support for armed opposition groups. The obligation under the UN Charter is between States. Article 23 takes this much further, and, whilst the duties are still those of the State, the right rests with the peoples who themselves have a claim against the States acting in violation of it. For example, those peoples in the DRC affected by Ugandan interference have, themselves, a claim against Uganda under the Charter similar to that of their State. And, indeed, peoples from DRC who can claim that Rwanda has interfered with their peace and security could claim against Rwanda under Article 23 without needing to rely on their own government in order to do so.141 Perhaps surprisingly, international bodies have done little to turning the duty that States are under to protect peace into a positive right to promote and protect peace and security. This may be due to the paucity of cases on this issue, and the African Commission has not developed its own thinking on this. Although it has conducted several investigations into regions of conflict, such as Sudan, it has not referred to Article 23 and to the corresponding duties on States in its reports. Similarly the new Peace and Security Council of the African Union does not appear to have yet considered Article 23 as a basis for its work. Article 23, then, remains a very wide-ranging Article, which has scarcely been used or developed. Its potential is, however, immense. It holds out the possibility that peoples themselves, through the Commission, can hold to account both their own governments and the governments of other countries for the manner in which they protect or interfere with their peace and security. Article 23 is unique among international human rights treaties in stating so clearly a right to peace and security. Its interpretation

139 140

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Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), ICJ Reports (1986) 386. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgment of ICJ, 19 December 2005, available at www.icj-cij.org. Accessed 10 October 2007. Noting that at the ICJ, a similar case, to the one against Uganda was rejected by the ICJ on jurisdictional grounds, without considering the merits. See Armed Activities on the Territory of the Congo [New Application: 2002] (Democratic Republic of the Congo v. Rwanda), Order of 3 February 2006, available at www.icj-cij.org. Accessed 10 October 2007.

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and application should provide an opportunity for clearly setting out the minimum duties that are placed on States to protect, and not to harm, peoples.

Article 24 – right to the environment Article 24 is the shortest of the Articles on peoples’ rights but, like the others, is of potentially very wide-ranging scope. It provides that: All peoples shall have the right to a general satisfactory environment favourable to their development.

Once again, its various elements will be briefly considered.

Environment For several decades, the world has been increasingly interested in bettering the protection of the natural environment. Much of what has been agreed has been political and inter-State in nature, such as the UN Framework Convention on Climate Change and its Kyoto Protocol. However, developments have also taken place concerning a more general understanding of the ‘right’ to a good environment. In 1968, UN General Assembly Resolution 2398 noted with concern the impairment of the quality of the human environment, and that this had a negtive impact on the enjoyment of basic human rights by many people.142 This resolution led to the first UN Conference on the Human Environment in 1972 in Stockholm, which agreed a declaration that took a very broad approach to the meaning of ‘environment’, going beyond the mere physical. The first principle of this declaration was that humans had fundamental rights ‘in an environment of a quality that permits a life of dignity and well-being’, and went on to condemn policies of racial segregation and discrimination as harming this environment.143 The Additional Protocol to the American Convention of Human Rights in 1988 has a specific right (for individuals) to ‘live in a healthy environment’.144 However, globally, the right to a healthy environment has been little developed in law. Some scope remains in using other rights, notably the right to health, to construct an environmental right. For example, Article 142 143 144

UN General Assembly Res. 2398(XXIII) of 3 December 1968. Declaration of the United Nations Conference on the Human Environment, June 1972. Article 11 of the Additional Protocol to the American Convention on Human Rights 1988.

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12 of the ICESCR (on the right to health) specifically requires States to take steps necessary for the ‘improvement of all aspects of environmental and industrial hygiene’,145 and through its case-law the European Court of Human Rights has effectively created a right to a healthy environment, though the European Convention on Human Rights does not itself have specific rights concerning the environment or health. Thus, in a series of cases, the European Court has found violations of Article 8 (private and family life), and required States to take effective action to control pollution by private businesses, and give persons living in areas affected by polluting activities adequate information.146 Within Africa, several environmental treaties have been signed, notably the African Convention on the Conservation of Nature and Natural Resources of 1968, and the 1991 Bamako Convention on the Ban of the Import into Africa and the Transboundary Movement and Management of Hazardous Wastes within Africa.147 The Commission has also begun to address the meaning of Article 24, its lead case on the subject – indeed, one of the world’s leading judgments on the right to a healthy environment – being the Ogoni case. In that case, the Ogoni people claimed that the actions of the Government, in permitting private oil companies to damage the environment and their health, infringed their Charter rights. In its judgment, the Commission drew a close link between the individual’s right to health under Article 16 of the Charter and the peoples’ right to a satisfactory environment, and set out what it considered these Articles in conjunction required of States in the following terms: These rights recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual. As has been rightly observed by Alexander Kiss, ‘an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and the development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health’.148

145 146

147 148

Article 12(2)(b) of the ICESCR. See Lopez Ostra v. Spain, Judgement of 9 December 1994 Series A, No. 303–C; Guerra and others v. Italy, Judgement of 19 February 1998, RJD 1998–V; Oneryildiz v. Turkey, [GC], No. 48393/99, ECHR 2004–XII. Available at www.univie.ac.at/RI/KONTERM/intlaw/konterm/vrkon en/html/doku/ waste-af.htm. Accessed 10 October 2007. Communication 155/96, paras. 52–3.

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The right to a general satisfactory environment, as guaranteed under Article 24 of the African Charter or the right to a healthy environment, as it is widely known, therefore imposes clear obligations upon a government. It requires the State to take reasonable measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Nigeria is a party, requires governments to take necessary steps for the improvement of all aspects of environmental and industrial hygiene. The right to enjoy the best attainable state of physical and mental health ennunciated in Article 16(1) of the Charter and the right to a general satisfactory environment favourable to development (Article 16(3)) already noted obligate governments to desist from directly threatening either the health or the environment of their citizens. The State is under an obligation to respect the just noted rights and this entails largely non-interventionist conduct from the State for example, not carrying out, conducting, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual. Government compliance with the spirit of Articles 16 and 24 of the African Charter must also include or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.

The Commission found a violation of both Article 16 and 24 and recommended that Nigeria ensure protection of the environment, health and livelihood of the people of Ogoniland by: [e]nsuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the petroleum industry; and Providing information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations.149

These set out very clear requirements for States in the protection of the physical environment, including the need for consultation of the peoples 149

Ibid., Concluding Findings.

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affected. In addition, the issue of the environment runs throughout the Report of the Working Group on Indigenous Populations/Communities, showing how the environment of the indigenous peoples are being degraded by developments such as oil extraction and national parks. The WGIP noted that in some cases, the destruction of an indigenous way of life was actually done nominally in the name of environmental protection: indigenous were considered ‘backward’ and unable to protect the environment. In fact, the WGIP noted that recognising and working with indigenous peoples could greatly improve environmental protection.150

Scope for further development The interpretation placed on Article 24 by the Commission makes it clear that States are under duties to take specific measures to protect the physical environment of all the peoples in their territory, including from the activities of private companies. Such measures include assessing the potential damage and minimising this, and, critically, informing and involving the people affected in the decision-making. It is clear that, as in other Articles, the issue of proportionality will come into place, with massive damage to the environment being very difficult to justify.151 And yet the scope of Article 24 encompasses more than the physical environment, being a ‘general satisfactory environment, favourable to their development’. There is a clear link to Article 22, which describes development in economic, social and cultural terms. The Commission has made this link clear when it said in the Ogoni case that Article 24 requires consultation and the participation of the peoples affected by decisions on the environment, a very similar requirement to that under Article 22. In fact, and given the UN definition of a right to an environment encompassing freedom from discrimination, Article 24 can be seen as giving peoples the right to an environment that will allow them to develop economically, socially and culturally. This naturally requires a suitable physical environment for their way of life, whether that is based on urban living, pastoralism, fishing or forest dwelling. It also requires a suitable economic environment to give them fair access to development, as well as a social environment free of discrimination. Exploring these areas could make Article 24 a very powerful Article indeed. 150 151

See, for example, WGIP, above at note 24, pp. 42 and 106. See Communication 155/96, para. 54, which states that whilst the Government of Nigeria had the right to produce oil, this must be balanced with taking steps to protect the environment.

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Conclusion The African Charter is the only major international human rights instrument to address ‘human and peoples’ rights’. The six Charter Articles on the rights of peoples are of immense importance and potential. The Charter spells out rights that have only been implicit in other treaties, such as the right to peace and security, to development, to natural resources and to a general satisfactory environment. It is therefore unfortunate that there has been so little use of, reference to and development of all of these the Articles over the years. This, to a degree, may be due to a lack of resources for actively engaging with the African Commission, though it is important to emphasise that the body’s dealings with communications is primarily a written procedure, and therefore those without resources for physically attending sessions should not view the lack of funding as an impediment to litigation before this regional body. A further contributing factor to the under-utilisation of the Charter to date may revert to the fact that little information has yet to be made available to the wider public; little information is disseminated on the African Commission’s website, and still too few NGOs dedicate themselves to the promotion of the African Commission amongst communities across Africa. Finally, there have traditionally been few university-level law programmes in Africa focusing on international human rights law, rendering this area of law abstract and illusory for a large swath of practitioners who may have otherwise become involved. Luckily, a trend towards incorporating human rights law into curriculums is steadily increasing across Africa. There is therefore cause for great optimism for more creative and frequent use of the African Charter in years to come. That said, despite the limited use of the system by practitioners, the African Commission has, laudably, been proactive in moving towards a broad and flexible understanding of peoples, including ethnic groups and indigenous peoples within countries, and not limiting the definition to the whole peoples in a country, or to colonised peoples. The most notable development in the application of these Articles has been the creation of the WGIP and its admirable report, which clearly shows the application of the Articles to the situation of indigenous peoples across Africa. The challenge now is both on the Commission (and new Court) and civil society. For the Commission, it is to develop a deep and practical understanding and interpretation of the Articles, to provide practical benefit to the peoples affected. A system of general comments on each Article could be of immense benefit, if approached in the broad sense that each

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Article requires. At the same time, the ignorance amongst many peoples of their rights must be addressed by those in civil society who do know about the Charter. The many violations must be brought to the Commission’s attention by reports and legal communications. At the same time, pressure must be put on States Parties to comply with the commitments they have made. It is deeply disappointing that the most wide-ranging Commission opinion on a communication under these Articles, the Ogoni decision, is still being ignored by the State concerned years after it was issued. With a much greater use and development of these Articles, Africa can lead the world in understanding and applying collective rights.

8 The Role of Non-governmental Organisations and National Human Rights Institutions at the African Commission nobuntu mbelle

Introduction Non-governmental organisations (NGOs) and national human rights institutions have played, and continue to play, a key role in advancing the promotional and protective activities of the African Commission on Human and Peoples’ Rights (“the African Commission” or “the Commission”). Arguably, the effectiveness and visibility of the African Commission are owed to the active participation of non-State actors, such as NGOs, in its activities. African institutions value the contribution of NGOs in the fostering of a human rights culture on the African continent. The Grand Bay (Mauritius) Declaration firmly recognises the contribution of civil society in the promotion of human rights in Africa.1 In addition, the African Union (AU) encourages NGOs to participate in decision-making processes in building democracy in Africa.2 The African Commission has encouraged the participation of civil society in its promotional and protective work, as well as in the elaboration of principles and standards on human and peoples’ rights. The active participation of NGOs in the activities of the African Commission is, in part, a desire to have a functional and robust regional body charged with protecting and promoting rights. The African Commission remains the only treaty body with this broad mandate. 1

2

Grand Bay (Mauritius) Declaration and Plan of Action, the first OAU (Organisation for African Unity) Ministerial Conference on Human Rights, meeting from 12 to 16 April 1999, Grand Bay, Mauritius. Kigali Declaration, First African Union Ministerial Conference on Human Rights, 8 May 2003, Kigali, Rwanda.

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Even with the functioning of the African Court on Human and Peoples’ Rights (“the African Court” or “the Charter”), which will deliver binding judgments, the African Commission will occupy a prominent position in promoting human rights and guiding policy at national level. The primary purpose of NGOs, as they engage with regional human rights bodies, is to draw the attention of these institutions to human rights violations in their countries, or across several countries, in order to seek redress.3 In particular cases of massive human rights violations, it is anticipated that the body will intervene. By engaging in the regional human rights system, NGOs are monitoring compliance of States Parties with the African Charter on Human and Peoples’ Rights (“the African Charter”). In order to ensure an effective and efficient institution that will respond in a robust manner to urgent or systemic human rights concerns, NGOs use several strategies: they provide technical and administrative support in order to strengthen particular aspects of the African Commission and some engage in elaborating norms and principles, and interpreting the African Charter. Popularising the work of the African Commission is significant in providing much-needed visibility, reaffirming its relevance in Africa. Non-governmental organisations enrich and complement the work of the African Commission. However, the co-operation between NGOs and the African Commission should not overshadow the need to address the structural weaknesses within the Commission. It is important for the African Commission to be in a position to initiate its activities, and not be hampered by overwhelming financial or personnel limitations. By contrast, the relationship between national human rights institutions and the African Commission is very much in its infancy. National human rights institutions are yet to define their relationship with the African Commission. Activities have been limited to facilitating promotional visits and attending and participating in the public sessions of the African Commission. In light of the relatively advanced level of participation by human rights NGOs rather than national human rights institutions in the work of the African Commission, this chapter will be chiefly focussed on the work of 3

L. Wiseberg, ‘Human Rights NGOs’ in A. G. Castermans (ed.), The Role of NonGovernmental Organizations in the Promotion and Protection of Human Rights – Symposium Organized on the Occasion of the Award of the Praemium Erasmianum to the International Commission of Jurists (Leiden: Stichtung NJCM-Boekerij, 1992), p. 31.

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NGOs. The first part of this chapter will examine how NGOs engage with the African Commission, and look at the manner of this engagement. The second part will address the role of national human rights institutions in the work of the African Commission.

Non-governmental organisations Observer status at the African Commission The African Charter makes provision for the African Commission to ‘cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights’.4 Thus, there is a provision under the Rules of Procedure of the African Commission for participation of, and consultation with, NGOs in the activities of the African Commission.5 The African Commission accepts applications for observer status from human rights NGOs located in and outside Africa. The granting of this status places certain rights and obligations on these bodies in relation to participation in the activities of the African Commission. Each of these categories will be dealt with separately. For NGOs to participate in the activities of the African Commission, they should have observer status. The Commission has set out criteria on the granting of observer status to NGOs.6 The criteria considered for observer status stipulate that the NGOs shall have the following: Have objectives and activities in consonance with the fundamental principles and objectives enunciated in the OAU (Organisation of African Unity) Charter and the African Charter on Human and Peoples’ Rights; Be organisations working in the field of human rights; and Declare their financial resources.7 4 5

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Article 45(1)(c) of the African Charter. Rules 75 and 76 of the Rules of Procedure. Rule 75: “[N]on-governmental organisations, granted observer status by the Commission, may appoint authorised observers to participate in the public sessions of the Commission and its subsidiary bodies.” Rule 76: “The Commission may consult non-governmental organisations either directly or through one or several committees set up for this purpose.” Resolution on the Criteria for Granting and Enjoying Observer Status to NonGovernmental Organisations Working in the Field of Human Rights with the African Commission on Human and Peoples’ Rights, ACHPR/Res.33(XXV)99. See above.

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The number of NGOs with observer status as of January 2007 stood at 370.8 A number of these organisations are based in Africa, and are engaged in education, training, research, litigation and advocacy on human rights. The African Commission also encourages NGOs outside of Africa and in the diaspora to apply for observer status. For example, the Bangladeshi Human Rights Commission, which some may argue does not promote human rights in Africa, was granted observer status at the 30th Session of the African Commission in 2001. In some instances, NGOs focusing on specific subjects will seek observer status when that subject is under consideration by the African Commission. For example, since the establishment of the Working Group on Indigenous Populations/Communities in 2001, NGOs focusing on this thematic issue, such as the Centre for Minority Rights Development (Kenya), Manyoito Pastoralists Integrated Development Organisation (Kenya) and the Indigenous Peoples’ Association Co-ordinating Committee (South Africa), have acquired observer status.9 Once an NGO has observer status, it is entitled to participate in the public sessions of the African Commission, and in its special mechanisms: the NGO has access to documents of the African Commission; more importantly, NGOs may propose an agenda item for the sessions; they can also take the floor and make interventions during the public sessions. In spite of the relatively large number of NGOs with – and the growing number of NGOs applying for – observer status (for example, at the 38th Session, the African Commission granted observer status to twelve NGOs)10 not all these organisations attend the sessions of the African Commission: in fact, only a third of these attend and participate in the sessions of the African Commission. Some engage with the African Commission through the complaints procedure (see discussion on lodging complaints below). There are, however, those without observer status that observe proceedings of the African Commission. Non-governmental organisations with observer status are obliged to present activity reports to the African Commissioner every two years.11 8

9 10 11

Report of the African Commission on Human and Peoples’ Rights, EX.CL/322(X), Executive Council [of the African Union], 10th Ordinary Session, 25–26 January 2007, Addis Ababa, Ethiopia. The three organisations were granted observer status at the 33rd Session of the African Commission in May 2003. Final Communiqu´e of the Thirty-eighth Session of the African Commission, Banjul, The Gambia, 5 December 2005. The African Commission decided at its 11th Session of the African Commission, held in March 1992 in Tunis, Tunisia, that NGOs shall submit activity reports to the Secretariat

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Organisations shall also ‘undertake to establish close relations of cooperation with the African Commission and to engage in regular consultations with it on all matters of common interest’.12 The majority of NGOs are failing to meet their obligations, in particular that of submitting their activity reports. At the 25th Ordinary Session of the African Commission, the Secretary’s report raised concern that while a number of NGOs were granted observer status, only 30 per cent of the 231 organisations had submitted their activity reports.13 The Secretary called for the African Commission to review observer status granted to NGOs. Before the 39th Session of the African Commission, less than a third of the registered 344 NGOs with observer status had submitted their reports.14 Failure by NGOs to meet their obligations can result in the following: non-participation in sessions; denial of documents and information; denial of the opportunity to propose items to be included in the Commission’s agenda and of participating in its proceedings. The African Commission reserves the right to withdraw observer status. According to the information available at the time of publication, there is no record of the African Commission having withdrawn such status. While the African Commission obliges NGOs to submit reports, it has not indicated the form that these reports should take, how they are used, and what value they give to the work of the African Commission. There is no indication, for example, in what way an activity report relating to the human rights situation in a particular country, which arguably would contribute to the work of the African Commission, should be most usefully structured and oriented. In the same way as there are guidelines for initial and periodic State reports, the African Commission should indicate to NGOs the content required, and how that content will be used. This does not mean the African Commission will consider activity reports in the manner undertaken for State reports, but it will encourage clarity among NGOs on the importance of these reports in the work of the

12 13 14

every two years: Relationship and Co-operation between the African Commission on Human and Peoples’ Rights and the Non-governmental Organisations having Observer Status with the Commission, ACHPR/Res.30(XXIV)98. Resolution on the Criteria for the Granting and Enjoying of Observer Status. Report of the Secretary to the Commission, DOC/OS(XXV)/103, 25th Ordinary Session, 26 April–5 May 1999, Bujumbura, Burundi. Relationship and Co-operation between the African Commission on Human and Peoples’ Rights and the Non-Governmental Organisations, Status of Submission of NGOs Activity Reports to the African Commission, 39th Ordinary Session, 11–25 May 2006, Banjul, The Gambia.

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African Commission, and would provide a compelling reason for NGOs to submit their reports in time. The regular submission of these reports will assist the African Commission in providing background material for its various activities, including monitoring human rights across Africa. In particular, such reports could provide alternative material to assist the African Commission in the consideration of State reports – an important function of the African Commission (see discussion on State reporting below).

Public awareness events on the work of the African Commission The holding of events such as seminars and workshops on the African Commission has become a useful strategy in raising public awareness of the institution and its mechanisms. The African Commission has encouraged the support of partners, including NGOs, in organising these events.15 Pre-session events and assisting the African Commission in its promotional visits encourages greater participation in the activities of the African Commission. An important event that, in part, aims at introducing NGOs to the work of the African Commission, and to encourage greater civil society participation in the work of the Commission, is the Forum of NGOs. The forum takes place over a three-day period ahead of the African Commission sessions.16 The African Centre for Democracy and Human Rights, an organisation with observer status, following its collaborative relationship with the African Commission, has organised a number of these events. The Forum provides an opportunity for NGOs to engage the African Commission on human rights issues in Africa, become familiar with its mechanisms, procedures and its role in the promotion and protection of human rights in Africa. Commissioners Rezag Bara and Alapini-Gansou, convener of the Working Group on Indigenous Populations/Communities and Special Rapporteur on Human Rights Defenders respectively, made presentations on their specialist areas at the Forum ahead of the 38th Session of the African Commission. This event also provides NGOs with an opportunity to prepare their contributions to the 15 16

Fifteenth Activity Report 2001–2002, p. 10. The African Centre for Democracy and Human Rights, based in Banjul, The Gambia, organised the NGO Forum ahead of the 39th Session of the African Commission from 6 to 8 May 2006.

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African Commission.17 The Forum concludes with resolutions, which are presented during the open session of the African Commission. In some instances, the African Commission adopts, with some revision, the resolutions from the NGO Forum. For example, at the 38th Session of the African Commission, resolutions on the human rights situation in Zimbabwe, the establishment of the African Court and the situation in Ethiopia were adopted with some revisions. Resolutions form part of the jurisprudence of the African Commission. Apart from the pre-session events, the African Commission, jointly with NGOs, holds several seminars and conferences on specific themes. In some instances, these events inform the elaboration of guidelines and principles. In September 2004, the African Commission, together with International Centre for the Legal Protection of Human Rights (Interights) and the Cairo Institute for Human Rights Studies, held a seminar on social and economic rights in the African Charter, where a declaration was adopted. The African Commission then adopted the Declaration on Economic, Social and Cultural Rights. Furthermore, it decided to establish a working group, consisting of members of the African Commission and NGOs, in order to elaborate guidelines on economic, social and cultural rights in Africa.18 In other instances, these events are a strategy to raise awareness on the work of the African Commission in a particular area. Article 19, an organisation with observer status, in collaboration with the African Commission, held a conference in South Africa from 19 to 20 February 2004 to raise awareness on the Declaration of Principles on Freedom of Expression in Africa, and to strengthen the African Commission in the promotion and protection of freedom of expression in Africa.19 In a similar vein, the Association for the Prevention of Torture, in conjunction with the African Commission, engaged in an awareness-raising event by launching the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment or Punishment in Africa (also referred to as “the Robben Island Guidelines”) at the fringes of the AU Summit in Maputo on 11 July 2003. 17 18 19

See Eighteenth Activity Report 2004–April 2005, p. 1. Resolution on Economic, Social and Cultural Rights, ACHPR/Res.73(XXXVI)04. See Seventeenth Activity Report 2003–2004, p. 6. The Declaration of Principles on the Freedom of Expression in Africa was adopted by the African Commission at its 32nd Session in Banjul, The Gambia, 23 October 2002.

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Promotional visits enhance the visibility and profile of the African Commission. The Secretariat, which is responsible for organising these visits, in addition to liaising with relevant government officials, will also make contact with civil society groupings in that country. The credibility of the African Commission lies in its impartial approach to compiling its reports on these visits. It should gather views from various interest groups outside of government, as well as officials, in order to form a balanced opinion on the human rights situation in a particular country. However, this is based on the assumption that the NGOs interviewed are credible. This is not always the case. There are instances where some NGOs are viewed as sympathetic to government, whereas others claim the moral authority of being ‘independent’.20 Independent NGOs can in themselves be biased in positing a view that supports particular political factions in that country. It is therefore important that the African Commission engages with all interest groups to guarantee its independence and impartiality – essential to the effectiveness of the human rights body – in the discharge of its duties.

Attendance and participation in the public sessions of the African Commission Ordinary sessions A benefit for NGOs having observer status at the African Commission is their right not only to attend but also to participate in the public sessions of the Commission. This is an opportunity for the NGOs to inform the African Commission to human rights violations in a particular country, and to publicly shame the State in question for human rights abuses. Under its rules, the African Commission is required to inform NGOs of sessions.21 These NGOs may submit agenda items ten weeks before the opening of the meeting at the Secretariat of the African Commission.22 In practice, NGOs receive invitations and notification to propose agenda items within the month when the session is due to take place. The African Commission is unable to confirm venue and dates well ahead of the session if the host country has not finalised arrangements for the session. 20 21

P. Kooijmans, ‘The Non-Governmental Organizations and the Monitoring Activities of the United Nations in the Field of Human Rights’ in A. G. Castermans (ed.), p. 19. 22 Rule 4 of the Rules of Procedure. Rule 5 of the Rules of Procedure.

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The public session provides an opportunity for NGOs to actively engage with the African Commission on human rights violations affecting populations, as well as on institutional matters of the African Commission. A third of NGOs typically make oral interventions under the human rights situation in Africa and/or under thematic issues such as the situation facing human rights defenders, freedom of expression and the rights of refugees, asylum seekers and internally displaced persons. Public sessions also afford an opportunity for the African Commission to report on its activities and raise concerns regarding the discharge of its mandate. Similarly, NGOs will make interventions on collaborative work with the African Commission. Activity reports and documentation relating to NGOs with observer status, and the status of periodic and initial State reports, are disseminated to participants. Non-government organisations have played an important role in ensuring that certain issues remain on the African Commission’s agenda. For example, the item on the African Court – an institution that will bolster the protective mandate of the African Commission – has been a constant feature on the agenda of the African Commission, due, in part, to NGOs constantly engaging on this matter. By ensuring that this subject remains on the agenda, it has enabled the African Commission to remind Member States who have not ratified the enabling protocol establishing the African Court to do so. In addition to universal ratification, the African Commission has had to examine its future relationship with the African Court.23

Extraordinary sessions of the African Commission Although it is not often that the Commission meets outside of its ordinary sessions, there are instances of massive human rights violations where such a meeting is required. The African Commission can decide to hold such a session, or they can do so at the request of the AU.24 Non-governmental 23

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Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights. Article 2 reads: ‘The Court shall, bearing in mind the provisions of this Protocol, complement the protective mandate of the African Commission on Human and Peoples’ Rights . . . conferred upon it by the African Charter on Human and Peoples’ Rights.’ Article 8 reads: ‘The Rules of Procedure of the Court shall lay down the detailed conditions under which the Court shall consider cases brought before it, bearing in mind the complementarity between the Commission and the Court.’ Rule 3 of the Rules of Procedure gives two instances when extraordinary sessions – that is, sessions held when the African Commission is not in session – can be take place. They are: (1) on the initiative of the Commissioners, or (2) at the request of the Chairperson of the African Union.

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organisations may initiate the holding of such sessions through its alerts to the African Commission on urgent human rights violations, as was the demand for provisional measures to halt the imposition of the death penalty on activist Ken Saro Wiwa of the Ogoni of Nigeria. From 18 to 19 September 2004, the African Commission held an extraordinary session in South Africa to consider a report of its factfinding mission to Darfur, the Sudan, for adoption. This follows a decision by the African Commission at its 35th Ordinary Session to send a fact-finding mission to Darfur (see discussion on fact-finding missions below). In addition to considering the report of the fact-finding mission, the Extraordinary Session was responding to continued reports of human rights abuses in Darfur. The initial findings from the fact-finding mission showed a pattern of human rights abuses committed by military supported, allegedly, by the Government of Sudan.25 Despite the public interest in the deliberations and the number of NGOs at the venue, most of the session was held in private.26

The consideration of State reports Under Article 62 of the African Charter, States are obliged to submit reports every two years on policy measures taken at national level, in order to realise the rights guaranteed in the Charter. Although the examination of State reports is not explicit in the African Charter, the African Commission has broadened its functions in this regard.27 As this topic is discussed elsewhere in this volume, this section will provide a brief overview of the procedure in the context of the participation of NGOs. The African Commission reviews the initial and periodic reports submitted by States Parties. This evaluation of State compliance with the African Charter is an extremely important function of the African Commission. In order for the African Commission to make a balanced assessment of a State’s compliance, it needs information from independent, as well as official, sources.28 States Parties may not present a comprehensive assessment of the human rights situation. Therefore, the consideration of State reports is an opportunity to measure the extent to which the rights 25 26 27 28

J. Katzenellebogen, ‘More Troops could be Deployed if Abuses Report gets Nod: AU to take Hard Line on Darfur’, Business Day (South Africa) 20 September 2004. Ibid. See Chapter 2; also E. Ankumah, The African Commission on Human and Peoples’ Rights, p. 79. Ibid., p. 93.

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contained in the African Charter are realised, but it is also an opportunity for NGOs, and, arguably, national human rights institutions, to engage with their respective governments on human rights issues. Organisations engage with the State reporting procedure in various ways: the submission of shadow reports; publicising concluding observations of the African Commission; reminding States Parties of their reporting obligations; providing the Secretariat with subject-specific information; or making declarations in the public sessions. The African Commission has called on NGOs to submit shadow reports.29 These reports provide the African Commission with an alternate view of the human rights situation in a State. However, NGOs are yet to engage in shadow-report writing vigorously. The information submitted to the African Commission informs the formulation of preliminary questions to be posed to State representatives during the public sessions. Other members of the African Commission in addition to the assigned rapporteur for the State report may draw on subject-specific information, such as information relating to refugees and indigenous communities, when posing questions to State representatives. While shadow reports are useful in providing alternative information on the human rights situation, and as such form a key component in the consideration of State reports by the African Commission, NGOs cannot compile such reports adequately without prior access to initial or periodic State reports. This hinders the ability of NGOs to formulate an adequate response to a State’s report for consideration by the African Commission. The first periodic report of the Government of South Africa covering the period between 1999 and 2001 was considered at the 38th Session of the African Commission. NGOs were unable to compile a comprehensive shadow report for two reasons: (1) the first periodic report was not available on the African Commission’s website ahead of its consideration, and (2) the relevant government department of South Africa did not furnish the report to NGOs in advance in order for them to study and respond to it.30 Instead, a coalition of NGOs submitted and presented a declaration on its behalf during the public session, raising human rights concerns such as access to basic education in rural areas, children’s rights, and South Africa’s refusal to make a declaration under Article 34(6) of the 29 30

Resolution on the Co-operation between the African Commission on Human and Peoples’ Rights and Non-Governmental Organisations. South African NGOs reportedly received the first periodic report of South Africa, after lodging several requests the week before departure to the 38th Session of the African Commission.

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protocol establishing the African Court under the African Charter. Additionally, NGOs, such as Human Rights Watch, submitted subject-specific reports to the African Commission to provide additional information on this theme. During its assessment, and in the draft concluding remarks of the first periodic report of South Africa, the African Commission drew on the declaration of the NGOs as well as country information from organisations.31 Arguably, making presentations and submitting reports to the African Commission at the session may leave the African Commission with little time to consider the reports and adequately prepare its questions for the State representative.32 While it would be ideal for NGOs to have access to these reports in order to prepare shadow reports, this does not always happen. Up until the 39th Session in May 2006, the African Commission did not make State reports publicly available. Following several calls from NGOs for greater access, the reports considered at the 39th Session, except the report of Cameroon, were posted on the African Commission’s website. The reasons for the periodic report of Cameroon not being made publicly available on the website is not apparent. In order for NGOs to play a meaningful role in the consideration of State reports, the State reports should be publicly available well in advance, and NGOs should submit their reports in time for the Secretariat of the African Commission to consider them. Input by NGOs also contributes to the African Commission’s compilation of concluding observations, which are important in reviewing future State compliance to the African Charter.

Fact-finding missions The provision of information on massive human rights violations by NGOs either during the public sessions of the African Commission followed by the adoption of a resolution, or in a communication, can lead to the African Commission undertaking fact-finding missions. Arguably, NGOs raising concerns on alleged human rights violations in Darfur, the Sudan, Zimbabwe and the situation of Mauritanian refugees in Senegal contributed to the African Commission’s decisions to undertake

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See Concluding Observations of the South Africa Report (unofficial at time of the writing – on file with the author). Ankumah, The African Commission on Human and Peoples’ Rights, p. 65.

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fact-finding missions there. Also, NGOs are key interlocuters for the African Commission during the fact-finding missions. During the 35th Session of the African Commission in May 2004, NGOs made interventions during the public session and also on behalf of the NGO Forum that took place ahead of the session. The African Commission adopted a resolution on the human rights situation in Darfur, which decided to send a fact-finding mission led by the Special Rapporteur on Refugees and Internally Displaced Persons to Darfur.33 The mission took place from 8 to 18 July 2004. Following reports of human rights violations from NGOs in Zimbabwe at its 29th Ordinary Session in 2001, the African Commission decided to send a fact-finding mission to that country. The mission was conducted between 24 and 28 June 2002. The report of the finding was adopted at the African Commission’s 34th Ordinary Session in November 2003. The fact-finding mission team met with government representatives as well as human rights NGOs.34 The Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants conducted a fact-finding mission to Senegal to investigate the situation of Mauritanian refugees from 29 August to 3 September 2005.35 The Institute for Human Rights and Development in Africa, and the Open Society Justice Initiative, accompanied the Special Rapporteur on this mission.

Special mechanisms of the African Commission The African Commission’s mandate to co-operate with institutions in achieving its goals, and to consult with NGOs through its various internal structures, has encouraged active participation by NGOs in the work of the special mechanisms, such as the office of the Special Rapporteur.36 Several collaborative activities have consolidated the relationship between NGOs and the African Commission, and, importantly, strengthened the work of the Commission. The role played by NGOs in this regard is on two fronts: (1) actively supporting the mechanisms materially and administratively, and (2) furnishing the African Commission with relevant information 33

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Resolution on the Situation of Human Rights in Darfur, Sudan, Seventeenth Activity Report 2003–2004, p. 61, reads: ‘[the African Commission] accepts to send a fact-finding mission to Darfur to investigate reports on human rights violations in Darfur and to report back to it’. 35 Ibid., p. 14. Nineteenth Activity Report, July–December 2005, p. 17. Article 45(1)(c) of the African Charter; Rule 76 of the Rules of Procedure. See Chapter 10.

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pertaining to the said specialist area. A discussion on the participation of NGOs in the work of the special rapporteurs and the working groups follows.

The office of the Special Rapporteur The African Charter empowers the African Commission to undertake research on problems of human and peoples’ rights.37 The Special Rapporteur mechanism fulfils an important function in addressing specific systemic human rights concerns in Africa, such as refugees and freedom of expression. As of January 2007, there were five special rapporteurs on specific subjects.38 Non-governmental organisations have been influential in the establishment and sustainability of these mechanisms. This section will focus on three special rapporteurs, as they demonstrate the impact, or lack of, co-operation and participation of NGOs in the activities of this institution. The work of the Special Rapporteur on Prisons and Conditions of Detention in Africa, one of the first fully functional mechanisms of this kind since the inception of the African Commission, has played a significant role in examining the rights of detainees across the continent. As well as conducting several visits, the African Commission has published a number of reports. The ability for the Special Rapporteur to give full effect to its mandate is largely due to the active support of NGOs, in particular Penal Reform International (PRI), which has observer status at the African Commission.39 The organisation has provided administrative and technical support to the Special Rapporteur. In an activity report to the African Commission at its 37th session, the Special Rapporteur reported that PRI, in collaboration with the Secretariat, was able to recruit an

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Article 45(1)(a) of the African Charter. The special rapporteurs are on the following themes: Refugees, Asylum Seekers and Internally Displaced Persons; Rights of Women in Africa; Freedom of Expression in Africa; Human Rights Defenders in Africa; and Prisons and Conditions of Detention in Africa. The mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons was extended to also include migrants. See Final Communiqu´e of the 39th Ordinary Session of the African Commission, 25 May 2006. Seventeenth Activity Report 2003–2004, p. 4 reads: ‘Penal Reform International (PRI) the principal donor for the office of the Special Rapporteur on Prisons and Conditions of Detention in Africa discontinued its provision of financial support to the Special Rapporteur. PRI however, negotiated with the Foreign and Commonwealth Office for the recruitment of an assistant who is on a seventeen-month contract and assumed duty in June 2003.’

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assistant from June 2003 to October 2004.40 Prior to the appointment of an assistant, one of the legal officers at the Secretariat was assigned to assist the Special Rapporteur in addition to other tasks. The organisation has also assisted in facilitating country visits; has accompanied the responsible commissioner on these visits and has assisted in the publication of the country reports. The African Commission adopted the Declaration of Principles on Freedom of Expression in Africa at its 32nd Session in 2002.41 In addition, the African Commission nominated a focal point, namely a sitting commissioner, to oversee the implementation of the declaration. At the 36th Session in 2004, a Special Rapporteur on Freedom of Expression in Africa, with a broader mandate than that of the focal point, was appointed.42 The NGO Article 19 has since convened a conference in collaboration with the African Commission on freedom of expression in Africa. It has also facilitated an exchange visit for the Special Rapporteur to visit the Inter-American Human Rights Commission, in order to share experiences and best practices. The organisation is presently working in partnership with the current Special Rapporteur to source funds to undertake activities.43 In contrast, the work of the Special Rapporteur on the Rights of Women in Africa has not undertaken investigative missions, despite the limited support from Rights and Democracy, a Canadian organisation. As of the activity report tabled at the 40th Session, the Special Rapporteur reported that the Centre for Human Rights, an organisation with observer status, was providing technical and financial assistance to the special rapporteur.44 Consequently, apart from activity reports of the responsible commissioner, the African Commission has not published reports on the rights of women. 40 41 42

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Commissioner Chirwa, Activity Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa to the 37th Session of the African Commission, May 2005. Resolution on the Adoption of the Declaration of Principles on the Freedom of Expression in Africa, Sixteenth Activity Report 2002–2003, p. 33, 23 October 2002. Commissioner Chigovera was elected the Special Rapporteur on Freedom of Expression in Africa at the 36th Session of the African Commission, 7 December 2004. See Final Communiqu´e of the 36th Session of the African Commission, 7 December 2004. Commissioner P. Tlakula was appointed Special Rapporteur on Freedom of Expression at the 38th Session of the African Commission in 2005. See Nineteenth Activity Report July–December 2005, p. 2. Commissioner Melo, Activity Report of the Special Rapporteur on the Rights of Women in Africa, 40th Session of the African Commission, 15–29 November 2006, Banjul, The Gambia, ACHPR/40/OS/599/Draft.

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Working groups The African Commission may establish working groups to fulfil its functions.45 These structures may meet outside of the sessions. This mechanism has strengthened the role of NGOs in bolstering and enriching the work of the African Commission. These working groups focus on specific thematic issues, such as the rights of indigenous populations and the death penalty, and also on institutional and structural issues. By participating in the activity of the working group, NGOs are able to provide technical support on matters that will in turn strengthen the effectiveness, efficiency and relevance of the African Commission. Also, NGOs engaged in working groups provide financial support, which is essential for the activities to take place. The contributions made by organisations in four working groups will be examined. The Working Group on Specific Issues relating to the African Commission, comprising members of the Commission and NGOs, was created at the 37th Session of the Commission in May 2005 in Banjul, The Gambia.46 The mandate of this Working Group is to consider the relationship between the Commission and the African Court on Human and Peoples’ Rights, the relationship between the bureau of the African Commission and the Secretariat of the Commission, and, lastly, the relationship between the African Commission and other organs of the AU.47 Consequently, the Rules of Procedure of the African Commission will have to be revised to take into account its relationship with the African Court (see detailed discussion in Chapter 12, below). The urgency in examining the relationship of the African Commission with that of the African Court emanates from a resolution from the January 2006 AU Summit.48 The International Centre for the Legal Protection of Human Rights (Interights) and the Institute for Human Rights and Development 45 46

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Rule 28 of the Rules of Procedure. See Chapter 13 below. Resolution on the Creation of a Working Group on Specific Issues Relevant to the Work of the African Commission on Human and Peoples’ Rights, Eighteenth Activity Report of the African Commission 2004–2005, 11 May 2005. Resolution on the Renewal of the Mandate and Composition of the Working Group on Specific Issues relating to the Work of the African Commission on Human and Peoples’ Rights, Nineteenth Activity Report of the African Commission, July–December 2005, p. 6. The members on this working group consist of the following: Commissioners Melo, Tlakula and Babana, and representatives from the Institute for Human Rights and Development in Africa, Open Society Justice Initiative and Interights. Decision on the Nineteenth Activity Report July–December 2005, DOC.EX.CL./236/(VIII) reads: ‘[The Assembly] requests the ACHPR to complete, as soon as possible, the work undertaken on its relations with various organs and institutions of the African Union,

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in Africa made a presentation on the progress regarding amendments to the current Rules of Procedure to the African Commission at the 39th Ordinary Session. These organisations, in addition to providing expertise on these issues, also provide secretarial support to the Working Group of the African Commission. On a thematic issue, the Working Group on Indigenous Populations/Communities has worked closely with the International Working Group for Indigenous Affairs (IWGIA). The Working Group was established at the 29th Session of the African Commission.49 Following the establishment of this Working Group, NGOs focusing on minority group rights and rights of indigenous peoples have increasingly attended and participated in the African Commissions’ session. In light of the limited resources at the Secretariat to support this initiative, the Working Group, in its initial stages, relied upon the support from the IWGIA to undertake its activities.50 Included in its activities was a fact-finding mission to Burundi from 27 March to 9 April 2005, where the convener of the Working Group was assisted by nationally based NGOs.51 Following the inability of the Association for the Prevention of Torture, an NGO with observer status, to continue financially supporting the activities of the Working Group on the Implementation of the Robben Island Guidelines (which began as a follow-up committee), the Group could not conduct activities between May and November 2005.52 The NGO, as a member of the Working Group, has, however, supported the convener of the Group in devising strategies to promote the Robben Island Guidelines.53

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including the African Court on Human and Peoples’ Rights, and to submit appropriate recommendations relating thereto’; AU Summit, January 2006. Resolution on the Rights of Indigenous Peoples’ Communities, ACHPR/Res.51(XXVIII)00 decided to establish a working group. Included in the mandate of the Working Group under the resolution is for the Group to examine the concept of indigenous people and communities in Africa, and to consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities. The initial members of the Working Group included commissioners and experts: Commissioner B. Pityana, Commissioner K. Rezag-Bara, Commissioner A. Chigovera, Ms Marianne Jensen, Dr Naomi Kipuri, Mr Mohammed Khattali and Mr Zephyrin Kalimba. Commissioners Pityana and Chigovera have since retired from the African Commission. See Report of the Africa Commission’s Working Group of Experts on Indigenous Populations/Communities (2005), Introduction, p. 11. Eighteenth Activity Report 2004–May 2005, p. 6. Nineteenth Activity Report July–December 2005, p. 14. See Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment or Punishment in Africa, Banjul, The Gambia,

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A further example of the instrumental role of NGOs in this mechanism, which has been referred to earlier, is the establishment of the Working Group on Social, Economic and Cultural Rights. Interights, an NGO with observer status, is a member of this Working Group. The Group met in August and October 2005 to discuss the draft Guidelines on the Implementation of Economic, Social and Cultural Rights in Africa.54 Where NGOs have been actively involved in the activities of these mechanisms, there has been visible impact through output of work, such as reports, the number of visits conducted and meetings held. In those instances where there has not been co-ordinated external support to a mechanism, or where financial resources no longer exist, activities have been minimal. Non-governmental organisations bolster these institutions, and make them invaluable to the African Commission. This is embedded in the reality that these mechanisms are led by sitting commissioners who serve on a part-time basis. Also, the Secretariat charged with servicing the African Commission is poorly resourced, and therefore is unable to offer the full extent of support to special rapporteurs and conveners of working groups. Arguably, the ability of NGOs to source funds, and their internal flexibility, places them in a position to influence the work and priorities of the African Commission. NGOs also provide compelling reasons as to why their chosen theme should be a priority. However, they can be perceived as advancing their specialist areas of work at the expense of other pressing human rights issues, and by having certain NGOs supporting the Commission’s special mechanisms, an elitist group of NGOs that is perceived as being credible is created. The African Commission must, in the end, bear the residual responsibility for determining its priorities.

The role of non-governmental organisations in setting norms and standards The African Commission has an added function to formulate ‘principles and rules aimed at solving legal problems relating to human and peoples’ rights’.55 The African Commission in partnership with NGOs has strengthened aspects of the African Charter. At the United Nations

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23 October 2002, which establishes a follow-up committee comprising the African Commission and the Association for the Prevention of Torture, as well as experts, to publicise and promote domestication of the Robben Island Guidelines. Nineteenth Activity Report July–December 2005, p. 13. Article 45(1)(b) of the African Charter.

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and in the African regional human rights system, NGOs can bring their expertise on specific subjects, reinforced by their claim to represent a certain constituency.56 Within the African system in particular, NGOs also bring administrative support to an African Commission that has limited resources and only part-time commissioners. The principal approach adopted by NGOs is to hold events such as seminars and conferences, arranged jointly with the African Commission, which form the foundation for the elaboration of these principles (see discussion on public awareness events above). It could be argued that, in fact, NGOs initiate the development of norms and standards. Organisations also monitor the implementation of these principles by States. Three key documents have emerged from the African Commission: namely, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, the Declaration on Principles on Freedom of Expression and the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment or Punishment in Africa (also referred to as the Robben Island Guidelines).57 These documents form a body of legal work. The African Commission refers to these documents in considering communications and State reports, and when conducting promotional visits.58 Non-governmental organisations have participated in the events leading to the adoption of these legal documents, and are ensuring the implementation of these principles. The NGO Article 19 has been influential in the realisation of principles on freedom of expression in Africa. Following a meeting from 22 to 25 November 2000 on freedom of expression and the African Charter, the African Commission took a decision that significantly affirms the contribution of NGOs in setting standards. The African Commission decided to ‘develop and adopt, through a consultative process, a declaration on principles on freedom of expression’, and to ‘hold periodic meetings with 56

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T. van Boven, ‘The Role of NGOs in International Human Rights Standard Setting: Nongovernmental Participation a Pre-requisite of Democracy’ in F. Coomans et al. (eds.), Human Rights from Exclusion to Inclusion: Principles and Practice: An Anthology from the Work of Theo van Boven (The Hague: Kluwer Law International, 2000), p. 349; Steiner and Alston, International Human Rights in Context, p. 938. The African Commission adopted the Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa at its 33rd Session in Niamey, Niger, 29 May 2003; the Robben Island Guidelines at its 32nd Session in Banjul, The Gambia, 23 October 2002; and the Declaration of Principles on Freedom of Expression in Africa at its 32nd Session in Banjul, The Gambia, 23 October 2002. See Communications 222/98 and 222/99, Law Office of Ghazi Suleiman/Sudan, Sixteenth Annual Activity Report of the ACHPR 2002–2003, para. 65, where the African Commission invoked the Resolution on the Right to a Fair Trial and Legal Assistance, para. 65.

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NGOs and African journalists to review progress in guaranteeing freedom of expression in Africa’.59 The elaboration of the Robben Island Guidelines emanates from a workshop in South Africa from 12 to 14 February 2002 on the prohibition and prevention of torture and ill-treatment, organised by the African Commission and the Association for the Prevention of Torture, an organisation with observer status at the African Commission. The adoption and coming into force of the Protocol on the Rights of Women on 25 October 2005 follows collaboration between the African Commission and organisations with observer status at the Commission in elaborating the initial drafts in 1998.60 The 16th Activity Report of the African Commission acknowledged that the creation of the office of the Special Rapporteur on the Rights of Women in 1999, in order to monitor the drafting of the Protocol on the rights of women under the African Charter on Human and Peoples’ Rights, was a result of NGO insistence.61 This office was instituted in order to monitor the drafting of the Protocol on the rights of women in Africa under the African Charter.

Lodging complaints before the African Commission (communications) The jurisprudence of the African human rights system develops principally through the decisions reached on complaints taken to the African Commission. Not only are NGOs active in the promotional work of the African Commission, they also engage human rights protection mechanisms. Taking complaints to the African Commission is an attempt at providing redress for particular victims, and ensuring the enjoyment of rights by the broader community. Also, these complaints are an integral part in the development of the jurisprudence of the African human rights system, and also in the incorporation of the African Charter into domestic legal systems. Non-governmental organisations, in particular, remain the main litigants at the African Commission. This makes NGOs 59 60

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Resolution on the Freedom of Expression, ACHPR/Res.54(XXIX)01. Commissioner Dankwa headed the Working Group on the draft Protocol on the Rights of Women. Other members of the Working Group were: Commissioners Youssoupha Ndiaye and Julienne Ondziel-Gnelenga; and one representative each from the African Centre for Democracy and Human Rights, the International Commission of Jurists, and Women in Development in Africa. See Report on the First Meeting of the Working Group on the Additional Protocol to the African Charter on Women’s Rights, DOC/OS/58(XXIV). See Resolution on the Designation of a Special Rapporteur on the Rights of Women in Africa, Seventeenth Activity Report 2003–2004, p. 55; 25th Ordinary Session of the African Commission, Banjul, The Gambia, 20 November 2003.

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influential and necessary in the broader interpretation of clauses of the African Charter, and thereby in developing jurisprudence.62 While organisations with observer status such as Amnesty International, Media Rights Agenda and the Institute for Human Rights and Development in Africa may lodge complaints before the African Commission, this remedy is not limited to them only. Article 55 of the African Charter provides that individuals and NGOs may file a case on an alleged violation by a Member State of a particular section or sections in the African Charter. This means that even those NGOs that do not have observer status may seek redress at the African Commission. In addition, States may also bring cases against other States. However, in practice, NGOs have been the main complainants at the African Commission. This makes their contribution to the interpretation of the African Charter immense.63 In fact, only one case was filed at the African Commission involving States as complainants: DRC v. Burundi, Rwanda and Uganda.64 The development of jurisprudence of the African Commission in its interpretation of the African Charter is undoubtedly a product of the efforts by NGOs to take what they consider will be precedent-setting cases. A landmark decision of the African Commission, delivered in 2001, flows from a case brought by the Social and Economic Rights Centre in Nigeria, on behalf of the Ogoni, against the Federal Republic of Nigeria in 1996. The matter centred on the environmental degradation and attendant health problems as a result of oil exploration by a multinational company, which was a majority shareholder of the State-owned company. The complainants invoked the right to a clean and safe environment, and to attain physical and mental health as guaranteed under Articles 24 and 16 respectively in the African Charter (see elsewhere in this book for further discussion on this case). In its ruling, the African Commission found that the Government of Nigeria was complicit in the environmental 62

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The African Commission makes specific mention of the value of NGOs by remarking in Communication 155/96, The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Fifteenth Activity Report 2001–2002, Annex V, para. 49, that, ‘the Commission thanks the two human rights NGOs which brought the matter under [the African Commission’s] purview . . . This is a demonstration of the usefulness to the Commission and individuals of actio popularis, which is widely allowed under the African Charter.’ See also Ankumah, The African Commission on Human and Peoples’ Rights, p. 60. African Commissioner B. Nyanduga, ‘The Jurisprudence of the African Human Rights System’, Africa Legal Aid Quarterly (January–March) (2004) 23–9, p. 28. Communication 227/99, Democratic Republic of the Congo v. Burundi, Rwanda and Uganda, Twentieth Activity Report January–June 2006, Annex VI.

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degradation of Ogoni, ‘despite its obligation to protect persons against interference in the enjoyment of their rights’.65 In a far-reaching innovation, the decision of the African Commission called on the Government to provide progress reports to the African Commission on specific issues aimed at remedying the violations, which included the work of the Niger Delta Development Community, established by domestic law, in addressing environmental and social related problems in the Niger Delta region, and progress regarding the activities of the judicial commission of enquiry in investigating instances of human rights violations. The challenge for NGOs is to ensure that government authorities implement this important decision, and also that policies with the aim of regulating practices of multinational companies are informed by this decision. This will go some way in the progressive realisation of social and economic rights for impoverished communities, which are the prime responsibility of the State.

Institutional support The African Commission remains inadequately resourced to implement its mandate.66 Yet, its broad mandate places enormous demands on the institution. Consequently, NGOs such as the Danish Institute for Human Rights (previously known as the Danish Centre for Human Rights) and Rights and Democracy, a Canadian organisation, have provided financial support for staff at the Secretariat. Through the assistance of Rights and Democracy, the African Commission has been able to employ an assistant for the Special Rapporteur on the Rights of Women in Africa.67 Additional funds are sourced from government agencies such as the Swedish International Development Agency.68 The support provided by NGOs is mostly associated with the activities of special mechanisms such as special rapporteurs as observed above. Additionally, as has been mentioned above, NGOs may, with the African Commission, jointly source funds for specific activities such as seminars.

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Communication 155/96, para. 58. See Decision on the Eighteenth Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.77(V), which states that ‘[the Assembly] requests the AU Commission to provide adequate resources in its running budget for the ACHPR so as to enable it to discharge its mandate’. Nineteenth Activity Report of the African Commission July–December 2005, p. 17. See the sixteenth, seventeenth and eighteenth Activity Reports of the African Commission.

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National human rights institutions Discussions to establish a relationship between national human rights institutions and the African Commission began at the 22nd Session of the African Commission and outside of the Commission at a gathering of African national human rights institutions in 1998. At the time, the South African Human Rights Commission was convening the committee of African human rights institutions, and its Chairperson was a serving commissioner on the African Commission. The South African Human Rights Commission stressed the need to strengthen the relationship between the African Commission and national human rights institutions for the development and respect of human rights. This encouraged the adoption of criteria granting special status to national human rights institutions. In contrast to the specific mention of the role of NGOs in the work of the African Commission, the African Charter and the Rules of Procedure of the African Commission are silent on the role of national human rights institutions.69 The Kigali Declaration from the first AU Ministerial Conference on Human Rights in Africa recognises the role that these institutions can play, particularly in the promotional work of the African Commission and in popularising the work of the African Commission.

Affiliate status70 It would appear that the African Commission’s basis for granting affiliate status to national human rights institutions lies in Article 26 of the African Charter. This article encourages the establishment of national human rights institutions in order to further the aims and objectives of the African 69

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National human rights institutions are not defined in documents of the African Commission. However, for the purposes of this chapter, these are statutory bodies charged with the promotion and protection of human rights as defined by the UN Principles relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights (also known as “the Paris Principles”). Also, the guidelines as developed by the International Co-ordinating Committee of national human rights institutions have been used in recognising institutions seeking special status at the African Commission. In various documents of the African Commission, the words ‘affiliate’, ‘observer’, and ‘associate’ status are used in referring to the status accorded to national human rights institutions. For example, in the sixteenth Activity Report 2002–2003, reference is made to national human rights institutions that were granted affiliate status: para. 64, p. 15. The Eighteenth Activity Report 2004–May 2005 refers to ‘associate’ status, para. 51. p. 9. Yet the resolution on the granting of such status refers to ‘observer’ status. This section will use the term ‘affiliate’ status.

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Charter. Also, the African Charter provides for the African Commission to co-operate with other African institutions concerned with the promotion and protection of human rights.71 The African Commission’s recognition of national human rights institutions lies in its desire to develop a ‘co-operative relationship’ with national human rights institutions.72 The African Commission recognises institutions that function according to ‘internationally recognised norms and standards’. For national human rights institutions to be recognised, they should comply with the following criteria: [That] the national institution should be duly established by law, constitution or by decree; That it shall be a national institution of a state party to the African Charter; That the national institution should conform to the Principles relating to the status of National Institutions, also known as the Paris Principles, adopted by the General Assembly of the United Nations under Resolution 48/144 of 20th December 1993.73

As of January 2007, nineteen national human rights institutions have affiliate status.74 Out of this number only two had submitted reports. While these institutions, in their mandates, cover the entire gamut of human 71 72 73 74

Article 45(1)(c) of the African Charter. Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31(XXIV)98. Ibid. The following national human rights institutions have affiliate status: Commission Nationale des Droits de l’Homme du Rwanda; Malawi Human Rights Commission; Conseil National Consultatif pour la Promotion et la Protection des Droits de l’Homme (Algeria); Commission Nationale des Droits de l’Homme et des Libert´es Fondamentales (Niger); National Commission for Democracy and Human Rights (Sierra Leone); Comit´e S´en´egalais des Droits de l’Homme; Commission Nationale des Droits de l’Homme du Tchad; Commission Nationale des Droits de l’Homme du Togo; National Commission on Human Rights and Freedoms (Cameroon); National Human Rights Commission of Mauritius; National Human Rights Commission (Nigeria); South African Human Rights Commission; Permanent Human Rights Commission of Zambia; Commission Nationale des Droits Humains du Burkina Faso; Commission for Human Rights and Governance (Tanzania); Kenya National Commission on Human Rights; l’Observatoire National des Droits de l’Homme de la R´epublique D´emocratique du Congo; National Human Rights Commission of Uganda; National Human Rights Commission of Ethiopia, Report of the African Commission on Human and Peoples’ Rights, EX.CL/322(X), Executive Council [of the African Union], Tenth Ordinary Session, 25–26 January 2007, Addis Ababa, Ethiopia, para. 12. At present, there are approximately forty-five national human rights institutions in Africa, according to the Co-ordinating Committee of National Human Rights Institutions, May 2006.

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rights, is it possible for subject-specific institutions to have affiliate status at the African Commission? For example, South Africa has a Commission on Gender Equality – a statutory body that arguably complies with the Paris Principles. Current practice at the African Commission would suggest that this body would not be eligible for affiliate status. Yet, its mandate and functions attend to human and peoples’ rights. The rights and obligations of national human rights institutions granted affiliate status is similar to that accorded to NGOs in relation to participating in public sessions and submitting bi-ennial reports. Additionally, national human rights institutions are required to assist the African Commission in the promotion and protection of human rights at national level. Joint co-operation between the African Commission and national human rights institutions is limited. National human rights institutions do facilitate promotional visits at country level. For example, the Nigerian Human Rights Commission was one of the institutions met by an African Commissioner during a promotional visit to that country in February 2005. National human rights institutions have seen their role as supportive to the African Commission. For example, these institutions have reiterated the African Commission’s call for the Member States of the AU to ratify the protocol establishing the African Court, and identified a role for national human rights institutions in this regard.75 However, apart from their participation in the open sessions of the African Commission, and meeting with the African Commission during in-country promotional visits, there has not been any other notable engagement. For example, these institutions have not engaged actively with the special mechanisms. Also, unlike NGOs, there is no pre-session event that prepares national human rights institutions for the African Commission sessions. The African Commission has encouraged more national human rights institutions to apply for affiliate status, and for States that do not have such institutions to establish them.76 The Commission has called for a greater consolidation of its relationship with these institutions, particularly through the Co-ordinating Committee for National Human Rights Institutions.77 Members of the African Commission attended the 2nd AU 75 76 77

Intervention by the Nigerian Human Rights Commission, Thirty-seventh Ordinary Session of the African Commission, Banjul, The Gambia, 27 April–11 May 2005. Eighteenth Activity Report 2004–May 2005, para. 52. p. 9. The Co-ordinating Committee of National Human Rights Institutions constitutes fortyfive member institutions, and has a bureau in Nairobi, Kenya. This body recently concluded

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Conference of African national human rights institutions from 12–14 May 2006.78 The apparent limited relationship between national human rights institutions and the African Commission lies in two factors. In the first instance, the Rules of Procedure of the African Commission do not regulate the relationship between national human rights institutions and the regional body. Therefore, there is no clear framework on which to base the relationship. In the second instance, the nature of national human rights institutions − essentially statutory bodies − places them in an awkward position between the State and the African Commission. While independent (although this level of independence varies from State to State), there is a residual relationship between States and the institutions they establish. This in turn may place an institution in a compromising position when raising country-specific human rights issues, as was the case with the Executive Secretary of the Nigerian Human Rights Commission in 2006. On behalf of national human rights institutions, the Chairperson of the Co-ordinating Committee of African National Human Rights Institutions and Executive Secretary of the Nigerian Human Rights Commission made a statement at the 39th Session of the African Commission condemning instances where heads of State seek to change constitutions in order to remain in government.79 In June 2006, the Nigerian Government reportedly relieved the Executive Secretary of his duties as a result of the ‘denunciation by the African National Human Rights Institutions of recent attempts at tenure extension’.80 Also, institutions, within their mandates, may not define a role with bodies such as the African Commission.

Conclusion The African Commission has, and continues to be, open to collaboration with, and participation of, NGOs in its activities. The work of NGOs contributes to a strengthened and effective African Commission. The African Commission’s relationship with national human rights institutions needs to be adequately defined. This will assist these institutions in effectively

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its second bi-ennial conference, held under the auspices of the African Union in Banjul, The Gambia, from 12 to 14 May 2006. Final Communiqu´e of the 39th Session of the African Commission, 25 May 2006. Final Communiqu´e of the African Commission, 25 May 2006. J. Lahore, ‘Global Human Rights Bodies Move against Nigeria’, This Day (Nigeria), 23 June 2006.

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engaging with the African Commission. While the African Commission’s collaboration with these organisations, and in particular NGOs, is welcomed, it is, however, important for the body to attract adequate financial and human resources to ensure that it is able to undertake its mandate. The role of NGOs compliments, supports and enriches the work of the African Commission. In addition, this vibrant engagement gives substance to the African Charter.

9 A View from the Inside: The Role of the Secretariat fiona adolu

Introduction The African Charter on Human and Peoples’ Rights1 (‘the African Charter’ or ‘the Charter’) provides for the establishment of the African Commission on Human and Peoples’ Rights (‘the African Commission’ or ‘the Commission’) within the Organisation of African Unity (OAU) (now the African Union (AU)) with the mandate to promote human and peoples’ rights and ensure their protection in Africa.2 A wide range of human rights – namely civil and political, economic, social and cultural, and group rights – are recognised within the African Charter, which also accords them equal importance in terms of recognition, promotion and protection. As such, the African Charter is considered to be one of the most comprehensive human rights treaties currently in existence.3 The African Commission is the sole supervisory body of the African Charter and will be, until the African Court on Human and Peoples’ Rights, established under the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights,4 becomes functional.5 As such, the African

1

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Adopted by the Assembly of Heads of State and Government of the Organisation of African Unity on 27 June 1981, entered into force on 21 October 1986, OAU Doc. CAB/LEG/67/3, Rev.5. Article 30 of the African Charter. N. J. Udombana, ‘Between Promise and Performance: Revisiting States’ Obligations under the African Human Rights Charter’, Stanford Journal of International Law 40 (2004) 105, p. 109. Adopted by the Assembly of Heads of State and Government of the Organisation of African Unity on 9 June 1998, entered into force 25 January 2004, OAU/LEG/AfCHPR/PROT (III). Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights provides for the jurisdiction of the Court as extending to all cases and disputes concerning the interpretation and application of the African Charter.

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Commission is positioned at the very core of the African human rights system. The African Commission is composed of eleven members who serve on a part-time basis. Therefore, in order for the African Commission to be able to carry out its functions satisfactorily, it is necessary that its members meet, and, as such, provision has been made for members of the African Commission to meet at least twice a year during the ordinary sessions.6 Each ordinary session normally lasts for a period of two weeks and is divided into public and private sessions. In principle, the African Commission, during the public sessions, reports on its promotional activities and receives reports from government representatives, national human rights institutions (NHRIs), international organisations, inter-governmental and non-governmental organisations (NGOs) about the human rights situation in Africa; while matters relating to the protection mandate of the African Commission, as well as the administrative and financial situation of its Secretariat, are handled during the private sessions. Members of the African Commission also discuss and adopt decisions and resolutions or make recommendations aimed at improving the situation of human rights on the continent during such private sessions. In terms of Article 41 of the African Charter, the Secretary-General of the Organisation of African Unity (now the Chairperson of the Commission of the African Union) bears the responsibility of providing the staff and services necessary for the effective discharge of the duties of the African Commission. Consequently, the costs of the staff, facilities and services of the Secretariat of the African Commission should be borne by the African Union.7 As at the time of writing, the Secretariat of the African Commission had a total of fifteen members of staff, six of whom are lawyers. The other staff included a finance officer, a projects and resource mobilisation officer and other support staff. Interns and experts, sponsored by various NGOs and governments, also serve at the Secretariat, although most of them work within the legal section where they are particularly useful in providing assistance. At the time of writing this chapter, the Secretary to the African Commission had been transferred to another office of the AU, while the officers occupying the positions of public relations and 6

7

See Rules 1 and 2 of the Rules of Procedure of the African Commission on Human and Peoples’ Rights. However, the African Commission may also hold extraordinary sessions where necessary. So far, only three such sessions have taken place. See Rules 26 of the Rule of Procedure.

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documentation had left the Secretariat of the African Commission to take up jobs elsewhere. Nonetheless, this chapter will discuss their functions within the Secretariat of the African Commission.

Defining the role of the Secretariat of the African Commission As already stated earlier, members of the African Commission serve on a part-time basis. This means, therefore, that they are not based at the headquarters of the African Commission, which is situated in Banjul, The Gambia. Accordingly, for the African Commission to be able to fulfil its mandate, which is broader than even that of the European or InterAmerican regional human rights systems, it has no option but to delegate some aspects of its functions to its Secretariat. In view of this, the Secretariat’s role is critical in the work and functioning of the African Commission. However, the African Charter does not explicitly state what the functions of the Secretariat should be, but vaguely stipulates in Article 41 that it shall assist the African Commission in discharging its duties, while the Rules of Procedure of the African Commission, which, in principle, should define the tasks that should be carried out by the Secretariat of the African Commission, are also sketchy. Rule 23 of the Rules of Procedure basically establishes the Secretary as the head of the Secretariat with the general responsibility for its daily running and the particular responsibility of keeping in touch with the members of the African Commission, Commission of the AU and with persons and institutions that refer matters to the African Commission or seek information from it. This lack of clarity as regards the role of the Secretariat sometimes creates uncertainty within the African Commission in respect of what tasks the Secretariat is expected to carry out in furtherance of the African Commission’s mandate. For example, there have been instances where members of the African Commission have taken decisions on matters and issues that are purely administrative and, therefore, fall within the portfolio of the Secretariat. The Strategic Plan developed by the Secretariat of the African Commission for the period 2003–2006 attempts to define the role of the Secretariat of the African Commission. It states that the Secretariat of the African Commission should provide administrative, technical and logistical support to the members of the African Commission. According to the Strategic Plan, the support provided by the Secretariat to the African Commission is at three levels: (1) support to the African Commission as an institution, (2) support to the Bureau

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of the African Commission (composed of the Chairperson of the African Commission, its Vice-Chairperson and the Secretary to the African Commission, who is an ex-officio member), and (3) support to the individual Commissioners in order to facilitate them in performing the various tasks assigned to them. This is done through, (1) providing technical support for the monitoring and advisory functions of the African Commission and any other necessary assistance in the fulfilment of its mandate; (2) disseminating the work of the African Commission and facilitating the promotion of the African Charter; (3) networking with other human rights organisations, and facilitating networking activities among them; and (4) procuring the necessary resources for the fulfilment of the African Commission’s mandate.8 Since it is the sole responsibility of the Secretariat to carry out the aforementioned tasks, the importance of the role of the Secretariat in facilitating the African Commission to execute its mandate cannot be overemphasised, and it is recognised that, without the Secretariat’s assistance and support, the African Commission would not be able to carry out its very broad mandate.9 The African Commission relies heavily on the legal section of the Secretariat to provide it with the requisite technical assistance in order for it to discharge its mandate of promoting and protecting human and peoples’ rights. While the AU makes a distinction in the job descriptions of legal officers in charge of protection activities and those in charge of promotion activities, in actual fact, all the legal officers do both promotion and protection work. Therefore, the bulk of the work and activities of the members of the African Commission is carried out with the assistance of legal officers who are responsible for carrying out research, drafting decisions on communications, reports and other legal documents, as well as undertaking any other tasks that would facilitate the members of the African Commission in carrying out their duties. In view of this, and bearing in mind the above-mentioned tasks of the Secretariat, this chapter will place more emphasis on the role that legal officers play in the functioning of the African Commission. The author will also endeavour to bring into the discussion some of the specific tasks that the Secretary to the African 8 9

Strategy Plan of the African Commission on Human and Peoples’ Rights 2003–2006, p. 2. Ibid., p. 3.

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Commission undertakes as the overall co-ordinator of the Secretariat, and the role that the other sections of the Secretariat play in the functioning of the African Commission, especially in so far as they support and facilitate the role played by the legal officers. Given the nature of the functions of the Secretariat, it is inevitable that the discussion in this chapter will be descriptive.

Provision of technical support for the monitoring and advisory functions of the African Commission The African Commission carries out its monitoring and advisory functions through various means. Through reports received at the Secretariat from NGOs and other sources detailing the human rights situations in States Parties, the African Commission is kept abreast of any developments in respect of the situation of human rights on the continent. Legal officers study and analyse these reports, carry out research to verify the veracity of these reports and recommend to the members of the African Commission what action should be taken. Undertaking missions to monitor the human rights situation in States Parties and adherence by States Parties to international human rights standards is one way of acting on the reports received.10 Alternatively, the African Commission may adopt resolutions or issue recommendations to the States Parties concerned. Through its communication or complaints procedure,11 issuance of urgent appeals or requests for provisional measures,12 the African Commission is able to advise States Parties on how they can ensure that the rights enshrined in the African Charter are enjoyed by all. Additionally, the African Commission is also mandated to receive reports from States Parties outlining the legislative or other measures taken in order to give effect to the rights guaranteed by the African Charter.13 The African Commission examines these State reports and adopts concluding observations, which contain recommendations to the reporting State Party. It is important to remember that in order to ensure effective monitoring of human rights on the continent, the African Commission assigns a 10

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Under Articles 45(3) and 45(4) of the African Charter, the African Commission is also mandated to interpret the provisions of the African Charter and perform any other tasks entrusted to it by the OAU/AU. See Articles 47–54 of the African Charter, which relate to inter-State communications, and Articles 55–59 of the African Charter, which relate to communications instituted by individuals or NGOs. Rule 111 of the Rules of Procedure. Article 62 of the African Charter.

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specific number of States Parties to each Commissioner, and a legal officer is assigned to assist one or two members of the African Commission to carry out this task. What this translates to is that each of the legal officers are responsible for monitoring human rights in at least six States Parties, and in some cases even more. Additionally, the African Commission has also established special mechanisms to enable it pay particular attention to specific human rights issues. The mandates and activities of these special mechanisms are in respect of all the States that are party to the African Charter. So far, the African Commission has established the following special mechanisms: five special rapporteurs, all of whom are members of the African Commission and covering the following thematic areas: Prisons and Conditions of Detention;14 Rights of Women;15 Human Rights Defenders;16 Freedom of Expression17 and Refugees, Asylum Seekers and Internally Displaced Persons.18 Though the mechanism of the Special Rapporteur on Extra-Judicial, Summary and Arbitrary Executions, which was created in April 1994,19 was the first to be established within the African Commission, at present, no member of the African Commission has been assigned to be in charge of this mechanism. The African Commission has also established four working groups and one follow-up committee on the Implementation of the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Punishment and Treatment in Africa.20 The working groups are: the 14

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Established in October 1996: see Final Communiqu´e of the Twentieth Ordinary Session of the African Commission, 21–31 October 1996, Grand Bay, Mauritius, at para. 18. See Chapter 10. Established in April 1998: see Final Communiqu´e of the Twenty-third Ordinary Session of the African Commission, 20–29 April 1998, Banjul, The Gambia, at para. 11. Established in June 2004: see Resolution On The Protection Of Human Rights Defenders in Africa, ACHPR/Res.69(XXXV)04. Established in December 2004: see Resolution on the Mandate and Appointment of a Special Rapporteur on Freedom of Expression in Africa, ACHPR/Res.71(XXXVI)04. Established in December 2004: see Resolution on the Mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa, ACHPR/Res.72(XXXVI)04. See Final Communiqu´e of the Fifteenth Ordinary Session of the African Commission, 18–27 April 1994, Banjul, The Gambia, para. 20. See Chapter 11. The follow-up committee was established in 2002: see Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, ACHPR/Res.61(XXXII)02, para. 2. Members of the Committee were nominated at the African Commission’s Thirty-fifth Ordinary Session, 21 May–4 June 2004, Banjul, The Gambia: see Seventeenth Activity Report 2003–2004, para. 35.

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Working Group of Experts on Indigenous Populations/Communities in Africa;21 the Working Group on Economic, Social and Cultural Rights in Africa;22 the Working Group on Specific Issues Relevant to the Work of the African Commission on Human and Peoples’ Rights23 and the Working Group on the Question of the Death Penalty.24 Membership on the working groups and follow-up committee is made up of members of the African Commission and experts from outside the African Commission membership. Because these special mechanisms are established by the African Commission for the purposes of fulfilling its mandate, the Secretariat is also expected to provide them with support and assistance. Thus, in addition to assisting individual members of the African Commission in their capacity as such, each legal officer is also assigned to assist two or more special mechanisms. The legal officers are therefore required to provide the necessary legal and technical assistance that will enable the Commissioners and special mechanisms to accomplish their work.

Missions The legal basis of the African Commission’s mandate to undertake missions to States Parties can be found in the combined effect of Article 45(1) and (2) of the African Charter, which requires the African Commission to promote human rights and ensure their protection, and Article 46, of the African Charter, which empowers the African Commission to ‘resort to any appropriate method of investigation’. Several types of mission are undertaken by the African Commission – namely, promotional, protection and fact-finding missions – and the African Commission has endeavoured to draw a distinction between these various missions, through its practice and procedures. 21

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Established in November 2003: see Resolution on the Adoption of the Report of the African Commission’s Working Group on Indigenous Populations/Communities, ACHPR/Res.65(XXXIV)03. Established in December 2004: see Resolution on Economic, Social and Cultural Rights in Africa, ACHPR/Res.73(XXXVI)04. Established in May 2005: see Resolution on the Creation of a Working Group on Specific Issues relevant to the Work of the African Commission on Human and Peoples’ Rights, ACHPR/Res.77(XXXVII)05. Established in December 2005: see Resolution on the Composition and the Operationalisation of the Working Group on the Death Penalty, as adopted at the 38th Session, December 2005.

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Promotional missions are undertaken within the African Commission’s broad mandate of promoting human and peoples’ rights.25 Activities undertaken under this function are mainly geared towards promoting the African Charter, publicising the work of the African Commission and monitoring the situation of human rights in a given country. For this purpose, States that are party to the African Charter are distributed among the eleven members of the African Commission. Protection missions are undertaken on the basis of communications formally submitted to the African Commission under the African Charter and which the African Commission determines reveal the existence of a series of serious or massive violations of human and peoples’ rights,26 while fact-finding missions are undertaken where the African Commission receives numerous reports of widespread and massive human rights abuses taking place in a State party to the African Commission.27 In terms of the composition of the delegations, protection and fact-finding missions usually comprise more than one member of the African Commission, and given the significance of the African Commission’s decision to undertake such missions, usually a member of the Bureau of the African Commission forms part of the delegation. On the other hand, promotional missions are undertaken by the Commissioner assigned to undertake promotional activities in the specific country. It should also be noted that some of the mandates of the special mechanisms also provide for missions to be undertaken and such missions could either be promotional, protection or fact-finding. A legal officer forms part of the composition of the African Commission’s delegation in all missions undertaken on behalf of the African Commission in order to provide the requisite legal and technical assistance. 25 26

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Article 45(1) of the African Charter. See for instance, the mission to Sudan arising from Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International; Comit´e Loosli Bachelard; Lawyers Committee for Human Rights; Association of Members of the Episcopal Conference of East Africa v. Sudan, Report of the African Commission on Human and Peoples’ Rights to Sudan, 1–7 December 1996. See also the mission to Mauritania arising from Communications 54/91, 61/91, 98/93, 164/97– 196/97 and 210/98, African Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne de Droits de l’Homme v. Mauritania, Thirteenth Activity Report of the African Commission 1999–2000, Annex V, AHG/222(XXXVI)Add; Report of the Mission to Mauritania, 19–27 June 1996, DOC.OS/16(XXII). For instance, the fact-finding mission to Zimbabwe in 2002 was undertaken following receipt of such reports: Report of the Fact-finding Mission of the African Commission to Zimbabwe, 24–28 June 2002, Seventeenth Activity Report 2003–2004.

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Once a decision is taken to carry out a promotional, protection or factfinding mission to a State Party, the legal officer concerned has to ensure that the co-operation and consent of the government of the State Party concerned is secured before the members of the African Commission can embark on the mission. The legal officer contacts the State Party through a diplomatic note informing it that a member or members of the African Commission would like to undertake a promotional, protection or factfinding mission to the country. The diplomatic note would also indicate the proposed dates for the mission and the terms of reference of the mission. In some instances, States Parties do not respond, and in such cases, it is the responsibility of the legal officer and the Secretary to the African Commission to follow up and try to persuade the relevant authorities in the State Party to respond favourably to the African Commission’s request to undertake a visit to the country. This is done through various ways, including making telephone calls to the government officials responsible and soliciting the assistance of an NHRI, if one exists in the country to be visited, or by using personal contacts to encourage the government to accept the mission. Once a State Party authorises the African Commission to undertake the mission, and dates are agreed upon, the legal officer in consultation with the Commissioner(s) intending to undertake the mission provides the government of the State Party to be visited with a list of government authorities, human rights NGOs, media institutions and any other members of civil society that the delegation would like to meet. The delegation may also request to visit detention or prison facilities in the country. It is therefore the responsibility of the State Party to ensure that the requisite appointments are made, and a copy of the programme sent to the Secretariat of the African Commission for approval. Additionally, the legal officer will inform NGOs with observer status in the State Party about the forthcoming mission, and in doing so, provide them with the opportunity to bring to the delegation’s attention any relevant information in respect of the human rights situation in the State Party to be visited. In some instances, the Secretariat may also request the said NGOs to assist the State Party to secure meetings with various civil society organisations. The Commissioner(s) undertaking a visit to any State Party should be able to appreciate fully the situation pertaining in the country. It is therefore the duty of the legal officer to research and gather information about the human rights, socio-political and economic situation of the country to be visited so as to provide the Commissioner(s) undertaking

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the visit with such information. This background information is compiled into what is referred to as the pre-mission report. The pre-mission report also contains issues for follow-up with the government, for instance a follow-up on the implementation of any recommendations that may have been addressed to a State Party as a result of communications brought against it, a follow-up on the implementation of concluding observations if the State has recently submitted a State report, or a follow-up on the implementation of resolutions issued against the State Party. The premission report is not a public document, but is intended to inform and update the Commissioner(s) expected to embark on the mission about the human rights situation in the country to be visited, and also serves as a basis upon which discussions with the government officials will be held. The Secretariat of the African Commission, particularly the legal officer and the finance officer, have to ensure that the necessary travel arrangements are made for the delegation, and authorisation sought from the Directorate of Political Affairs of the Commission of the AU to undertake the mission. Authorisation is sought from the Political Affairs Directorate at the Commission of the AU because, administratively, the Secretariat of the African Commission falls under that Directorate. During the mission, the legal officer takes all the field notes, provides any legal or technical assistance required, and acts as the liaison between the delegation of the African Commission and the government officials assigned to support the delegation. The legal officer is responsible for drafting any documents, statements or press releases to be made in the course of the mission, and for making arrangements for any impromptu meetings that may be requested for, usually by members of civil society. Within a month following the conclusion of the mission, the legal officer drafts the report of the mission that they then transmit to the Commissioner(s) for any amendments and additions. Thereafter, the legal officer ensures that the report is translated into the working languages of the African Commission,28 and together with the documentation officer, ensure that it is ready for the African Commission to examine and adopt at the next ordinary session. 28

While, under Rule 34 of the Rules Procedure, the working languages of the African Commission are those of the AU – namely, English, French, Arabic and Portuguese – the African Commission and the Secretariat normally use English and French as their working languages. Consequently, most of the working documents are translated into these two languages. Therefore, for the purposes of this chapter, any reference by the author to working languages of the African Commission refers to English and French.

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During the examination of the mission report, the legal officer is responsible for recording any amendments to the draft report, and incorporates them into the final report. Once adopted, the final report is transmitted to the State Party. The State Party is invited to make comments on the final mission report within a specified period – usually three months. Once received, if the comments or amendments do not affect the substance of the report, they will be incorporated into the final mission report; otherwise they will be attached as appendices to the mission report. Once the mission report is available as a public document, it is the duty of the legal officer to liaise with the documentation officer to ensure that the mission report is widely disseminated and, furthermore, to follow up on the implementation of any recommendations that were made in the mission report, keep abreast of any developments regarding the human rights situation in the State Party visited, and keep the members of the African Commission apprised of any developments in the countries they are responsible for.

State reporting Under the African Charter, each State Party is required to submit a report every two years, detailing the legislative or other measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed under the African Charter.29 The African Charter, however, does not specify to whom these reports should be submitted, and what should be done with them; but following a recommendation by the African Commission to the OAU Assembly of Heads of State and Government (AHSG), the task of examining periodic reports was entrusted to the African Commission.30 State reports usually take two forms: an initial report and periodic reports, which are submitted thereafter. Examination of these State reports provides the African Commission with an opportunity to hold a dialogue with States Parties and further determine the extent of States’ compliance with their obligations under the African Charter. As such, this procedure 29

30

See Article 62 of the African Charter. The examination of State reports is part of the Commission’s promotional mandate. Its legal basis is found in the combined effect of Article 45(1) (spelling out the Commission’s mandate to promote the Charter by formulating and laying principles and rules, and making recommendations to governments). See African Commission, Recommendation on Periodic Reports, ACHPR/Recom. 3(III)88. See also Second Activity Report 1988–1989, para. 31.

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has been described as the ‘backbone of the mission of the Commission’ in monitoring States’ implementation of the African Charter.31 A more comprehensive discussion on the State reporting procedure is discussed in Chapter 2, above. The Secretariat keeps a register of States Parties’ reports to the African Commission, and the legal section is responsible for keeping an updated record of submission and examination of State reports. A chart reflecting this information is drawn up, and the documentation officer ensures that it is distributed at the African Commission’s ordinary sessions. This information is also included in the Activity Reports of the African Commission, presented to the Executive Council and the AHSG of the AU. It is also the duty of the legal officers to continually remind, through diplomatic notes, those States Parties that are not up to date with their State reporting obligations to submit their reports. On receipt of the report, and after it has been registered at the Secretariat, a legal officer is assigned to study it and verify that it conforms to the format prescribed by the African Commission.32 The legal officer acknowledges receipt to the State Party, indicating at which ordinary session the report will be examined. According to the procedures of the Secretariat, a report is scheduled for examination at a forthcoming ordinary session if the report is received at least three months before that session. The African Commission has also decided that not more than two State reports should be considered at each ordinary session, and, as such, this is borne in mind when a State is notified at which ordinary session its report will be considered. It should be noted, however, that this policy is sometimes not strictly adhered to: in some cases, more than two State reports have been examined at an ordinary session. For instance, at its 39th Ordinary Session, the African Commission examined the initial report of the Central African Republic, the periodic reports of the Republic of Cameroon and the Great Socialist People’s Libyan Arab Jamahirya, and examined the Initial Report of Seychelles in the absence of the State representatives.33 The Documentation Centre is the repository of all the State reports submitted to the African Commission in accordance with Article 62 of the African Charter, and it is the duty of the legal officers to work with 31 32 33

I. Badawi El-Sheikh, ‘The African Commission on Human and Peoples’ Rights: Prospects and Problems’, Netherlands Quarterly of Human Rights 7 (1989) 272, p. 281. Amendment of the General Guidelines for the Preparation of Periodic Reports by States Parties’ DOC/PS/27/(XXIII). See Final Communiqu´e of the 39th Ordinary Session 11–25 May 2006, Banjul, The Gambia.

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the documentation officer to ensure that these reports are made available to all interested parties as soon as possible. In the past, even though State reports were examined in public, they were not readily accessible to interested parties. The position today is different: the Secretariat ensures that all the State reports submitted in accordance with Article 62 of the African Charter are available electronically in English and French, that they are uploaded on the website of the African Commission, and that they can also be accessed upon request by all interested parties from the Secretariat. The legal officer assigned to study the report is responsible for ensuring that the said report is translated into the working languages of the African Commission and transmitted to all members of the African Commission. This is an improvement from what used to happen in the past, where reports were only available in the original language in which they had been submitted. Those Commissioners who were not familiar with the original language in which the report had been submitted would therefore not have access to the entire report, but were limited to a summary of the report prepared by the Secretariat. This hampered such Commissioners from meaningfully engaging in the process of examining State reports. NGOs may submit alternate or ‘shadow’ reports, or supplementary information, to the African Commission through the Secretariat, and the African Commission does in fact encourage this practice, as such information facilitates a constructive examination of the State report. A preliminary list of questions in respect of the State report is prepared by the legal officer, who also ensures that any supplementary information gathered by way of research or from alternate reports is taken into consideration. The Commissioner responsible for promotional activities in the State Party that has submitted the report is usually assigned the role of rapporteur of the report. The rapporteur of the State report reviews the questionnaire prepared by the legal officer, and may amend or add to it and thereafter will be responsible for leading the examination of the report. During the examination of the State report, the legal officer follows the discussions between the State representatives and the members of the African Commission, and, based on those discussions, drafts the concluding observations, which are reviewed by the rapporteur before submission to the African Commission for adoption. Following the conclusion of the ordinary session, the legal officer is responsible for transmitting the concluding observations adopted by the African Commission to the State

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Party, and follows up on their implementation. The legal officer is also responsible for ensuring that any supplementary information requested by the African Commission during the process of examining the report is submitted to the Secretariat.

Communications Under its protection function, the African Commission is mandated to take measures to ensure that citizens enjoy the rights enshrined in the African Charter. The main protection function of the African Commission is consideration of communications submitted against States Parties by individuals, NGOs, or by other States Parties alleging violations of the provisions of the African Charter. As the communications procedure is fully discussed in Chapter 3 of this book, the discussion that follows is limited to the role that legal officers play in ensuring that the African Commission is able to carry out this function. On receipt of a communication, a legal officer is assigned the communication and ensures that it is registered in the African Commission’s permanent register of communications, which is maintained at the Secretariat in accordance with Rules 89 and 94 of the African Commission’s Rules of Procedure. The communication is assigned a number, and thereafter the legal officer acknowledges receipt to the complainant or author(s) of the communication. The legal officer studies the file and may request for additional information or for clarification from the complainant or author(s) of the communication if necessary. It should be noted that under Rules 99 and 104,34 it appears that the Secretariat can only contact parties to a complaint to request the necessary information after the African Commission has reviewed and considered the communication. In practice, however, and in the interest of time, this is not the case, as the Secretariat, on receiving the communication, may, if it deems fit, request for additional information or clarification prior to presenting the communication to the African Commission for seizure. The process of seizure by the African Commission is simple, and is to determine whether, prima facie, a communication reveals violations of the provisions of the African Charter. It has therefore been suggested that, 34

Rule 99 provides: ‘The Commission may, through the Secretary, request the States parties or one of them to communicate additional information or observations orally or in writing.’ Rule 104(1) stipulates: ‘The Commission, through the Secretary, may request the author of a communication to furnish clarification on the applicability of the Charter to his or her communication . . .’.

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in the interest of speeding up the process of consideration of communications, the African Commission should combine the process of seizure and admissibility when dealing with communications.35 At present, though, the practice is that new communications are placed before the African Commission for seizure only. As such, legal officers draft summaries of the new communications, which also contain recommendations to the African Commission regarding the appropriate action to be taken, which is, more often than not, that the African Commission should be seized of the communication. Summaries of all new communications are translated into the working languages of the African Commission and assigned between the various members of the African Commission. In assigning the communications, the legal officers take into consideration various factors: a Commissioner’s proficiency in the language in which the communication is written is pertinent, and where a Commissioner possesses expertise in a particular field, any communication within that field (everything being equal) would be allocated to that Commissioner. A member of the African Commission will not be assigned a communication brought against their own country of origin. Where the African Commission has already been seized of a communication, and the matter is ongoing, for purposes of continuity, commissioners will be allocated communications they acted on as rapporteurs at the previous ordinary session. In practice, only the rapporteur of a communication has the complete file of the communication for which they are responsible. However, all members of the African Commission are expected to participate meaningfully in the examination of all the communications before the African Commission. Consequently, it is the duty of the legal officers to prepare a document that contains all the summaries of the communications for seizure, admissibility, as well as on the merits for consideration, by the African Commission during the ordinary session. This compilation provides information on the correspondence between the Secretariat and the parties in each communication, and the stage at which each communication has been reached. The summaries will, in the case of communications at the admissibility and merits stage, also contain draft decisions and recommendations suggested by the legal officers. This document is made available to all members of the African Commission, in both English and 35

See Report of the Retreat of Members of the African Commission on Human and Peoples’ Rights (hereinafter ‘Retreat Report’) available at: www.nhri.net/pdf/ACHPRRetreat-Report-Final.pdf.

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French, prior to the beginning of the ordinary sessions, in order to enable all members of the African Commission to study the communications and familiarise themselves with the facts in each case before it comes up for consideration. Communications are considered during the private sittings of the African Commission, and legal officers are expected to follow the debates and incorporate all the relevant information gathered from the discussions and/or oral submissions made by the parties into the draft decision, for consideration and subsequent adoption by the African Commission. Following each ordinary session, legal officers ensure that parties to the communications are informed of the outcome of the African Commission’s deliberations in respect of each communication, and request both parties to make further submissions if necessary. In cases where the African Commission has decided to be seized with a communication, the legal officer transmits a copy of the communication to the respondent State, in accordance with Article 57 of the African Charter. If the African Commission has made any requests for additional information from the parties, such requests will be communicated to the parties, and the legal officers will ensure follow-up in this respect. Where the African Commission has taken a decision on the merits, the legal officer will transmit a copy of the decision to the parties to the communication. Where the African Commission finds the respondent State in violation of the provisions of the African Charter, the decision on the merits will usually contain recommendations indicating the appropriate remedies that the respondent State should take. The Secretariat will transmit the decision of the African Commission to the parties, and although the African Charter does not categorically state what will happen with the recommendations issued by the African Commission in respect of communications, it is the duty of the legal officer to monitor and follow up on the recommendations suggested by the African Commission. A diplomatic note enquiring about the status of implementation of the recommendations of the African Commission may be addressed to the States Parties concerned. Complainants in whose favour the African Commission has ruled may also be requested to provide the Secretariat with information about the extent of implementation of the African Commission’s recommendations, in respect of communications. Alternatively, upon the advice of the legal officers, the matter of implementing the recommendations issued by the African Commission could be taken up during a promotional mission, in the event that such a mission is undertaken to the respondent State or during examination of that State Party’s report.

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Dissemination of the African Commission’s work and promotion of the African Charter Effective dissemination of the work of the African Commission is only possible if members of the African Commission and the staff of the Secretariat, as well as partner institutions and individuals working in the area of human rights, have access to relevant information and documentation relating to the African Commission. Consequently, the tasks carried out by the documentation officer are particularly valuable in ensuring the general exposure and visibility of the African Commission and its work. The Documentation Centre is housed at the Secretariat of the African Commission, and is headed by the documentation officer. It consists of the African Commission’s archives and a library that contains all the publications relating to the African Commission, and some basic sources on international law and on human rights. It is also the repository of all the original copies of the reports and documents prepared and adopted by the African Commission in the course of executing its mandate. As such, the documentation officer bears the responsibility of ensuring that such documents are well preserved. The documentation officer also ensures that the documentation centre is effectively managed, which includes undertaking tasks like cataloguing, classifying, referencing, indexing and electronically recording all the documents of the African Commission. The documentation officer is also responsible for managing the website of the African Commission, and is therefore tasked with ensuring that information about the work of the African Commission is uploaded to it and regularly updated. This enables those that are interested in the work of the African Commission to access information, reports and documents of the African Commission with ease. In collaboration with the legal officers and the public relations officer, the documentation officer identifies documents and reports of the African Commission for publication. They ensure that such reports are available for dissemination, especially during ordinary sessions of the African Commission, during missions undertaken by members of the African Commission, and during seminars and conferences organised by, or in collaboration with, NGOs and other partners. The Secretariat of the African Commission also develops informational and promotional materials about the African Charter and the work of the African Commission. For instance, the Secretariat developed and published booklets that provide information about the African Commission, its establishment and mandate, its communications/complaints procedures and State

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reporting procedures.36 Additionally, the public relations officer whose primary objective is to promote the image of the African Commission and publicise its activities, as well as those of its Secretariat, ensures the promotion of the work of the African Commission through wide media coverage whenever the African Commission undertakes any activity. Besides promoting the African Charter through publications, reports and documents of the African Commission, and through promotional missions as explained above, the Secretariat of the African Commission facilitates promotion of the African Charter through the organisation of seminars and conferences.37 Such conferences are normally organised in States Parties, and involve participants from civil society and the relevant representatives of the governmental departments of States Parties. Participants at these seminars and conferences discuss pertinent human rights issues and their relevance to the rights guaranteed under the African Charter. The Secretariat of the African Commission may, at its own instance, decide to organise such seminars and conferences. For instance, in December 2002, the Secretariat of the African Commission sought funding and organised a seminar for members of the press and media in The Gambia. The main objective of this seminar was to raise awareness about the African Commission among the press and media in The Gambia, and also to discuss the right to freedom of expression as guaranteed under the African Charter.38 Although sessions of the African Commission should normally be held at its headquarters,39 it is acknowledged that holding sessions of the African Commission elsewhere provides it with the opportunity to not only publicise itself in the country hosting the session, but also enables the African Commission to disseminate its work in that country. Indeed, this is evidenced by the increased participation in the activities of the African Commission by civil society organisations from those countries where the African Commission has held its sessions. However, there are financial implications related to hosting a session of the African Commission, and, as such, States Parties have to be persuaded to make this undertaking. 36 37

38 39

See, for instance, Information Sheets Nos. 1–4, prepared by the Secretariat of the African Commission. For further discussion, see generally, V. Dankwa, ‘The Promotional Role of the African Commission on Human and Peoples’ Rights’ in M. Evans and R. Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge: Cambridge University Press, 2002), pp. 335–52. See Report on Human Rights Training for Gambian Journalists, held from 18 to 19 December 2002, in Banjul, The Gambia, available at the Secretariat of the African Commission. Rule 4 of the Rules of Procedure.

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The responsibility of doing this lies primarily with the Secretary to the African Commission. The Secretary therefore regularly addresses diplomatic notes to States Parties requesting them to host sessions of the African Commission, and, in some cases, may undertake a mission to a State Party for this purpose.

Ensuring networking with other human rights organisations, and facilitating networking activities among them The African Charter recognises the importance of the African Commission working with other institutions, and has provided for such a relationship. As part of its mandate to promote human rights, the African Commission is enjoined, under Article 45(1)(a) of the African Charter, to encourage local and national institutions concerned with human and peoples’ rights. Additionally, Article 45(1)(c) permits the African Commission to work with other partners in the field of human rights, in the performance of its tasks to promote and protect human rights, and in order to enhance its efficiency. Furthermore, Chapters 12 and 13 of the African Commission’s Rules of Procedure are devoted to outlining how the African Commission can relate and work with other inter-governmental organisations, African and international institutions40 and NGOs. These provisions strongly suggest that the African Commission is aware of the importance of networking with other organisations working in the field of promoting and protecting human rights, and therefore recognises the important contributions that other institutions and organisations can make towards its work. In the case of human rights NGOs and NHRIs, the African Commission recognises that they are a major source of information on the human rights situations in States Parties, and could be essential partners in the implementation of the African Charter at national level. Through granting affiliate status to NHRIs41 and observer status to NGOs and academic institutions,42 the African Commission is able to develop a defined 40

41 42

For instance, the African Commission entered into a Memorandum of Understanding with the United Nations High Commissioner for Refugees, the objective of which is to strengthen co-operation between the two institutions so as to effectively promote and protect the human rights of refugees, asylum seekers, returnees and other persons of concern under their respective mandates. See Resolution on the Granting of Affiliate Status to National Human Rights Institutions in Africa, ACHPR/Res.31(XXIV)98. See Resolution on the Criteria for Granting and Enjoying Observer Status to NonGovernmental Organizations Working in the Field of Human and Peoples’ Rights,

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relationship with NHRIs and NGOs. A more detailed discussion on the role of NGOs and NHRIs within the African Commission can be found in Chapter 8. An NHRI wishing to seek affiliate status, or an NGO wishing to seek observer status, with the African Commission makes their application in writing to the African Commission. These applications are received at the Secretariat of the African Commission. In the case of applications for observer status by NGOs, the Resolution on the Granting of Observer Status to NGOs places the responsibility of reviewing all the applications from NGOs prior to examination by the African Commission on the Secretariat,43 and this is done by the legal officers. Though not specifically provided for in the Resolution on the Granting of Affiliate Status to NHRIs, in practice, the legal officers review applications from NHRIs prior to placing them before the African Commission for consideration. In reviewing the applications for observer status, the Secretariat ascertains whether they meet the requirements set out in the Resolution – that is, whether the NGO in question has provided copies of its statutes, proof of its legal existence, a list of its members, its constituent organs, its sources of funding, its last financial statements and a statement of its activities that should cover its objectives, purpose and plan of action. In the case of NHRIs, the legal officers will ascertain whether the NHRI is established by law, constitution or decree, whether it is a national institution of a State Party to the African Charter, and whether it meets the Paris Principles.44 If necessary, the legal officers may write to the applicant NGO or NHRI requesting for further information in order to complete the file. Once the legal officers are satisfied that the NGO applying for observer status or the NHRI requesting for affiliate status has met all the above-mentioned requirements, they prepare a dossier for the African Commission with a recommendation, usually to the effect that observer status or affiliate status be granted to the said NGO or NHRI. Files are distributed among the individual members of the African Commission who will table them before the African Commission for consideration.

43 44

ACHPR/Res.33(XXV)99. For instance, the Centre for Human Rights at the University of Pretoria has observer status: see Final Communiqu´e of the Fourteenth Ordinary Session of the African Commission, 1–10 December 1993, Addis Ababa, Ethiopia. Ibid., Chapter I, para. 5. See Principles Relating to the Status of National Human Rights Institutions (“the Paris Principles”), in the Annex to the General Assembly Resolution, on National Institutions for the Promotion and Protection of Human Rights, UN Doc. A/RES/48/134, 1993.

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Once granted observer status or affiliate status, the legal section assigns a reference number to the NGO or NHRI and formally notifies them of the African Commission’s decision. The legal section maintains and regularly updates a register of all NHRIs granted affiliate status and NGOs granted observer status with the African Commission. As at the time of writing, there were 19 NHRIs with affiliate status45 and 360 NGOs with observer status.46 The register contains, among others, the contact details of the NHRI or NGO, as this facilitates the Secretariat to contact such NGOs or NHRIs when the need arises. For instance, as already stated, prior to undertaking a mission to a State Party, the Secretariat always refers to NGOs with observer status or NHRIs with affiliate status for information on the situation of human rights in the country to be visited. Additionally, the Secretariat usually requests such NGOs to assist the government authorities in a State Party to secure meetings with various civil society organisations. NGOs with observer status, or NHRIs with affiliate status, are usually informed about submission of State reports, and are requested to provide information that would facilitate a better examination of such reports. For instance, prior to the examination of the first periodic report of Namibia, the Secretariat transmitted a copy of the said report to the National Society of Human Rights (NSHR), an NGO with observer status in Namibia. The NSHR, in turn, transmitted a ‘shadow’ report, which was taken into consideration when the rapporteur examined the report.47 By acquiring observer status, NGOs also assume certain responsibilities, for instance the requirement that they present their activity reports to the African Commission every two years,48 though the majority of them do not meet this obligation. Consequently, the legal section of the Secretariat has developed a chart similar to that for States Parties, which indicates the status of submission of activity reports by NGOs with observer status. This chart indicates which NGOs have failed to submit reports of their activities, and the Secretariat makes it available to the public during the ordinary sessions of the African Commission. It is hoped that this will 45 46 47 48

See Final Communiqu´e of the Fortieth Ordinary Session, 15–29 November 2006, Banjul, The Gambia. See Final Communiqu´e of the Fortieth Ordinary Session, 15–29 November 2006, Banjul, The Gambia. The first periodic report of Namibia was examined at the 29th Ordinary Session of the African Commission, which was held from 23 April to 7 May 2001 in Tripoli, Libya. See Resolution on the Criteria for Granting and Enjoying Observer Status to NonGovernmental Organizations Working in the Field of Human and Peoples’ Rights, ACHPR/Res.33(XXV)99, Chapter III, para. 2.

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prompt the African Commission to start taking measures against NGOs that are in default of their obligations, something it has not done before, even though the Resolution provides for it.49 The Secretariat of the African Commission has, through its documentation officer, established relationships with various other African and international organisations. They exchange and share documentation and publications in areas of mutual interest in the field of human rights. This also enables such organisations to publicise the African Commission and its activities through their networks. Collaborating with other institutions in the organisation of seminars and conferences provides the African Commission with an avenue through which it can build and strengthen its networks with such institutions. The African Commission regularly identifies human rights issues that are of concern in Africa, and suggests a list of themes to be discussed in a seminar or conference. For instance, in 2006, the African Commission decided to organise four seminars and conferences on the following themes: Terrorism and Human Rights in Africa; Islam and Human Rights; Contemporary Forms of Slavery and Refugees and Internally Displaced Persons in Africa.50 The African Commission will normally seek the cooperation of other institutions in the organisation of these seminars and conferences. It is the responsibility of the Secretariat to assist the African Commission in identifying organisations whose interest and work covers the thematic areas suggested for the conference or seminar, and who are willing to collaborate with the African Commission in organising it. Once an NGO willing to collaborate with the African Commission in organising a seminar is identified, the African Commission will nominate one of its members to co-ordinate the organisation of the said seminar or conference. A legal officer will be assigned to assist in the organisation of the said seminar or conference. They will work in collaboration with the partner NGO in drawing up funding proposals and sourcing for funding for the seminar or conference. Once the funds are acquired, the African Commission invites States Parties to host the seminar or conference. It is the duty of the legal officer to follow up with the State Party that has accepted to host the seminar or conference, and ensure that the necessary logistical arrangements are made for the seminar or conference to be held. In addition, the legal officer will liaise with the partner NGO and 49 50

See Resolution on NGOs at note n.42, above, Chapter IV, para. 2. See Final Communiqu´es of the 38th and 39th Ordinary Sessions.

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the responsible member of the African Commission to ensure that a draft programme is drawn up, resource persons are identified and contacted, a list of participants is drawn up, which normally includes representatives from the relevant government departments of States Parties, and invitations are issued, as well as logistical and travel arrangements made for the participants. The working documents of the seminar or conference are prepared by the legal officers and the NGO, with assistance from the documentation officer, who also puts together the available informational material about the African Commission in order for it to be disseminated during the seminar or conference. The Secretariat prepares the report of the seminar or conference for adoption by the African Commission. Seminar reports are fully considered during the African Commission’s private sittings. As such, the legal officer who assisted in organising the seminar and conference is responsible for effecting any amendments that will arise during consideration of the report, and also for following up on any recommendations arising out of the seminar or conference, which may include drafting a resolution touching on issues raised during the seminar for adoption by the African Commission. In some cases, the seminar and conference would call for a further process, for instance the development of principles that clarify a provision of the African Charter and/or guidelines to guide States Parties in their implementation of the provisions of the African Charter. The Secretariat, in such situations, would bear the responsibility of ensuring that this process carries on. This was the approach taken when the Declaration of Principles on Freedom of Expression in Africa, the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa were developed.51 There has been a suggestion to the effect that a specific position should be created within the Secretariat of the African Commission of an officer whose primary responsibility would be to facilitate co-operation between the African Commission and the NHRIs and NGOs.52 It is expected that this would improve the relationship between the African Commission 51

52

See, for instance, Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62(XXXII)02; Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, ACHPR/Res.61(XXXII)02, and Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003). See Retreat Report (note 35).

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and NGOs and NHRIs. Although such a position is yet to be created, in the meantime, one of the legal officers is tasked with handling matters relating to co-operation between the African Commission and the NHRIs and NGOs.

Procurement of the necessary resources for the fulfilment of the African Commission’s mandate Although the AU bears the responsibility of providing the African Commission with the necessary human, material and financial means to enable it to discharge its functions, the AU has not always been able to meet all of its financial obligations. This is often attributed to the fact that the AU itself is cash-strapped as a result of failure by some AU Member States to pay their assessed contributions. As a result, the funds allocated to the Secretariat of the African Commission and for the activities of the African Commission for the year 2007 stand at about US$1.2 million, and yet the minimum amount required for the Secretariat and the African Commission to operate without major difficulties is about US$5.5 million per year.53 This means that the African Commission is placed in a position whereby it cannot even accomplish the minimum in terms of discharging its mandate. For instance, there is a severe shortage of staff, particularly in the legal section of the Secretariat, and yet the bulk of the activities carried out by the African Commission are supposed to be done with support and assistance of the legal officers. For more than fifteen years, the OAU/AU employed only two legal officers to provide support to the African Commission. In 2006, the AU increased the number of legal officers funded from the AU budget from two to three. Needless to say, the three legal officers cannot provide the requisite support to eleven members of the African Commission and the special mechanisms covering ten thematic areas, in addition to carrying out the other general duties expected of them. Under such circumstances, the Secretariat of the African Commission is compelled to seek funding from donor agencies and institutions in order to supplement the funds obtained from the AU, so as to finance the Secretariat, particularly the salaries of additional legal officers, as well as some of the activities of the African Commission.54 53 54

Telephone interview with Mr. Robert Eno, Officer in Charge of the Secretariat of the African Commission on 19 March 2007. This situation is clearly spelt in the following Annual Activity Reports of the African Commission, previously to the OAU and now to the AU, under the section entitled Administrative and Financial Matters: see Thirteenth Activity Report 1999–2000,

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Within the Secretariat of the African Commission, the responsibility of raising additional funding lies with the Secretary to the African Commission. The Secretary works in collaboration with the finance and administrative officer, the projects and funds mobilisation officer and with all the professional staff, in order to identify what is required of the African Commission to ably discharge its mandate. The officers therefore develop the funding proposals with the assistance of the finance and administrative officer, who draws up the required budgets for all the unfunded activities and posts of the African Commission. Such activities may include promotional missions, publications, conferences and seminars, and activities of the special mechanisms. Staff salaries are also looked at when drawing up budgets.55 It is the duty of the Secretary to the African Commission to approach any prospective donor agencies or institutions to request for funding in areas that are of interest to them. Members of the Bureau of the African Commission may be involved in this exercise, if available. The Secretariat has realised that most funding agencies and organisations are reluctant to provide funding to recruit additional Secretariat officers because, as they rightly state, the AU should be able to meet its obligations in this respect. There is, however, some interest amongst donor agencies to provide financial and material assistance for activities of the special mechanisms because they cover thematic areas that may be of interest to them. Additional staff may therefore be recruited under these circumstances in order to provide support to the special mechanisms. For example, the legal officer assigned to assist the Special Rapporteur on Human Rights Defenders was recruited with funding from the UN Office of the High Commissioner for Human Rights56 and with funding from the government of Denmark, another officer was recruited to assist the Working Group on Indigenous Populations/Communities in Africa. Ideally the

55

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Annex V, AHG/222(XXXVI)Add., Section VII; Fourteenth Activity Report 2000–2001, AHG/229(XXXVII), Section M; Fifteenth Activity Report 2001–2002, Section J, (unreferenced, available at: www.africa-union.org/root/au/index/index.htm (accessed 7 October 2007); Seventeenth Activity Report 2003–2004, Assembly/AU/Dec.56(IV), Section J; and Eighteenth Activity Report 2004–2005, EX.CL/199(VII), Section IV. For instance, between 2002–2003, the African Commission’s promotional missions were financed by the Swedish International Development Agency (SIDA), documents of the African Commission were published and staff salaries paid with funds from the Government of the Netherlands, activities undertaken by the Special Rapporteur on the Rights of Women in Africa were funded by the Centre International des Droits de la Personne et D´eveloppement D´emocratique of Canada: see 15th Annual Activity Report (unreferenced, available at www.achpr.org (accessed 7 October 2007)). At the time of writing, the legal officer’s services had been terminated because funding from the UN Office of the High Commissioner had come to an end.

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legal officers employed under these specific circumstances should concentrate on providing support to the special mechanisms for which they were recruited. However, as a result of the fact that the Secretariat is seriously understaffed, these legal officers have to take on additional tasks, which in some cases include assisting other special mechanisms that are not funded. Clearly, the major limitation facing the Secretariat of the African Commission, and one which severely affects its functioning and consequently the proper functioning of the African Commission, is that of a lack of adequate financial resources. Inadequate finances mean that there is a shortage of staff, particularly within the legal section of the Secretariat, which is supposed to offer direct assistance to the Members of the African Commission. The abilities of the existing legal staff are overstretched, and, consequently, the output of the African Commission and the quality of its work are affected. This situation will be further exacerbated when the newly established African Court on Human and Peoples’ Rights (‘the African Court’) begins its work. Looking at the import of Article 34(6) of the Protocol to the African Charter on the Establishment of an African Court, in respect of who can access the African Court as provided for under Article 5, it is likely that during its initial stages, the African Commission will be the only institution that will litigate before the African Court. The implication of this is that the legal officers of the African Commission will be expected to present cases before the African Court, and this is certainly going to place additional strain on the already understaffed legal section of the Secretariat. Lack of adequate funds has also affected the Secretariat’s ability to carry out such ordinary tasks like making reports and documentation of the African Commission available in all four working languages. Most of the documents and reports are available in English and French only and, as such, those members of the African Commission who feel more comfortable working in Arabic and Portuguese are constrained. The effect of this limitation is that most of the work of the African Commission cannot be disseminated in Portuguese and Arabic speaking regions of the continent, a factor that affects the ability of the Secretariat to publicise the African Commission and its work in those regions. The lack of adequate finances has also affected the ability of the African Commission to discharge some vital aspects of its promotional mandate. For instance, Article 45(1)(a) of the African Charter mandates the African Commission to undertake studies and research on African problems in the field of human rights. However, not much has been achieved in the field of research and organised study. Undertaking such an activity would

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require many facilities to be placed at the disposal of the Secretariat of the African Commission, including access to up-to-date academic journals and books, not to mention trained and experienced research officers to carry out both desk and field researches. Under such conditions, it has therefore been an uphill task for the Secretariat to even offer the minimum assistance required for the African Commission to discharge its mandate.

Conclusion The role that the Secretary of the African Commission plays in the day to day operations of the Secretariat is critical. The Secretary is responsible for supervising the work of all the officers and the Secretariat, and for ensuring that the Secretariat runs smoothly and acts as the liaison between the members of the African Commission, the Secretariat and partners to the African Commission. Therefore, in addition to possessing administrative skills and capabilities, the Secretary to the African Commission is required to possess legal skills in order to be able to accomplish his/her duties as the head and overall supervisor of the Secretariat. At the time of writing this chapter, however, the Secretary to the African Commission had been transferred to another duty station, and since his departure in December 2005, no Secretary has been recruited by the Commission of the AU to head the Secretariat. As a stop-gap measure, the Commission of the AU temporarily appointed a Senior Officer from the Commission of the AU in Addis Ababa to head the Secretariat, which she did for under three months before she had to resume her duties at the Commission. Following the departure of the Senior Officer, the Secretariat of the African Commission was left under the charge of the finance and administrative officer who, as much as he had administration skills, was seriously constrained in so far as supervising the work of the legal section was concerned, as this was outside the area of his expertise. The responsibility of the Officer in Charge of the Secretariat was later to be handed over to one of the legal officers who, besides having to carry out his day-to-day work as a legal officer, has the additional and no doubt arduous task of running the Secretariat. Besides the absence of the Secretary, the Secretariat has also lost the services of the documentation officer and the public relations officer. While the position of the documentation officer is funded under the AU budget, that of the public relations officer is financed from extrabudgetary funds that ran out at the end of 2005. Therefore, as at the time of writing, the Secretariat was without a Secretary and a public relations

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officer. A computer technician with some previous experience working as an assistant documentation officer has been appointed by the AU, and is presently doubling up as the Secretariat’s documentation officer. The AU has resolved ‘to take all necessary measures to strengthen [its] common institutions and provide them with the necessary powers and resources to enable them to discharge their respective mandates effectively’.57 The situation, as it presently stands, is that the Secretariat of the African Commission does not have the requisite resources to enable it to function fully, a situation that the AU is all too aware of.58 At its 10th Ordinary Session, the Executive Council of the AU, to which the African Commission reports, reiterated its request to the Commission of the AU to allocate adequate resources from its regular budget to the African Commission, so as to enable it to discharge its mandate effectively and independently.59 Adequately financing the Secretariat of the African Commission will enable it to address most of the deficiencies that the African Commission is faced with. Although the Secretariat of the African Commission usually makes requests to the AU for additional human and financial resources, in practice, the AU only allows a budgetary increase of ten per cent per year, and as such it is unlikely that there will be new resources disbursed from the AU. Given the situation currently pertaining at the Secretariat of the African Commission, it is quite evident that the ability of the African Commission to effectively and fully discharge its mandate will continue to be hampered until such time that due attention is paid to addressing the resource limitations that its Secretariat is faced with. 57 58

59

See Preambular, para. 10 of the Constitutive Act of the African Union, OAU Doc. CAB/LEG/23.15. See, for instance, calls by the African Union Assembly of Heads of State and Government that the African Commission be provided with the requisite resources to enable it to function smoothly: Assembly of Heads of State and Government of the African Union, Decision on the 17th Annual Activity Report of the African Commission, DOC.EX.CL/109(V), Assembly/AU/Dec.49(III), para. 2; Assembly of Heads of State and Government of the African Union, Decision on the 18th Annual Activity Report of the African Commission, Assembly/AU/Dec.77 (V), para.5. Decision on the Twenty-First Annual Activity Report of the African Commission, EX.CL/322(X), para. 2(iii).

10 The Special Rapporteurs in the African System rachel murray

Introduction The practice of appointing special rapporteurs to explore the human rights situation, either in a particular State or pertaining to a particular theme, has become a well-established feature of the UN human rights machinery, and ranks among its most innovative achievements.1 It is, then, no surprise to find that it has been adopted within other systems of human rights protection, including the African regional mechanism. In its relatively short existence, the African Commission has appointed six special rapporteurs on thematic issues: one on extrajudicial executions; one on prisons and other conditions of detention; one on women’s rights; one on refugees, 1

See, for example, under the UN, where there are special rapporteurs on adequate housing; the sale of children, child prostitution and child pornography; the right to education; extrajudicial, summary or arbitrary executions; food; the promotion and protection of the right to freedom of opinion and expression; freedom of religion or belief; health; human rights defenders; the independence of judges and lawyers; the situation of human rights and fundamental freedoms of indigenous people; human rights of migrants; contemporary forms of racism, racial discrimination, xenophobia and related intolerance; promotion and protection of human rights while countering terrorism; torture; adverse effects of the illicit movement and dumping of toxic and dangerous products and waste on the enjoyment of human rights; trafficking in persons, especially women and children; and violence against women, its causes and consequences. The Inter-American Commission has Rapporteurship on the Rights of Women, a Special Rapporteur on Migrant Workers and their Families, and has established an Office of the Special Rapporteur for Freedom of Expression. See D. Weissbrodt, ‘The Three “Theme” Rapporteurs of the UN Commission on Human Rights’, American Journal of International Law 80 (1986) 693–5; Association for the Prevention of Torture, ‘Standard Operating Procedures of International Mechanisms Carrying out Visits to Places of Detention’, Workshop, 24 May 1997, Geneva; A. Satkunanathan, ‘The UN Special Rapporteur on Violence against Women: Creating Space for Feminist Intervention or Perpetuating the Notion of the “Universal Subject”?’, Interights Bulletin 14(4) (2004) 171–2; K. Tomasevski, ‘The Right to Education: The Work of the Special Rapporteur. 1998–2001’, Interights Bulletin 13(2) (2000) 81–2.

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asylum seekers and internally displaced persons; another on human rights defenders in Africa; and a final one on freedom of expression. It has not created any country-specific special rapporteurs, but this is hardly surprising. Unlike the UN Commission on Human Rights, the African Commission has an explicit treaty-based competence to examine the situation on a country-by-country basis through the Charter’s reporting procedures.2 Further, a number of ancillary country-specific activities are implicitly addressed through the promotional mandate of the Commission, which is exercised by allocating responsibility for particular countries to individual Commissioners and by its promotional and protective visits to States.3 On first glance, then, the record of the Commission is impressive. A closer examination reveals, however, that the decisions to appoint these special rapporteurs have come about more as the result of a combination of NGO lobbying, the impact of particular sets of circumstances and the Commission’s desire to be seen to be doing something, rather than as the product of any well-thought-out programme, or as a reflection of a belief that these areas represented the most pressing concerns that it faced. In light of this, it is perhaps not surprising that the record of achievement under these mandates has been modest – indeed, in several cases, the achievements could fairly be described as minimal. The following sections will consider the dynamics of the process that led to the Commission appointing these special rapporteurs in the first place, and give an overview of their work so far. The chapter will conclude with some observations upon the possible reasons for their successes and failures.4 For the sake of clarity, one particular feature of the African practice needs to be highlighted at the outset: all mandate holders are serving members of the Commission itself. In what follows, they will be referred to as special 2 3

4

For a consideration of the reporting procedure under the African Charter, see Chapter 2 above. See R. Murray, ‘On-Site Visits by the African Commission on Human and Peoples’ Rights: A Case Study and Comparison with the Inter-American Commission on Human Rights’, African Journal of International and Comparative Law 11 (1999) 460–73. The system of special rapporteurs is relatively under-explored. Given the lack of up-to-date, reliable and accessible sources relating to the UN system, it is impossible in a chapter of this length both to present that material and to draw in the construction of a comparative analysis. Consequently, this chapter limits itself to an essentially factual presentation of the work of the six African special rapporteurs, and to making a number of points concerning them, as is consonant with the aims of this particular collection of essays. It is to be hoped that this may assist others who wish to attempt the broader task.

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rapporteurs of the Commission, but it must not be forgotten that they also form a part of the Commission.

The Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions The willingness of the Commission to appoint a Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions at its 15th Session in 1994 has been attributed to the timing of that particular session,5 coming as it did during the genocide in Rwanda, to which the Commission had at that time made no response.6 This was reflected in the decision to establish the terms of the mandate, the – admittedly scanty – record of which expressly provided that the Special Rapporteur, Commissioner Dr Hatem Ben Salem, was ‘mainly to focus on the situation in Rwanda’.7 This linkage is apparent in the Resolution on the Situation in Rwanda, adopted at the same session, paragraph 4 of which ‘[i]nvites the Special Rapporteur . . . to pay special attention to Rwanda and report back to the 16th Session’.8 At this stage, this was the only explicit guidance given regarding the scope of the mandate, which seemed, therefore, to focus on, but not be limited, to Rwanda. Moreover, no guidance was given concerning precisely what the Special Rapporteur was actually expected to do, or how he was to go 5

6

7 8

J. Harrington, ‘Special Rapporteurs of the African Commission on Human and Peoples’ Rights’ (paper submitted to the Conference on Reform of the African Human Rights System, Centre for Human Rights, University of Pretoria, 26–28 March 2001). There is nothing particularly unique in this, and it has been suggested that the appointment of some of the UN special rapporteurs has been motivated by similar impulses. See, for example, P. Alston, ‘The Commission on Human Rights’ in P. Alston, The United Nations and Human Rights. A Critical Appraisal (Oxford: Clarendon, 1992), pp. 126–210 and 174–5. The 15th Session of the Commission took place on 18–27 April 1994 in Banjul, The Gambia. The only action taken by the Commission at the time, in addition to appointing the Special Rapporteur, was the adoption of a resolution in which it noted that it was ‘deeply concerned about the alarming human rights situation in Rwanda characterised by serious and massive human rights violations’, condemning the violence and the massacre, and calling on all parties to resolve the conflict and to respect humanitarian law: Resolution on the Situation in Rwanda, Seventh Activity Report 1993–1994, Annex XII; R. Murray and M. Evans (eds.), Documents of the African Commission, p. 353. The Commission also produced a press release: see Press Release, Seventh Activity Report 1993–1994, Annex XIII. Later action included another resolution on Rwanda, adopted at its 16th Session in October–November 1994: see Resolution on Rwanda, Eighth Activity Report 1994–1995, Annex VI (Documents of the African Commission, p. 401). Seventh Activity Report of the African Commission on Human and Peoples’ Rights 1993– 1994, ACHPR/RPT/7th (Documents of the African Commission, p. 317), para. 26. Resolution on the Situation in Rwanda.

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about his work. Although, as requested, the Special Rapporteur did set out some of his ideas concerning his vision for his mandate at the following session, the terms of reference were still not formalised or adopted by the Commission at this stage.9 It was not until the 17th Session in March 1995, nearly a year after his initial appointment, that the Commission approved draft terms of reference that had been presented to the Commission by the Special Rapporteur himself, and which dealt with the scope, duration and methods of his work and the proposed budget,10 and it was not until the 18th Session in October 1995 that the terms of reference of the mandate were finally approved.11 Although the significance of the Special Rapporteur’s contribution to the formulation and solidification of the mandate should receive due recognition, it must be noted that in six years, from 1995 until 2001, he succeeded in producing only one written report, submitted to the 20th Session in October 1996, supplemented by general comments made at subsequent sessions of the Commission. It appears that a further report from the Special Rapporteur was considered at the following 21st Session in April 1997, and that the Commission was prepared to ‘commend the Special Rapporteur for the work he has done so far’, but this was the first and last overt signal of approval.12 The Special Rapporteur’s 1996 report sets out the terms of reference, and this provides a template against which to judge his activities, although, for reasons that will become apparent, it is hardly necessary to adopt so refined an approach to be able to proceed to an evaluation. The report includes a number of general statements, such as the importance of the right to life and the principle that no one should be deprived of their 9

10

11

12

Report of the Special Rapporteur on Extrajudicial Executions in Africa, Eighth Annual Activity Report 1994–1995 (Documents of the African Commission, p. 370), paras. 17–19. The Commission noted the need to avoid duplication with the work already undertaken by the UN, and agreed that it would be appropriate to focus on two particular aspects: (1) compensation to the families of victims of such executions; and (2) the responsibility of instigators and authors of such executions. Ibid., paras. 19–21. See also Final Communiqu´e of the Seventeenth Ordinary Session, Lom´e, Togo, 12–22 March 1995, ACHPR/COM.FIN/XVII/Rev.3 (Documents of the African Commission, p. 418), para. 25. The precise content of the terms of reference is not recorded. See Report on Extrajudicial, Summary or Arbitrary Executions, Tenth Activity Report 1996– 1997, Annex VI, Section III (Documents of the African Commission, p. 508). Somewhat ironically, in the light of subsequent developments, the delay in the implementation of the mandate was said to be due to ‘the wish expressed by members of the Commission to begin this first experience on a solid foundation’. See ibid., para. 18. However, this latter report is not found in the documentation produced by the Commission, and is not, apparently, otherwise available.

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right arbitrarily.13 It also provides an insight into a number of substantive matters that are considered to fall within the scope of the mandate. Thus, the report identifies the following as issues to be addressed as comprising the core ‘mission’ of the mandate:14 1. To propose the implementation of a reporting system on cases of extrajudicial, summary and arbitrary executions in African States, especially by keeping a register of the identity of the victims. 2. To follow up, in collaboration with government officials, or failing that, with international, national or African NGOs, all enquiries which could lead to discovering the identity and extent of responsibility of authors and initiators of extrajudicial, summary or arbitrary executions. 3. To suggest ways and means of informing the African Commission in good time of the possibility of extrajudicial, summary or arbitrary executions, with the goal of intervening before the OAU Summit. 4. To intervene with States for trial and punishment of perpetrators of extrajudicial summary or arbitrary executions, and rehabilitation of the victims of these executions. 5. To examine the modalities of creation of a mechanism of compensation for the families of victims of extrajudicial, summary or arbitrary executions, which might be doing [sic] through national legal procedures, or through an African compensation fund.

The 1996 report also considered the nature of the information that was to be collected in the course of the fulfilment of the mandate, and in particular the credibility of sources of information. The task of the Special Rapporteur is to verify the facts underpinning allegations, and it is made clear that, although he cannot ‘in any way, substitute for the police and judicial organs of the concerned country, nor play the role of detective, it nevertheless remains that he must evaluate the adequacy of the means of inquiry made by national organs and the credibility of the conclusions adopted by national investigative organs’.15 In order to carry out these functions, the Special Rapporteur is to have ‘recourse to all methods of investigation, specifically by requesting the assistance of States and national, international and African NGOs’.16 Moreover, ‘he can be assisted in his mission by any person whom he judges competent to perform this task well’.17 These, then, are a number of the substantive and procedural elements that are to be part of the work of the Special Rapporteur. The 1996 report goes further, however, and identifies a number of priority ‘fields 13 15

Report on Extrajudicial, Summary or Arbitrary Executions. 16 17 Ibid., Section III, B. Ibid., Section II, D. Ibid.

14

Ibid., Section II, A.

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of investigation’ that are to be addressed in the fulfilment of the ‘mission’ set out above. Unsurprisingly, it states that the Special Rapporteur ‘can decide to choose a country where he believes the incidence of execution is the most frequent or massive’,18 but it enjoins him to produce a report on the extrajudicial executions of women, children, demonstrators and human rights opponents and activists ‘as a priority’.19 Quite why these particular categories were singled out is not at all clear. Nevertheless, the expectation set out in the 1996 report is that the ‘mission’ of the Special Rapporteur – presumably the execution of the tasks outlined above, taking into account the particular fields of investigation highlighted – is to be achieved within a two-year period, although this could be extended.20 This rather suggests that the mandate was seen as a finite project. As regards the flow of information concerning the work of the mandate holder, the 1996 report envisaged the publication of a bulletin containing information collected on the eve of each session of the Commission. More generally, the Special Rapporteur was to report to the Commission at each session, and to the Assembly of Heads of State and Government of the OAU annually, in a report annexed to that of the Commission.21 In order to service these activities, the report also records that the Commission had approved a budget totalling some US$57,000 to fund the mandate, of which US$16,000 was furnished by the North–South Centre of the Council of Europe, and the Swiss Directorate of Co-operation in Development and Humanitarian Aid.22 The remainder of the 1996 report chronicles a number of activities that the Special Rapporteur had already undertaken in fulfilment of his mandate. This amounted to little more than planning to contact, or making initial inquiries with, relevant organisations to consider setting up a register of victims.23 Although the setting out of tentative plans does not reflect a particularly pro-active stance, as this report covered only a relatively short period since 18 19

20 22

23

Ibid., Section II, B. Ibid. Other ancillary tasks that are programmed include, for example in relation to creating a trust fund for compensation, ‘a joint reflection with interested NGOs[,] and a report will be submitted for the advice of the Commission, which will pronounce on this question’. Ibid., Section III, B. 21 Ibid., Section II, C. Ibid., Section II, E. Ibid., Sections III and IV. Costs included computer, phone and Secretariat expenses. Additional expenses of US$41,000 were required for the second phase, which included visits to particular countries and administrative expenses. It is worth noting in passing that it appears that the Special Rapporteur had little prior experience or knowledge of how to create a database and collect such information, as he had to be alerted to the existence of well-known organisations by others. Ibid., Section III, A (2).

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the formalisation of terms of reference, this might be understandable. However, in most regards, the subsequent performance falls significantly short of the aims set out in the 1996 report. Indeed, with the exception of the submission of two reports pertaining to country-specific situations, it appears that hardly any of the aspirations set out in the 1996 report became a reality. In light of this, there is little to be gained in probing the modus operandi of the Special Rapporteur, and the remainder of this section will set out what evidence of activity exists, and the denouement to which it led. One of the overriding problems appears to be a lack of clarity concerning the principal focus of the Special Rapporteur’s work. Recalling the initial motivation for establishing the mandate, there is appended to the 1996 report a Progress Report on Extrajudicial, Summary or Arbitrary Executions, which focuses exclusively on Rwanda and Burundi,24 but the body of the 1996 report notes that: If in the first place the case of Rwanda and of Burundi will be a priority for the collection of information and creation of the computer database, as a matter of course all available information on extrajudicial executions in other African countries will be registered, especially for Liberia. To do so, and collect more testimony, the reports submitted by the organs of the UN as well as the OAU will be taken into consideration.25

This diffusing approach is reflected elsewhere in the report, with reference made to other country-specific situations and themes, although with no great consistency.26 This practice spilled over and is reflected in what evidences of further output exist. Records of the 23rd Session of the Commission in April 1998 note that the Special Rapporteur had ‘presented the final report on the summary, arbitrary and extrajudicial executions in Rwanda, Burundi, Chad, Comoros and the [Democratic Republic of the Congo]’ and that ‘[t]his 24

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Progress Report on Extrajudicial, Summary or Arbitrary Executions, Tenth Activity Report 1996–1997, Annex VI (Documents of the African Commission, p. 516). This notes meetings held with NGOs and Rwandan refugees, but it does not record that the Special Rapporteur himself visited either country, although it does say that such visits might be organised in the future. Names of alleged victims were also presented to him at these meetings, but the report records that the Special Rapporteur advised the Secretariat to pass these on to the International Criminal Tribunal for Rwanda. Report on Extrajudicial, Summary or Arbitrary Executions, Section III, A (2). Although initially it would appear that he was to focus on certain groups such as women and children, the lists are not consistent throughout the report. In relation to the countries that merit particular attention, again the report later extends this beyond Rwanda and Burundi to Zaire, and also calls for information from NGOs on Sudan, Nigeria and Liberia.

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report contains the names of people about whom the Special Rapporteur is expecting information from the States concerned’.27 It is not possible to analyse this development in any detail, since the final report that is referred to has not been disseminated in written form. But it is clear that the States which are listed as the subject of the Special Rapporteur’s attention are different from those previously identified.28 Further confusion as to the focus of the mandate is produced by the Special Rapporteur’s statement at the 24th Session of the Commission in October 1998, in which he ‘drew the Commission’s attention to the new cases of extrajudicial executions in Chad, the Democratic Republic of the Congo, Angola, the Comoros and Sierra Leone’,29 and at the subsequent 25th Session in April–May 1999 when he presented an oral report on executions in Rwanda, Burundi and Chad.30 There is, in principle, nothing objectionable in the Special Rapporteur shifting his focus in order to address the situations that may emerge from unexpected quarters, and which require his attention. Indeed, it is highly desirable and foreshadowed in the 1996 report. The problem is that there seems to be a trail of unfinished business that the constant shifts in focus and emphasis do little to disguise. If there is any substantial and substantive output from these efforts, they are not apparent to the most wellinformed of external observers, although the prospect of this work having borne fruit that has not been properly recorded or reported cannot be wholly discounted, unlikely though this may seem in light of subsequent events. Moreover, the picture of general ineffectiveness finds some reflection in both the working methods of the Special Rapporteur and in the work of the Commission’s mission itself, in other spheres. Thus, in the period of his appointment, the Special Rapporteur has not been able to conduct any visits to States. There was recently some discussion of his visiting Chad to verify allegations, but this did not materialise.31 Nor does the Commission 27 28

29 30 31

Eleventh Activity Report 1997–1998, ACHPR/RPT/11th (Documents of the African Commission, p. 599), para. 29. It might be presumed that this refers to the report on the fulfilment of the Special Rapporteur’s ‘mission’, called for in the 1996 report, and it may be that it is a development of the interim report on Rwanda and Burundi that was annexed to that report. This is, of course, supposition. Twelfth Activity Report 1998–1999, ACHPR/RPT/12th (Documents of the African Commission, p. 685), para. 24. Ibid., para. 25. Thirteenth Activity Report 1999–2000, AHG/222(XXXVI), para. 24. There was some indication that the Government was not responding to his letters or contacts.

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appear to see the Special Rapporteur as central to its more general discussions and activities pertaining to the countries that he himself has chosen to focus on from time to time.32 There is, however, some evidence of concrete, albeit limited, action in which the Special Rapporteur has been known to be involved.33 From 1998, the Special Rapporteur had the assistance of a Gambianbased NGO, the Institute for Human Rights and Development, yet despite some initial encouraging signs, this did not seem to have changed the situation in any significant fashion. NGOs, and subsequently other Commissioners, called on the Special Rapporteur to take some action, and started to show signs of becoming increasingly impatient with his failure to produce any clear evidence of significant activity and outcomes from one session to another. At the 26th Session in November 1999, the Government of Rwanda criticised him for failing to verify allegations that had been made, and for the poor quality of his work, although it was forced to withdraw its statement after the Chairperson noted that the criticism was directed against the Commission rather than one of its members.34 After some quite vociferous criticism from a number of NGOs and other members of the Commission, at the 28th Session in Benin in 2000, Commissioner Ben Salem resigned from his position as Special Rapporteur. He was not replaced and, not surprisingly, the mandate has fallen into disuse: 32

33

34

For example, on those occasions where the Commission has contemplated sending missions to Rwanda, it has not included the Special Rapporteur as a member of the proposed delegation: see Ninth Activity Report 1995–1996, ACHPR/RPT/9th (Documents of the African Commission, p. 428), para. 20. Similarly, in a resolution on Burundi, the Commission has called on the authorities to permit the Special Rapporteurs from the UN and the African Commission to visit the country, but makes no other mention of the Special Rapporteur: Resolution on Burundi, Ninth Activity Report 1995–1996, Annex VIII (Documents of the African Commission, p. 443). For example, at the 23rd Session of the Commission in April 1998, Amnesty International alerted the Commission to the possible execution of a number of individuals in Rwanda the following day, and it urged the Commission to contact the authorities in order to call upon them to halt the execution. During the ensuing discussion at the session, Amnesty liaised with the Special Rapporteur over the drafting of a fax to this effect. This was subsequently dispatched, albeit in vain. The Final Communiqu´e notes that, having heard that the executions were indeed carried out in public, ‘the Commission authorised the Chairman to write to the government of Rwanda and express the outrage of the Commission at this blatant disregard of the provisions of the Charter’, and a press release to this effect was also issued: Final Communiqu´e of the Twenty-third Ordinary Session, DOC/OS/45(XXIII), para. 9 (Documents of the African Commission, p. 674). R. Murray, ‘Report of the 1999 Sessions of the African Commission on Human and Peoples’ Rights’, Human Rights Law Journal 22 (2001) 172–98.

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taking up this mandate, which has received so little attention and which has been so poorly implemented, was clearly not an attractive option even for the most dynamically minded Commissioner. It is difficult to resist the conclusion that this has been a largely wasted opportunity and a matter of some considerable embarrassment for the reputation of the African human rights system in general, and the African Commission in particular. This experience may also have contributed to the reticence that clearly exists on the part of the Commission to utilise the Special Rapporteur system and on the part of NGOs to advocate it. However, as will be seen in the following section, its next experiment has shown that it is possible for such a position to function in a much more effective fashion within the African context.

The Special Rapporteur on Prisons and Conditions of Detention At its 19th Session in 1996, the Commission agreed, in principle, to appoint a Special Rapporteur on Prison Conditions in Africa.35 This appears to have been largely in response to requests made by Penal Reform International, an international NGO headquartered in Paris, although this proposal was also supported by other NGOs,36 and the Commission clearly perceived from the outset that NGOs would have an important role in the development and implementation of the mandate.37 Prior to the session, the first all-African Conference on Prison Conditions had been held in Kampala, and this formed a part of the background 35 36

37

Ninth Activity Report, para. 18. See F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa. For example, at the 18th Session of the Commission, a draft resolution, was presented: which had been adopted at the ICJ’s 9th Workshop for NGOs, held prior to the session concerning the appointment of Special Rapporteurs on both Prisons and Women’s Rights see Final Communiqu´e of the Eighteenth Ordinary Session, Praia, Cape Verde, 2–11 October 1995, ACHPR/FIN/COMM/XVIII (Documents of the African Commission, p. 457), paras. 22–3. Indeed, the report of the Special Rapporteur on Prisons and Conditions of Detention at the 21st Session of the Commission noted that PRI was to support his work and would ‘endeavour to mobilise resources at local and international levels for the work of the Special Rapporteur’, as well as offer assistance in ‘alternatives to imprisonment; prison conditions and rehabilitation; and strengthening of regional, sub-regional and local NGOs working on prisons’, as well as making available other information and data: see Report of the Special Rapporteur on Prisons and Conditions of Detention to the 21st Session of the African Commission, Tenth Activity Report 1996–1997, Annex VII (Documents of the African Commission, p. 518). Ibid.

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and general climate in favour of the appointment at the following session.38 It also appears that the Commission initially considered appointing as Special Rapporteur a person who was not already a member of the Commission, but who would ‘work under a designated Commissioner’, and calls were made for CVs to be submitted from interested candidates.39 However, this was not followed through, and at the 20th Session in October 1996,40 Commissioner Dankwa was appointed to this position. The mandate was initially established for a fixed period of two years and was allocated a budget of some US$40,000,41 but at its 25th Session in May 1999, the Commission extended the mandate for a one-year period, until 31 October 2000.42 At its 28th Session in 2000, the Commission appointed Commissioner Chirwa to the position.43 She held the position until July 2005, when she was not re-elected to the Commission, and the post was taken over by Mumba Malila.44 The terms of reference finally adopted45 summarise the mandate as empowering the Special Rapporteur to ‘examine the situation of persons deprived of their liberty within the territories of States Parties to the African Charter on Human and Peoples’ Rights’.46 They then spell out a number of tasks which are intended to breathe life into this process, the key elements of which are:47 38

39 40 41

42

43 44 45

46

See the comments of the Special Rapporteur in his Report on Visit to Prisons in Zimbabwe, reproduced as an appendix to the Report of the Special Rapporteur of Prisons, ibid. (Documents of the African Commission, p. 522). Ninth Activity Report 1995–1996, para. 18. Indeed, CVs were submitted to the Secretariat of the Commission. Tenth Activity Report 1996–1997, ACHPR/RPT/10th (Documents of the African Commission, p. 492), para. 19. Report of the Special Rapporteur on Prisons. This included US$5,000 for equipment, such as a computer; US$8,600 for secretarial support; US$25,000 for travel; and the remainder for miscellaneous expenses. Resolution on the Extension of the Mandate of the Special Rapporteur on Prisons and Conditions of Detention in Africa, Twelfth Activity Report 1998–1999, Annex IV (Documents of the African Commission, p. 710). Final Communiqu´e of the Twenty-eighth Ordinary Session, Cotonou, Benin, 23 October– 6 November 2000, ACHPR/FIN.COMM/XXVIII, Rev.2. Nineteenth Annual Activity Report 2005, para. 8. These are set out as an appendix to the Report of the Special Rapporteur on Prisons. The text of the Special Rapporteur’s report says that these were based on an earlier draft, and were revised at the request of the Commission at its 20th Session in October 1996. This would appear to refer to the outcome of a consultation that was held in The Gambia in January 1996, and which was probably circulating at the 20th Session later that year. 47 Ibid., para. 2. Ibid., paras. 3–5.

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1. conducting an examination of the state of prisons and conditions of detention and making recommendations for their improvement; 2. advocating adherence to the African Charter and other relevant international human rights norms; 3. examining the national laws and making recommendations concerning their compliance with international norms; 4. at the request of the Commission, making recommendations on any communications filed with the Commission related to the subjectmatter of the mandate; 5. proposing to States any urgent action which needs to be undertaken; 6. conducting studies into conditions which contribute to detentions, and proposing preventative measures; 7. co-ordinating his activities with those of other Special Rapporteurs and working groups.

In order to carry out these tasks, the Special Rapporteur is empowered to ‘seek and receive’ information from States Parties to the African Charter, and from individuals and other bodies on cases or situations falling within the scope of the mandate,48 and the Special Rapporteur ‘should be given all the necessary assistance and co-operation to carry out on-site visits and receive information from detained persons, their families or representatives, from governmental or non-governmental organisations and others’.49 The terms of reference frame the task of the Special Rapporteur in a generalised fashion, calling on him to conduct an ‘evaluation of the conditions of detention in Africa’, but also setting out a number of priority areas to be focused upon within that context.50 Some of these priority areas relate to particular and pervasive problem areas, such as arbitrary detention, treatment in detention and healthcare. Others relate to particular categories of detainees, including women (the entire operation of the mandate is to be conducted against the background of ‘paying special attention to problems related to gender’51 ), children, and vulnerable groups including refugees and those suffering from forms of disability. The terms of reference also make it clear that the Special Rapporteur is expected to submit an annual report to the Commission, which should be ‘published and widely disseminated in accordance with the relevant provisions of the Charter’.52 48

Ibid., para. 7.

49

Ibid., para. 8.

50

Ibid., para. 11.

51

Ibid.

52

Ibid., para. 5.

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In contrast to the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, the Special Rapporteur on Prisons and Conditions of Detention took concrete action almost immediately after his appointment, by conducting a mission to Zimbabwe and, as noted above, duly submitting his first report to the 21st Session of the Commission. This presented a summary of his planned activities for the first two years of the mandate, as well as a report on his visit to Zimbabwe.53 The report sets out the general criteria employed by the Special Rapporteur when deciding which countries to visit first, noting ‘the importance of covering the main geographical areas of Africa, the main languages of the OAU, big and small countries as well as island and mainland countries’.54 Zimbabwe was chosen as the first country to be visited, and the factors that were taken into account were principally practical in nature, including ‘language, [the] likelihood of co-operation from both government and non-governmental organisations, [and] good road network which will not make internal travel difficult’.55 Taking account of these criteria, the Special Rapporteur’s report set out a Programme of Activities, which included the following missions: to Senegal or Mali between May and October 1997; to Uganda or Mauritius between November 1997 and March 1998; to Mozambique or Sao Tom´e between May and October 1998; and to Tunisia and South Africa between November 1998 and January 1999, making a total of five visits in twenty months.56 The Special Rapporteur certainly conducted the number of visits he had planned to undertake, but the countries visited varied somewhat from those set out in the original plans, the missions having been conducted to: Zimbabwe (February/March 1997), Mozambique (December 1997),57 Madagascar (1998),58 Mali (twice: August 1997 and November–December 1998),59 53

54 56 57

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Report of the Special Rapporteur on Prisons and Conditions of Detention to the 21st Session of the African Commission, Tenth Activity Report 1996–1997, Annex VII (Documents of the African Commission, p. 518). 55 Ibid., Part I. Report on Visit to Prisons in Zimbabwe. Reports of the Special Rapporteur to the 21st Session of the African Commission, 1997, Part I (Documents of the African Commission, p. 518). E. V. O. Dankwa, Prisons in Mozambique: Report of the Special Rapporteur on Prisons and Conditions of Detention, Report on a Visit 14–24 December 1997, Series IV, No. 3 (Documents of the African Commission, p. 645). No report arising from this visit has been produced. E. V. O. Dankwa, Prisons in Mali: Report of the Special Rapporteur on Prisons and Conditions of Detention, Report on a Visit 20–30 August 1997, Series IV, No. 2 (Documents of the African Commission, p. 625); E. V. O. Dankwa, Mali Prisons Revisited: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, Report on a Visit 27 November– 8 December 1998, Series IV, No. 4.

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The Gambia (June 1999),60 Benin (August 1999)61 and the Central African Republic (June 2000).62 While Commissioner Chirwa held the post, she was similarly prolific in the number of States she visited, for example undertaking missions to Cameroon,63 Ethiopia64 and South Africa.65 Commissioner Malila, however, does not appear to have taken any missions to States since taking up position. The earlier published reports on these visits reveal the basic methodological approach to the conduct of a visit, which usually lasts between a week and ten days. During this time, the Special Rapporteur meets with relevant government officials – including the Attorney-General, Secretaries and Ministers for Justice, Commissioners or Directors for Prisons, magistrates and police officials – as well as local NGOs working in prison reform. The Special Rapporteur is usually accompanied on these visits by a representative from Penal Reform International (PRI). The number of places of detention visited varies, but there has been an attempt to cover prisons outside, as well as within, the capital city. At these institutions, the Special Rapporteur spends some time talking with prisoners in private. At the end of each visit, the Special Rapporteur draws up a report, which may begin with a description of the background concerning the country concerned, before going on to note the number of prisons and the prison population. Those reports that were published do not follow a stereotypical pattern, but almost all demonstrate a particular interest in, and awareness of, issues concerning overcrowding, whether females are housed with males, and children with adults, the number of remand prisoners, discipline and disappearances, as well as the judicial process. Other more particularised concerns are also raised.66 Reports themselves are detailed, and give clear recommendations directed both to the State and to particular institutions. Examples include: 60 61 62 63 64 66

E. V. O. Dankwa, Prisons in The Gambia: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, Report on a Visit 21–26 June 1999, Series IV, No. 5. E. V. O. Dankwa, Prisons in Benin: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, Report on a Visit 23–31 August 1999, Series IV, No. 6. E. V. O. Dankwa, Prisons in the Central African Republic: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, 19–29 June 2000, Series IV, No. 7. From 2–15 September 2002, Eigthteenth Annual Activity Report 2004–2005, para. 23. 65 From 15–29 March 2004, ibid. From 14–30 June 2004, ibid. For example, the 1997 Report on Prisons in Mali raised the following issues: the state of the buildings, staffing and training, workshops for prisoners, how young offenders are dealt with, possibilities for community service, provision of healthcare, the standard and quantity of food, mail, clothing, visits, games and exercise, complaints procedures and personal hygiene.

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the attire of the prisoners, the need to reduce the period of remand, training in human rights for officers, the need to ‘orient public attitude to accepting that rehabilitation does occur by employing ex-convicts whenever there is the opportunity to do so’, and to consider ‘the appropriateness of extending community service to juveniles’.67 They have also covered the need for speedy investigation of cases and trials, to reconsider criminalisation of street vending, requirements that the diet of prisoners be supplemented by crops and fruit that they grow on the prisonland themselves, and enabling prisoners to use the soap that they make.68 The Special Rapporteur has issued press releases at the end of the visits,69 and has developed the practice of publishing the comments of the governments on the recommendations alongside the report.70 Unfortunately, since the ability of the NGO PRI to provide funding to the Special Rapporteur has been lost, so has the quality and regularity of the reports. What is more common now is for the Commissioner to present an oral report at the session of the activities that he or she has undertaken in their capacity as Special Rapporteur, followed by a summary of the visits that were taken, in a separate document, and the Annual Activity Report.71 The detailed reports on each separate country appear to be a thing of the past. Besides these country visits, Commissioner Chirwa also, at the conclusion of her mandate at the 37th Session of the Commission in 2005, outlined a number of other ways in which the Commission could enhance rights of those in detention, including through the creation of a working group on the death penalty, and the consideration of the establishment of an African Prisons Hotline, with the intention that the latter be broadened to encompass all special mechanisms.72 The aim of the Hotline was to give, via email and telephone, easier access to the Special Rapporteur to individuals and the public who had been deprived of their liberty, in order that they may report incidents of violations, as well as to share 67 68 69 70

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Report on Visit to Zimbabwe, Recommendations 1, 3, 4, 7 and 8. Report on Prisons in Mozambique, Recommendations 1, 7, 9 and 10. Report on Prisons in Mali, Press Release. See, for example, Comments by Government of Mali, ibid., p. 636 and by the Government of Mozambique (see note 68), pp. 662–4. Neither, it should be said, were fulsome or comprehensive. The comments of Mali amounted to two short and terse paragraphs, while those of Mozambique, though longer, were principally confined to factual clarifications of the periods of pre-trial custody sanctioned by law. E.g., see Eigthteenth Annual Report 2004–2005, para. 24. Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa to the 37th Ordinary Session of the African Commission, on file with author, paras. 19–21.

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information and best practice.73 Whilst the Working Group on the Death Penalty has been brought into being, the Hotline has yet to see the light of day. It is always difficult to assess the impact and effectiveness of any human rights mechanism, but some degree of success of the Special Rapporteur on Prisons and Conditions of Detention is perhaps evidenced by the followup visits, for example, as was conducted to Mali in November–December 1998.74 As a result, the appointments have been hailed as a success, and there appears to be a certain amount of relief from the Commission, which felt blighted by the inactivity of its previous appointment. Clearly, there are concrete positive results, and these are enhanced considerably by the dynamism and commitment of the Special Rapporteurs themselves. However, there is also a recognition that these successes have also been heavily dependent upon the support given by NGOs.75 This Special Rapporteur has been particularly vulnerable to the funding base of a particular NGO (PRI), and when this was lost, the work of the Special Rapporteur suffered as a result. In 2003, the UK Foreign and Commonwealth Office funded a post at the Secretariat of the Commission to support the Special Rapporteur. While focusing on conducting visits to States has enabled some impact to be made on the ground, the consistency of the standards applied by the Special Rapporteur in assessing the detention conditions 73 74

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Proposal for the Establishment of an African Prisons Hotline, 36th Session of the Commission, DOC/OS/(XXXVI)/387p. Following his first visit in 1997, a long list of recommendations was made, including: (1) the need for light and air and improvement of conditions in cells in Mopti prisons; (2) that there should be no more chaining of prisoners; (3) that there should be no more assaults on prisoners, and an inquiry should be held into such instances; (4) that guards should be trained not to assault prisoners; (5) that those on remand should be given early release or tried; (6) that certain prisons should receive urgent attention; (7) that keeping female prisoners in private houses is not satisfactory; (8) that new prisons should be built with separate sections for women and children; (9) that remand prisoners should be kept separate from convicted prisoners; (10) that the tense atmosphere within the institution should be reduced; (11) that guards should not be made to work 24 hours a day or seven days a week; (12) that preferential treatment should not be given to civil servants; (13) that prisoners should have blankets, mats, soap and clothing; (14) that the granting of an amnesty should be considered; (15) that female guards be trained for some duties; and (16) that NGOs should be encouraged to visit prisons. Despite concerns noted during his second visit a year later, he concluded that the ‘government is serious about prison reform. It is willing to learn from and share ideas on the subject with others. It recognises that much work has to be done in this area.’ The Special Rapporteur noted that the Government had been willing to open its prisons, that there were ‘dedicated and conscientious prison staff’, and that it had ‘implemented some of the recommendations’ in his first report. See Mali Prisons Revisited Report, p. 44. This will be discussed below.

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in places that are visited is not apparent.76 Although the reports refer to the African Charter, the UN Standard Minimum Rules for the Treatment of Prisoners and the Robben Island Guidelines, the manner in which they do so is not always consistent, and whilst one might be able to imply from the reports what is the appropriate level of treatment for detainees, the Special Rapporteur has not formulated any policy guidance on these matters.

The Special Rapporteur on the Rights of Women in Africa The initial impetus for the appointment of a Special Rapporteur on the Rights of Women in Africa appears to have come from a ‘Seminar on the Rights of Women in Africa and the African Charter on Human and Peoples’ Rights’, organised in 1995, the recommendations of which suggested that such a person would be responsible for ‘the protection of women’s rights’.77 At this stage, the Commission itself did not adopt a position regarding this proposal, but at the 19th Session in March–April 1996, it approved the creation of the mandate.78 As with the Special Rapporteur on Prisons and Conditions of Detention, and unlike the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, however, the Commission refrained from appointing an individual to the position until draft terms of reference had been determined, the clear intention being that the appointment be made at the following session.79 This did not in fact happen, although the Commission’s activity report for the period records, in a section headed ‘Special Rapporteur on the Rights of Women’, that three Commissioners were appointed to work on a draft protocol on the rights of women, these being Commissioners Dankwa, Duarte Martins and Ondziel-Gnelenga.80 Nevertheless, the Final Communiqu´e of the 17th Session reiterated the Commission’s commitment to the appointment of the Special Rapporteur.81 As with the appointment of the Special Rapporteur on Prisons and Conditions of Detention, it appears that the Commission was prepared to consider applications from experts in the field, rather than limit the 76 77 78 80

81

See R. Murray, ‘Prisons in Africa: The Approach of the African Commission on Human and Peoples’ Rights’ in J. Sarkin, Prisons in Africa, forthcoming. Final Communiqu´e of the Seventeenth Session, para. 28. 79 Ninth Activity Report 1995–1996, para. 19. Ibid. Tenth Activity Report 1995–1996, para. 20. Such a Protocol had also been called for at the 1995 Seminar, and was agreed upon by the Commission at the 19th Session. See Final Communiqu´e of the Seventeenth Session, para. 28(i). Final Communiqu´e of the Twentieth Session, para. 19.

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field of choice to serving Commissioners.82 The draft terms of reference83 also support this view: they set out a number of criteria concerning the appointment of the Special Rapporteur,84 and established a procedure by which the Working Group – presumably the Group created at the 20th Session to draft the protocol on women’s rights – was to propose a candidate.85 There is, however, a sense of inevitability about the outcome, and the Working Group ultimately proposed that one of its own members, Commissioner Ondziel-Gnelenga, should occupy the position,86 although this was not formally endorsed by the Commission until the 25th Session of the Commission in April–May 1999, this being retrospective, with the appointment taking effect from 31 October 1998.87 The terms of reference themselves are couched in expansive terms, and provide that the Special Rapporteur is:88 82 83 84

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Ninth Activity Report 1995–1996, para. 19, certainly implies that it was envisaged that the appointment might be made from outside the ranks of the Commission itself. Draft Terms of Reference for the Special Rapporteur on the Rights of Women in Africa, DOC/OS/34c(XMII), Annex II (Documents of the African Commission, p. 490), para. I. They provide that the appointed person should be a citizen of a State Party to the Charter, ‘have a high consideration and competence in matters of women’s rights’ and ‘must accept and be committed to execute, within the time allowed, the duty as defined in the terms of reference and [be] wholly responsible to the Commission’: draft Terms of Reference, Section II. See draft Terms of Reference, Section III. The record concerning the drawing up of the terms of reference for the mandate appears confusing. It appears that they were drawn up by the Working Group in January 1998. However, the opening sections of the draft imply that it was being drawn up prior to the 20th Session, at which the appointment was to have been made, and the sections concerning the criteria for appointment would support that. They certainly seem odd – even embarrassing – in light of the recommendation made at that very meeting to appoint a member of the Working Group to the position (for which see below). It may well be a composite document. Draft Terms of Reference, Section III, ‘Nota Bena’. It should also be noted that, when taking the original decision to appoint a Special Rapporteur, the Commission had called for CVs from interested individuals who would work under the guidance of two named Commissioners, Professor Dankwa and Dr Duarte Martins, ‘who have experience in this field’ (see Ninth Activity Report, para. 19). The particular experience in the field of women’s rights of the Special Rapporteur has not been made manifest, other than her having been the third member of the Working Group appointed to draft the Protocol, which is, presumably, relevant expertise. Resolution on the Designation of a Special Rapporteur on the Rights of Women in Africa, Twelfth Activity Report 1998–1999, Annex IV (Documents of the African Commission, p. 711). Her appointment to this position by the Working Group had been noted at the 23rd Session of the Commission in April 1998. See Eleventh Activity Report 1997–1998, para. 33. Draft Terms of Reference, Section I, para. 1.

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the african charter on human and peoples’ rights (a) To carry out a study on the situation of the human rights of women in Africa. (b) To draw up guidelines on the drafting and examination of States Parties’ reports on the rights of women in Africa. (c) Ensure or make a follow up on the implementation of the Charter by States Parties. In this vein, the Special Rapporteur will prepare a report on the situation of violations of women’s rights and propose recommendations to the Commission. (d) The Special Rapporteur will assist African Governments in the development and implementation of their policies of promoting and protecting women’s rights in Africa. (e) He or she will encourage and work with NGOs in the field of promotion and protection of women’s rights. (f) He or she will serve as a link between the Commission and intergovernmental and non-governmental organisations at regional and international levels in order to harmonise the initiatives on the rights of women. (g) In this regard, the Special Rapporteur will collaborate with Special Rapporteurs from the UN and other regional systems.

The mandate was initially set to expire in 2002, a relatively long fouryear timescale, and an interim report addressing the substance of the subject-matter of the mandate was to be submitted within two years, along with proposals for the future.89 In addition, the Special Rapporteur was required to submit a progress report to the Commission at each session, and present an annual report to the Assembly of Heads of State and Government, annexed to that of the Commission.90 At this stage, however, the question of financial provision remained to be settled,91 although the Commission now appears to have received some funding from a Canadian NGO for an assistant to the Special Rapporteur, and further assistance has been provided by the Centre for Human Rights in the University of Pretoria and the NGO Interights. In its 11th Activity Report, the Commission noted that the Special Rapporteur was expected to submit an interim report to the 24th Session of the Commission,92 and at that session it was noted that she had indeed presented a preliminary report pertaining to her mandate, as well as reporting on activities so far undertaken.93 At the 30th Session of the Commission in October 2001, one of the then newly appointed Commissioners, 89 92 93

90 91 Ibid., Section I, 2. Ibid., Section I, 4. Ibid. Eleventh Activity Report 1997–1998, para. 33. Twelfth Activity Report 1998–1999, paras. 28–9.

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Dr. Angelo Melo, took over the position, initially with a mandate of two years, which was subsequently renewed in December 2005.94 During the course of her mandate, she has undertaken some missions to States Parties,95 attended various meetings with international organisations (NGOs and others) and contributed to international events and conferences.96 The objectives for 2003–2004 were broadly defined: – to work towards the adoption, ratification and implementation of the Protocol; – To contribute to the Review of the African Regional Conference of Beijing and Dakar Plus 10 by presenting an evaluation of the implementation of 232(i) and 233(d) of the Beijing Programme of Action; – To encourage member states to be responsible for the training of the judiciary and para-legal (judges, the Bar and the para-legals), the Police, Prison Officials and customary judges, on issues relating to the rights of women; – To build the capacity of advocates of women’s rights in educating everyone on the rights of women.97

Implementation of this programme was to be achieved through recruiting a consultant to assist in drafting questionnaires and disseminating them to various sub-regions, in order to conduct research on the education of the rights of women and administration of justice, as well as compiling training modules for various professional women, and organising a regional meeting on women’s rights education.98 The record of the Special Rapporteur, however, gives the impression that, although she has more recently spent time visiting African countries and collecting information in respect of her wider mandate, her main 94

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Resolution on the Renewal of the Term of the Special Rapporteur on the Rights of Women in Africa, Thirty-eighth Ordinary Session of the Commission, Banjul, The Gambia, 5 December 2005; Nineteenth Annual Activity Report 2005, para. 8. E.g., a promotional mission to Djibouti from 14 to 17 September 2002, and Sudan from 30 March to 4 April 2003: see Nineteenth Annual Activity Report 2005, para. 19(c); to Angola, from 27 September to 2 October 2002: see Activity Report by Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa to the 33rd Ordinary Session of the African Commission, 15–19 May 2003, paras. 6–8; to DRC, see Twentieth Activity Report January–June 2006, para. 14(b); and to Cape Verde, see Twenty-first Activity Report May–December 2006, para. 65(c). See, e.g., Twentieth Activity Report 2006, para. 30; Twenty-first Activity Report 2006, para. 37. Report of the Special Rapporteur on the Rights of Women in Africa to the 33rd Session of the African Commission, May 2003 Report of the Special Rapporteur on the Rights of Women in Africa to the 33rd Session of the African Commission, May 2003.

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focus has been on the development of the Protocol on the Rights of Women in Africa, and ensuring its ratification and successful coming into force.99 Although her reports are now often available at the sessions, this is not always the case, and what is provided is no more than a summary of her activities.100 Beyond the ratification of the Protocol, no reports on the various studies she has undertaken have been disseminated or approved by the Commission. Given that the Protocol appears to have been the context out of which the appointment was made, this is not, perhaps, surprising. Much of the detail on any recent research carried out, however, has once again been provided orally at sessions. The very visibility of the Special Rapporteur on Prisons and Conditions of Detention provides a stark contrast to the limited written record available for the Special Rapporteur on the Rights of Women.

Special Rapporteur on refugees, asylum seekers and internally displaced persons After the establishment of the above three special rapporteurs, and the embarrassment caused by the failures of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, the Commission was forced to rethink its approach to these bodies. At the 27th and 28th Sessions, representatives of both Amnesty International and Interights asked the Commission to review the whole process of its special rapporteur mechanisms. The Institute for Human Rights and Development, citing its experience with the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, asked the Commission to consider, in the future, appointing non-members of the Commission as special rapporteurs, to ensure that the terms of reference, the duration of mandates and the aims of each special rapporteur are made clear, to appoint special working groups to advise the special rapporteurs, and to allocate a portion of the Commission’s own budget to the special rapporteurs in order to fund their core activities, accepting that additional funding could be sought from elsewhere. Although, at the session, the only response from the Commission to these eminently sensible suggestions was a request by the Chairperson that this statement be made available in writing to the Secretariat. In 99 100

See Chapter 13. See, e.g., Rapport d’Activit´es d’Intersession de la Rapporteure Sp´eciale sur les Droits de la Femme en Afrique, to the 37th Session of the African Commission, 27 April–11 May 2005.

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addition, despite being asked to do so, the Commission was reluctant to appoint further special rapporteurs, and committed itself to undertaking a review of these mechanisms. This suggests that it did seem to take on board these concerns. This review, however, was not made public, and there was no detailed discussion during the public sittings of the Commission (it is possible that this did take place in private) about many of the concerns that the special rapporteur systems raised. While the review was ongoing, the Commission adopted an interim solution to appease those calling for more thematic mandates: first, with the appointment of ‘focal points’ on particular issues;101 and second, with the creation of working groups. The working group model has proved to be particularly effective, and avoids some of the difficulties faced by the special rapporteurs, as outlined below.102 It is not entirely clear, however, why the Commission still chose to proceed with the establishment of focal points, selecting Commissioners to act in these capacities, on three further themes that, on the face of it, look to be little different from the special rapporteurs, apart from in name. This was borne out when the Commission completed its review of the special rapporteur procedures – apparently deciding that little needed to be changed – and proceeded to turn the focal points into special rapporteurs. As will be discussed below, it is a great shame that this opportunity was not used to evaluate properly some of the inherent difficulties in these mechanisms. The Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons is one of the outcomes of this process, and is the result of collaboration between the UNHCR and the African Commission. After several initiatives at the level of the OAU,103 and the attendance of representatives of the UNHCR at sessions of the African Commission, at its 34th 101

102 103

The Commission noted in its 17th Annual Activity Report, ‘Because the Special Rapporteur Mechanism of the African Commission was not very successful, the African Commission decided to undertake a review of this Mechanism. However, there were projects already underway between the African Commission and its partners. In view of this, the African Commission decided to appoint focal persons as a stop gap measure until such a time when the African Commission had finalised its review of the special rapporteur mechanism’: Seventeenth Annual Activity Report 2003–2004, para. 32. See Chapter 11. E.g., Khartoum Recommendations of the OAU Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa, adopted at the OAU Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa, 13–14 December 1998, Khartoum, The Sudan; Addis Ababa Document on Refugees and Forced Population Displacements in Africa, adopted by the OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa, 8–10 September 1994, Addis Ababa, Ethiopia, Special Issue, International Journal of Refugee Law (1995) 303–19.

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Session in November 2003, the Commission adopted a Memorandum of Understanding with the UNHCR.104 This outlined various methods of collaboration between the two institutions, including that each should appoint a ‘focal point’ which, in the case of the African Commission, should be ‘one member of the African Commission’ and ‘if possible a Committee composed of two additional Commissioners with the focal Commissioner designated as Chairperson, and with the assistance of a Legal Officer’. At the same session, it appointed Commissioner Bahame Tom Nyanduga as Focal Person on Refugees and Displaced Persons in Africa,105 financial support being provided by the Office of the UN High Commissioner for Human Rights.106 His mandate was then converted to Special Rapporteur at the subsequent session in May 2004.107 No specific guidelines on his mandate were produced at that time,108 other than general references to his role to ‘ensure the implementation of the Memorandum of Understanding’ with the UNHCR,109 the latter concentrating more on institutional collaboration rather than specific tasks for the Special Rapporteur. It was only several months later at the 36th Session of the Commission that the mandate of the Special Rapporteur was outlined.110 The terms of reference take a similar approach to those of other special rapporteurs in their breadth and generality, encompassing the requirement that he undertake studies, research and fact-finding missions on protection of refugees, asylum seekers and internally displaced persons, as well as co-operating with and assisting States in developing appropriate policies and legislation for their protection, recommending ‘effective strategies to better protect’ their rights, raising awareness and submitting 104

105 106 107 108

109 110

See Modalities for the Operationalisation of the Memorandum of Understanding between the African Commission on Human and Peoples’ Rights and the United Nations High Commissioner for Refugees, Seventeenth Annual Activity Report 2003–2004, Annex IV. Seventeenth Annual Activity Report 2003–2004, para. 32. Nineteenth Annual Activity Report 2005, para. 61. Seventeenth Annual Activity Report 2003–2004, para. 34. ‘At the time of the appointment, the terms of reference of the Special Rapporteur had not been adopted. Draft Terms of Reference have been prepared and will be submitted for discussion and adoption by the Commission during the 36th session. The Commission decided that, pending the adoption of the TOR the Special Rapporteur shall continue with work which has started when acting as a focal point on refugees and IDPs’: Report of the Special Rapporteur on Refugees and Internally Displaced Persons in Africa to the 36th Session of the African Commission, Dakar, Senegal, on file with author. Seventeenth Annual Activity Report 2003–2004, para. 44. Resolution on the Mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa, 23 November–7 December 2004, ACHPR/Res.72(XXXVI)04.

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reports to each session of the Commission. In implementing this mandate, Commissioner Nyanduga has developed contacts with the AU Commission on Refugees, the Coordinating Office on Humanitarian and Refugee Matters in the Department of Political Affairs of the AU Commission, and the regional liaison office of the UNCHR in Addis Ababa.111 Beyond this, his work has involved writing academic papers,112 participating in protective missions, organised by the AU113 and African Commission,114 to certain States, as well as promotional visits.115 With information gleaned from these visits, he has also approached the AU and African Commission to take action.116 His reports have included not only detail on his activities but also an attempt to outline the situation of refugees in Africa and concerns in particular countries.117 In some instances, he has gone so far as to condemn the governments for violations of the African Charter towards refugees in their jurisdictions.118 While the commitment of the particular Commissioner to his post is not an issue, what the Special Rapporteur has found more problematic is how to deal with instances 111

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Report of the Special Rapporteur on Refugees and Internally Displaced Persons in Africa to the 36th Session of the African Commission, Dakar, Senegal, on file with author, p. 1; see also Twentieth Activity Report 2006, para. 44. Report of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa to the 37th Session of the African Commission, 27 April 2005–11 May 2005, Banjul, The Gambia, on file with author, pp. 1–2. E.g., to Sudan, June 2004; Burundi, August 2004; Darfur, June 2005; and Zimbabwe, June 2005. E.g., as part of the African Commission’s fact-finding mission to Darfur, July 2004: see Report of the Special Rapporteur on Refugees and Internally Displaced Persons in Africa to the 36th Session of the African Commission, Dakar, Senegal, on file with author, p. 2. E.g., to Seychelles in July 2004: see Report of the Special Rapporteur on Refugees and Internally Displaced Persons in Africa to the 36th Session of the African Commission, Dakar, Senegal, on file with author, p. 2. E.g., he requested the Chairperson of the African Commission to ‘intervene with the DRC authorities to ensure the safety of the returnees. The Commission should take further action including the sending of a mission to investigate and highlight the plight of the Banyamulenge in the DRC, and remind the government of the DRC to treat their citizens equally as provided for under the Charter’: Report of the Special Rapporteur on Refugees and Internally Displaced Persons in Africa to the 36th Session of the African Commission, Dakar, Senegal, on file with author, p. 3. See, e.g., Twentieth Activity Report 2006, para. 31. E.g., noting reports of Zimbabwean refugees being ill-treated in Botswana, the Special Rapporteur’s report stressed that ‘the African Charter recognises the right to seek asylum. It is therefore contrary to the African Charter and the OAU 1969 Refugees Convention for Botswana to treat the Zimbabwe refugees in that manner’: Report of the Special Rapporteur on Refugees and Internally Displaced Persons in Africa to the 36th Session of the African Commission, Dakar, Senegal, on file with author, pp. 5–6. See also Twentieth Activity Report 2006, para. 31.

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where he is directly approached by individuals who are displaced or who are refugees, requesting specific assistance in their particular case. Noting that ‘the Commission and the Special Rapporteur do not have institution capacity to respond materially or physically to these requests’, the role that is envisaged is to ‘remind governments to adhere to their obligations under the Charter and other human rights instruments, and remedy the violations complained against by these individuals’.119 Beyond making representations directly to government in more general situations,120 how this is to be achieved, however, is not specifically detailed, and there is no clear connection between the communication mechanism and a request to the Special Rapporteur. One task that the Special Rapporteur has not dealt with fully is standard-setting and elaboration of guidelines on these issues. To a certain extent, his involvement in AU-level discussions on a draft protocol on internally displaced persons is evidence of some attention to this role,121 but at the level of the African Commission, this has not yet occurred. One of the reasons for encouraging the relationship between the African Commission and UNCHR was the lack of enforcement mechanisms under the 1969 OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa,122 and the hope that the African Commission may be able to fill part of this role.123 The Special Rapporteur is one manifestation of this approach. Whilst interaction between these two bodies, the African Commission and the UNHCR, is to be welcomed in principle, the nature of the situation of refugees and internally displaced persons in Africa 119 120

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Report of the Special Rapporteur on Refugees and Internally Displaced Persons in Africa to the 36th Session of the African Commission, Dakar, Senegal, on file with author, p. 8. E.g., in relation to the Murambatsvina operation in Zimbabwe, the Special Rapporteur wrote to the Minister of Foreign Affairs requesting the Government to ‘halt the eviction and demolition exercise, and assist the victims of the operation, by providing them with humanitarian assistance in the form of temporary shelter, accommodation, food, water, medicines and other forms of assistance, while looking for an amicable solution to the illegal settlements and squatter problem in a manner that upholds the dignity of the individuals and the families, which have become victims of the . . . operations’: Nineteenth Annual Activity Report 2005–2006, para. 38. See Nineteenth Annual Activity Report 2005–2006, para. 40. 10 September 1969, AHSG, CAB/LEG/24.3. Report of the Meeting of Experts of the First AU Ministerial Conference on Human Rights in Africa, at para. 40(2). Draft Report of the Consultative Meeting between the African Commission on Human and Peoples’ Rights and the United Nations High Commissioner for Refugees, 20–21 March 2003, Addis Ababa, Ethiopia (no reference, on file with author), Conclusions and Recommendations, Annex I, para. 7.

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is too large a task to give to one Commissioner. Without more focused consideration of the specific and realistic role the African Commission can play, as with the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, so this Special Rapporteur runs the risk of drowning in the enormity of his task.

Special Rapporteur on Human Rights Defenders in Africa With the adoption of the Declaration on Human Rights Defenders by the UN in 1998,124 NGOs participating in the sessions of the African Commission have used this document to call for the African Commission to adopt something similar.125 After the appointment of a Special Representative under the UN system,126 and the raising of high profile cases by NGOs during sessions of the African Commission, such as the death of human rights activist Norbert Zongo in Burkina Faso in 1998, the African Commission appeared to respond to this issue with the inclusion of this item on its agenda and the eventual decision in November 2003 to appoint a focal point on Human Rights Defenders in Africa for a period of two years.127 As with other focal points and special rapporteurs, her mandate was not defined until later – in this case, when the Commission made the decision to create the position of Special Rapporteur from the focal point at its 35th Session in June 2004.128 Funded by the Office of the UN High Commissioner for Human Rights,129 and with a mandate similarly broad and general to many of the other of the African Commission’s special rapporteurs, it required the Special Rapporteur to ‘seek, receive, examine and act upon information’ on the situation of human rights defenders, report to each session of the African Commission, co-operate 124

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Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN General Assembly Resolution A/RES/53/144, 8 March 1999. See, e.g., Resolution of the 14th ICJ workshop for NGOs, held prior to the 28th Session of the Commission, October 2000, which called upon the Commission to appoint a special rapporteur: ‘Recommendation on the Human Rights Situation in Africa’, 14th ICJ Workshop. Special Representative of the UN Secretary General on Human Rights Defenders, Resolution E/CN.4/RES/2000/61, 26 April 2000. Commissioner Jainaba Johm was appointed to this position. Resolution on the Protection of Human Rights Defenders in Africa, 35th Session of the Commission, 21 May–4 June 2004, Banjul, The Gambia. See Eighteenth Annual Activity Report 2004–2005, para. 67; Twentieth Activity Report 2006, para. 49, although this was only until June 2006.

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with States, national human rights institutions, international and regional bodies and human rights defenders, ‘develop and recommend effective strategies to better protect human rights defenders’ and raise awareness of the UN Declaration on Human Rights Defenders in Africa. Commissioner Jainaba Johm was initially nominated as focal point, then as Special Rapporteur, her mandate extending in December 2005 for a further two years. She was then replaced by Commissioner Reine Alapini-Gansou when Jainaba Johm was not re-elected to the Commission.130 In practice, Commissioner Johm’s work has involved discussing issues with NGOs, attending conferences and other events, issuing joint statements with her UN and Inter-American counterparts131 and meeting with human rights defenders themselves. The outcome has been general concerns expressed with the situation of human rights defenders in particular named States, and appeals made directly to States on behalf of named individuals.132 The visibility of some of these interventions, however, due to their sensitive and confidential nature, has not always been possible, thus making it difficult to evaluate Commissioner Johm’s contribution to any real extent. However, she has been a regular attendee at the NGO forum, which is held prior to each Commission session, and made a point of engaging with NGOs as well as with contacts at the UN. There is a sense that her interventions have been taken seriously by States, so much so, in fact, that this led to States campaigning actively for her not to be re-elected to the Commission when her term of office as Commissioner came up for renewal. Commissioner Reine Alapini-Gansou, appointed in her place, has also followed this robust approach, not only participating in seminars and events, and meeting with her UN and European counterparts,133 but also intervening on behalf of individuals.134

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Resolution on the Appointment of a Special Rapporteur on Human Rights Defenders in Africa, 38th Ordinary Session of the Commission, 21 November–5 November 2005. See Inter-Session Activity Report presented by Commissioner Jainaba Johm in her Capacity as Commissioner and Special Rapporteur on Human Rights Defenders, 37th Ordinary Session of the Commission, 27 April–11 May 2005, p. 3. See for example, where appeals were made to the governments of Zimbabwe and Sudan regarding legislative provisions and human rights activists held in detention respectively, Eighteenth Annual Activity Report 2004–2005, para. 27. Twenty-first Activity Report 2006, paras. 46–8. E.g., in relation to the removal of the Chief Executive of the Nigerian National Human Rights Commission, Bukhari Bello: see Twenty-first Activity Report 2006, para. 49.

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Special rapporteur on freedom of expression in Africa As with all the other special rapporteur mechanisms, the appointment of a Special Rapporteur on Freedom of Expression was the result of lobbying by NGOs, in particular the NGO Article 19, for the Commission to adopt guidelines and a policy on the issue. Initially, a working group was established,135 whose input culminated in a seminar in Pretoria in May 2002, leading to the adoption of a Declaration of Principles on Freedom of Expression in Africa (‘the Pretoria Declaration’).136 The role of the focal point, who was only appointed at the 34th Session in November 2003137 and later transformed into a special rapporteur shortly thereafter,138 therefore, was to follow up these guidelines rather than attempt to formulate further standards.139 When Andrew Chigovera’s term as Commissioner ended in July 2005, Commissioner Faith Pansy Tlakula was appointed, in the following session, as Special Rapporteur on Freedom of Expression in Africa, and the mandate was extended until December 2007.140 Perhaps because considerable attention had already been paid to the issue prior to his nomination, Andrew Chigovera’s initial achievements, based on a similarly broad mandate as has been defined for other special

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At its 29th session in April and May 2001, the Commission adopted a Resolution on Freedom of Expression in which it decided: ‘1. To develop and adopt, through a consultative process, a Declaration of Principles on Freedom of Expression, drawn from a comprehensive range on international standards and jurisprudence, to elaborate and expound the nature, content and extent of the right to freedom of expression provided for under Article 9 of the African Charter; 2. To initiate an appropriate mechanism to assist it review and monitor adherence to freedom of expression standards in general, the Declaration in particular to investigate violations and make appropriate recommendations to the Commission; 3. To hold periodic meetings with NGOs and African journalists to review progress in guaranteeing freedom of expression across the continent and in implementing the Declaration of Principles’; Resolution on Freedom of Expression, ACHPR/Res.54(XXIX)01. A working group was appointed at the 30th Session of the Commission, composed of Commissioners and NGO representatives. Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, October 2002, ACHPR/Res.62(XXXII)02. Andrew Chigovera was appointed to this position. At the 35th Session of the Commission: see Seventeenth Annual Activity Report 2003– 2004, para. 34. ‘With the fundamental role of increasing the efficiency of the Commission’s actions to promote and protect freedom of expression in Africa’: Eighteenth Annual Activity Report 2004–2005, para. 34. At the 38th Session of the Commission: see Nineteenth Annual Activity Report 2005, para. 8; Resolution on the Appointment of a Special Rapporteur on Freedom of Expression in Africa, 5 December 2005.

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rapporteurs,141 have been limited.142 The first Special Rapporteur himself expressed his disquiet with the lack of clear mandate and financial support, and the implications that this would have on his ability to carry out his role effectively: ‘the absence of any information on how the Commission envisages sustaining any new mechanism inhibited the production of any long term work plan’.143 Thus, although he was alerted to situations of concern in some countries, he felt unable to assist ‘as my mandate did not extend beyond the development of the mandate of the mechanism’.144 Since taking up the position, Commissioner Tlakula has become more visible, meeting with similar rapporteurs at the level of the UN, OAS and Europe,145 and intervening on behalf of those whose rights are alleged to have been violated.146

Assessment and Difficulties There would appear to be a number of issues relevant to the appointment of all the special rapporteurs, which are central to an evaluation of their successes and failures.

All Special Rapporteurs have been commissioners As the result of what would appear to be a reticence on the part of the Commission to delegate some responsibility to those outside of its membership, all six special rapporteurs have been serving members of the Commission. This is despite the fact that, in at least two cases, the Commission appears at some stage to have contemplated and started the process of advertising for non-members to be appointed. 141

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Resolution on the Mandate and Appointment of a Special Rapporteur on Freedom of Expression in Africa, 23 November–7 December 2004, ACHPR/Res.71(XXXVI)04, namely to analyse relevant legislation and advise States on their compliance with human rights standards, undertake missions to States, make public interventions where necessary, keep a record of violations that have been committed and submit a report to each session of the Commission. For example, to visiting other regional mechanisms: See, e.g., visits that were made to the Inter-American system: Eighteenth Annual Activity Report 2004–2005, para. 34. Report of Commissioner A.R. Chigovera, Focal Point on Freedom of Expression, item 9(f), on file with author. E.g., in relation to the NGO Bill in Zimbabwe and generally in The Gambia, see Report of Commissioner A.R. Chigovera, Focal Point on Freedom of Expression, item 9(f), on file with author. Twentieth Activity Report 2006, para. 32. Twenty-first Activity Report 2006, para. 50.

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There are a number of difficulties with appointing members of the Commission as special rapporteurs. Despite the belief that having these roles occupied by its own members will ensure that the Commission would have a degree of control over their functioning, the Commission has, ironically, although unsurprisingly, found it difficult and uncomfortable to have to reprimand its own members for any shortcomings. It might be less reticent in doing so if the individual in question were answerable to the Commission but were not a part of it. In addition, adding further burdens to Commissioners who already only act in that capacity on a part-time basis is wholly unrealistic, compounded by their being required to function in areas that may be far removed from their full-time professional expertise.147 Indeed, the very independence of some Commissioners has been a constant source of debate, and, while political connections of members need not necessarily conflict with their work as members of the Commission, the sensitivity of some tasks – particularly in relation to extrajudicial executions – is such that it is certainly arguable that it is inappropriate for those holding ambassadorial, government or similar office to undertake such roles. As will be discussed in Chapter 11, the establishment of working groups – groups acting under the leadership and guidance of one or two Commissioners but which involve outside assistance – rather than appointing special rapporteurs, offers a more appropriate solution. These thematic groups that embrace external assistance and expertise have a better track record of delivering results.

Reliance on NGOs All the special rapporteur mandates have come about as the result of lobbying by NGOs. Certainly, the successes and recent limited visibility of the Special Rapporteur on Prisons and Conditions of Detention in particular, 147

For example, Commissioner Ben Salem was an Ambassador for Tunisia; Commissioner Dankwa was a Professor in Law; Commissioner Ondziel-Gnelenga was a barrister and Commissioner Malila is a lecturer at the University of Zambia and a lawyer specialising mostly in commercial law and contracts. In contrast, Commissioner Vera Chirwa gained particular respect in holding the position of Special Rapporteur on Prisons and Conditions of Detention due to her being held in detention herself under the Banda regime in Malawi. For many of them, however, whilst they may have a more general understanding and experience of international human rights law, they were not an acknowledged expert in the field for which they were chosen as special rapporteurs. Equally, where there is relevant expertise within the Commission, it is not clear whether attempts have been made to utilise it in this fashion.

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when held by Commissioners Dankwa and Chirwa, appear to have been greatly assisted by the support provided by PRI, both before and after the establishment of this post. PRI obtained funding prior to the Special Rapporteur’s appointment, suggested names of individuals who might be appointed to the position and drafted a resolution and terms of reference for the Commission. After the appointment of Commissioner Dankwa as Special Rapporteur, PRI facilitated visits to various States, provided considerable administrative and secretarial support, accompanied him to prisons and other detention centres and produced and helped publish his reports. This contrasts with the assistance offered by the Commission’s Secretariat, which has played a minimal role. While the success of these endeavours can be applauded, it is a matter of concern that the Commission appears to have largely abdicated responsibility for the operation of the mandate to the NGO, although it is quite prepared to accept the praise for its success. This is now made all the more apparent when PRI, due to financial difficulties of its own, could no longer afford to support the Special Rapporteur. Since withdrawal of its support, the inability of the Special Rapporteur to function in the same way has been apparent. The manner in which this particular Special Rapporteur mandate has operated appears to have resulted in the Commission itself accepting that responsibility for the support and functioning of Special Rapporteurs lies with NGOs rather than with the Commission. Indeed, during discussion at sessions, many Commissioners and the Secretary himself have called on NGOs to assist the special rapporteurs with their work, in terms that suggest such a shift. It does not appear that an appropriate balance has been struck between the roles and responsibilities of NGOs and the Commission. Clearly, NGO support is as immensely valuable to the operation of this as to any other human rights mechanism, but the Commission must take responsibility for the actions of its own members, and actions taken in its name. Its failure to do so will only encourage those who have criticised the NGOs for pursuing their own agenda in the name of the Commission. While it would be unwarranted to tarnish all NGOs in this way – and there is certainly no justification for doubting that organisations such as PRI have been doing anything other than showing their wholehearted commitment to the cause of improving prison and detention conditions – it cannot be assumed that all such organisations will be as scrupulous, and the Commission must proceed with due circumspection if it is to retain the confidence of States Parties and NGOs alike. Above all, it must be clear that

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it is the Commission that takes ultimate responsibility for work conducted under the auspices of the mandates that it has created.

Funding A constant source of complaint by many of the special rapporteurs, given as a reason for their relative inactivity, has been lack of funding.148 Although some budgetary allocations have been made at the commencement of the mandates, the Commission has not created a particular budget stream for the special rapporteurs to tap into, and it has been suggested that a certain amount of core funding should be allocated for administrative purposes to support the special rapporteurs in their mandate.149 The Commission should seriously consider such an approach, but given its failure to address this problem itself, the special rapporteurs have found themselves in the position of frequently calling on NGOs to find financial support for their activities. It is a matter of concern, although it is probably because it would be perceived as a purposeless activity, that neither the Commission nor its Secretariat have been the focus of their requests, since they surely ought to bear the primary responsibility in this regard. Clearly, financial and logistical support is required by the special rapporteurs if they are to liaise with governments and organisations, undertake research and conduct visits. The lack of financial assistance may be used as a smokescreen to mask other causes of inaction. Several offers of support have been made by NGOs and others for the work of the special rapporteurs,150 and in cases where funds have been secured, it is not clear from the record that this has had an impact as regards output. This can hardly be a source of encouragement to potential donors. Before appointing individuals to such roles, the Commission must determine whether it can provide the financial and logistical support to enable them to function effectively. The success of the Special Rapporteur on Prisons and Conditions of Detention was due, at least in part, to funding being provided by NGOs in advance of its establishment, thus 148 149 150

See, e.g., Thirteenth Activity Report 1999–2000, paras. 28 and 29. Suggestions made by the Institute of Human Rights and Development (an NGO) at the 28th Session of the Commission. Commission documents have indicated that the ICJ provided some assistance, but it does not detail what this was. See, e.g., Twelfth Activity Report 1998–1999, para. 52; Thirteenth Activity Report, para. 60.

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enabling the Special Rapporteur to start his work immediately upon his appointment. Concrete results were produced and further funding was therefore forthcoming. It is this virtuous circle that needs to be established, although, as noted above, in order to avoid the Special Rapporteur being vulnerable to funding difficulties of a particular NGO, the Commission itself should play a major role in establishing and securing the basic funding.

The lack of a clear mandate As has already been mentioned, an important issue, in particular in respect of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions but applicable to others as well, was the lack of a clear mandate in the first years, which arguably could have had a debilitating impact on the mandate holder as he sought to establish his role and function in a difficult and shifting political climate. This problem was clearly recognised, and the subsequent special rapporteurs’ mandates were more clearly defined at the outset. The mandate of the Special Rapporteur on Prisons and Conditions of Detention appears to have been realistic and to have worked well, whereas it is possible that the mandates of the Special Rapporteurs on Women’s Rights and Refugees, Asylum Seekers and Internally Displaced Persons is too wide to be achievable, but, given the dearth of material upon which they can be judged, it is impossible to say. Clearly, for example, the mandates of these special rapporteurs do embrace a number of fairly precise and achievable functions, such as, in the case of the Special Rapporteur on the Rights of Women, drafting guidelines for State reporting. Other tasks, however, such as an evaluation of women’s rights in Africa and the situation of refugees, are of immense scope and complexity, and arguably require many years’ work if they are to be undertaken properly. Certainly, the timescale set out in the draft terms of reference for the completion of these projects appears hopelessly inadequate, and this can hardly encourage the special rapporteurs to embrace the project with enthusiasm.

Standard setting A useful role that these special rapporteurs could play is in the elaboration of standards and guidelines in the areas for which they have responsibility. Indeed, where this has occurred, the Commission has displayed its

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willingness to push forward the boundaries of law in that area.151 Unfortunately most of the special rapporteurs have failed to grasp this opportunity fully, if at all. Part of this may be due to timing: standards were developed in parallel or prior to their post being created, as is the case with the special rapporteurs on the Rights of Women and Freedom of Expression. It may be partly to do with the lack of expertise in the individual post-holders themselves, a difficulty that the working groups can overcome. The result is, however, that despite carrying out other activities, such as visits and research, they have not acted proactively in setting standards in those areas, or drawing parallels between what has been found in particular States. Setting standards and benchmarks for States could be a concrete contribution to the thematic areas for which they have been appointed.

Conclusion The experience of special rapporteurs within the African human rights system has been mixed: on the whole it has been disappointing and, in some regards, downright embarrassing. The potential that such mandates have to enhance the protection of human and peoples’ rights and to develop the law and practice in the relevant areas is considerable, but, clearly, mandates have not been used as well as they might. If there is one single reform of current practice that needs to be implemented, it is the practice of appointing serving Commissioners as special rapporteurs, which merely assists in compounding the problems that flow from the lack of clarity in the mandates. Indeed, at the 27th Session of the Commission, the Special Rapporteur on Women’s Rights observed that ‘when I’m approached in my capacity as Special Rapporteur, I have reservations because I don’t know if the Commission is not going to receive a communication concerning that situation and then what would my role be? The Special Rapporteurs of the Commission are not like those of the UN who are independent from the Commission.’152 This prompts her to suggest that those outside of the Commission should be appointed to this position. Coming from a post-holder, this is a powerful call. After the resignation of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions and the change of mandate holders for the 151 152

See, e.g., the Report by the Working Group on Indigenous Populations/Communities, Chapter 13; the Protocol on the Rights of Women in Africa, and the Robben Island Guidelines. R. Murray, ‘Transcripts of 27th Session’, p. 48, on file with the author.

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special rapporteurs on Prisons and the Rights of Women, the Commission could have used this opportunity to carry out a serious evaluation of the role and functioning of these mechanisms. Although it did clearly undertake some review, and one positive development, at least, was the establishment of working groups, any conclusions reached have not been made public, and the practice then to appoint further special rapporteurs does not suggest any real change in approach. Any future evaluation is likely to be a long time coming, the Commission having clearly felt that it has done enough in its recently concluded review. In the meantime, one can hope that NGOs will not call on the Commission to appoint further special rapporteurs, but instead turn their attention to the establishment of working groups. As the outcome of one of these working groups is the revision of the Rules of Procedure of the Commission,153 it is also hoped that the Commission will not waste this opportunity to make further changes to enhance the effectiveness of these mechanisms. 153

The Working Group on Issues Relating to the Work of the African Commission: see further, Chapter 11.

11 Working Groups of the African Commission and their Role in the Development of the African Charter on Human and Peoples’ Rights bahame tom mukirya nyanduga ∗

Introduction Throughout its first twenty years of existence, the African Commission on Human and Peoples’ Rights1 (hereinafter referred to as ‘the African Commission’) has evolved methods and mechanisms to discharge its mandate, which is enshrined under Article 45 of the African Charter on Human and Peoples’ Rights (hereinafter to be referred to as ‘the African Charter’). The mandate of the African Commission is to promote and protect human and peoples’ rights in Africa, interpret the African Charter and perform other tasks as may be entrusted to it by the Assembly of the African Union. Article 46 of the African Charter gives the African Commission wide scope to employ various methods in the discharge of its mandate. It specifically states that: [t]he Commission may resort to any appropriate method of investigation, it may hear from the Secretary-General of the Organisation of African Unity or any person capable of enlightening it.

The African Commission has, over the years, established special mechanisms, otherwise known as special rapporteurs, to deal with thematic human and peoples’ rights issues that are of burning and urgent concern on the continent. Similarly, the African Commission has established ∗ 1

The views expressed in this article do not represent the views of the African Commission on Human and Peoples’ Rights. The African Commission on Human and Peoples’ Rights was established under Article 30 of the African Charter on Human and Peoples’ Rights. The African Commission was inaugurated on 2nd November 1987, in Addis Ababa, Ethiopia. See First Activity Report 1987–1888, para. 4.

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working groups to deal with human and peoples’ rights issues under its mandate. Their terms of reference vary in nature. The working groups have dealt with thematic as well as important organisational and administrative matters related to the work and mandate of the African Commission. In doing so, the African Commission may have borrowed a leaf from international practice. Working groups are common in the international system, in particular within the international human rights organisations. During its 1st Session held in 1947, the now defunct UN Commission on Human Rights,2 under authority of the United Nations Economic and Social Council (ECOSOC), established a Sub-Commission on Prevention of Discrimination and Protection of Human Rights. In 1999 the ECOSOC renamed it the Sub-Commission on the Promotion and Protection of Human Rights.3 Notwithstanding the abolition of the Commission on Human Rights in 2006, the Sub Commission’s mandate was renewed by the Human Rights Council during its 1st Session in 2006.4 The main tasks of the Sub-Commission are to: undertake studies and to make recommendations concerning (1) the prevention of discrimination of any kind relating to human rights and fundamental freedoms, and (2) the protection of racial, national, religious and linguistic minorities; and to perform any other functions entrusted to it. Studies undertaken by the Sub-Commission have addressed various aspects of the realisation of human rights of minorities, indigenous peoples and other vulnerable groups. In the course of its work, the Sub-Commission established a number of pre-session, in-session and post-session working groups, namely:5 (1) (2) (3) (4) (5) (6) 2 3 4 5

the Working Group on Communications; the Working Group on Contemporary Forms of Slavery; the Working Group on Indigenous Populations; the Working Group on Minorities; the Working Group on Administration of Justice; the Working Group on Transnational Corporations; and

The United Nations General Assembly replaced the UN Commission with the Human Rights Council under Res. 60/251 of 15 March 2006. See Final Report of the 58th Session of the Sub-Commission, 7–25 August 2006, at www.ohchr.org/english/bodies/subcom/index.htm. Accessed 10 October 2007. See Decision A/HCR/DEC.1/102, 30 June 2006, the 1st Session of the Human Rights Council. See www.ohchr.org/english/bodies/subcom/workinggroups.htm. Accessed 10 October 2007.

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(7) the Working Group concerning Detailed Principles and Guidelines concerning the Promotion and Protection of Human Rights when Combating Terrorism. The United Nations, on a number of occasions, has set up a number of working groups to address various matters.6 For example, on 18 December 1992, it established a standard-setting working group to draft a legally binding normative instrument for the protection of all persons from enforced or involuntary disappearances, due to of a deep concern arising from an increase in enforced or involuntary disappearances in various regions of the world.7 It is in light of this background that this chapter attempts to look at the practice that the African Commission has evolved over its first twenty years of existence, in particular the practice concerning the creation or establishment of working groups, and hope that the lessons learnt from that experience and practice may assist to improve its work and organisation.

Working groups under the African Charter The legal basis for the establishment of the working groups derives from the Rules of Procedure of the African Commission, adopted under Article 42(2) of the African Charter. Nowhere in the African Charter is the expression ‘working group’ found to have been used, or elaborated, by the framers of the African Charter. The concept and utility of working groups in the African Commission can, however, be justified under Article 46 of the African Charter, which gives the African Commission broad latitude in the application of ‘appropriate method of investigation’ in the discharge of its work. It can be argued that, when the African Commission met at its 1st Session on 2 November 1987, in Addis Ababa, Ethiopia, and subsequently during the 2nd and 3rd Sessions – in Dakar, Senegal and Libreville, Gabon – in 1988, it enriched the African Charter by adopting rules that gave a broad content and meaning to the Articles. The formulation of the Rules of Procedures provided the African Commission with the opportunity to fill in gaps, as is the case with any subsidiary legislative process. 6 7

‘Overview of the Outcome of the Reform Working Groups as of Fall 1997’, Global Policy Forum, New York, www.globalpolicy.org/reform/wkgroup/htm. Accessed 10 October 2007. UN General Assembly Res. 47/133, 18 December 1992.

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The Rules of Procedure of the African Commission were discussed and adopted by the Commission during its 2nd Ordinary Session held in Dakar, Senegal.8 Chapter VI of the 1988 Rules of Procedure of the African Commission, on subsidiary bodies, provides for the establishment of committees and working groups. Rule 28 thereof reads as follows: 1. The Commission may during a session, taking into account the provisions of the Charter and in consultation with the Secretary-General, establish, if it deems it necessary for the exercise of its function, Committees or Working Groups, composed of the members of the Commission and send them any Agenda item for consideration and report. 2. These Committees or Working Groups may with the prior consent of the Secretary-General, be authorised to sit when the Commission is not in session. 3. The members of the Committees or Working Group shall be appointed by the Chairman, subject to the approval of the absolute majority of the other members of the Commission.9

The 1988 Rules of Procedure required committees and working groups to be established in consultation with the Secretary-General of the OAU, whose prior consent was needed for them to hold sessions. These stringent requirements were removed from the 1995 Rules of Procedure, and the requirement for consulting the Secretary-General before establishing the subsidiary bodies was also removed. Rule 28(1) of the 1995 Rules of Procedure provides that the subsidiary bodies may be authorised to hold their sessions after the Commission has had consultations with the Secretary-General (now Chairperson of the African Union Commission). Rule 28 of the 1995 Rules of Procedure reads as follows: 1. The Commission may during a session, taking into account the provisions of the Charter establish, if it deems it necessary for the exercise of its function, committees or working groups, composed of the members of the Commission and send them any agenda item for consideration and report. 8

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Ibid., para. 16. The 2nd Session of the African Commission took place between 8 and 13 February 1988 in Dakar, Senegal. The Rules of Procedure were adopted on 13 February 1988. Ibid., p. 12 (emphasis added). Note that Rule 21 of the Rules of Procedure of the SubCommission on the Promotion and Protection of Human Rights, except for various necessary institutional variations, is drafted along similar broad principles. See Decision 1982/147, 15 April 1982, E/5975/Rev. 1.

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2. These committees or working groups may, in consultation with the Secretary-General, be authorised to sit when the Commission is not in session. 3. The members of the committees or working groups shall be appointed by the Chairman subject to the approval of the absolute majority of the other members of the Commission.10

It is safe to speculate that the idea of consultations prior to the establishment of the working groups, as stipulated in Rule 28(1) of the 1988 Rules, was found inappropriate and hence removed. In the absence of any records showing the reasoning behind the changes, it could also be argued that subjecting the establishment of the subsidiary bodies to ‘consultations with the Secretary-General’ was considered to amount to interference by the Secretary-General of the OAU (or the Chairperson of the AU now) in the autonomy and independence of the Commission. This would negatively affect the work and credibility of the Commission, even if it were merely to impact the Commission in terms of delays occasioned by the consultations. This perception, whether correct or wrong, might still be said to apply to the ‘consultations between the Commission and the Secretary-General’, as stipulated under Rule 28(2) of the 1995 Rules. The rationale for these consultations can be said to be budgetary. Whenever a meeting of the subsidiary bodies takes place outside the statutory period of the Commission session, it implies extra-budgetary requirements. Hence the need to consult the Secretary-General, who is, under Article 41 of the African Charter, required to provide the staff, services and the costs necessary for the effective discharge of the duties of the Commission. There is normally no budgetary allocation in the African Commission’s budget for subsidiary bodies’ meetings, hence why when establishing such subsidiary bodies the African Commission always requests the African Union to provide financial resources to ensure that the bodies are able to discharge their functions. These requests for financial resources are rarely met. 10

Emphasis added. At the time of writing, the African Commission’s Working Group on Specific Issues is finalising new Rules of Procedure of the African Commission, to replace the existing Rules. The first draft of the new Rules of Procedure was presented by the Working Group to the 39th Session of the African Commission, which met in Banjul, The Gambia, between 11 and 25 May 2006 for its consideration. Finalisation of the Rules of Procedure of the African Commission is dependent upon further consultations with the African Court of Human and Peoples’ Rights, due to the provisions under the Protocol establishing the Court. See below for an account of the work of this working group.

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The establishment of the working groups is undertaken when the Commission is in session. This is because it is the only time when the Commission decides on its programme of work. Once established, the working groups usually discuss their work during the session and report back to the Commission. We have also seen that they can also work during the inter-session, and this has been the case more often than not. The Rules of Procedure of the African Commission provide for the establishment of a working group to deal with communications, in particular on the issue of admissibility. Rule 115 of the 1995 Rules stipulates that: The Commission may set up one or more working groups; each composed of three of its members at most, to submit recommendations on admissibility as stipulated in Article 56 of the Charter.

Rule 115 is specific in its objective of setting up the working group, and its composition. Its mandate is limited by the terms of Article 56, which outlines criteria for admissibility of a communication. This is different from working groups established under Rule 28, which are established by resolutions of the African Commission, deriving their authority from other provisions of the African Charter. A working group established to deal with admissibility of a communication is to be composed of not more than three members of the Commission. Working groups established to deal with other matters under the Charter can include members and other persons who are not members of the African Commission. Their number has not been limited. This difference is justified for two reasons. First, a working group looking into admissibility can only be composed of members of the Commission because communications are deliberated in private sessions. Second, issues undertaken by other working groups are not restricted to the private sessions. They report to the Commission’s public sessions. The composition and mandates of some of these working groups will be discussed and considered further below. Suffice it to say that the need to include non-members of the Commission into the other working groups is supported by Rules 7111 11

Rule 71 reads as follows: ‘Participation of States in the deliberations: 1. The Commission or its subsidiary bodies may invite any State to participate in the discussion of any issue that shall be of particular interest to that State. 2. A State thus invited, shall have no voting right, but may submit proposals which may be put to the vote at the request of any member of the Commission or its subsidiary body.’

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and 7312 of the Rules of Procedure. The non-members may participate in the deliberations of the Commission without a right to vote. Rule 75 of Chapter XIII of the Rules of Procedure deals with relations, representation and the participation of non-governmental organisations (NGOs) in the public session of the African Commission and its subsidiary bodies. Rule 76 states further that the Commission may consult the NGOs either directly or through one or several committees set up for this purpose. The African Commission has, on the basis of these rules, in particular Rules 75 and 76, been able to establish working groups that have included members from civil society and NGOs. One could argue that there are still two more categories of working groups, which can be created under Rule 120 of the 1995 Rules of Procedure. Rule 120(1) provides for the establishment of a working group to deal with communications, while Rule 120(3) envisages the establishment of a working group pursuant to a request of the Assembly, ‘to conduct an in-depth study on cases and submit a factual report, accompanied by its findings and recommendations in accordance with the provisions of the Charter’. The working group provided for under Rule 120(1) may be said to be the same as that which can be created under Rule 115, to deal with the admissibility of a communication. This view is supported by the fact that once a working group is established to deal with the admissibility of a communication, rather than create a new and different working group under Rule 120(1), the same working group shall continue to deal with the communication. Once assigned a communication, a member of the Commission, unless their term expires, remains responsible for its consideration until the Commission renders its final decision. The same practice would apply to a communication that is assigned to a working group from admissibility to final decision. The working group so established is appropriately known as the Working Group on Communications. Another working group could be created under Rule 120(3). The creation of a working group under this provision would be very peculiar and unusual. Its creation, if it does happen, is supposed to be done after the Commission has made a decision on a communication and has submitted it to the Assembly of States Parties. Rule 120 deals with details 12

Rule 73 provides for the participation and consultations of specialised institutions in the public sessions of the Commission and subsidiary bodies.

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concerning the ‘final decision on the Communication’, under which the sub-rule establishing the working group is located. If, indeed, the working group is to be established as stipulated under Rule 120(3), it would be legally unusual for the Assembly to request the Commission to conduct an in-depth inquiry into a decision that the Commission has adopted under Rule 120(2). It is submitted that Rule 120(3) was not intended to enable the Assembly to request the Commission to constitute a working group or a special rapporteur to conduct an in-depth study into its final decision, which in a legal sense amounts to ‘an application for review’ of the Commission’s decisions at the instance of the political body, rather than the parties to a communication. This would be contrary to the Charter, as far as the autonomy and independence of the Commission is concerned. The equivalent to Rule 120(3) under the 1988 Rules of Procedure is Rule 118(3). This did not provide for the establishment of a working group, but read as follows: The Assembly or its Chairman may request the Commission to conduct an in-depth study of these cases and to submit a factual report accompanied by its findings and recommendations, in accordance with the provisions of Article 58 sub-paragraph 2 of the Charter.

A reading of Rule 120(3), together with Article 58(1) of the African Charter, could provide a link between the said working group or special rapporteur and the existence of serious or massive violations of human and peoples’ rights as reported by the Commission to the Assembly, and hence the request by the Assembly. This appears to be the only meaningful interpretation that can be given to Rule 120(3). Article 58(1) refers to ‘special cases which reveal the existence of a series of serious or massive violations of Human and Peoples’ rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases.’ Therefore, the words ‘these cases’ under Rule 120(3), in my view, must be read to mean the same as the words ‘these special cases’ appearing in Article 58(1). It is not clear why the African Commission redrafted this rule, by introducing the establishment of a working group to look into cases and to submit a factual report, its findings and recommendations ‘in accordance with the provisions of the Charter’. Why did it delete specific reference to

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Article 58 (2)? Secondly, the placement of the sub-rule under the part of the 1995 Rules of Procedure that deals with final decisions is confusing, if not incomprehensible. Article 58(2) is couched in similar language to Rule 120(3). It reads as follows: The Assembly of Heads of State and Government may then request the Commission to undertake an in depth study of these cases and make a factual report, accompanied by its finding and recommendations.

It can be safely concluded that the working group envisaged under Rule 120(3) is not meant to review the final decisions of the Commission, as is suggested by any literal interpretation of the Rule 120(3). It is therefore submitted that the original Rule 118(3), and the subsequent Rule 120(3), must have been placed with a rule dealing with final decisions by error. The working group established under Article 58(2) shall undertake an in-depth study, or investigate ‘special cases of violations’, envisaged under Article 58(1), which could then be reported to the Assembly. The establishment of such a working group would follow a report of the Commission to the Assembly under Article 58, concerning the existence of special cases that reveal a series of serious and massive violations of human and peoples’ rights, upon which the Assembly may request the Commission to undertake an in-depth study. The inclusion of rules providing for the establishment of a working group to deal with the existence of serious or massive violations has undoubtedly enriched Article 58(2) of the Charter. To avoid inconsistency and confusion, Rule 120(3) must be placed under the part of the Rules that deals with the submission of Commission activity reports to the Assembly. By so doing, the Commission will have consistently applied its rules to Article 58 of the Charter, relating to cases of serious and massive violations of human and peoples’ rights. It is abundantly clear that the African Commission has, using its powers under Article 42(2) of the Charter and by establishing subsidiary bodies, crafted various methods to enable it to carry out its mandate. When carrying out their work, the working groups are bound by the Rules of Procedure of the African Commission. Rule 31 states that the Rules of Procedure shall apply as far as possible to the proceedings of its subsidiary bodies.

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Through the working groups, the African Commission has been able to deal with the enormous human rights challenges facing the African continent and its peoples, beyond what would have otherwise been achieved given the resource constraints the Commission faces. In recognition of their role, the African Commission has continued to establish them and even rely on them for their resourcefulness and industry to undertake very complex and time-consuming assignments. It is to the work of these working groups that we now turn our attention.

Working groups of the African Commission in action The African Commission has, over the years, established a number of working groups, which have enabled it to address critical issues under its mandate, despite the inadequate human and material resources at its disposal. A number of these working groups will be examined in order to understand the reasons behind their establishment, composition, working methods, achievements, or their failures in relation to the objective of enhancing the promotion and protection of human and peoples’ rights in Africa, and in order to see whether or not they have met the expectations of the Commission.

The Working Group on Communications A Working Group on Communications was established following concerns expressed by members of the Commission during the 27th Session (held in Algiers, Algeria in 2000) about the importance of communications to the work of the Commission. The Commission reiterated the necessity of constituting and maintaining a Working Group on Communications. They appointed three members of the Commission and decided that the Working Group should meet during the inter-session period.13 The first meeting of the Working Group was convened by the Secretariat on 27 September 2000, between the 27th and 28th Sessions. The Working Group held two more meetings during the inter-sessional period between the 28th and 29th Sessions. The Commission continues to receive a growing number of communications that address increasingly complex issues. The fact that the 13

An internal report on the first meeting of the Working Group on Communications, available at the Secretariat, states that the composition of the working group was as follows: Commissioners Andrew Chigovera, Dr Vera Chirwa, Mr Kamal Rezag-Bara and Mrs Jainaba Johm.

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Commission meets only twice a year, in sessions of two weeks each, means that the Commission does not have enough time to exhaustively analyse communications.14 During the two-week session, the Commission also holds public sessions with its stakeholders, namely the State delegations, national human rights institutions (NHRIs) and non-governmental organisations (NGOs), during which time the human rights situation in Africa and reports of activities are discussed. During its private sessions, the Commission examines reports of missions and communications. Thus, the Working Group on Communications is meant to conduct deep analyses on communications, and submit recommendations to the Commission for their deliberation and adoption. During its second meeting, the Working Group looks at the problems affecting communications, such as the failure to interpret some communications from one official language to the other. The African Commission is supposed to use all the official languages of the African Union, but in most cases only English and French are used when publishing documents. This problem forced the Working Group not to recommend the admissibility of a number of communications that were submitted in a language other than English and French.15 In its report submitted to the Commission after its third meeting in October 2001, the Working Group made certain recommendations concerning decisions on admissibility and merits. In a number of cases, some of its recommendations were accepted by the Commission, while others were not accepted.16 Some of the recommendations were meant to address 14

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Rule 1 of the Rules of Procedure states that the Commission shall hold the sessions that may be necessary to enable it to carry out its function satisfactorily in conformity with the African Charter, while Rule 2(1) states that the Commission shall normally hold two ordinary sessions a year, lasting for about two weeks. Rule 103 requires that the summary of contents of a communication and copies of communications be communicated to each member of the Commission. In a recommendation made to the Commission by the Working Group in respect of Communication 155/96, Social and Economic Rights Action Centre and another v. Nigeria, Fifteenth Activity Report 2001–2002, Annex V, the Working Group had stated the following: ‘Members of the Working Group were of the view that the Commission should revisit its decision in this matter on admissibility. The members stated that it was clear from the communication that the Complainants had not exhausted local remedies neither had they tried to access the judicial system. By giving a decision on merits the Commission would be setting a precedent of the Commission being used as a court of first instance. Members acknowledged that a decision on economic and social rights was important but felt that the Commission should avoid setting a bad precedent on exhaustion of local remedies.’ The Commission, however, took a different view, and adopted a landmark decision on the merits.

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procedural and practical issues, such as the need to extend the time period in which States Parties could furnish their written submissions in respect of communications. In one case, the Working Group recommended that the Commission defer a communication in order to await the progress of peace talks, rather than adopt a decision that might not have facilitated that peace process. Notwithstanding the increasing volume of communications submitted to the Commission, and the expressed desire by the Commission to maintain the Working Group on Communications, the Working Group did not meet after its third meeting in October 2001. The cost of bringing Commissioners to the Secretariat from different corners of Africa to attend inter-session meetings at a time of budgetary constraints meant that the Working Group, which was created as an internal mechanism to enhance the Commission’s work, could not be sustained. This unfortunate situation, however, did not occur as regards the Working Group on Indigenous Populations/Communities in Africa.

The Working Group on Indigenous Populations/Communities in Africa The African Commission established a Working Group on Indigenous Populations/Communities in Africa during its 28th Ordinary session held in Cotonou, Benin.17 The establishment of the Working Group was a follow-up to the Commission’s deliberations on the human rights issues of indigenous peoples and minorities at the 26th Ordinary Session in Kigali, Rwanda, during which time the Commission established a committee of three Commissioners to further consider the issue of indigenous peoples in Africa, and advise it accordingly. The Cotonou Resolution provided for the establishment of a working group composed of two members of the African Commission and two African experts in the field of human rights or indigenous issues. The mandate of the Working Group was to: (a) [e]xamine the concept of indigenous people and communities in Africa; (b) [s]tudy the implication of the African Charter on Human and Peoples’ Rights and well being of indigenous communities especially with regard to: 17

The 28th Ordinary Session of the ACHPR was held between 23 October and 6 November 2000.

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– the right to equality (Articles 2 and 3), – the right to dignity (Article 5), – protection against domination (Article 19), – on self determination (Article 20), and – the promotion of cultural development and identity (Article 22); (c) [c]onsider appropriate recommendations for the monitoring and protection of the rights of indigenous communities.18

The Cotonou Resolution also called for a funding proposal to be prepared, to raise donor funds to meet the costs of the work of the Working Group. When the Commission finally constituted the Working Group during the 29th Ordinary Session held in Tripoli, Libya,19 it named three Commissioners and four experts as the members of the Working Group.20 Three of the experts were themselves members of indigenous and marginalised communities from Kenya, Niger, and Rwanda, and a fourth was an independent expert with long-standing experience on indigenous and minorities’ population issues. During the Tripoli session, the Commission held a workshop on the situation of indigenous populations, and made recommendations towards the improvement of the human rights situation of indigenous populations/communities. The workshop and subsequent consultations involving members of the Commission have contributed significantly to the development of awareness within the Commission, and a better understanding of indigenous and minority population issues, which could only improve the advocacy, promotion and protection of the rights of these marginalised communities and peoples across the African continent. The Working Group on Indigenous Populations/Communities was established to fill in a major lacunae in the protection of the human rights of indigenous populations and minorities in Africa. Looking at the 18 19 20

Resolution on the Rights of Indigenous Peoples’ Communities in Africa, 2000, ACHPR/ Res.51(XXVIII)00. The 29th Ordinary Session of the ACHPR was held between 23 April and 7 May 2001. Final Communiqu´e of the 29th Ordinary Session of the African Commission on Human and Peoples’ Rights, para. 9. The members of the Working Group were; Commissioner Nyameko Barney Pityana, Convenor; Commissoner Kamel Rezag-Bara; Commissioner Andrew Chigovera; Ms Marianne Jensen; independent expert (IWGIA); Dr Naomi Kapuri; indigenous expert; Mr Mohammed Khattali, indigenous expert; and Mr Zephyrin Kalimba, indigenous expert. The list appears in the Report of the African Commission’s Working Group on Indigenous Populations/Communities; see Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, ACHPR/IWGIA 2005, p. 11.

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Articles of the African Charter, it was obvious that many African peoples were not receiving the protection and guarantees that the African Charter accorded to them. The Working Group developed a conceptual framework paper, which formed the basis for the elaboration of a final report. The framework paper was elaborated over a series of meetings and consultations with African human rights experts and various other stakeholders, on matters relating to indigenous populations/communities.21 The success of this Working Group depended very much on the invaluable support of the NGO International Work Group for Indigenous Affairs (IWGIA), which provided resources and expertise. In other words, looking at the financial constraints facing the African Commission, it can be argued that this Working Group would not have done much if it were to depend on the availability of the financial resources from the African Union. The support given to the African Commission by external donors such as IWGIA supplements the meagre resources available to it, thereby enhancing its capacity to discharge its mandate. Donor support should be extended, while ensuring that it does not interfere with the Commission’s impartiality and independence.22 The Working Group presented its report to the African Commission during the 34th Session held in Banjul, The Gambia. Adopting the Report of the Working Group, the African Commission reaffirmed the need to promote and protect more effectively the human rights of indigenous populations and communities in Africa, taking into account the absence of a mechanism within the African Commission that has a specific mandate to monitor, promote and protect the respect and enjoyment of the human rights of these marginalised or minority indigenous groups and communities.23 21

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The Working Group first met prior to the 30th Session in October 2001 in Banjul, The Gambia. It then convened a roundtable meeting prior to the 31st Session in April 2002 in Pretoria, South Africa, and then a consultative meeting in January 2003 in Nairobi, Kenya. Presenting the Report of the Working Group to the 34th Ordinary Session, Dr Nyameko Barney Pityana, a former member of the African Commission and the Convenor of the Working Group, said the following: ‘The invaluable support of the International Working Group for Indigenous Affairs (IWGIA) must not be lost sight of . . . . Our work would never have been completed without the enthusiastic support of many experts and African activists on indigenous issues who rallied around, fired by the imagination that, for the first time, Africa could have an instrument to address a matter whose existence is often denied but remains a festering sore in the African body politic.’ See Report of the Working Group, Introduction, p. 10. Resolution on the Adoption of the Report of the African Commission’s Working Group on Indigenous Populations/Communities, ACHPR/Res.65(XXXIV)03.

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When adopting the Report, the Commission decided on a number of measures to give effect to its resolve to enhance the protection of indigenous populations and communities, which included the wide dissemination of the Report to Member States and international policy makers. The Working Group did this by launching the Report in Geneva during one of the sessions of the now defunct UN Commission on Human Rights, and in Addis Ababa at a presentation to permanent representatives of AU Member States. The Commission also decided to maintain the item on the situation of indigenous populations and communities in Africa on its agenda. The Commission did not disband the Working Group after the adoption of its report, but renewed its mandate. The Working Group was tasked to raise funds for further promotion and protection work, cooperate with other regional and international mechanisms, gather information, and engage various stakeholders, including governments24 and the indigenous communities. It was further required to undertake country missions to study the human rights situation of the indigenous populations/communities, and submit recommendations and measures to prevent and remedy violations. The Working Group was required to report to each ordinary session of the Commission. The Working Group must be credited for focusing on the plight of indigenous and minority populations in Africa. The Report of the Working Group of Experts on Indigenous Populations/Communities has greatly expanded the horizon of the African Charter, beyond the anticipation of those who framed it. The Report states the following: Indigenous peoples represent a unique cultural and social reality – faced by particular human rights violations – that mainstream society refuses to accept. Denial of the existence of indigenous peoples in Africa has tended to be the official position of African governments, who argue that ‘all Africans are indigenous’, thereby suggesting that there is no legitimate grounds for what they maintain is preferential treatment of a sector of their societies. Governments have tended to deal with the question of indigenous peoples through assimilation policies, eg. the government of Botswana uses the ‘need to integrate Basarwa into the mainstream of development, so that 24

At the time of writing, the Working Group had undertaken missions to Namibia, Botswana, Niger and Cameroon to study the situation of the San, Baswara, Touareg and the Mbororo communities respectively. Visits to other States such as Tanzania, Rwanda, the DRC and Kenya have been planned. Reports of the missions to Namibia, Botswana, Niger and Cameroon can be accessed in the Acitivity Reports of the 39th and 40th Ordinary Sessions of the African Commission, held at the Secretariat in Banjul, The Gambia.

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the african charter on human and peoples’ rights they are like other Batswana and not objects of tourists’ approach. The underlying attitude towards the indigenous peoples question is manifested in the development model utilized. The effect of a model that measures success in terms of assimilation and mainstream development has tended to leave the indigenous peoples of Africa in poverty. This clearly violates many Articles of the African Charter, including Article 20(1) as stated above.25 Members States of the African Union are bound by the Articles in the African Charter to recognise the rights, duties and freedom enshrined in the African Charter and have vowed to undertake legislative or other measures to give them effect. The situation of indigenous peoples described above does not demonstrate that African governments do indeed respect the Charter. Some intervention is required to correct this situation.26

It is expected that through the follow-up of the Working Group’s recommendations, in particular its contacts with governments, the African Commission will be able to influence African States and governments to reverse the deplorable conditions experienced by indigenous peoples in Africa by ensuring that African States adhere to their African Charter obligations, under the African Charter, towards these populations and communities.

Follow-up committee on the Robben Island Guidelines During its 32nd Session held in Banjul, The Gambia, the African Commission adopted a Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment and Punishment.27 These Guidelines were adopted following recommendations of a workshop organised jointly by the African Commission and the Association for the Prevention of Torture (APT), which was held on Robben Island, South Africa. The Guidelines, known as the Robben 25

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Article 20(1) states the following: ‘All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.’ The Working Group clarifies its understanding of the term ‘self-determination’, as it applies to indigenous peoples in Africa. For a detailed analysis of Article 20 of the African Charter, and adoption of the principle of self-determination as expressed in ILO Convention (No. 169) to indigenous peoples in Africa, see pp. 74 and 101 of the Report of the Working Group. Report of the Working Group of Experts on Indigenous Populations/Communities, ACHPR/IWGIA 2005, p. 60. Resolution ACHPR/Res.61(XXXII)02 adopted during the 32nd Ordinary Session held between 17 and 23 October 2002.

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Island Guidelines (RIGs), set out a series of recommendations to African governments to undertake the implementation of the Guidelines and measures. The RIGs, inter alia, urge the ratification of regional and international human rights instruments in order to accord individuals the maximum scope of protection and access to human rights machinery. They further call on States Parties to criminalise torture, to prohibit refoulement by expulsion or extradition of a person to a country where s/he would be at risk of being subjected to torture, to call for efforts to combat impunity, and to ensure access to fully independent mechanisms to which all persons can bring their allegations of torture and ill-treatment. The RIGs also require States Parties to provide those who are deprived of their liberty basic and pre-trial procedural safeguards, humane conditions during detention, and to ensure the existence of independent national judicial and human rights institutions as important oversight mechanisms against torture, degrading and inhuman treatment and punishment. The RIGs also recommend the encouragement of visits by NGOs to places of detention, and call for the adoption of the Optional Protocol to the Convention against Torture and the need to develop a regional mechanism for the prevention of torture and ill-treatment. They also recommend the need to establish and support training in human rights, create, promote and support codes of conduct and ethics, and training tools for law enforcement and security personnel, officials and other persons who come in contact with persons deprived of their liberty. They recognise the role of NGOs and the media in creating public awareness and dissemination campaigns for the prohibition and prevention of torture and other forms of maltreatment. The RIGs further recommend that alleged victims of torture, cruel, inhuman and degrading treatment or punishment, and witnesses, investigation officers and human rights defenders, their families and communities are protected from violence, and they reiterate the obligation of States to offer reparations to victims, to provide them with appropriate medical care, social and medical rehabilitation and appropriate levels of compensation and support. The African Commission established a follow-up committee to disseminate the RIGs to national and regional stakeholders, to work out strategies for their promotion at national and regional level, and their implementation within Member States. The follow-up committee is required to submit a progress report to each ordinary session of the Commission.

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The follow-up committee, which is also known as the Working Group on the Robben Island Guidelines, was established during the 35th Ordinary Session.28 It has held a number of meetings to elaborate its work plan, and has made recommendations to the Commission on the implementation of the RIGs. Until such time as the Working Group undertakes missions to States Parties to the Charter to engage governments on matters raised in the RIGs, its impact is likely to be minimal, bearing in mind the gravity of the problems under its mandate. Its recommendations to the Commission, like many other Commission decisions, currently reach States Parties through the annual activity report of the Commission, after its adoption by the Summit of the African Union. If the Working Group were to undertake missions to States Parties and engage governments on such matters as the non-ratification of the Convertion Against Torture (CAT) and other relevant human rights instruments, or the need to take legislative and other appropriate measures to prohibit torture and other inhuman, cruel, degrading treatment and punishment, its impact would be greater.

Working Group on the Death Penalty The question of the death penalty has exercised the minds of the Commission for a considerable period of time. Article 4 of the African Charter guarantees the right to life. The Commission has had an opportunity to pronounce itself on the question of the death penalty. During its 26th Ordinary Session held in Kigali, Rwanda, it adopted a resolution calling for a moratorium on the death penalty.29 It urged all States Parties to the African Charter ‘that still maintain the death penalty to comply fully with their obligations under the treaty and to ensure that persons accused of crimes for which the death penalty is a competent sentence are afforded 28

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The members of the Working Group are: Ms Sanji Monageng, a member of the African Commission; Mr Jean Baptiste Niyizugero, the African Programme Officer, Association for the Prevention of Torture, (APT), Geneva; Advocate Karen McKenzie, former Executive Director, Independent Complaints Commission, South Africa; Ms Laila Zerrougui, Professor of Law and Magistrate, and member of the UN Sub-Commission on the Promotion and Protection of Human Rights, Algeria; Ms Hannah Forster, Executive Director, African Centre for Democracy and Human Rights Studies, Banjul, The Gambia; and Mr Malick Sow, Executive Secretary, National Human Rights Commission of Senegal. Resolution Urging States to Envisage a Moratorium on the Death Penalty, adopted at the 26th Ordinary Session of the ACHPR, held in Kigali, Rwanda.

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all the guarantees in the African Charter’. The resolution further called upon them to: (a) limit the imposition of the death penalty only to the most serious crimes, (b) consider establishing a moratorium on execution of the death penalty, (c) reflect on the possibility of abolishing the death penalty.

The Commission had an opportunity to entertain a communication in which the death penalty issue was raised, and since then two more communications have been submitted to the Commission and are pending finalisation. In the case submitted by Interights and others (on behalf of Marriette Sonjaleen Bosch) v. Botswana,30 a complaint against Botswana, which, inter alia, alleged violation of Articles 1, 4, 5, and 7(1) of the African Charter, the African Commission stated that: Article 1 obliges states to observe the rights in the African Charter and to ‘adopt legislative or other measures to give effect to them’. The only instance that a party can be said to have violated Article 1 is where the state does not enact the necessary legislative enactment. However, it would be remiss for the African Commission to deliver its decision on this matter without acknowledging the evolution of international law and trend towards abolition of the death penalty. This is illustrated by the UN General Assembly’s adoption of the 2nd Optional Protocol to the ICCPR and general reluctance by those states that have retained capital punishment on their statute books to exercise it in practice. The African Commission has also encouraged this trend by adopting a ‘Resolution Urging States to Envisage a Moratorium on the Death Penalty’ and therefore urges all states party to the African Charter on Human and Peoples’ Rights to take all measures to refrain from exercising the death penalty.

During the 35th Ordinary session, Dr Vera Chirwa, who was then a member of the African Commission and at that time Special Rapporteur on Prisons and Conditions of Detention in Africa, introduced an item on the agenda of the Commission on the question of the death penalty in Africa. Prior to that, Dr Chirwa had commissioned the Secretariat to prepare a concept paper on the question of the death penalty in Africa, which, inter alia, surveyed the State practice in Africa, and the legal and human rights issues. The paper studied the practice in some African States, and 30

Communication 240/2001, Interights and others (on behalf of Marriette Sonjaleen Bosch) v. Botswana, Seventeenth Activity Report 2003–2004, Annex VII.

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found that there was no uniformity of State practice on the continent on the question of the death penalty. The paper identified States31 that had abolished the death penalty, and also those that, for the past ten years, had not carried out execution of the death sentence, which it terms as ‘abolitionists’. The rest, which continue to execute the death penalty, are considered as ‘the retentionists’. The paper also identified a trend within some African countries where debate on the question of the death penalty was being conducted, particularly in the context of constitutional review processes. Having considered the item, the Commission, during its 37th Ordinary Session, appointed two Commissioners to work with the Special Rapporteur to improve the paper on the question of the death penalty in Africa. Hence the Working Group on the Death Penalty was established. The Working Group did not start work immediately. During the 38th Ordinary Session, the Commission adopted a resolution to expand the composition of the Working Group to include two Commissioners and five independent experts. The Commission decided that the independent experts would be chosen to represent the different legal systems and regions in Africa.32 The mandate of the Working Group was broadened. Besides the original mandate of improving and elaborating further the paper developed by the Secretariat, the Working Group was required to develop a strategic plan (including a practical and legal framework for the abolition of the death penalty), to collect information and to continue monitoring the situation concerning the application of the death penalty in African States. Prior to the 38th Ordinary Session, the skeletal Working Group held a brainstorming session with a number of experts, from within and outside Africa, in order to identify the independent experts who would be invited to join the expanded Working Group. During the 39th Session, 31

32

According to information available at the ACHPR Secretariat, the following African States have abolished the death penalty: Angola, Cape Verde, Cˆote d’Ivoire, Djibouti, Guinea Bissau, Liberia, Mauritius, Mozambique, Namibia, Sao Tom´e, Seychelles, South Africa and Senegal. The 38th Ordinary Session took place in Banjul, The Gambia, between 21 November and 5 December 2004. It adopted the Resolution on the Composition and Operationalisation of the Working Group on the Death Penalty, ACHPR/Res.79(XXXVII)05, which named two members of the Commission – Mr Yassir El Hassan and (the author of this chapter, Mr Bahame Tom Mukirya Nyanduga) – to form part of the Working Group, while it searched for experts to be co-opted into the Working Group.

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when the Working Group was reporting to the Commission, a number of States expressed their desire to see States Parties included in this Working Group. The composition of the expanded Working Group was extended during the 40th Ordinary Session of the Commission. Apart from regional/geographic and the legal representation, composition of the Working Group took into account gender balance.33 The fact that some States are keen to join the Working Group could have both a positive and negative impact on the work of the Working Group. State participation can augur positively to the work of this group if States participate with an open and objective mind. It could impact negatively if States approach the work of the Working Group with rigid national positions, which have characterised the debate on the question of the death penalty at other international fora. Rule 71(1) of the Rules of Procedure allows the participation of any State, at the invitation of the Commission or the Working Group, in the discussion of any issue of particular interest to that State. It is doubtful whether ‘participation’ in this case foresaw the possibility of a particular State being a member of the Working Group. It is my view that Rule 71 enables States Parties to participate in the discussions on the work done by a working group, rather than take part as members of a working group. A final report of the Working Group has to be submitted by the Commission to the Assembly, in accordance with Article 59 of the African Charter, for its consideration and adoption. Prior to adoption of the report, the Commission or the Working Group may seek the views of States Parties. This would be consonant to the requirements of Rule 71. Since the Commission is an independent and autonomous organ of the African Union, States should not insist on being part of the Commission’s working groups. To do so would amount to interference with the methodology the Commission has adopted for its work. But more importantly, for the Working Group to accomplish its mandate, the Commission has to mobilise resources so that the Working Group can undertake this very important work. 33

See Resolution on the Extension and Appointment of Members of the Working Group on the Death Penalty, ACHPR/Res.101(XXXX [sic])06, 15–29 November 2005, Banjul, The Gambia, which named the following experts: Ms Alya Cherif Chammari, Tunisia; Ms Alice Mogwe, Botswana; Mr Mactar Diallo, Senegal; Prof. Philip Francis Iya, Uganda; Prof. Carlson E. Anyangwe, Cameroon; and Prof. Mohammed S. El-Awa, Egypt, to be members of the Working Group. The Commission extended the number of experts to six in order to cater for gender balance.

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Working Group on Specific Issues Relevant to the Work of the African Commission on Human and Peoples’ Rights The Working Group on Specific Issues Relevant to the Work of the African Commission on Human and Peoples’ Rights was established during the 37th Ordinary Session held in Banjul, the Gambia.34 It was established to meet specific needs, such as the need to expeditiously finalise a number of issues that the Commission had been considering over a long period of time. The concern of the Commission is captured in the Preamble of the Resolution establishing the Working Group, which highlights three main issues, namely the need to deal with the relationship between the Commission and various organs and institutions established by the AU, its relationship with the Court following the entry into force of the Protocol to the African Charter establishing the African Court on Human and Peoples’ Rights and their complementary mandates, and the delay in the finalisations of a number of issues, such as the follow-up mechanisms for its recommendation and decisions. The Summit of the African Union had, on numerous occasions, called on the African Commission to complete the exercise of rationalising its relationship with those organs and institutions.35 The Working Group was mandated to: (1) review the Rules of Procedure, by ensuring the inclusion of items concerning: (a) the relationship between the Bureau and the Secretariat; (b) the relationship between the African Commission and its various partners; (c) the relationship between the African Commission and the various organs and institutions of the African Union; and (d) other relevant issues. 34

35

Resolution on the Creation of a Working Group on Specific Issues Relevant to the Work of the African Commission on Human and Peoples’ Rights, ACHPR/Res.77(XXXVII)05, the 37th Ordinary Session, held between 27 April and 11 May 2004 in Banjul, The Gambia. Assembly/AU/Dec.56 (IV), para. 3 on the adoption of the 17th Activity Report. The same was stated in Assembly/AU/Dec.77(V), para. 4 on the adoption of the 18th Activity Report of the Commission, and again repeated Assembly/AU/Dec.101(V), paras. 8 and 9 on the adoption of the 19th Activity Report, which specifically requested the Commission to submit appropriate recommendations on its relationship with the African Court on Human and Peoples’ Rights, and to take part in its operationalisation.

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It was required further to review: (1) the mechanism and procedure on the follow-up on the decisions and recommendations of the African Commission; (2) the structure of different reports of the African Commission; (3) the modalities for the establishment of a Voluntary Fund for Human Rights in Africa; (4) the follow-up on the implementation of the Addis Ababa Retreat of September 2003 and Uppsalla Consultation of June 2004.36 The Working Group was composed of three members of the Commission and three external experts from its partners, namely Interights, Open Society Justice Initiative and the Institute for Human Rights and Development in Africa. All these NGOs have observer status with the Commission and have many years’ experience of working with the Commission. The Working Group was initially given a six-month mandate. During the 38th Ordinary Session, the Commission extended the mandate of the Working Group for another twelve months.37 The Working Group submitted its interim reports during the 38th and 39th Ordinary Sessions. The report to the 39th Ordinary Session, though not final, was comprehensive, and contained the draft Rules of Procedure, addressing, inter alia, the relationship with organs and institutions of the African Union that deal with human rights mandates. The Working Group is likely to leave a long-term impact on the Commission. It has been tasked to work on matters that are of crucial importance to the work of the Commission. In the context of revamping the Rules of Procedure of the Commission, the Working Group has drafted detailed rules on the composition, membership and incompatibility of members of the Commission.38 Without necessarily divulging the details of the draft rules prior to their adoption, the current draft Rules designate specific functions and powers to the Bureau of the Commission – namely the Chairperson and the ViceChairperson – which has, in recent years, assumed importance in the 36 37 38

See Resolution ACHPR/Res.77(XXXVII)5, para. 8. For a full version of the Resolution, visit www.achpr.org. Accessed 11 October 2007. Resolution ACHPR/Res.80(XXXVIII)05 of the 38th Ordinary Session, held 21 November– 5th December 2005, Banjul, The Gambia. Chapter 2 of the draft Rules of Procedure of the African Commission. Note that this is the first draft of the Rules, which is yet to be adopted by the African Commission. It is not yet a formal and official document of the African Commission, and therefore cannot be the subject of extensive citation due to disclaimer and confidentiality requirements. Reference to it is simply meant to demonstrate the utility of the Working Group.

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work of the Commission, particularly during the inter-session period. Previously, during the inter-session, the Secretariat has worked without the close supervision of the Bureau, bearing in mind the fact that the members of the Commission are not full-time.39 The draft Rules establish clear rules and guidelines on matters that are or were not clearly provided for previously, or had not been provided for at all. They provide for a rule on the conduct of missions by the members of the African Commission,40 the holding of sessions of the African Commission,41 on the drawing up of provisional agenda of the Commission,42 and various other administrative issues for the expeditious work of the Commission.43 The draft Rules make provision for a specific Chapter on the Activity Report of the African Commission, which has increasingly become an important source of reference for understanding the thinking of the Commission through its decisions. The chapter on the Activity Report outlines what the content of the annual activity report should be, and the modality of its publication, after its adoption by the Assembly.44 The relations with partners, which was provided for under the 1995 Rules, has been expanded to incorporate relationship with donors and national human rights institutions, which were not covered by the former rules. Most of the draft rules are based on the experience gained by the Commission, as it adapted to changes over the last twenty years of its existence. In certain cases, such as those of relations with national human rights institutions and NGOs, it had adopted resolutions granting affiliate and observer status respectively as the basis of relations. Relations with these partners are now incorporated into the draft Rules. The two key protection mechanisms – the examination of communications and State reports – shall be covered by well-elaborated rules. In both categories, the draft Rules provide for situations that were not covered by the previous Rules, such as the draft rule on non-submission of State

39 41 43 44

40 Ibid., draft Chapters 3 and 4. Ibid., draft Article 27. 42 Ibid., draft Chapter 6. Ibid., draft Chapter 7. Ibid., draft Chapters 8 on Language, 9 on Records, 10 on Conduct of Business, 11 on Voting, and 12 on Amendments to Proposals. Ibid., draft Chapter 13. The requirement that the contents of the Commission’s Activity Report have to be submitted to a State Party prior to publication arose from the Assembly Decision suspending the publication of the Seventeenth Activity Report 2003–2004, which contained the report of the 2002 Mission to Zimbabwe. The AU Assembly has subsequently insisted on requiring that the activity reports contain the responses by the States Parties concerned.

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reports,45 the follow-up of concluding observations on State reports,46 and draft rules on the procedure for consideration of communications, elaborated by twenty-five draft rules compared with the seventeen rules in the 1995 Rules.47 The draft Rules provide for the modalities of the relationship between the Commission and the African Court on Human and Peoples’ Rights. Article 2 of the Protocol to the African Charter establishing the African Court on Human and Peoples’ Rights48 recognises the complementary roles of the two organs in discharging the protection mandate under the African Charter.49 It is imperative that the African Commission and the newly established African Court on Human and Peoples’ Rights, now that the judges have been sworn in, jointly address the issue of complementarity between the two organs, and adopt mutually reinforcing Rules of Procedure to cater for the complementarity. The draft Rules of Procedure shall also address the relationship between the Commission and the Committee of Experts on the Rights and Welfare of the Child in Africa, the African Peer Review Mechanism, the Pan African Parliament and the Peace and Security Council.50

Conclusion Experience shows that working groups have reinforced the African Commission by enhancing the promotion and protection mandate under the 45 47 48

49 50

46 Rule 85 of the draft Rules of Procedure. Rule 88 of the draft Rules of Procedure. Rules 90–116 of the draft Rules of Procedure. Article 2 of the Protocol on the African Court on Human and Peoples’ Rights reads as follows: ‘The Court shall, bearing in mind the provisions of this Protocol, complement the protective mandate of the African Commission on Human and Peoples’ Rights (hereinafter referred to as “the Commission”) conferred upon it by the African Charter on Human and Peoples’ Rights.’ Rule 117–127 of the draft Rules of Procedure. Rule 128 of the draft Rules of Procedure makes reference to the Consultations with the African Committee on the Rights and Welfare of the Child. The Working Group is yet to finalise elaboration on the draft Rules for the rest of the AU organs. Prior to the 39th Session, 9–10 May 2006, the ACHPR, representatives of the Government of the Gambia, the African Union Commission, the Office of the UN High Commissioner for Human Rights, other African Union organs and institutions – such as the PRC, PAP and ECOSOCC – stakeholders of the ACHPR – for example the African NHRI Coordinating Committeeand a number of NGOs held a brainstorming meeting on the ACHPR in Banjul, The Gambia. They adopted recommendations aimed at enhancing the efficiency of the ACHPR and co-operation between the ACHPR and African Union organs, institutions, and other stakeholders involved in the promotion and protection of human and peoples’ rights on the continent. For a report of the recommendations of the Brainstorming Session on the ACHPR, see www.achpr.org. Accessed 11 October 2007.

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African Charter. The working groups and their respective mandates have been established through the constructive interpretation of provisions of the African Charter. Working groups are subsidiary bodies of the African Commission. They discharge their mandates on behalf of the Commission. The Commission can only adopt recommendations of the working groups once it is satisfied that they have fulfilled their mandate, as provided for by their respective resolutions, and that their recommendations conform to the African Charter. The thematic working groups have enabled the Commission to fill in the gaps in the protection mandate of the Commission. This has indeed been true with regard to the Working Group of Experts on Indigenous Populations/Communities, and the Working Group (follow-up committee) on the Robben Island Guidelines. The establishment of the Working Group on the Death Penalty shall enhance the capacity of the African Commission to advance debate within Africa on issues concerning the right to life and the right to protection against cruel, degrading, inhuman treatment and punishment, as African States continue to grapple with the question of the death penalty in Africa. We have also seen that when resources are available, the working groups enhance the efficiency of the Commission. This is true in the case of the Working Group on Communications, and the Working Group on Specific Issues Relating to the Work of the African Commission on Human and Peoples’ Rights. The importance of working groups to the African Commission can only be appreciated when their work is measured against the scarcity of resources and the limitation in time and personnel that the Commission faces. The co-option of non-members to assist the African Commission has enabled the Commission to achieve some of its objectives, through utilisation of their expertise, under the subsidiary organs principle. Looking at the experience of working groups of the African Commission so far, more could be achieved if the Commission were to be availed with adequate resources. In future, the Commission can count on working groups to perform various tasks to enhance the promotion and protection of human and peoples’ rights on the continent, provided that resources are put at its disposal. The Commission has increasingly overcome the inhibition of co-opting non-members to its working groups. There is concern from some quarters on what is considered to be an excessive dependency by the Commission on donor funding for some of its activities. The record of accomplishments by the Commission shows

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that donor support has enabled it to carry out some of the most difficult tasks, which could not have otherwise been possible due to the insufficient resources allocated by the African Union. It is therefore expected that the African Union will ensure that the Commission receives the resources it needs for the discharge of its mandate. In the spirit of international co-operation, it is also expected that donor funding will continue to supplement the resources of the Commission in order to ensure that it fulfils its mandate under the African Charter.

12 The Creation of a New African Court of Justice and Human Rights ibrahima kane and ahmed c. motala

Introduction The election of the eleven judges of the African Court of Human and Peoples’ Rights (‘the African Court’) in January 2006 marked a milestone in the protection of human rights in Africa.1 This momentous occasion occurred almost twenty-five years after the adoption of the African Charter on Human and Peoples’ Rights2 (‘the African Charter’), which created a regional system for the promotion and protection of human rights. The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (‘the African Court Protocol’)3 was adopted by the AU Summit in Ouagadougou, Burkina Faso, on 9 June 1998, and came into effect on 25 January 2004, thirty days after receipt by the AU Commission of the 15th instrument of ratification.4 The Protocol has currently been ratified by twenty-three States.5 1

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The following have been elected as the first judges of the African Court: Sophia Akuffo (Ghana), George Kanyehamba (Uganda), Bernard Makgabo Ngoepe (South Africa), Jean Emile Somda (Burkina Faso), Hamdi Faraj Fanoush (Libya), El-Hadji Guisse (Senegal), Kelello Justina Mafoso-Guni (Lesotho), Fatsah Ouguergouz (Algeria), Modibo Tounty Guindo (Mali), Jean Ngabitshema Mutsinzi (Rwanda), and G´erard Niyungeko (Burundi). Decision on the Election of Judges of the African Court on Human and Peoples’ Rights, EX.CL/241(VIII), Assembly/AU/Dec.100(VI). Pretoria University Law Press, Compendium of Key Human Rights Documents of the African Union (Pretoria: Pretoria University Law Press, 2005), p. 20, OAU Doc. CAB/LEG/67/3/Rev.5. Adopted by the Organization of African Unity (OAU), 27 June 1981 in Nairobi, Kenya. Article 5(3) of the African Court Protocol. For a detailed discussion on the drafting of the Protocol, see J. Harrington, ‘The African Court on Human and Peoples’ Rights’ in M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights (Cambridge: Cambridge University Press, 2002), p. 308. For a list of States that have ratified the African Court Protocol, see www.africa-union.org.

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In July 2006, the Assembly of the African Union (‘the Assembly’) decided that the seat of the African Court shall be established in Arusha, Tanzania, and the Tanzanian Government has identified for the African Court the facilities currently being used by the International Criminal Tribunal for Rwanda (ICTR). While these facilities are of superior quality, having been converted and equipped by the United Nations, these are only likely to become vacant at the end of 2010, almost four years from now. Representatives of the Commission of the African Union (‘the AU Commission’) visited Arusha in August 2006 for discussions with the Tanzanian authorities, but, as yet, no host agreement has been concluded with the AU. The judges of the African Court met three times to elect its bureau,6 to draft its Rules of Procedures7 and to adopt a programme of work.8 The Registrar and the other staff of the Court will be appointed after the approval of the structure of the African Court by the Sub-Committee on Structures and the Advisory Sub-Committee on Administrative, Budgetary and Financial Matters of the Permanent Representatives Committee (PRC), comprising of African ambassadors to the AU.9 The first-year budget was US$2.25 million. The adoption of the 2007 Budget has been postponed to July 2007 to allow the PRC to approve the structures of the Court.10 The Executive Council, during its 10th Ordinary Session in January 2007, requested the AU Commission to ‘put in place the necessary modalities and structures for the effective operationalization of the Voluntary Contribution Fund for African Human Rights institutions provided for in the Kigali Declaration of 8 May 2003’.11 The African Court also met in July 2006 in Banjul, The Gambia, with members of the African Commission on Human and Peoples’ Rights, 6 7 8 9

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The Bureau is composed of the President of the Court, Judge Gerard Niyungeko, and the Vice-President, Judge Modibo Tounty Guindo. A working group composed of Judges Fatsah Ouguergouz and Sophia Akuffo is preparing the draft Rules of Procedure. Including, for the first year, study visits to the European Court of Human Rights, the InterAmerican Court of Human Rights and African regional courts of justice. Decision on the Activity Report of the African Court on Human and Peoples’ Rights 2006, Decisions and Declarations, Assembly of the African Union, Eighth Ordinary Session, 29–30 January 2007, Assembly/AU/Dec.144(VIII), para. 3. Ibid., Decision on the 21st Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/322(X), Decisions, Executive Council, Tenth Ordinary Session, 25–26 January 2007, Addis Ababa, Ethiopia, EX.CL/Dec.344(X), para. 2(vi); www.africaunion.org. Accessed 26 February 2007.

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judges of the ECOWAS Court of Justice and the SADC Tribunal and civil society organisation to discuss various aspects of their future relationship.12 The 8th Ordinary Session of the Assembly of the Union in January 2007 examined the 1st Activity Report of the Court, and decided that future reports will be examined by the Executive Council of the AU, comprising of Ministers of Foreign Affairs.13

Decision on merger of the African Court and the Court of Justice In July 2000, African States adopted the Constitutive Act14 to transform the OAU into the African Union (AU). The objectives of the AU, defined in the Constitutive Act, include ‘to promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’.15 The principles upon which the AU shall function include ‘respect for democratic principles, human rights, the rule of law and good governance’.16 Thus, on paper at least, Member States of the AU have expressed a stronger commitment to human rights. Although the Constitutive Act includes defence of the ‘sovereignty, territorial integrity and independence of its Member States’,17 and emphasises the principle of ‘non-interference by any Member State in the internal affairs of another’,18 the principle of non-interference has been diluted. In particular, the Constitutive Act includes ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in grave circumstances, namely: war crimes, genocide and crimes against humanity’,19 and ‘condemnation and rejection of unconstitutional changes of government’.20 The environment that prevailed at the time of the adoption of the African Charter was different from the current commitments made by AU members. While the AU has been quick to react to unconstitutional change of governments 12

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Any host agreement between the AU and Tanzania has to include provisions relating to unhindered access by civil society organisations to the African Court without the need for a visa, an arrangement that currently pertains to attendance at meetings of the AU and visits to the AU Commission in Addis Ababa, Ethiopia. See note 9 above, para. 5. Adopted by the 36th Assembly of Heads of States and Government of the OAU in Lom´e, Togo, 11 July 2000; www.africa-union.org/. Accessed 20 February 2007. 16 17 Article 3(h). Article 4(m). Article 3(b). 19 20 Article 4(g). Article 4(h). Article 4(p).

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through coups d’´etat,21 it still has to prove its determination in challenging States that perpetrate serious violations of human rights. The Constitutive Act establishes several organs of the AU, including the Court of Justice of the African Union (‘the Court of Justice’).22 The jurisdiction of the Court of Justice extends mainly to the interpretation of the Constitutive Act of the AU and other Union treaties,23 with AU organs and Member States being eligible to file cases.24 The process of drafting the Protocol of the Court of Justice commenced in 2002, with the draft being approved by a Ministerial Conference in June 2003,25 finally being adopted by the Assembly in July 2002. With only twelve ratifications, the Court of Justice Protocol, which requires fifteen ratifications to come into effect, has not yet come into effect.26 The African Court and the Court of Justice were to be established as two separate institutions, as a treaty body and as an organ of the AU respectively. However, in July 2004, the Assembly took (apparently for financial reasons) a decision to ‘integrate’27 the African Court and the Court of Justice into one court. During the discussion on the recommendation of the Executive Council to postpone the election of judges of the African Court due to insufficient candidates, the then Chairperson of the Assembly, President Olusegun Obasanjo, expressed concern about the proliferation of organs of the AU, and the danger of not having enough funds to support them. He stated: ‘Why shouldn’t the Court of Justice take along with it the Court on Human and Peoples’ Rights so that we have a Court of Justice which will have a division, if you like, for border issues, a division for human rights issues, a division for cross-border criminal issues or whatever’.28 These remarks surprised officials of the AU Commission, and advisers to President Obasanjo denied any prior knowledge. Despite the legal 21 23 25

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22 For example in Mauritania and Guinea. Article 5 of the Constitutive Act. 24 Article 19 of the Court of Justice Protocol. Article 18 of the Court of Justice Protocol. Summary Report of the Ministerial Conference on the Draft Protocol of the Court of Justice of the African Union, 7–8 June 2003, Grand Baie, Mauritius, Min/Prot/ACJ/ Rpt(I). For a list of States that have ratified the Protocol of the African Court of Justice, see http://www.africa-union.org. The French version of the AU Decision refers to ‘fusionner’ (merger). Report on the Decision of the Assembly of the Union to Merge the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, Executive Council, Sixth Ordinary Session, 24–28 January 2005, Abuja, Nigeria, EX.CL/162, pp. 1 and 2.

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uncertainty of this proposal, the Assembly proceeded to adopt a decision, the relevant paragraphs of which read as follows: The Assembly: ... 4. Further Decides that the African Court on Human and Peoples’ Rights and the Court of Justice should be integrated into one Court, 5. Requests the Chairperson29 to work out the modalities on implementing Paragraph 4 above and submit a report to our next Ordinary Session.30

The rashness with which the Assembly adopted this decision is indicated by the fact that these two paragraphs relating to the merger or integration of the two courts were hastily incorporated into a decision on ‘the seats of the organs of the African Union’, instead of the Assembly adopting a separate decision on the issue. The two paragraphs have no relevance to the rest of the decision, apart from reference to the Court of Justice, which is an organ of the AU. This decision left the AU Commission, the African Commission and NGOs in a quandary. It also had serious implications for the establishment of the African Court, and legal and political implications regarding the establishment of both courts. The proposition to merge the two courts is not new, but one that was given serious consideration during the drafting of the Court of Justice Protocol. The draft Court of Justice Protocol proposed that the African Court be a special chamber of the Court of Justice. Article 60 of the draft Protocol Relating to the Statute, Composition and Function of the Court of Justice of the African Union (renamed Protocol of the Court of Justice of the African Union) read in part as follows:31 2. On entering into force of the Protocol on the establishment of the African Court on Human and Peoples’ Rights or adoption of the present Statute, whichever may be sooner, the African Court on Human and Peoples’ Rights shall be deemed to be constituted as a chamber of the Court in accordance with paragraph 1 of this Article. 29 30

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The Chairperson of the AU Commission. Decision on the seats of the Organs of the African Union, Decisions and Declarations, Assembly of the African Union, Third Ordinary Session, 6–8 July 2004, Addis Ababa, Ethiopia, Assembly/AU/Dec.45(III). Progress Report on the Establishment of the African Court on Human and Peoples’ Rights, African Union Second Ministerial Conference on Human Rights in Africa, 5–9 May 2003, Kigali, Rwanda, Min/Conf/HRA/9(II), p. 5.

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3. In exercising its functions under paragraph 2 of this Article, the Court shall have jurisdiction to hear applications from individuals and nongovernmental organizations of Member States in accordance with paragraph 3 of Article 5 and paragraph 6 of Article 34 of the Protocol on Human and Peoples’ Rights.32

The first meeting of government experts and judges and the PRC to consider the draft Court of Justice Protocol was held in Addis Ababa in April 2003. Forty-nine AU Member States participated in the meeting, which considered a draft prepared by eminent African jurists and representatives of the Regional Economic Communities and the AU Commission. When the Legal Counsel of the AU introduced the draft Protocol to the meeting, he pointed out that: With regard to the African Court on Human and Peoples . . . the eminent jurists had advised the Commission that it would not be cost effective to maintain the two courts, given that at least 22 judges may need to be appointed to the two courts together with their separate registries to enable them to function effectively as separate courts. Noting that the Court of Justice has competence in interpreting the Constitutive Act, which has a wide human rights content, the present draft proposes to integrate the African Court on Human and Peoples’ Rights as a Special Chamber of the Court of Justice with the judges who will work mainly in the Human Rights Chamber being elected on the basis of their competence in human rights.33

The meeting considered Article 60 of the draft Court of Justice Protocol, and the report of the meeting states: 31. The meeting deliberated on this Article at length, both during the general debate and during consideration of the Article. Some delegations contended that the meeting had no mandate to make recommendations on a merger of the Court of Justice of the African Union and the African Court on Human and Peoples’ Rights. In their view, the two courts had already been established as separate courts and in the case of the latter, some States had already ratified the Protocol. Other delegates had no objection to a merger of the two courts, especially since the African Court on Human and Peoples’ 32

33

What was meant here is the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights 1998. Summary of Proceedings of the First Meeting of Experts/Judges and PRC on the Draft Protocol of the Court Of Justice of the African Union, Expt. Judg/Draft/Prot/ACJ/Rpt(I).

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the african charter on human and peoples’ rights Rights was not yet up and running. In their view, human rights were not a special area of concern and should be treated as part of the general powers of any court to dispense justice. They were also concerned about the cost implications of maintaining two separate courts, when there were already many under-funded AU institutions. 32. After a very lengthy debate and numerous interventions by the delegates, it became clear that there was no consensus to incorporate the African Court on Human and Peoples’ Rights as a Special Chamber of the Court of Justice. The meeting, therefore, decided that the proposed provisions dealing with incorporation should be bracketed for further consideration by the Ministers.34

Due to time constraints, discussions on Article 60 could not be concluded at the first meeting, and the adoption of the Article (together with three others) was deferred to the next meeting. The second meeting of experts was held in Grand Bay, Mauritius, in June 2003. Thirty-seven AU Member States attended the meeting. The meeting, once again, considered the question of merger of the Court of Justice and African Court, and the report states the following: 15. On this issue, several delegations had expressed during the first meeting, and reiterated at this meeting, their reservations to the proposal to merge the two courts. They stated that the meeting did not have a specific mandate to discuss the matter and that, in any event this was a matter that lay within the competence of Ministers and Heads of State and Government. They also argued that the insufficiency of adequate financial resources affected all AU institutions and, therefore, should not be used as the rationale for merging the two courts. They regarded that a merger would relegate human rights to other issues on the African continent. 16. Several delegations that supported the proposal to merge the two courts during the first and second meeting expressed the view that the proposal had juridical and political dimensions. They further argued that since the two views could not be reconciled, the issue of whether the two courts should be merged or not should be referred to the Ministerial Conference as decided at the first meeting in Addis Ababa.35

Thus it was left to the Ministerial Conference to decide whether to merge the African Court into the Court of Justice or to retain them as two 34 35

See note 24 above. Summary of Proceedings of the Second Meeting of Experts/Judges and PRC on the Draft Protocol of the Court of Justice of the African Union, Expt.Judg/Prot/ACJ/Rpt(II).

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separate institutions. The AU Ministerial Conference, comprising of Ministers of Justice and Attorneys-General, immediately followed the meeting of experts, and was held on 7 and 8 June 2003 in Mauritius. As the Conference could not reach agreement on the issue of merger, it decided to refer the matter to the Executive Council of the African Union.36 The Executive Council, meeting prior to the 2nd AU Assembly, took the following decision: The Executive Council: 1. TAKES NOTE of the Report of the Interim Chairperson on the Ministerial Conference on the Draft Protocol of the Court of Justice; 2. DECIDES that the African Court of Human and People’s Rights shall remain a separate and distinct institution from the Court of Justice of the African Union, and accordingly, Article 56(2) and (3) and all footnotes of the Draft Protocol are expunged from the Draft Protocol; 3. APPROVES the draft Protocol of the Court of Justice as amended and RECOMMENDS it to the Assembly of the Union for adoption.37

The Court of Justice Protocol was subsequently adopted by the 2nd AU Assembly in Maputo, Mozambique, in July 2003, without any provision regarding the African Court being a Special Chamber of the Court of Justice. The Assembly took the following decision: The Assembly: 1. TAKES NOTE of the recommendations of the Executive Council; 2. ADOPTS the Protocol of the Court of Justice of the African Union; 3. APPEALS to all Member States to sign and ratify this important instrument in order to ensure its speedy entry into force.38

After the many deliberations in four separate meetings regarding the proposal to merge the African Court into the Court of Justice, a final rejection of the proposal by the Executive Council, and the adoption of the Court of Justice Protocol as recommended by the Executive Council, the July 2004 decision of the AU Assembly to merge the two courts not only undermines its own previous decision but also points to a failure to consider the legal and political implications of such a decision. 36 37 38

See note 24 above. Decision on the Draft Protocol of the Court of Justice, Executive Council, EX/CL/59(III). Decision on the Protocol of the Court of Justice of the African Union EX/CL/59(III), Assembly/AU/Dec.25(II).

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Critique of decision to merge Questions that presented themselves in regard to the implementation of the Assembly decision included whether a new protocol had to be drafted, or if it was possible to amend the two existing protocols.39 Both protocols have specific procedures pertaining to amendment of these treaties. The Court of Justice Protocol states that a State Party may submit a written proposal for an amendment to the Chairperson of the Assembly, the proposal has to be conveyed to AU Member States, the Court has to give an opinion on the proposed amendment, and then the Assembly may adopt the amendment by a simple majority.40 The Court may also propose amendments to the Protocol, which shall be submitted to the Chairperson of the Assembly, and the same procedure set out above will be followed.41 Similar provisions relating to amendments are to be found in the African Court Protocol.42 The decision of the Assembly would have required, as a minimum, the amendment of, at least, the Court of Justice Protocol in order to incorporate the African Court as a special chamber of the Court of Justice, as initially proposed. It could be argued that the Assembly decision did not amount to a proposal to amend the Court of Justice Protocol since it did not identify specific provisions that required amendment, and did not suggest draft provisions. Furthermore, the request for amendment did not come from a State Party to the Protocol, as required in both Protocols. Finally, States Parties and non-States Parties to both Protocols participated in the decision. The question, therefore, arises as to whether the Assembly has the authority to amend a treaty. It is a central rule of international law that treaties that are in force are binding upon States Parties to such treaties, and the States Parties must perform the obligations in good faith.43 Procedures for amending treaties are clear in both the Protocols and the Vienna Convention on the Law of Treaties.44 Therefore, while the decision of the Assembly has legal standing, it cannot amend or vary multilateral treaties in the manner envisioned. The Assembly decision purports to 39

40 41 42 43 44

The Coalition for an Effective African Court on Human and Peoples’ Rights made a comprehensive submission to the AU on the legal and political implications of the merger decision. See www.africancourtcoalition.org. Accessed 13 October 2007. Article 46 of the Protocol of the Court of Justice. Article 47 of the Protocol of the Court of Justice. Article 35 of the Protocol of the African Court. Article 26 of Vienna Convention on the Law of Treaties. Article 40 of the Vienna Convention reads:

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override treaty obligations, with serious consequences for rule of law in Africa. At the time of the Assembly decision in July 2004, nineteen States had ratified the African Court Protocol, while only four States had ratified the Court of Justice Protocol. Most States had engaged in an elaborate process of ratification at a national level. The African Court Protocol requires that, once it has come into effect, the AU Commission has to call for nominations for judges of the African Court.45 A note verbale was sent by the AU Commission in April 2004 to all Member States of the AU, calling for nominations and providing guidance to States regarding their obligations in the nomination process.46 There were, therefore, reasonable expectations on the part of States Parties to the African Court Protocol that the Court would be established soon after the treaty came into effect. By July 2004, nine States Parties had already submitted nominations, and three had offered to host the African Court. Some NGOs, and in particular the Coalition for the Establishment of an Effective African Court (‘the African Court Coalition’), were extremely concerned that the effects of the Assembly decision would be to suspend the African Court Protocol and to stop the process of the establishment of the African Court.47 Once the AU adopted the African Court Protocol, it agreed that the treaty would come into effect upon the receipt of 15 ratifications and this provision applies from the time the text was adopted.48 The Assembly, therefore, did not have the authority to prevent the coming into effect of the Protocol. It could, however, be argued that by adopting the decision to merge the two Courts, States Parties to the Protocol, who participated in the Assembly’s decision, were agreeing to suspend the operation of the treaty, as they are

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1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs. 2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty. 3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. Article 12 of the Protocol of the African Court. Note Verbale, 5 April 2004, BC/OLC/66.5/8/Vol.V. See note 38 above. Article 21(4) of the Vienna Convention states: ‘The provisions of a treaty regulating . . . the manner or date of its entry into force . . . apply from the time of the adoption of its text.’

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entitled to do.49 This conclusion, though, is not clear from a reading of the decision, and has to be extrapolated. In supporting the proposal for the African Court to be a special chamber of the Court of Justice, States argued most strongly on the issue of affordability, and the need to rationalise institutions. There are cogent reasons to rationalise AU institutions, and the decision of the Assembly could result in the efficient utilisation of scarce resources of the AU. However, one does not hear the issue of affordability being raised in relation to the many political institutions being created by the AU, including the Pan African Parliament and the Peace and Security Council. Furthermore, since its establishment in 1989, the African Commission has not been adequately resourced by the AU, and has had to rely on financial support from donors outside Africa, especially European governments.50 This is despite the Assembly adopting a resolution repeatedly calling for the African Commission to be provided with adequate human, financial and material resources.51 There is no certainty that a new merged Court will be sufficiently resourced by the AU, given the demands of the many new institutions being created. Given that the AU has, as yet, not acted upon the recommendation of the First AU Ministerial Conference on Human Rights52 (held in Kigali, Rwanda, in May 2003) to establish a voluntary human rights fund, and despite the Executive Council calling upon Member States to fully implement the Kigali Declaration,53 it is not 49

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Article 57 of the Vienna Convention states: ‘The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.’ See Report of the Brainstorming Meeting of the AU on the African Commission on Human and Peoples’ Rights, Banjul, May 2006. See, for example, Decision on the 21st Annual Activity Report of the African Commission. Kigali Declaration, the First AU Ministerial Conference on Human Rights in Africa, 8 May 2003, Kigali, Rwanda, MIN/CONF/HRA/Decl.1(I), para. 23. In its presentation to the meeting of experts, the African Commission mooted the establishment of a voluntary human rights fund, a proposal that was first made by Amnesty International during the First OAU Ministerial Conference on Human Rights in Africa, held in April 1999 in Grand Bay, Mauritius: Report of the Meeting of Experts of the First AU Ministerial Conference on Human Rights in Africa, 5–6 May 2003, EXP/CONF/HRA/RPT(II). Decision on the Report of the First Ministerial Conference of the African Union on Human Rights in Africa, EX/CL/46(III), Decisions of the Third Ordinary Session of the Executive Council, 4–8 July 2003, Maputo, Mozambique. In January 2007, the Executive Council requested the AU Commission to operationalise the AU voluntary human rights fund.

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likely that AU human rights institutions would be adequately resourced for many years.

Drafting of a new protocol The debate on the merger of the two courts provides an opportunity to remedy some of the flaws in the African Court Protocol, in particular the issue of the conditional access by civil society organisations and individuals.54 It also allows for the integration of human rights into all the decisions of the merged court, especially those pertaining to the Constitutive Act and other AU treaties. Apart from the ECOWAS Court of Justice,55 there is currently no other judicial institution with combined jurisdiction over human rights and general matters pertaining to disputes between Member States. Currently, the African Court does not have explicit jurisdiction regarding the African Charter on the Rights and Welfare of the Child (‘the African Children’s Charter’), and there is no relationship established with the supervisory mechanism established under that treaty, the African Committee of Experts on the Rights and Welfare of the Child (‘the Committee of Experts’) and regional courts such as the ECOWAS Court of Justice.56 A discussion on the merger provides an opportunity to remedy this so that a merged court is properly mandated to deal with all human rights complaints including those pertaining to children. Civil society organisations were extremely concerned that the debate on the merger and the consequent drafting of a new protocol would delay the establishment of the African Court.57 In fact, the AU Commission was of the opinion that “the effect of the decision [of the Assembly] was to suspend operationalisation of the African Court temporarily until 54

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Article 5(3) of the African Court Protocol states that the Court may entitle individuals and NGOs to file cases directly before the Court, provided that the State against which the case is filed has recognised such jurisdiction of the Court by making the necessary declaration under Article 34(6). See Protocol A/P1/7/91 on the Community Court of Justice, revised in 2004 by Supplementary Protocol A/SP.1/11/04. Other regional courts, such as the East African Community (EAC) Court of Justice, the Tribunal of the Southern Africa Development Community, the Cour de Justice de l’Union Economique et Mon´etaire Ouest-Africain (UEMOA), the Cour de Justice de la Communaut´e Economique des Etats de l’Afrique Centrale (CEMAC), the Court of Justice of the Common Market of Eastern and Southern Africa (COMESA) and the Cour de Justice de l’Union du Magreb Arabe (UMA) have indirect jurisdiction over human rights issues. See note 38 above.

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such time as the Assembly decided a way forward”.58 The uncertainty surrounding the merger of the two courts certainly delayed the election of judges to the African Court, with the elections being held in January 2006, two years after the Protocol came into effect. It was mainly through the concerted advocacy efforts of the African Court Coalition that the Executive Council decided that the discussions on the merger should not prejudice the operationalisation of the African Court.59 The Executive Council has also continued to encourage States to ratify the Protocol.60

Protocol on the statute of the African Court of Justice and Human Rights61 In acting upon the decision of the Assembly to merge the two courts, the AU Commission convened a meeting of a small group of independent legal experts to consider the different options available to the AU. In its report to the Assembly in January 2005,62 the AU Commission pointed out the difficulties in implementing the decision of the Assembly, including the different jurisdictions of the two courts, their different stages of development and the different expertise required of the judges in the two institutions. The AU Commission then presented two options. The first option was the drafting of a new protocol, but indicated that this suggestion was problematic since the African Court Protocol had already entered into force. The second option was to amend the two Protocols through the adoption of a new protocol. This is the option that the AU Commission recommended. The report had annexed to it a Draft Protocol on the Integration of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, which comprised of a series of Articles purporting to delete, amend and alter various Articles in the two 58 59

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Report on the Decision of the Assembly of the Union to Merge the African Court on Human and Peoples’ Rights with the Court of Justice of the African Union. Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, Decisions, Executive Council, Sixth Ordinary Session, 24– 28 January 2005, Abuja, Nigeria, EX.CL/Dec.162(VI). See note 52 above, para. 3. All references to the draft Protocol is to the draft annexed to the Summary Report of the Meeting of Permanent Representatives’ Committee and Legal Experts on Legal Matter, 16–19 May 2006, PRC-Exp/Legal/Rpt, which was the draft available as at the time of writing, and which was to be referred, during 2007, to a meeting of Ministers of Justice for finalisation. See note 44 above.

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Protocols. In its presentation, the draft seemed incoherent, and therefore was required to be read with regular reference to the two Protocols. During its deliberations, the Assembly rejected the recommendation of the AU Commission, and called for further consultations between the legal experts of the Member States and the AU Commission. Having ensured the operationalisation of the African Court, the Coalition grasped the opportunity to influence the drafting of a new protocol for the establishment of a merged court. It gathered a small group of legal experts in London to produce a draft that would address the many lacunae in the African Court Protocol. The African Court Coalition presented to the AU the draft Protocol on the African Court of Justice and Human Rights.63 The 5th AU Assembly in July 2005, held in Sirte, Libya, decided to proceed with the drafting of a legal instrument establishing a merged court comprising of the African Court and the Court of Justice. The Assembly also accepted the offer of the Minister of Foreign Affairs of Algeria, Mr Mohamed Bedjaoui (former President of the International Court of Justice), for Algeria to contribute to the drafting of the legal instrument establishing a merged court, and decided ‘that all necessary measures for the functioning of the Human Rights Court be taken’.64 The Minister of Foreign Affairs of Algeria subsequently arranged a meeting of government experts in November 2005 in Algiers to consider a draft Protocol prepared by an Algerian legal expert, which was circulated to all AU Member States in October 2005. The Algerian draft was considerably influenced by the draft prepared by the African Court Coalition, with substantial provisions of the Coalition’s draft being incorporated. Despite the Algiers meeting not having a quorum of a simple majority of AU Member States represented,65 the deliberations continued in the form of a working group, and amendments were made to the Algerian draft.66 At its meeting in January 2006 in Khartoum, Sudan, the Executive Council decided to refer the Algerian draft single instrument, prepared by 63 64 65 66

See the Coalition’s draft Protocol on its website: www.africancourtcoalition.org, or at www.interights.org/doc/Integration1 .doc. Both accessed 13 October 2007. Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, Assembly/AU/6/(V), Assembly/AU/Dec.83(V). Only twenty-two AU Member States attended. Report of the Meeting of Government Legal Experts on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, Executive Council, Eight Ordinary Session, 16–21 January, Khartoum, Sudan, EX.CL/211(VIII).

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the Algiers working group, to a joint meeting of the PRC and legal experts from Member States.67 The AU Commission subsequently arranged a meeting in May 2006 of members of the PRC and legal experts for further deliberations on the draft Protocol of the Court of Justice and Human Rights.68 The draft Protocol on the Statute of the African Court of Justice and Human Rights (‘the draft Protocol and draft Statute’)69 establishing a merged court comprises two parts: a Protocol on the Statute of the African Court of Justice and Human Rights (‘the draft Protocol’), comprising three chapters dealing primarily with the transitional arrangements; and the annexed Statute of the African Court of Justice and Human Rights (‘the draft Statute’), comprising the substantial provisions that would govern the establishment and functioning of the Court. The Court would be composed of fifteen judges ‘who possess qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence and experience in international law and/or human rights law’.70 In preparing for the election of judges of the Court of Justice and Human Rights, the AU Commission is required to produce two lists of candidates. List A will have the names of candidates with recognised competence and experience in international law, and list B will have the names of candidates with competence and experience in human rights law.71 States Parties nominating candidates are required to choose the list on which their candidate should be placed. The draft Protocol requires that eight judges be elected from list A and seven from list B. The Court shall be composed of two sections: a general affairs section composed of eight judges and a human rights section composed of seven judges.72 The quorum for each of these sections is five judges.73 The sections may constitute one or several chambers, and the quorum of such chambers will be determined by the Rules of Procedure.74 The President of the Court shall preside over the general affairs section, while the 67

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Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union Dec.EX.CL/211(VIII), Executive Council, Eighth Ordinary Session, 16–21 January 2006, Khartoum, Sudan, EX.CL/Dec.236–277(VII). Summary Report of the Meeting of the Permanent Representative’s Committee and Legal Experts on Legal Matters, 16–19 May 2006, Addis Ababa, Ethiopia, PRC-Exp/Legal/Rpt. 70 See note 61 above. Article 4 of the draft Statute. 72 Article 5(1) of the draft Statute. Article 16 of the draft Statute. 74 Article 21(2) and (3) of the draft Statute. Article 19(1) of the draft Statute.

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Vice-President shall preside over the human rights section.75 The Court may also constitute itself as a full Court,76 and the quorum required is nine judges.77 The meeting, during which forty-five States participated, adopted the draft Protocol, except for five issues on which they could not reach agreement and which were referred to the Executive Council for decision.

Ratification To avoid the difficulties encountered by the AU in the ratification of the African Court Protocol, which had obliged the AU Assembly of the Union to intervene with the Member States,78 the draft Protocol provides that the signing of the Protocol by a State that is already a party to the two protocols to be merged79 constitutes ‘consent to be bound’ by the text, ‘unless the said State expresses a contrary intention at the time of signature’.80 In consonance with this provision, Article 9(2) of the draft Protocol specifies that, in respect of a State that express its consent under Article 8(2), the Protocol shall enter into force on the date of such consent. This legal technique for accelerating ratification is not new to African treaty law. The 1980 Additional Protocol to the OAU General Convention on Privileges and Immunities provides that the text in question ‘shall come into force as regards such Member on the date of the deposit of its instrument of accession’, and certain conventions negotiated within the framework of the Economic Community of West African States 75 76 78

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Article 22(2) of the draft Statute. 77 Article 18 of the draft Statute. Article 21(1) of the draft Statute. See Decision AHG/Dec. 171(XXXVIII) of the Assembly of Heads of State and Government of the African Union, Durban, July 2002, asking the Member States that had not already done so to accelerate the ratification process with a view to the Protocol entering into force before July 2003. In the follow-up to this Decision, the AU Commission, in collaboration with Interights (an NGO based in London), organised three sub-regional meetings (May 2003 in Niamey, Niger, for the West African States; December 2003 in Gaborone, Botswana, for the East and Southern African States; and June 2006 in Libreville for the Central African States), following which the minimum number of ratifications was obtained for the Protocol to enter into force. Ten of the States Parties to the Protocol on the establishment of an African Court on Human and Peoples’ Rights – Comoros, Lesotho, Libya, Mali, Mauritius, Mozambique, Niger, Rwanda, South Africa and Tanzania – had ratified the Protocol of the Court of Justice of the African Union as of 31 January 2007. See Report on the Ratification Status of OAU/AU Treaties (as at 11 January 2007), EX./CL/296(X) Rev. I, p. 21. Article 8(2) of the draft Protocol.

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(ECOWAS)81 contain provisions ‘provisionally’82 establishing their entry into force upon their signature by the Heads of State and Government. The debate, therefore, ensued from both an ignorance of the prior practices of the AU and the intent of certain Member States to maintain the status quo ante with regards to treaty ratification. During the May 2006 meeting of the PRC and legal experts, two positions were presented on this issue. The first position, advocated by South Africa and Egypt, considered that it was necessary to open up the new Protocol for signature and ratification by Member States in conformity with their respective constitutional procedures, ‘as is the practice’,83 in light of the fact that it was a new legal instrument; whereas the second position, led by Algeria and Nigeria, upheld the formulation of the text because it made it possible to accelerate the entry into force of the Protocol (and hence the establishment of the organs of the AU) and allowed the States Parties that had already ratified both existing protocols to select the solution they wished to adopt.84 The opponents to the second formula renewed their contestation during the debate on the draft Protocol and Statute during the 9th Ordinary Session of the Executive Council, held in Banjul, Gambia, in June 2006. They raised the same reservations and eventually had the matter referred to the Ministers of Justice of the AU Member States, thereby reviving the haunting issue of the slowness of African Union treaty ratification.85 It is to be hoped that the Ministers will have the wisdom to adopt the Algerian proposal, which has the advantage of offering a realistic approach to the issue of African treaty ratification. 81

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Particularly the Protocol Relating to the Mechanism for Conflict Prevention, Management and Resolution, Peace-keeping and Security and the Supplementary Protocol to the Protocol on the Community Court of Justice. Article 57 of the Protocol Relating to the Mechanism for Conflict Prevention, Management and Resolution, Peace-keeping and Security, which further specifies that: ‘Accordingly, signatory Member States and the Executive Secretariat hereby undertake to start implementing all provisions of this Mechanism upon signature’. ECOWAS went even further by adopting, on 17 January 2007, a new legal system introducing the principle of ‘supranationality’ whereby the conventions and protocols will be replaced by Additional Acts that will be binding on the Member States and the Community upon signature by the Heads of State and Government. 84 See note 61 above, p. 5. See note 61 above, pp. 5 and 6. Apart from the Constitutive Act of the African Union and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, whose ratification processes lasted one and three years respectively, five to seven years are generally required for an AU treaty to enter into force.

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Reservations The meeting of the PRC and legal experts in May 2006 was presented with a draft provision86 that would have enabled a State Party to enter a reservation regarding access to the Court of Justice and Human Rights by NGOs and individuals. Fortunately, the meeting did not adopt this provision, but, during the discussion, some delegations introduced a general provision on reservations into the draft Protocol, as follows: ‘Any Member State may, at the time of signature or when depositing its instrument of ratification or accession, declare that it does not consider itself bound by any of the articles of this Protocol provided that such a declaration is compatible with the object and purpose of this Protocol.’87 Many States were opposed to the introduction of the general reservation for the following reasons: – The protocols that form the foundation for the new text do not contain any provision on reservations. – The main purpose of the reservation is to enable States that are opposed to direct access of individuals and non-governmental organisations to the new Court to get around the decision made in the meeting to open up the new Court to the latter. This undermined the object and purpose of the treaty as forbidden by the Vienna Convention on the Law of Treaties.88 86

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Draft Article 32: Other Entities Eligible to Submit Cases to the Court 1. The following entities shall also be entitled to submit cases to the Court on any violation of a right guaranteed by the African Charter on Human and Peoples’ Rights, by the Charter on the Rights and Welfare of the Child, or any other legal instrument relevant to human rights ratified by the States Parties concerned: a. The African Commission on Human and Peoples’ Rights; b. The African Committee of Experts on the Rights and Welfare of the Child; c. African Intergovernmental Organisations; d. Individuals and Non-Governmental Organisations. 2. Any Member State may, at the time of signature or when depositing its instrument of ratification or accession to this Protocol, declare that it does not consider itself bound by the provisions of Paragraph 1, Sub-paragraph d. of the present Article. 3. Any Member State having formulated a reservation in conformity with the provisions of Paragraph 2 of the present Article may withdraw said reservation at any time through a notification addressed to the Chairman of the AU Commission. (Emphasis added.) 88 Article 8(4) of the draft Protocol. See note 54.

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Other States firmly supported the idea that, failing the retention of Article 34(6) of the African Court Protocol,89 the provision on reservation should be maintained because ‘it was easier for a State to enter its reservations to a particular article at the time of ratification or accession rather than to declare separately its acceptance of a particular article in the Protocol or the Statute’.90 Unable to reach a consensus on the issue, the participants at the experts’ meeting decided to refer the matter to the Executive Council, which, in turn, was unable to come to a decision between the two groups, particularly due to Zimbabwe’s fierce opposition to the removal of the controversial provision. If it is ratified by the African Ministers of Justice, this provision could compromise all efforts to democratise the African human rights system, since there is every indication that its advocates envisage its use to refuse victims of human rights violations access to the new Court. It is therefore important to do everything possible to preserve the tradition of refusing to introduce reservations into African human rights treaties introduced by the African Charter.

Gender parity Since the adoption of the Solemn Declaration on Gender Equality in Africa91 in Addis Ababa, July 2004, when all of the African States undertook to ‘expand and promote the gender parity principle that we have adopted regarding the Commission of the African Union to all the other organs of the African Union’,92 certain African delegations have become particularly vigilant about the application by the AU of the principles contained in that important document. It is therefore only natural that, during the Executive Council meeting in Banjul, the question was raised by the South African delegation, which expressed its surprise that, despite the reference to the Declaration of Addis Ababa in the final paragraph of the Preamble of the draft Protocol, no consideration was given to equal representation of men and women in the new Court. According to the South African representative, supported only by the Tunisian delegation, the drafters of the new Protocol seemed to have chosen the formulation 89

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Article 34(6) of the African Court Protocol requires a State Party to make a declaration recognising the jurisdiction of the Court to receive complaints from NGOs and individuals against that State. To date, only Burkina Faso has made the declaration. 91 See note 54, p. 6. See Assembly/AU/Decl.12(III) See para. 5 of the Solemn Declaration on Gender Equality in Africa.

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of the African Court Protocol, which refers to ‘adequate gender representation’,93 whereas the terms of the Court of Justice Protocol, which stress ‘equal gender representation’94 within the Court, was more in conformity with the letter and spirit of the Declaration of July 2004. The representative therefore requested that the number of judges be revised upwards in order to reflect the will of the African people to ensure equal participation of both genders within the bodies of the AU. It should be noted that the initial Algerian draft recommended the appointment of sixteen judges, and that that number was initially reduced by the Working Group to twelve,95 then raised again to fifteen by the Ambassadors and legal experts,96 who left the possibility open for the Assembly to revise the figure upon ‘recommendation by the Court’.97 Although the Executive Council referred the matter to the Ministers of Justice, it remains that the African States have very little margin to manoeuvre in this matter, in light of the sensitivity of the issue of gender equality at the continental level.98 The example of the current composition of the African Court, which only has two female judges, demonstrates that an appeal for ‘adequate’ gender representation is not the ideal means of ensuring a more significant female representation in the institutions of the AU.

Regional representation The initial Algerian proposal to grant each geographical region of Africa a representation of ‘at least 3 judges’,99 was amended by the Algiers working 93 94 95

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Article 14(3) of the African Court Protocol. At least in the English version of Article 7(3) of the Protocol on the Court of Justice of the African Union there is reference to ‘equal gender representation’. The Working Group proposed that the judges number twelve ‘in order to reduce the financial cost’ and because the Court ‘would not have to deal with many cases’. See Summary Report of the Working Group on the Draft Single Legal Instrument on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, UA/EXP/Fusion.cours/Rpt.(I), p. 6, para. 16. 97 See note 54. Article 3(2) of the draft Statute. An African Union Commission structure within the office of the Chairperson is in charge of monitoring this issue. At each Ordinary Session of the Assembly, it submits a status report on the implementation of the Declaration of July 2004. In addition, several Regional Economic Communities (RECs) – such as the Economic Community of West African States (ECOWAS), the Southern African Development Community (SADC) and the Economic Community of Central African States (ECCAS) – have formulated policies to that effect, and have set action plans in place to accelerate progress towards gender parity. Article 3(4) of the Algerian draft.

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group, which reduced it to two judges100 due to the overall reduction in the number of judges. However, the issue of geographical representation remains on the table because the participating States were divided between two positions. The first position, promoted in particular by Tunisia, was the application of the rule of equality between the regions, as was the case for the election of the members of the Commission. The other – advocated by Algeria, Egypt, Lesotho, Libya, Mali, South Africa and Uganda – was based on the principle of equitable geographic distribution in force within the AU, which would be translated as follows for the election of the fifteen judges: West Africa (four), Central Africa (three), Southern Africa (three), East Africa (three) and North Africa (two).101 The issue of geographical distribution is important not only for the purposes of judicious distribution of judges, but also to help the bodies of the AU Commission to better organise the procedure for the election of the judges in order to avoid regional overrepresentation or underrepresentation. While it is conceivable that West Africa, which comprises fifteen States, may have the same number of judges as North Africa, which is made up of only five States, the absence of criteria for geographical distribution may also lead to the overrepresentation of one region compared to the others, as was the case with West Africa during the election of judges to the African Court. Failing a consensus on the issue, the meeting referred the matter to the Ministers for further deliberation.

Competence of the Court The Algerian proposal for a possible extension of the jurisdiction of the Court of Justice and Human Rights by the Assembly, which was taken from Article 19(2) of the Court of Justice Protocol,102 gave rise to a passionate debate during the meeting of the PRC and legal experts over the competence and jurisdiction of the Court. Certain countries, such as Tunisia and Egypt, proposed the outright removal of the paragraph on grounds that the areas of jurisdiction of the Court should be restricted to those provided under Article 29(1) of the

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101 Article 3(3) of the draft Statute. See note 54. Article 29(2) of the draft Statute: ‘The Assembly may confer on the Court power to assume jurisdiction over any dispute other than those referred to in this Article.’

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draft Statute.103 In their view, it was not for the AU Assembly but for the treaty itself to determine the jurisdiction of the Court. Consequently, any amendment of the areas of jurisdiction of the Court should be considered an amendment to the Protocol, and should therefore be referred to the parliaments of the States Parties for ratification.104 Nigeria, Senegal and, to a lesser extent, Angola and Ghana took an opposing view, and felt that the list of jurisdictions of the Court in Article 29(1) was incomplete. Granting the Assembly powers to deal with situations or developments unforeseen by the paragraph was a means of lending greater flexibility to the Court. These delegations were undoubtedly considering the matter of Hissen Habre105 and anticipating the adoption by the Assembly of the African Charter on Democracy, Elections and Governance (‘the Charter on Democracy’), which provides that ‘[p]erpetrators of unconstitutional change of government may also be tried before the 103

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Article 29(1) of the draft Statute: ‘The Court shall have jurisdiction over all cases and all legal disputes submitted to it in accordance with the present Statute which relate to: (a) the interpretation and application of the Constitutive Act; (b) the interpretation, application or validity of other Union Treaties and all subsidiary legal instruments adopted within the framework of the Union or the Organisation of African Unity; (c) the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned; (d) any question of international law; (e) all acts, decisions, regulations and directives of the organs of the Union; (f) all matters specifically provided for in any other agreements that States Parties may conclude among themselves, or with the Union and which confer jurisdiction on the Court; (g) the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union; (h) the nature or extent of the reparation to be made for the breach of an international obligation.’ See Summary Report of the Meeting of the Permanent Representatives Committee and the Legal Experts on Legal Matters, 16–19 May 2006, EX.CL/253(IX), p. 4. The Assembly decided at its meeting in Banjul, The Gambia, in July 2006 that Hissen Habre, former President of Chad, who is being sought for trial in Belgium for serious human rights violations including torture, should not be extradited to that country but should be tried by a Senegalese court, since he is currently resident in that country. In January 2007, the Assembly adopted a decision in which it encouraged Senegal ‘to pursue initiatives to accomplish the mandate entrusted to it’ and ‘to avail itself of the experience and contribution of the jurisdictions and judges of the Continent for the organization of the trial’. Decision on the Trial of Mr Hissen Habre and the African Union, Decisions and Declarations, Assembly of the African Union, Eight Ordinary Session, 29–30 January 2007, Addis Ababa, Ethiopia, Assembly/AU/Dec.157(VIII).

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competent court of the African Union’.106 It would be a serious mistake for the Assembly to confer on the Court of Justice and Human Rights jurisdiction to conduct criminal trials, since the structure, composition and resources of the African Court of Justice would not permit it to conduct such trials. Furthermore, given that the International Criminal Court (ICC) has been established, and many AU Member States have ratified the Rome Statute establishing this Court,107 all attempts should be made to strengthen the ICC, instead of having a proliferation of criminal trials in different parts of the world. Whatever the drafters of the Charter on Democracy may have had in mind, it may be necessary to establish an ad hoc court to undertake investigations and trials of perpetrators of unconstitutional change of government. Due to the lack of consensus on the issue, the Executive Council decided to refer the provision for further deliberations to the meeting of the Ministers of Justice. It should be noted that the participants attending the meeting of Addis Ababa also decided to remove Article 30(3) from the working group’s version, which granted the Court authority to decide, in respect of any matter, where there was doubt as to its jurisdiction. This is unfortunate, since the rule is enshrined in the Statute of the International Court of Justice,108 the Protocol on the African Court on Human and Peoples’ Rights109 and the European Convention on Human Rights,110 and its importance was emphasised by the International Court of Justice in its judgement on jurisdiction, handed down on 18 November 1953 in the Nottebohm case.111

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Article 25(5) of the African Charter on Democracy, Elections and Governance, CHARTER/II/Rev.4. As of 1 November 2006, twenty-nine African countries have ratified the Rome Statute, sixteen of whom have ratified the African Court Protocol (Burkina Faso, Burundi, Comoros, Gabon, The Gambia, Ghana, Kenya, Lesotho, Mali, Mauritius, Niger, Nigeria, Senegal, South Africa, Tanzania and Uganda). See Article 36, para. 6 of the Statute of the International Court of Justice. See Article 3, para. 2 of the Protocol on the African Court on Human and Peoples’ Rights. See Article 32, para. 2 of the European Convertion on Human Rights. ‘Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction’: Nottebohm Judgement (Preliminary Exception) (Liechtenstein vs Guatemala), ICJ Reports (1953), 119.

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Jurisdiction of the Court Subject-matter jurisdiction The draft Statute combines the subject-matter jurisdictions of the African Court and the Court of Justice in Article 29. The Court will thus have jurisdiction in regard to interpretation and application of the Constitutive Act, other Union treaties and the African Charter, as well as any other legal instrument relating to human rights, and any question of international law.112 In addition, the Draft Statute provides the Court with specific jurisdiction regarding the interpretation and application of the African Children’s Charter and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘the Women’s’ Rights Protocol’). The Court shall have jurisdiction regarding all matters over which States may confer such jurisdiction in agreements concluded by States. The Court will also be able to consider cases and disputes that relate to ‘the nature or extent of the reparation to be made for the breach of an international obligation’. As stated previously, the issue that has not been settled yet, regarding jurisdiction, is whether the Assembly should be able to confer power on the Court to assume jurisdiction over any matter not referred to in Article 29(1). Jurisdiction personae Article 30 of the Statute replicates the jurisdiction personae from the Court of Justice Protocol, and entitles States Parties, the Assembly, parliament and other organs of the AU authorised by the Assembly to submit any cases to the Court on any issue or dispute provided for in Article 29. The Assembly may also lay down conditions to enable other Member States or other entities to approach the Court. A staff member of the AU Commission is also entitled to file an appeal with the Court regarding a dispute, in accordance with the Staff Rules and Regulations of the AU. The entities entitled to file cases on any violations of a right guaranteed by the African Charter, the African Children’s Charter and the Women’s Rights Protocol or any other human rights instrument ratified by a State Party concerned are listed in Article 31 of the Statute. These are: – States Parties; – the African Commission; 112

Article 29(1) of the draft Statute.

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– the African Committee of Experts on the Rights and Welfare of the Child; – African intergovernmental organisations accredited to the AU or its organs; – African national human rights institutions; – Individuals or relevant non-governmental organisations accredited to the African Union or its organs. Widening the jurisdiction to national human rights institutions (NHRIs) would enable national bodies that are independent to seek the assistance of the Court in the enforcement of human rights standards, especially where national courts are weak or in instances where a government deliberately ignores the decisions of the national judiciary. Several African NHRIs have affiliate status with the African Commission, but have rarely fully utilised this formal relationship. In particular, NHRIs could be of tremendous assistance in ensuring that States adhere to the African Charter and comply with decisions rendered by the African Commission and the Court of Justice and Human Rights. However, whilst NHRIs are currently entitled to file complaints under Article 56 of the African Charter, none of those affiliated to the African Commission has thus far submitted any complaints. The eligibility of individuals and NGOs to bring cases is not conditional upon States Parties recognising such jurisdiction of the Court, as is currently required by the African Court Protocol. Furthermore, the admissibility requirements for cases brought by individuals and NGOs stipulated in Article 6 of the African Court Protocol, in particular compliance with the provisions of Article 56 of the African Charter, have been omitted. This may be the consequence of removing direct access to the Court by individuals and NGOs, without first submitting the case to the African Commission and obtaining its determination, as provided in Article 5(3) of the African Court Protocol.113 Similar to the African Court Protocol, the draft Statute refers to the complementarity of the Court and the African Commission and, in addition, the African Committee of Experts.114 The draft Statute envisages complaints of human rights violations first being determined by the African Commission and the African Committee of Experts before the matter is filed before the African Court 113

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Article 5(3) of the African Court Protocol: ‘The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.’ Article 28(2) of the draft Statute.

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of Justice and Human Rights, especially as Article 54 states: ‘A request for an advisory opinion must not be related to a pending application before the African Commission or the African Committee of Experts.’ The Rules of Procedure will determine the details of the complementary relationship between the Court and the other treaty bodies also responsible for the protection of human and peoples’ rights. Only NGOs accredited to the AU or to its organs shall be entitled to submit cases to the Court. This requirement has been altered in the Protocol on the African Court from the requirement of observer status with the African Commission, and may require NGOs that have observer status with the African Commission but who are not accredited with the AU to obtain such accreditation,115 since the African Commission is not an organ of the AU. The requirement of accreditation to the AU could create unnecessary obstacles for NGOs, since many African NGOs may not be able to meet the criteria established by the AU for accreditation, for example the requirement that at least two-thirds of the resources of the NGO should come from contributions from their members. Article 31(f) also stipulates that ‘relevant’ NGOs would be entitled to submit cases to 115

The AU applies the following principles in granting observer status to NGOs (see EX.CL/161(VI)): ‘• The aims and purposes of NGOs requesting Observer Status shall be in conformity with the spirit, objectives and principles of the Constitutive Act of the African Union. r NGOs shall undertake to support the work of the African Union and to promote knowledge of its principles and activities in conformity with its aims and purposes and the nature and scope of its competence and activities. r NGOs shall be registered in a Member State of the Union without any restriction to undertake regional and continental activities and show a minimum of three (3) years proof of registration as either an African or an African Diaspora Civil Society Organization prior to the date of submission of the application, including proof of operation for those years. r NGOs shall have . . . a representative structure and possess appropriate mechanisms of accountability to their members, who shall exercise effective control over their policies through appropriate democratic and transparent decision-making processes and a management with a majority of African citizens or Africans in the Diaspora as may be defined by the Executive Council. r The basic resources of such NGOs shall substantially, at least two-thirds, be derived from contributions of their members. Where external voluntary contributions have been received, their amounts and donors shall be faithfully revealed in the application for membership. Any financial or other support or contribution, direct or indirect, from a government to NGOs shall be declared and fully recorded in their financial records. r The application shall be submitted to the Commission at least six (6) months before it can be considered and fully processed by the Commission and submitted to the Executive Council through the Permanent Representatives Committee.’

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the Court. Should the criteria to determine relevance not be included in the Rules of Procedure of the Court, it would be important for NGOs to make submissions to the Court in the first case filed by an NGO on these criteria so that the Court may make a ruling on the issue. It would be concerning if the Court restricts access to only NGOs that have human rights as part of their core mandate, or African NGOs, as stipulated in the African Court Protocol, as it would be crucial to allow developmental, environmental and international NGOs to bring cases before the Court. The draft Statute should remove all additional criteria in respect of NGOs, since this will drastically reduce the number of NGOs that would be entitled to access the Court of Justice and Human Rights. Currently, the African Commission does not require NGOs to even have observer status with it to qualify to file cases. Many of these NGOs could, in future, be disqualified from filing cases before the Court of Justice and Human Rights. At the very least, the draft Statute should repeat the wording of Article 5(3) of the African Court Protocol, which refers to ‘relevant Non Governmental Organizations (NGOs) with observer status’.

Advisory opinions The Court also has jurisdiction to give advisory opinions at the request of the Assembly; the Pan African Parliament; the Executive Council; the Peace and Security Council; the Economic, Social and Cultural Council (ECOSOCC); the financial institutions or any other organ of the AU as may be authorised by the Assembly.116 In contrast with the African Court Protocol, the draft Statute does not permit States Parties to seek an advisory opinion. This exclusion could result in very few requests for advisory opinions being submitted to the Court, as suggested by the experience at the International Court of Justice. However, the draft Statute requires the Registrar to notify all States or organs entitled to appear before the Court of the request for an advisory opinion, and may request any State or inter-governmental organisation that is able to furnish information on the question to present a written or oral statement. A State that has not received such a request may approach the Court to make a submission. Independence of the Court The independence of the Court of Justice and Human Rights and its judges is protected through various provisions of the draft Statute, some 116

Articles 54–57 of the draft Statute.

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of which are more rigorous than those of the Court of Justice Protocol and the African Court Protocol. The draft Statute requires the Court to act impartially, fairly and justly, and directs that ‘the Court shall not be subjected to the direction or control of any person or body’.117 This provision may be contradictory to the undecided provision allowing the Assembly to confer jurisdiction on the Court in respect of any dispute other than those referred to in Article 29(1). The contention could be that by permitting the Assembly to confer such jurisdiction may be tantamount to the Court being subjected to the direction or control of the Assembly. The provision on conflict of interest,118 which includes a prohibition on a judge acting as agent, counsel or lawyer in a case before the Court, is similar to that on incompatibility, which exists both in the African Court and Court of Justice Protocols.119 In addition, a judge is precluded from participating in a case in which he or she was previously involved as agent, counsel or lawyer for one of the parties. However, there is no provision, similar to Article 22 of the African Court Protocol, that prevents a judge who is the national of a State that is a party to a case from participating in the case. On the contrary, Article 23 of the draft Statute explicitly states: ‘Judges of the nationality of each of the States Parties to a case before the full Court or one of its Sections shall retain the right to sit on the case.’ The provisions on privileges and immunities, including immunity ‘from legal proceedings for any act or omission committed in the discharge of their judicial functions’ are similar to those that exist in the two Protocols, and strengthen the independence of the judges and the Court.120 As regards the suspension or removal of a judge, the threshold of such a recommendation has been reduced from a unanimous decision to a decision of a two-third majority of the other judges.121 A two-third majority is a sufficiently high threshold to ensure that such decisions are taken after careful deliberations, but also avoids such decisions being delayed or being prevented due to a lack of unanimity. Any recommendation to suspend or remove a judge becomes final upon adoption by the Assembly. Such a provision requiring proper and careful deliberations regarding the suspension and removal of a judge is necessary to protect the security of tenure of judges, and enhances the independence of the Court. 117 119 120

118 Article 12 of the draft Statute. Article 13 of the draft Statute. Article 15 of the African Court of Justice Protocol; Article 18 of the African Court Protocol. 121 Article 15 of the draft Statute. Article 9 of the draft Statute.

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Provisions relating to remuneration strengthen the independence and impartiality of judges. The draft Protocol provides for the President and Vice-President of the Court, who serve on a full-time basis, to receive an annual salary and other benefits.122 Other judges will receive a sitting allowance for each day on which they exercise their functions. The salaries, allowances and compensation of judges, which shall be free from all taxation, will be determined by the Assembly on recommendation of the Executive Council, and may not be decreased during the term of office of the judges.

Nomination and election of judges Due to the hybrid nature of the new Court, a simple procedure was established for the nomination of candidates by States Parties and the election of judges by the Executive Council. The procedure is to be initiated by the Chairperson of the AU Commission, after the entry into force of the Protocol and three months before the session of the Assembly during which the judges are to be elected. A note verbale is sent to the States Parties to invite them to present candidates. They may present ‘up to two (2) candidates’ who are ‘impartial and independent Judges elected from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence and experience in international law and/or, human rights law’,123 and must ensure ‘equitable gender representation’.124 Once the nominations have been received, the Chairperson of the AU Commission establishes two lists (A and B) containing the names of candidates for each of the sections of the Court,125 and transmits them one month before the opening of the Ordinary Session of the Assembly or the Council during which the election will take place.126 The judges are to be elected by secret ballot by a two-third majority of the States with voting rights127 by the Executive Council, and then appointed by the Assembly.128 According to the draft Protocol, the Assembly shall ensure that there is an equitable geographic distribution of judges, 122 123 125 126 128

Article 24 of the draft Statute. 124 Article 4 of the draft Statute. Article 5(2) of the draft Statute. Article 6(3) of the draft Statute: ‘eight (8) Judges shall be elected from amongst the candidates of list A and seven (7) from among the candidates of list B’. 127 Article 6(4) of the draft Statute. Article 7(2) of the draft Statute. Article 7(1) of the draft Statute.

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equitable gender representation and equitable representation of the principal legal traditions of the continent.129 In practice, these rules may not be scrupulously adhered to, simply because there is no mechanism to determine whether the candidates presented by the States fulfil the selection criteria laid down by the draft Statute. For example, the report prepared by the AU Commission on the election of judges to the African Court130 merely recalled the mandate of the Court, the qualifications required to be appointed as a judge and the election procedures. The matter of ‘equitable’ gender representation of women is difficult to apply, especially when the States only present a single candidate, or when they are asked, shortly before the election, to choose one candidate from the two they have presented. During the election of the judges of the African Court, States that were asked to present a single candidate simply eliminated the female candidates, and the AU Commission did not take any steps (certainly because it was not obliged to do so) to stress the importance of giving preference to female candidates, which were cruelly lacking at the time. This led to an under-representation of women in the first set of judges of the Court.131 This situation makes it necessary to include provisions in the new draft Statute, or in some other peremptory form such as a decision of the Assembly on the following issues: – Provisions requiring that the candidates fill out a biographical information form indicating their practical, academic and professional legal experience, and any other experience in the areas of international law or human rights. This biographical information should also include information on political associations and other associations that may be appropriate for determining matters of eligibility and conflict of interest. – Provisions requiring that States ensure that at least one of the candidates they nominate is a woman, and that preference be granted to candidates with experience in more than one African legal system. – Provisions establishing a transparent and impartial national selection procedure that can engender public confidence in the integrity of the nomination process. 129 130 131

Article 7(3), (4) and (5) of the draft Statute. See Report of the Chairman on the Election of Judges of the African Court on Human and Peoples’ Rights, Eight Ordinary Session of the Executive Council, EX.CL/241(VII). Of eleven elected judges, only two are women.

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– A provision encouraging States to promote the participation of civil society – including the judicial organs and other organs of the State, the bar, academic and human rights organisations and women’s groups – in the process of selecting candidates. The African Union Commission should also be required to present the Assembly with a report on the election of the judges, in which it specifies which of the candidates fulfil the selection criteria and whether the procedures established by the States were transparent and impartial.132 It would also be useful to extend the powers of the Chairperson of the session during which the election takes place, so that they may ensure the implementation of the gender criteria.

Decisions of the Court The effectiveness of a system for the protection of human rights depends largely on the way in which the decisions of the supervisory organs are implemented in the States Parties concerned and the interaction between political and legal organs at the regional level. The mechanism set in place by the draft Protocol is not very innovative because it simply repeats the procedures already existing in the African Court Protocol. Once it has made a decision, the Court hands down its judgment and sends it to the parties, which are bound to comply and ‘guarantee its execution’.133 If a party, for any reason, fails to execute the decision of the Court, the latter may refer the matter to the AU Assembly, which has the authority to decree measures to ‘give effect’134 to the judgment of the Court. According to the Constitutive Act, these measures may range from a simple reprimand to sanctions of a political or economic nature.135 However, the enforcement of decisions by treaty supervisory and enforcement bodies raises major practical issues that the draft Statute does not seem to address, that is, the identity of the national body in charge of implementing the decision of the Court, since in the absence of such a structure, the implementation of the Court decision will be extremely difficult. 132

133 135

Most of the proposals above are taken from Note Verbale BC/OLC/66.5/8/Vo1/.V, 5 April 2004, addressed to the States Parties by the AU Commission to ask them to present candidates for the election of judges to the African Court. 134 Article 47(3) of the draft Statute. Article 47(4) of the draft Statute. Article 23(2) of the Constitutive Act.

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The drafters of the Protocol and Statute would be well advised to draw upon the Supplementary Protocol on the ECOWAS Court of Justice, which provides that States are bound to designate ‘the competent national authority for the purpose of receipt and processing of execution and notify the Court accordingly’.136 If, despite all of those precautions, a decision is not applied, the Court could then refer to the AU Assembly for appropriate sanctions to be imposed on the offending State Party.

Conclusion Discussions on the creation of a merged Court of Justice and Human Rights provide an opportunity for Africans to develop a human rights protection mechanism that addresses the needs of African peoples and that is relevant to the conditions prevailing in Africa. Despite the many serious human rights problems that have plagued the continent over several decades, Africa has been at the forefront in the development of human rights standards. At a time when the United Nations was establishing two separate treaties to deal with civil and political rights on one hand, and economic, social and cultural rights on the other, the African Charter promoted the universality, interdependence and indivisibility of these rights. The African Charter was also innovative in recognising the right to development. Similar innovation has to be mirrored in the establishment of a merged Court of Justice and Human Rights, which will infuse human rights into all its decisions. However, the African human rights system faces considerable challenges. The weakness or lack of political support is paramount amongst these. Currently, the independence and impartiality of the African Commission is under serious threat, with AU Member States questioning the authority of the African Commission at the AU Summit in Khartoum in January 2006 to adopt resolutions condemning human rights violations in specific countries without first referring the draft resolution to the State concerned.137 To its credit, the African Commission has courageously 136

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See Article 24(4) of the Supplementary Protocol A/SP.1/11/04 Amending the Preamble; see also Articles 1, 2, 9, 22 and 30 of Protocol A/P.1/7/91 Relating to the Community Court of Justice; see also Article 4(1) of the same Protocol. At the Khartoum Summit, the AU Assembly adopted the 19th Activity Report of the African Commission and its annexes, ‘except for those containing the Resolutions on Eritrea, Ethiopia, the Sudan, Uganda and Zimbabwe’. It requested these Member States to present their views on the resolutions within three months. Decision on the 19th Activity

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ignored this challenge and proceeded to adopt resolutions on ‘the Human Rights Situation in Darfur [Sudan]’ and ‘the Situation of Women in the Democratic Republic of Congo’ at its session in November 2006.138 The effectiveness of the African Court and the Court of Justice and Human Rights is directly dependent on the AU and its Member States providing strong political support. In particular, the Executive Council and the Assembly have the responsibility to enforce decisions of the African Court and the Court of Justice and Human Rights respectively. The effectiveness of the human rights monitoring and enforcement mechanisms depend on their independence being protected and strengthened, not being undermined and weakened. The recent decisions139 of the AU Assembly and the Executive Council that undermine the independence of the African Commission do not bode well for the African Court and its successor, the Court of Justice and Human Rights. The lack of strong political support is also directly linked to the failure of the AU to provide adequate resources to its human rights institutions. There has been considerable delay in the appointment of a Secretary to the Secretariat of the African Commission, following the resignation of the previous Secretary over three years ago. The AU has also been slow in the recruitment of other full-time professional staff, undermining the efficiency and effectiveness of the African Commission. Despite having been established in 2000, the African Committee of Experts does not, as yet, have its own Secretariat, and relies on administrative support from the AU Commission. Until AU Member States appreciate the important role of the African human rights system, and strengthen their political support for these institutions, they will continue to labour under the strain of lack of resources. The tardiness of the AU to establish the Human Rights Fund, recommended in 2002 by the AU Ministerial Conference on

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Report of the African Commission on Human and Peoples’ Rights, EX.CL/236(VIII), Assembly/AU/Dec.101(VI), Assembly of the African Union, Sixth Ordinary Session, Khartoum, Sudan, Assembly/AU/Dec.91–110(VI). African Commission on Human and Peoples’ Rights, Final Communiqu´e of the Fortieth Ordinary Session, Banjul, The Gambia, 15–29 November 2006: www.achpr.org/english/communiques/ communique40 en.htm. Accessed 20 February 2007. Prior to the AU Summit in July 2006, the Executive Council adopted a decision (EX.CL/Dec.310(IX) authorising publication of the 20th Activity Report of the African Commission and its annexes ‘with the exception of decision 245 on Zimbabwe’. Decision on the Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR) EX.CL/279(IX), Decisions and Declarations, Executive Council, Ninth Ordinary Session, 25–29 June 2006, Banjul, The Gambia, EX.CL/Dec.278–314(IX).

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Human Rights, has prevented Member States and foreign donors from contributing directly to improving the resources of the human rights institutions. In January 2007, the Executive Council finally requested the AU Commission to operationalise the voluntary fund for African human rights institutions. There is no clarity in the draft Protocol and Draft Statute, or elsewhere, regarding the relationship between the Court of Justice and Human Rights and the Courts of regional economic communities. The latter are beginning to function, with the East African Court of Justice handing down its second judgment140 and the ECOWAS Court of Justice assuming jurisdiction over human rights matters. Where different courts may have jurisdiction over a matter, there are often concerns about forum-shopping. If a litigant is unsuccessful before a regional court, should the Court of Justice and Human Rights permit such a litigant to file a case before it? Would the Court of Justice and Human Rights then be considered as a court of appeal from decisions of regional courts? Considering the human rights situation in many African countries, the Court could potentially be flooded with cases. The African Commission could, however, reduce the number of cases reaching the Court by acting as a filter through its receivability and admissibility procedures. However, with the prospect of a continental court handing down binding decisions and enforcement of such decisions through pressure from the political organs of the AU, victims of human rights violations would be encouraged to file cases before the African Commission that may eventually come before the Court. This would require both the African Commission and the African Court to deal with such cases with the least possible delay. While the appointment of judges on a part-time basis may be justified to reduce the financial burden on the AU, this may have to be reviewed in the future. Additionally, the resources of the African Commission would have to be increased considerably to ensure that the current delay in finalising complaints is eliminated, and to enable it to present cases before the African Court with the professional skills and competence required. A merged Court of Justice and Human Rights will be extremely beneficial to the protection of human rights in Africa, since it will ensure 140

Prof. Anyang’ Nyong’O and 10 others v. Attorney General of the Republic of Kenya and 2 others in the matter of Kenya representatives to the East African legislative Assembly, EACJ 06/02/2007: Application No. 5 of 2007.

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the integration of human rights into decisions that otherwise would have been considered purely as inter-State matters, such as border disputes. One hopes that such integration will enrich the jurisprudence of the Court, and provide encouragement to regional courts to integrate human rights into all their decisions. The access of non-governmental organisations and individuals to the Court will ensure that this important regional judicial institution is regularly utilised to protect human rights in Africa, since almost all the cases filed (until now) before the African Commission have been filed by NGOs and individuals.

13 Protocol to the African Charter on the Rights of Women in Africa fareda banda

Introduction In line with global developments,1 the issue of women’s rights has grown both in focus and importance on the African continent. This chapter focuses on the adoption by Member States of the African Union of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Maputo in July 20032 (hereinafter ‘the African Women’s Protocol’ or ‘the Protocol’). The Protocol came into force on 25 November 2005.3

Locating women’s rights within the continental human rights framework Although feminist scholars have, in the past, argued that international law is sexist, ignoring or minimising the violations of rights experienced by women, especially in the private sphere,4 this is not an accusation that can, at first glance, be levelled at the African human rights system.5 The founding human rights instrument on the continent, the African Charter on Human and Peoples’ Rights proscribes discrimination on grounds of 1 2 3 4 5

R. L. Johnstone, ‘Feminist Influences on the United Nations Human Rights Treaty Bodies’, Human Rights Quarterly 28 (2006) 148. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Assembly/AU/Dec.14(II). As of 26 May 2007, twenty-one States had ratified the Protocol. H. Charlesworth, C. Chinkin and S. Wright, ‘Feminist Analysis of International Law’, American Journal of International Law 85 (1991) 613. However, Murray notes that the OAU Charter was silent on women’s rights and, indeed, human rights in general, preferring to focus on State rights to self-determination and the de-colonisation process: R. Murray, Human Rights in Africa: From the OAU to the Africa Union (Cambridge: Cambridge University Press, 2004), pp. 134 and 155.

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sex, and guarantees equal protection of the law for all.6 Recognising the particular disadvantages faced by women within the family, it returns to women’s rights in Article 18,7 noting: ‘The state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.’8 Commentators have noted that, together with Articles 60 and 61 of the Charter, this provision enjoins States Parties to take into consideration existing human rights norms and jurisprudence.9 This leads to a more holistic reading of the rights contained within the Charter. It goes without saying that normative recognition of women’s rights does not always mean that the intended beneficiaries actually get to enjoy the rights. The disconnection between promise and practice is most often associated with the African human rights and political systems. By the end of the twentieth century, there had been a continental re-think on the region’s approach to human rights, and it was noted that there needed to be a more committed engagement with rights.10 The adoption of the Grand Bay (Mauritius) Declaration and Plan of Action11 marked a reassessment of the OAU’s stance on human rights. By adopting the Declaration, the OAU pledged to uphold human rights, something it had hitherto failed to do. It also pledged to uphold women’s rights and to remove discrimination against them.12 The dissolution of the OAU and the coming into being of the African Union marked a normative change on the continent. The Constitutive Act of the AU13 makes clear in its Principles the importance of gender 6 7 8 9

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Articles 2 and 3 of the African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3/Rev.5. E. Ankumah, The African Commission on Human and Peoples’ Rights. Article 18(3) of the African Charter. F. Viljoen, ‘The African Commission on Human and Peoples’ Rights: Introduction to the African Commission and Regional Human Rights Systems’ in C. Heyns (ed.), Human Rights Law in Africa, Vol. 1, 1996 (The Hague: Kluwer Law International, 1996), p. 385; C. Beyani, ‘Toward a More Effective Guarantee of Women’s Rights in the African System’ in R. Cook (ed.), Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994), p. 285. Murray, Human Rights in Africa, pp. 23 and 26–8. Chinkin, Wright and Charlesworth also acknowledge the ‘rhetorical progress’ that has been made internationally by women in the same period: C. Chinkin, S. Wright and H. Charlesworth, ‘Feminist Approaches to International Law: Reflections from Another Century’ in D. Buss and A. Manji (eds.) International Law: Modern Feminist Approaches (Oxford: Hart Publishing, 2005) pp. 17 and 21–3. 12 Grand Bay (Mauritius) Declaration, CONF/HRA/DECL(1). Ibid., para. 6. Constitutive Act of the African Union, 11 July 2000, CAB/LEG/23/15.

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equality.14 In 2001, a Decision on Women and Gender urged States Parties to ensure the participation of women in decision making.15 This was further developed in 2002 when a Resolution on gender mainstreaming was adopted.16 It pledged that women should comprise 50 per cent of all AU institutions. Women’s rights were highlighted in Article 16 of the Kigali Declaration on Human Rights, which noted ‘with great concern that the rights of women and children in spite of the progress achieved, remain insufficiently protected in many African countries’.17 Significantly, 2004 saw the adoption by AU Member States of the AU Solemn Declaration on Gender Equality in Africa,18 which reiterated the commitment of the organisation and Member States to uphold women’s rights and to eliminate discrimination in all spheres. It is also worth noting that, in addition to the OAU and AU initiatives on human rights, there have also been sub-regional initiatives, including some focusing on women’s rights.19 In addition, there were amendments to constitutions and adoptions of new constitutions in the 1990s, many of which strengthened bills of rights and provided for the protection of women from discrimination.20 Finally, it is worth remembering that African States have been active participants in international conferences21 pertaining to issues affecting women, hosting the Nairobi conference22 (which brought the UN’s Decade on Women to a close), the International 14

15 16 17 18 19

20

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Article 4(1) of the Constitutive Act of the African Union. See also the Preamble. Identified as a key objective of the Union is the promotion of human rights in accordance with the African Charter and other human rights instruments: see Article 3(h). Decision on Women and Gender, CM/Dec.579(LXXXIII)2001. Durban Declaration on Mainstreaming Gender and Women’s Effective Participation in the African Union, 2002, available at www.africa-union.org. Accessed 14 October 2007. Kigali Declaration on Human Rights, African Union. AU Solemn Declaration on Gender Equality. Assembly/AU/Decl.12(III), Rev. 1. These include SADC Gender and Development Declaration in SADC Gender Monitor 33 (1999); The Economic and Monetary Union of West Africa; L’UEMOA Recommendation on Gender 1999, UEMOA Recommendation No. 03/00/CM/UEMOA, 21 December 1999; Protocol to the ECOWAS Treaty on Democracy and Good Governance, Protocol A/SP1/12/01. See, for example, the constitutions of Eritrea, Ethiopia, Ghana, Malawi, Namibia, South Africa and Uganda, reproduced in C. Heyns (ed.), Human Rights Law in Africa, Vol. II, 1997 (The Hague: Kluwer Law International, 1998). These included the regional preparatory conference for the Beijng Women’s Conference held in Dakar in 1994: Addis Ababa Declaration on the Dakar African Platform for Action for Women, AHG/Dec.2(XXXI). Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, held in Nairobi from 15 to 26 July 1985, UN Doc. A/CONF.116/28/Rev. 1.

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Conference on Population and Development,23 and, more generally, the racism24 and sustainable development conferences.25 Moreover, all but two African States – Sudan and Somalia – have ratified the UN Women’s Convention, also known as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).26 Impressive though these developments are, women’s rights were not always guaranteed in practice, so that for the first decade of its existence, the African Commission, which oversees the African Charter, paid scant heed to issues pertaining to the rights of African women. The Commission did not receive any complaints of violations of the rights of women,27 nor did it use its powers under Article 58 to institute any inquiries to investigate ‘a series of serious or massive’ violations of women’s rights in any of the States Parties.28 Interestingly, the African Commission appeared to blame the African Charter for these failings, noting that ‘the provisions of the Charter do not ensure an effective protection of the fundamental rights of women’.29 Three events in the mid-1990s marked a shift in the Commission’s approach to women’s rights issues: (1) the appointment of a Special Rapporteur on the Rights of African Women; (2) a meeting held between the Commission and a group of non-government organisations (NGOs) where it was resolved to start the drafting process for an additional Protocol to the African Charter that would focus on women’s rights; and (3) the adoption and incorporation into the Commission’s reporting requirements of the reporting guidelines of the United Nations Committee on the Elimination of all Forms of Discrimination (‘the CEDAW Committee’).30

23 24 25 26 27 28

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‘International Conference on Population and Development’, Cairo, 18 October 1994, UN Doc. A/CONF.171/13. Report of the World Conference against Racism, Racial Discrimination and Related Intolerance, UN Doc. A/CONF.189/12. Johannesburg Declaration on Sustainable Development, available at www.un.org/events/ wssd. Accessed 14 October 2007. Convention on the Elimination of all Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13. As per Articles 55 and 56 of the African Charter. R. Murray, ‘Women’s Rights and the Organization of African Unity and African Union: The Protocol on the Rights of Women in Africa’ in D. Buss and A. Manji (eds.), International Law: Modern Feminist Approaches (Oxford: Hart Publishing, 2005), pp. 253 and 259–60. Draft Terms of Reference for the Special Rapporteur on the Rights of Women in Africa, DOC/OS/34c(XXIII), Annex 2., Article 1 (Justification). Viljoen, ‘The African Commission’, p. 471.

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History of drafting the Protocol to the African Charter on Women’s Rights Like CEDAW before it, the African Protocol on Women’s Rights was needed, but not because women’s rights were not already recognised in existing human rights instruments either internationally or regionally,31 for clearly they were.32 Rather, it was important to have a separate instrument focusing on the rights of women because insufficient attention was being paid to the interpretation of existing rights to protect women. Moreover, the existence of a specific treaty on women’s rights has the benefit of highlighting the issues that impact upon women disproportionately, and forcing on existing mechanisms and States a more gendered interpretation of rights so that human rights really do begin to be seen as women’s rights.33 The decision to adopt an Additional Protocol to the African Charter was an attempt to meet these objectives.34 The early drafting of the Protocol was led by the Special Rapporteur on Women’s Rights, whose mandate included assisting ‘African governments in the development and implementation of their policies of promotion and protection of women’s rights in Africa’,35 and working with NGOs ‘in the field of promotion and protection of women’s rights’.36 The Special Rapporteur convened a small working group to assist her in the elaboration of the instrument. The initial lack of extensive consultation was to become a source of tension and unhappiness as the drafting process evolved.37 31 32

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Cf. Murray, ‘Women’s Rights and the Organization of Africa Unity and the African Union’, p. 256. The International Bill of Rights, to which many African States are parties, contains non-discrimination provisions, including sex as well as equality, before the law provisions: Articles 2 and 7 of the Universal Declaration of Human Rights, GA Res.217A(III), 10 December; Articles 2(1), 3 and 26 of the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; Articles 2(2) and 3 of the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3. World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, UN Doc. A/CONF.157/23, paras. 1 and 18. See also N. Burrows, ‘The 1979 Convention on the Elimination of All Forms of Discrimination against Women’, Netherlands International Law Review 32 (1985) 419, and Murray, ‘Women’s Rights and the Organization of African Unity and the African Union’, pp. 260–1. Murray, ‘Women’s Rights and the Organization of African Unity and the African Union’, pp. 263–4. Draft Terms of Reference for the Special Rapporteur’ para. 1(d) (Mandate) Ibid., para. 1(e). At a meeting attended mainly by civil society representatives held in Bamako in 2001, it was noted that the Special Rapporteur’s working group only had the input of seven out

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Initial draft of the Special Rapporteur’s working group The first draft38 was a ‘discrimination list’ identifying the areas and ways in which African women were most likely to experience disadvantage. Not surprisingly, it covered issues pertaining to family law, harmful culturally justified practices, and violence against women. Recognising continental conflicts and their impact on women, the list also incorporated the needs of refugee women, and highlighted the impact of armed conflict on the lives of women. While the initial document tried to marry provisions with those found in the African Charter, it departed from the script to expand on certain provisions and, in some instances, to add provisions not found in the Charter, including a right to food39 and housing.40 Even when referring to Charter provisions, the draft provided a gendered and broader understanding of the right so that Article 4 on the inviolability of human life and the right to respect for life and integrity, contained in the Charter was, in the draft Protocol, translated into a provision focusing on violence against women, broadly defined to include ‘physical, sexual, or psychological harm or suffering’.41 It went on to identify the locus of violence against women as including both the public and private sphere, and as including such acts as ‘sexual harassment, sexual abuse or exploitation, rape etc.’.42 Subsequent drafts43 moved away from an explicit link with the African Charter, embracing the CEDAW (and adding to it) as well as incorporating the input of sub-regional organisations, not least the SADC Addendum on violence against women,44 and also the African Charter on the Rights

38 39 40

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of a possible fifty-three States. C. Warioba (Gender Programme Officer, SADC), Mission Report on the draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, held in Bamako, Mali, 12–16 February 2001, 3, on file with the author. Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, DOC/OS/34c(XXIII) (hereinafter ‘draft 1’). Article 15 of the draft 1. Article 16 of the draft 1. The Commission has, however, read these into the Charter. See G. Bekker, ‘The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights/Nigeria’. 42 Article 11(1) of the draft 1. Article 11(2)(a) of the draft 1. For a fuller history of the drafting of the African Women’s Protocol see F. Banda, Women, Law and Human Rights: An African Perspective (Oxford: Hart Publishing, 2005), pp. 66–82. The Prevention and Eradication of Violence against Women and Children, an Addendum to the 1997 Declaration on Gender and Development by SADC Heads of State or Government in SADC Gender Monitor (1999) 37.

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and Welfare of the Child (ACRWC).45 Given its ‘hybrid’ provenance, Murray has criticised the Protocol for reflecting neither the CEDAW nor the African Charter.46 Looking at the draft and notes for the meeting of government experts held in Addis Ababa in 200147 yields an interesting mix of attempts to roll back gains counterbalanced with a demand for higher standards. Indeed, it could be said that, for some of the experts, the drafting of the Protocol provided an opportunity to try to challenge some of the gains made by women as a result of the CEDAW.48 Being ‘repeat players’ in the game of norm-making, the rearguard action fought by those resistant to the idea of women’s rights was a tenacious, and in some respects successful, one.

The meeting of government experts Most challenging was the resistance offered by Algeria, Egypt, Libya and Sudan to the use of the word ‘same’ as indicating equality, not least when considering the provisions on divorce or annulment, which specified that men and women shall have ‘the same reciprocal rights and responsibilities towards their children’,49 and on property division that ‘men and women shall have the same rights to an equitable sharing of the joint property deriving from the marriage’.50 In registering their objections, the experts for the four States indicated that they would have preferred the word ‘complementary’ to be used instead of ‘same’.51 The complementary model of equality holds that men and women are different, and that they inhabit different spheres.52 There is equivalence between the spheres, and, within 45 46 47

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African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49. Murray, ‘Women’s Rights and the Organization of African Unity and the African Union’, p. 265. She focuses on the lack of consistency of provisions. Report of the Meeting of Experts on the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 12–16 November 2001, Addis Ababa, Ethiopia, Expt/Prot.Women/Rpt. (1) See L. Rehof, Guide to the Travaux Pr´eparatoires of the United Nations Convention on the Elimination of all Forms of Discrimination against Women (The Hague: Martinus Nijhoff, 1993). 50 See note 47, para. 66 (emphasis added). See note 47, para. 67 (emphasis added). See note 47, para. 68. Cf. S. Waltz, ‘Universal Human Rights: The Contributions of Muslim States’, Human Rights Quarterly 26 (2004) 799, pp. 819–825. This idea is best captured in the words of the Moroccan representative during the drafting of the CEDAW, who noted that it was common sense that ‘men and women, in order to be truly equal, did not need to be treated as being the same which would be contrary to nature’. In Rehof, Guide to the Travaux Preparatoires, p. 147.

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their respective spheres, women and men are equally valued. The complementarity model is best exemplified by the Cairo Declaration on Human Rights in Islam:53 Woman is equal to man in human dignity, and has her own rights to enjoy as well as duties to perform; and has her own civil entity and financial independence, and the right to retain her name and lineage.54

The difficulty is, of course, that international human rights instruments and, indeed, most regional and sub-regional systems use the liberal model of equality grounded in a strict reading of non-discrimination on the grounds of sex, as demanding equality between men and women, unless otherwise provided for, usually by way of temporary special measures as found in Article 4(1) of the CEDAW.55 Further problems arose when States objected to the provision that a woman should be able both to maintain her own nationality and also to pass it on to her husband and children.56 The compromise suggested was: [A] woman shall have the right to keep her nationality, obtain another one or take up the nationality of her husband or transfer her nationality to her children by mutual agreement.

However, Algeria, Egypt, Libya and Sudan objected to the phrase ‘transfer her nationality to her children by mutual agreement’.57 The CEDAW equivalent of this provision, Article 9(2), has been reserved by Algeria, Egypt, Morocco and Tunisia.58 The rationale given for Egypt’s reservation is that it is most suitable for the child to follow its father, and that this does not constitute an infringement of the equality principle because it is ‘customary for a woman to agree, upon marrying an alien, that her children shall be of the father’s nationality’.59 Egypt does not specify whose custom 53 54 55

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Cairo Declaration on the Rights in Islam, UN Doc. A/CONF.157/PC/62/Add.18. Ibid., Article 6. See generally, CEDAW General Recommendation 25 on Temporary Special Measures, CEDAW/C/2004/WP.1/Rev.1. See also CERD General Comment 14 on the Definition of Discrimination HRI/GEN//1/Rev.3, para. 2, and Human Rights Committee General Comment 18 on Non-Discrimination, UN Doc. HRI/Gen/1/Rev.1, p. 26, para. 10. 57 Meeting of Government Experts, para. 55. Ibid., para. 56. See www.un.org/womenwatch/daw/cedaw/reservations-country.htm. Accessed 14 October 2007. Ibid. For an alternative view, see Nawakwi v. Attorney General of Zambia, Judgment of 24 June 1991, reproduced in R. Emerton et al., International Women’s Rights Cases (London: Cavendish, 2005), p. 340.

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it is or, indeed, whether women were consulted about its contents.60 It also hints at a ‘global patriarchy’, which presumes that there is a ‘common understanding’ whereby all men have rights to which women sublimate their own, thus recalling Chanock’s observation: There is typically a wide gap between those who speak for cultures and those who live the culture spoken about. While cultures are complex and multivocal, in the representation of cultures the voices of the elites overwhelm others. Assertions about culture tend to be totalizing and simplifying, privileging some voices and patterns of acts, and ignoring or marginalizing others.61

Looking at the final version of the Protocol, it would appear that an unsatisfactory compromise was reached, recognising the equal rights of men and women to pass on nationality to their children ‘except where this is contrary to a provision in national legislation or is contrary to national security interests’. Making a woman’s right to pass on her nationality subject to national law62 is in violation of the Vienna Convention on the Law of Treaties.63 Also surprising, during the drafting of the Protocol, was the attempt by some States to renege on, or water down, previously agreed standards. This saw Tunisia objecting to the age of marriage being set at 18,64 notwithstanding that that is the age specified in the African Charter on the Rights and Welfare of the Child.65 The objections of Libya, Mali, Senegal, Sudan and Togo to the provision within the reproductive rights section giving women the ‘right to decide whether to have children, the number of children and the spacing of children’ ignore both the CEDAW66 and also the 60

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A. Rao, ‘The Politics of Gender and Culture in International Human Rights Discourse’ in J. Peters and P. Wolper (eds.), Women’s Rights, Human Rights: International Feminist Perspectives (London: Routledge, 1995), pp. 167; A. Abusharaf ‘Women in Islamic Communities: The Quest for Gender Justice Research’, Human Rights Quarterly 28 (2006) 714. M. Chanock, ‘Human Rights and Cultural Branding: Who Speaks and How’ in A. An Na’im (ed.), Cultural Transformation and Human Rights in Africa (London: ZED, 2002), pp. 38–9. See also, R. Higgins, Problems and Process, pp. 96–7. Article 6(h) of the African Protocol. Cf. Article 29(2) of the League of Arab States, Revised Arab Charter on Human Rights, 22 May 2004, reprinted in International Human Rights Reports 12 (2005) 893. Article 27 of the Vienna Convention on the Law of Treaties, 23 March 1969, 1155 UNTS 331. Government Experts draft, para. 50. Article 21(2) of the ACRWC. See also Government Experts draft, para. 49. Articles 12(1) and 16(1)(e) of the CEDAW.

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Cairo Declaration and Platform for Action,67 where these standards were debated and accepted. Controversial during the experts’ meeting, and remaining unresolved at the end of it, was the issue of polygyny. Earlier drafts had highlighted a preference for the abolition of the practice, requiring States to prohibit the practice, in keeping with the principle of equality. While it is true that the abolition route was in keeping with existing human rights norms,68 experts did note that the result of abolishing polygyny may impact negatively on those women already in existing polygynous unions, by leaving them without any legal protection. Technically, this objection could have been met by States providing in their national laws for the abolition to take effect after the ratification of the Protocol. Moreover, States could have provided for a grace period, linked up with an education campaign to let people know about the change. Harder to rebut is the assertion that polygyny is a ‘right of men’ enshrined by religious doctrine.69 It may well be that, for as long as women remain economically vulnerable, and marriage remains, for many, the only ‘career choice’, marriage, including to a polygynist, may be the only safety net available to them.70 Indeed, for those living in societies where sexual relations outside marriage are proscribed and punished, being the wife of a polygynist may be the only route to having children. None of these justifications or rationalisations should be seen as detracting from the fact that, at its heart, polygyny remains a form of gender-based discrimination against women, which, in some instances, may increase the likelihood of violence against them. State attempts, during the Meeting of Government Experts, to limit the scope of enjoyment by women of their rights points to the need for vigilance as the Protocol beds down. While the above developments were disappointing, not all government experts were resistant to change. Indeed, some offered positive 67 68 69

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International Conference on Population and Development (ICPD), para. 7(3). See CEDAW General Comment 21 on Equality in Marriage and Family Relations, UN Doc. A/49/38, para. 14, and Human Rights Committee General Comment 28, para. 24. But see W. Amein, ‘Overcoming the Conflict between the Right to Freedom of Religion and Women’s Rights to Equality: A South African Case Study of Muslim Marriages’, Human Rights Quarterly 28 (2006) 729, p. 745. Mashour contrasts the pro-polygyny stance of Egypt with Tunisia, which has banned polygyny on religious grounds: A. Mashour, ‘Islamic Law and Gender Equality: Could there be Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt’, Human Rights Quarterly 27 (2005) 562, pp. 580 and 585. F. Kaganas and C. Murray, ‘Law, Women and the Family in the New South Africa’, Acta Juridica (1991) 116.

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suggestions, not least Sudan, which proposed the addition of a sub-Article on the need for States to ‘take effective legislative and administrative measures to prevent the exploitation and misuse of women in advertising practices’.71 This suggestion was taken up and resulted in the Protocol expanding on CEDAW guidelines for state reporting.72 Demands for drafting improvements were implicit in the objections made by Malawi, Nigeria and Zimbabwe to the provision that widows ‘shall become de facto the guardians and custodians of their children’73 on the death of the husbands. The objection to the use of the word de facto showed a keen awareness of the need to enshrine women’s de jure or legal rights to custody and guardianship of their children.74 Moreover, attempts to limit the right of a widow to continue to live in the matrimonial home if she remarried were objected to, successfully, by Burkina Faso and Nigeria.75 The government experts’ group also offered a ‘tidying up’ service, merging two articles dealing with violence against women into one entitled ‘right to life, liberty and security of the person’, now found in Article 4 of the final Protocol. Conversely, the provision covering elderly and disabled women was sub-divided into two sections so that the two groups were addressed separately, thus highlighting the fact that the issues confronting them may sometimes diverge.76 There was an attempt at tightening of language, and attempts to clarify the commitments required of States in the way that the rights were framed, so instead of Article 2 saying States should ‘modify the social and cultural patterns of conduct’,77 it was changed to ‘states parties shall commit themselves to modify. . .’.78 Surprisingly, it appears that, until the 2001 Experts’ Session, none of the previous drafts had included a monitoring provision.79 The inclusion of a separate monitoring body had been put forward in the comments 71 72

73 75 76 77 79

Government Experts’ draft, para. 111. See, for example, the CEDAW Reporting Guidelines to Article 5, and, specifically, question 21: ‘Is there a process to deal with violent and sexually offensive films and magazines?’ in Commonwealth Secretariat, UN and IWRAW, Assessing the Status of Women: A Guide to Reporting under the Convention on the Elimination of all Forms of Discrimination against Women (New York, NY: UN, 2000), p. 19. 74 Government Experts’ draft, para. 144. Ibid., para. 145. Ibid., paras. 149 and 150. The sentence does not appear in the final Protocol adopted in 2003 (Article 20). Government Experts’ draft, para. 151. By the time the Protocol was adopted, there were three separate Articles dealing with the elderly, the disabled, and women in distress. 78 Government Experts’ draft, para. 39 (a). Ibid. The September 2000 draft did have an Article on interpretation, which provided that the African Court on Human and Peoples’ Rights should have that role: Article 23 of the draft

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submitted by participants from the eastern and southern sub-regions,80 but not, interestingly, the OAU Women’s Unit.81 This may have been an oversight, or based on an assumption that if the suggestion made by the Women’s Unit were taken up, namely that a separate Convention on Harmful Traditional Practices being sponsored by the Inter-African Committee on Traditional Practices (IAC)82 be incorporated into the draft Protocol on Women’s Rights, that would come with a separate fiveperson monitoring body. Given the breadth of the Protocol, which goes beyond harmful traditional practices and which would need a much larger monitoring body, it can only be surmised that it was an oversight. This ‘oversight’ and the exclusion – until much later in the drafting process – of the OAU Women’s Unit, NGOs and other interested agencies, highlights criticism noted earlier: that the Protocol suffered from a dearth of critical input in its early stages due to a narrow consultation base.83 The above notwithstanding, the government experts suggested (upon the proposal of two delegates)84 the inclusion of a new monitoring provision.85 It provided that States would submit reports to the African Commission in line with Article 62 of the African Charter.86 It was also provided that States Parties were under an obligation to provide effective remedies to those whose rights have been violated.87 The Protocol underwent further revision before being presented to government ministers in March 2003.88

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Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, CAB/LEG/66.6. Comments on the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Submitted by Participants from the Eastern and Southern Sub-Regions (un-dated (but post-September 2000), on file with the author), para. 19. See Suggestions of the Women’s Unit to Improve the Existing Text of the Draft Protocol as Presented to the OAU, attached to a letter written by C. Johnson, Director of the Education, Science, Culture and Social Affairs Department, OAU, addressed to E. Dankwa, Chairperson of the African Commission on the draft Protocol to the African Charter on the Rights of Women, File No. ES/WU/RWI/51.00, 25 February 2000. OAU Convention on the Elimination of all Forms of Harmful Practices (HPs) Affecting the Fundamental Human Rights of Women and Girls, attached to the Women’s Unit (OAU) response, 25 February 2000. Surprisingly, the Special Rapporteur’s Working Group were ignorant of the existence of this instrument, thus showing a lack of co-ordination between the Working Group and the Women’s Unit. 84 Murray, Human Rights in Africa, p. 151. Government Experts’ draft, para. 152. 86 87 Ibid., para. 152. See note 84, Article 23 (1). See note 84, Article 23 (2). Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (as adopted by the Meeting of Ministers), MIN/WOM.RTS/DRAFT. PROT(II) Rev. 5.

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The Meeting of Government Ministers By the time of the Meeting of Government Ministers, the draft was all but completed. Many of the objections made during the experts’ meeting were retained, with one or two more being added. Additions included the objections of Namibia, South Africa and Zimbabwe to the provision that in order to be legally recognised, marriage should be registered.89 No doubt this was borne from a concern that the vast majority of marriages in the respective countries are unregistered customary law unions involving negotiation between the families and the payment of bridewealth. These ‘marriages’ are recognised by customary law. Demanding registration would result in many women losing existing protections.90 In keeping with its stance on the death penalty (it is against),91 South Africa noted an objection to the provision exempting pregnant or lactating women from being executed.

The African Protocol on the Rights of Women For all the shortcomings and difficulties arising out of the drafting process, the final Protocol has many positives. The Preamble offers a clear statement of the existence of many human rights instruments, both internationally and regionally, before noting that ‘women in Africa still continue to be the victims of discrimination and harmful practices’. To address this, the Protocol starts, in Article 1, with a definitions section.

Defining discrimination ‘Discrimination against women’: means any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life.92 89 90

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Ministers’ draft; Article 6(d) of the African Protocol. The South African Recognition of Customary Marriages Act 120 of 1998 provides that nonregistration of a marriage does not invalidate it: s. 4(9). Similarly, while the Zimbabwean statute requires registration for validity, it provides that ‘for purposes of customary law and custom relating to the status, guardianship, custody and rights of succession of children of such marriage, be regarded as a valid marriage’. Customary Marriages Act Chapter 5:07, s. 3(5). S v. Makwayane Butterworths Constitutional Law Reports 6 1995, 665. Article 1(f) of the African Protocol.

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Clearly, this definition is based on Article 1 of the CEDAW. However, unlike the CEDAW definition of discrimination, it leaves out the phrase ‘on a basis of equality of men and women’. Given the prohibition of sex as a ground of discrimination, the omission may not be seen as indicating a lower or different standard. Like the CEDAW,93 Article 2 is on State obligations, which include the requirement that States ensure that constitutions and national law ‘embody the principle of equality between men and women and ensures its effective application’.94 It is important that the Protocol identifies the changing of laws to meet the objective of equality as its first State obligation, not least because a great deal of discrimination experienced by women on the continent is still legally enshrined and justified.95 Equally important is the incorporation of the Protocol equivalent of Article 4(1) of the CEDAW, permitting States to take ‘corrective and positive action in those areas where discrimination against women in law and in fact continues to exist’.96 This provision for derogation from a strict reading of equality by the use of temporary special measures is to be welcomed.97 It recognises that the playing field has, due to historical and continued socio-economic and political inequities, resulted in women not being able to compete on a level playing field with men. To right this historic wrong might require that temporary special measures be put in place to enable women to begin the long journey of getting to the starting line of equality of opportunity. In interpreting the Protocol, it will be important that States, courts and other agencies use a substantive model of equality rather than rely on formal equality, as noted by the Committee on Economic, Social and Cultural Rights: Formal equality assumes that equality is achieved if a law or policy treats men and women in a neutral manner. Substantive equality is concerned, in addition, with the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience.98 93 95

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94 Article 2(a) of the CEDAW. Article 2(1)(a) of the African Protocol. ECOSOC Advisability of the Appointment of a Special Rapporteur on Laws that Discriminate against Women, Report of the Secretary General, 13 December 2006, E/CN/6/2007/8. See also Banda, Women, Law and Human Rights. Ibid., Article 2(1)(d). See also Article 9(1). See CEDAW General Recommendation 25 on Temporary Special Measures. See also CESCR General Comment 16, paras. 15 and 35. CESCR General Comment 16, para. 7. See also para. 41. Finally see Montreal Principles on Women’s Economic, Social and Cultural Rights, Human Rights Quarterly 26 (2004) 760, p. 768.

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The CEDAW Committee is even more robust in its prescription, noting that: ‘Pursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming under-representation of women and a redistribution of resources and power between men and women.’99 A proper substantive reading of equality should underpin the interpretation of the whole Protocol. Given its breadth covering civil, political, economic, social and cultural rights as well as development rights, it is not possible to discuss all the provisions here.

Defining violence against women The Protocol is particularly progressive on issues pertaining to violence against women,100 which it defines broadly as including: all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war.101

In its inclusion of economic harm as a form of violence, the Protocol goes beyond both CEDAW General Recommendation 19 on violence against women,102 and also the UN Declaration on the Elimination of Violence against Women (DEVAW),103 which defines violence as sexual, psychological (mental) or physical. Given women’s economic vulnerability and dependence on men, including husbands and fathers, it is important that economic harm (which can include denial of income, refusal of permission to participate in the paid sector, or demanding that earnings be handed to the husband, and, indeed, sexual harassment at work) has been recognised. The definition is also impressive in the way in which it covers violence against women during war, thus breaking down the human rights/humanitarian law dichotomy that sometimes pervades discussion of the issue. 99 100 101 102 103

CEDAW General Recommendation 25, para. 8 (emphasis added). A major criticism now made of the CEDAW is that it is silent on the issue of violence against women. Article 1(j) of the African Protocol. CEDAW General Recommendation 19 on Violence against Women, UN Doc. A/47/38, para. 6. Declaration on the Elimination of Violence against Women, GA Res.48/104, 20 December 1993, art 2.

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Violence against women is considered in a comprehensive way throughout the Protocol, whose mainstreaming of the topic suggests an understanding of its pervasiveness in all spheres of life.104 Article 4 is the key provision, highlighting that State obligations include, but are not limited to, passing laws.105 States are also required to identify the causes and consequences of violence,106 and ‘promote peace education’ in schools and other fora in order to ‘eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women’.107 The Protocol does not stop at preventive measures requiring States to offer rehabilitation and counselling to those who have been subjected to violence:108 there is a recognition that all this costs money, hence the requirement that States ‘provide adequate budgetary and other resources’.109 Types of violence proscribed by the Protocol include trafficking,110 the protection of women and girls from abuse and sexual harassment within the education111 and employment sectors.112 Crucially, the Protocol is alive to the fact that there are women who, because of their disability,113 age114 or other intersecting factors,115 may experience violence differently than other women. Also important is the Protocol’s focus on women’s 104

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The global concern on violence against women is highlighted in the In-depth Study on all Forms of Violence against Women: Report of the Secretary-General, 6 July 2006, UN GA A/61/122/Add.1 (hereinafter ‘the Secretary-General’s Report on violence’). 106 See Ibid., paras. 363–402. Article 4(c) of the African Protocol. Ibid., Article 4(d). See also the Kenyan case of Mukungu v. Republic [2002] 2 EA 482 (CAK), reproduced in African Human Rights Law Reports (2003) 175, which struck down the rule requiring women to provide corroborating evidence in sexual assault cases because it was discriminatory. 109 Article 4(f) of the African Protocol. Ibid., Article 4(i). Ibid., Article 4(g). See also ECOWAS Declaration on the Fight against Trafficking in Persons, 20 December 2001, A/DC/12/12/01. Article 12(1)(c) and (d) of the African Protocol. See also Communication 236/2000, Doebbler v. Sudan, Sixteenth Activity Report 2002–2003, Annex VII. Ibid., Article 13(c). Ibid., Article 23(b). See also Convention on the Rights of Persons with Disabilities, 6 December 2006, UN GA A/61/611, Articles 3(b), 4(1)(b), 5, 6, 12 and 16. See also Communication 241/2000, Purohit and another v. The Gambia, reproduced in African Human Rights Law Reports (2003) 96, paras. 54–61. Ibid., Article 22(b). The Protocol has an Article on ‘special protection of women in distress’. See Article 22. On understanding intersectional discrimination, see CERD General Comment 25 on Gender, Women, Race, 20 March 2000, Un Doc. A/55/18, Annex V. The UN Declaration on the Elimination of Violence against Women recognises in the Preamble the importance of addressing the different ways in which various groups of women experience violence. The Secretary-General’s 2006 report on violence does the same: see para. 366.

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right to live in peace.116 Recognising that women and children suffer disproportionately in war and armed conflict, the Protocol calls on States to ensure the participation of women in educational programmes and also in the ‘structures and processes for conflict prevention, management and resolution at local, national, regional, continental and international levels’.117 The Protocol shows an understanding of the fall out of war, including refugees and displaced people who need adequate provision.118 Crucially, the Protocol incorporates UNHCR gender guidelines,119 calling for States to: ensure that women and men enjoy equal rights in terms of access to refugee status determination procedures and that women refugees are accorded the full protection and benefits guaranteed under international refugee law, including their own identity and other documents.120

This recognition of women as being autonomous beings, and not the appendages of husbands, fathers, brothers or other ‘male family head’ is to be especially welcomed on a continent where women make up the majority of refugees and displaced. Equally important is the State obligation to protect refugee women, asylum seekers and the internally displaced from violence,121 and ‘to ensure that such acts are considered war crimes, genocide and/or crimes against humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction’.122 Article 11 on the protection of women in armed conflicts incorporates into the Protocol provisions of international humanitarian law123 and the jurisprudence of international tribunals.124 It is to be hoped that violations of women in armed conflict will not be treated as the inevitable byproducts of war, but will be investigated and punished, with counselling 116 117

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Article 10 of the African Protocol. Ibid., Article 10(2)(b). See also Article 10(2)(e). This is in keeping with Security Council Resolution 1325 on Women, Peace and Security, 31 October 2000, S/RES/1325. It is mentioned in the Preamble to the Women’s Protocol. Ibid., Article 10(2)(d). UNHCR Guidelines on International Protection: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2002. Ibid., Article 4(k). See also UNHCR, Sexual and Gender Based Violence against Refugees, Returnees and Internally Displaced Persons: Guidelines for Prevention and Response (Geneva: UNHCR, 2003). 123 See note 119, Article 11(3). See note 119, Article 11(1), (2). N. Dyani, ‘Protocol on the Rights of Women in Africa: Protection of Women from Sexual Violence during Armed Conflict’, African Human Rights Law Journal 6 (2006) 166.

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and compensation being offered to the victims.125 It is encouraging to note the adoption of the Protocol on the Prevention and Suppression of Sexual Violence against Women and Children of the International Conference on the Great Lakes Region (hereinafter known as ‘the Great Lakes Protocol’).126 This instrument is extremely sensitive in understanding the trauma suffered by women who have experienced sexual violence, and therefore requires procedural sensitivity, including allowing that: victims and survivors shall give evidence in camera, or by video links, and they shall neither be compelled nor required to give evidence in open criminal proceedings, nor shall the casting of aspersions on their character and integrity be permitted as part of the defence of any person charged with a crime of sexual violence.127

To ensure that women’s experiences are not discounted due to ‘resource constraints’, the Great Lakes Protocol suggests that States may ‘entail the creation of a separate facility under the fund for reconstruction and development’ that provides legal, social, medical, psychological and rehabilitation services to survivors of violence, ‘including those who may not be able to identify the perpetrators of sexual violence’.128

Reproductive rights A related issue is that of reproductive rights. As with violence, one sees violations of women’s rights occurring throughout their life cycle. The Protocol proves bold in this regard, reinforcing ICPD gains including women’s right to control their fertility129 and to choose ‘any method of contraception’.130 The Protocol is the first human rights instrument in the world to provide for a woman to have an abortion ‘in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’.131 Although the provision of abortion services is controversial,132 failure to provide safe abortion facilities may result in women losing their 125 126 127 129 131 132

Human Rights Watch, Seeking Justice: The Prosecution of Sexual Violence in the Congo War, March 2005, Vol. 17, No. 1(A). Draft Protocol on the Prevention and Suppression of Sexual Violence against Women and Children, available at: www.icglr.org. Accessed 14 October 2007. 128 Ibid., Article 6(5). Ibid., Article 6(8). 130 Article 14(1)(a) of the African Protocol. Ibid., Article 14(1)(c). Ibid., Article 14(2)(c). During the ministerial meeting in 2003 to consider the draft of the Protocol, Libya, Rwanda and Senegal noted objections to this provision.

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lives as they resort to unqualified abortionists. It has been noted that 4 million unsafe abortions occur in Africa every year, and that 40 per cent of unsafe abortions in the world occur on the African continent.133 The Human Rights Committee has noted that the denial of abortion violated a woman’s right to privacy under Article 17, while in a dissenting opinion, one of the members held that it ‘may place a person’s life in grave danger’ and result in a violation of Article 6 of the Covenant on the right to life.134 Similarly, the CEDAW Committee has questioned States about the link between maternal mortality and the denial of abortion.135 The Protocol also highlights a woman’s right to protect herself from HIV and also to know her own and her partner’s HIV status within international guidelines. This an important gain for women. However, it is worth remembering that women are often blamed for HIV transmission, and experience prejudicial treatment and sometimes violence as a result of their status. They also face the possibility of being divorced. In the Kenyan case, Midwa v. Midwa,136 a custody case where the wife was HIV positive and the husband’s status unknown, the husband counter-sued for divorce citing the wife’s HIV status. The court noted: The husband in countering the application maintains that he cannot live together with his wife under the same roof as she poses a grave risk to his life. We sympathise. The wife is still working and servicing the mortgage. She avers that she is still strong and healthy despite the fact that she was diagnosed HIV positive about five years ago. Until the Court decrees otherwise the husband should not desert his wife. Presently it would be morally wrong.

One wonders if the court would have been so ‘kind’ had the woman not been paying the mortgage. All this said, it is worth remembering that many African women are powerless to make independent decisions, and cannot 133

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BBC, ‘US Abortion Rule “Hits Africa Women”, 26 September 2003, available at: http://news.bbc.co.uk/1/hi/world/africa/3139120.stm. Accessed 14 October 2007. See also BBC, ‘Should Abortion be Legal?’, 25 February 2006, available at http://news.bbc. co.uk/1/hi/world/africa/4724440.stm. Accessed 14 October 2007. Communication 1153/2003, Llantoy Huaman v. Peru, UN Doc. CCPR/C/85/D/1153/2003 (22 November 2005), para. 6.4 and Appendix for the dissenting opinion of Committee member Hipolito Solari-Yrigoyen. See Centre for Reproductive Rights (CRR), ‘The Protocol on the Rights of Women in Africa: An Instrument for Advancing Reproductive and Sexual Rights’, Briefing Paper, February 2006, p. 1. See also the Millennium Development Goals Report 2006 (New York: UN, 2006), pp. 6–7; CEDAW General Comment 24 on Health, UN Doc. a/54/38/Rev.1, paras. 12(d), 14 and 31(c)(e). African Human Rights Law Reports (2003) 189.

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negotiate safe sex, making their rights to self protection meaningless. Moreover, as the Centre for Reproductive Rights (CRR) notes: Sub-Saharan Africa has the worst indicators of women’s health – particularly for reproductive health – of any world region. These indicators include the highest number of HIV-positive women and the highest infant, maternal, and HIV-related deaths worldwide . . . The protocol can help advocates pressure governments to address the underlying social, political and healthcare issues that contribute to the dismal state of women’s health throughout the continent.137

A proper engagement with the issue of women’s health will include ensuring that States provide ‘adequate, affordable and accessible’ health services.138

Female genital cutting and other harmful practices The Protocol also addresses the controversial issue of female genital cutting (termed mutilation)139 and other harmful practices defined broadly as meaning: ‘all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity’.140 State obligations include the enactment of laws prohibiting these practices,141 as well as the taking of preventative142 and rehabilitative measures.143 Evidence indicates that African States have already begun to take action, with fifteen having passed laws outlawing female genital cutting, and others having policies in place.144 There is also recognition of the importance of 137

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Centre for Reproductive Rights (CRR), The Protocol on the Rights of Women in Africa, Briefing Paper (New York, NY: Centre for Reproductive Rights, February 2006), indicating how progress on achieving the various Millenium Development Goals has been made in all regions, but ‘Africa lags behind’. Article 14(2)(a) of the African Protocol. As a template, States should consider using CESCR General Comment 14 on the Right to the Highest Attainable Standard of Health, 11 August 2000, E/C.12/2000/4, and CEDAW General Recommendation 24 on Health. Bringing Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights (New York and Toronto: Centre for Reproductive Rights and University of Toronto International Programme on Reproductive and Sexual Health Law, 2002). Article 5(b) of the African Protocol. See also CEDAW General Recommendation 24, para. 12(b); Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Article 24(3); ACRWC, Article 21. 141 Article 1(g) of the African Protocol. Ibid., Articles 2(1)(b), 5 and 5(b). 143 Ibid., Article 5(d). Ibid., Article 5(c). C. Momoh (ed.), Female Genital Mutilation (London: Radcliffe Publishing, 2005).

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engagement, by way of outreach programmes and other media, with the population.145 The importance to young girls of governments eradicating harmful practices, including forced and early marriage, cannot be emphasised enough.146 For this reason, it is to be welcomed that the Protocol explicitly defines woman as including girl children.147 The requirement that marriages be registered148 (thus ensuring consent149 ) and also that the bride should be over the age of 18,150 will, if enforced, do much to improve the lives of African girls, enhancing their ability to participate in and benefit from education, which has been identified as the key to unlocking discrimination and providing opportunities for the improvement of lives across generations.151 Sadly, girls on the African continent continue to be left out in the cold.152

Economic, social and cultural rights Perhaps most impressive about the Protocol are the provisions on economic, social and cultural rights,153 which, for women, can act as a gateway to the enjoyment of other rights.154 Worthy of note are provisions recognising the right to education,155 which for the girl child must be read together with Article 15(a) on the provision of clean drinking water. The UNDP 2006 human development report focuses on water, and notes how a girl’s ability to access education is dependent on water being located close to her family home because she will most likely be responsible for collecting water for the family before, or indeed after, school.156 Moreover, the report notes how the lack of toilets and clean sanitation facilities at schools hamper girls’ attendance during their menses. 145 146 147 148 151 152 153 154 155 156

This is in keeping with Article 5(a) of the African Protocol. UNICEF, Early Marriage: A Harmful Traditional Practice (New York: UNICEF, 2005). Article 1(k) of the African Protocol. 149 150 Ibid., Article 6(d). Ibid., Article 6(a). Ibid., Article 6(b). UNICEF, Gender Achievements and Prospects in Education: The Gap Report (New York: UNICEF, 2006), pp. 16–27, 72–9 and 87–92. UNICEF, The State of the World’s Children 2005: Childhood Under Threat (New York: UNICEF, 2005) p. 137. See Articles 12–19 of the African Protocol. African Commission and Interights, ‘Statement on Social, Economic and Cultural Rights in Africa’, Pretoria, 17 September 2004, para. 4. Article 12 of the African Protocol. UNDP, Beyond Scarcity Power, Poverty and the Global Water Crisis (New York: UNDP, 2006).

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Although not having a separate provision on rural women, as does the CEDAW, the Protocol recognises the work that women do in the home,157 which provision could also be used to give women who have been homemakers an equal share in property on divorce.158 Moreover, States are enjoined to support women’s economic activities, ‘in particular within the informal sector’.159 The guarantee of women’s right to food security160 is important, not least because women, especially in the rural areas, shoulder the primary responsibility of feeding their families. Furthermore, giving women an independent right to housing, as is done in Article 16, is key to minimising violence against them by freeing them to leave, knowing that they will be able to source alternative accommodation for themselves and their children.161 While much lip service is paid to the importance of women in development, it is noteworthy that Article 19 on sustainable development gives a breakdown of what is needed to make this a reality. Included are the requirements to ensure that women participate in policy making,162 and most importantly that women have access to resources,163 including credit.164 Also worthy of note is the recognition of ‘women’s indigenous knowledge systems’, which States are under an obligation to protect.165 Clearly, these normative gains are all to be celebrated. However, one has to temper the rejoicing with a note of caution. Reading the Millennium Development Goals Report for 2006 makes, for an African (woman), depressing reading. While the report adopts a positive outlook, the African continent is described as (1) lagging behind in the attainment of primary education for all by 2005, (2) not closing the gender gap in education as quickly as other regions have done, (3) having the highest maternal mortality rates, (4) being the epicentre of the HIV/AIDS epidemic, and (5) having the fastest growing cities as well as slums.166 157 158

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Article 13(h) of the African Protocol. See CEDAW General Recommendation 21, paras. 32 and 33; Article 23 of the Human Rights Committee General Comment 19 on Protection of the Family, the Right to Marriage and Equality of the Spouses, 27 July 1990, HRI.GEN.1.Rev.7, para. 6. 160 Article 13(e) of the African Protocol. Article 15 of the African Protocol. G. Paglione, ‘Domestic Violence and Housing Rights: Reinterpretation of the Right to Housing’, Human Rights Quarterly 28 (2006) 120. Article 19(b) of the African Protocol. 164 Ibid., Article 19(c). Ibid., Article 19(d). Ibid., Article 18(2)(d). See also J. Oloka-Onyango, ‘Who’s Watching “Big Brother”? Globalisation and the Protection of Cultural Rights in Present day Africa’, Human Rights Quarterly 27 (2005) 1245. UN Millennium Development Goals Report 2006.

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Challenges Inconsistency in standard setting A major challenge is, of course, that of State commitment to upholding the rights of women. Historically, States have equivocated over implementing human rights norms, especially when they pertain to issues affecting women. The ratification, incorporation and enforcement by States of Protocol provisions looms as one of the greatest challenges. Unfortunately, the inconsistency of standard setting in the Protocol leaves those less committed States with too much discretion. The Protocol appears to mix its normative standards, arguably lowering them when it most matters to women. For example, while the Preamble and the definition of discrimination in Article 1(f) are clear in their condemnation of discrimination against women on grounds of sex, provisions on division of property on death and divorce are less so, providing that women have the right to ‘equitable’ but not equal shares.167 The concept of what is fair or equitable is, like beauty, in the eyes of the beholder. Women rarely receive equal shares in property on death or divorce, meaning that it was incumbent on an instrument seeking to protect their rights to state explicitly that they were entitled to equal shares with men. Women’s historical lack of access to resources, including land,168 has played a major role in their relative lack of bargaining power vis-`a-vis men, and has been identified as a reason for the fact that they are disproportionately impacted by poverty.169 If anything, it has made them subject to the whims of husbands, fathers and brothers. With this in mind, it is a pity that, when addressing women’s rights to access land,170 the Protocol was not more explicit in saying that women had equal access to land. Had there not been different standards in women’s entitlement to property on death and divorce, it could have been argued that equality was implicit within the understanding of nondiscrimination in Article 1. However, the introduction of a lower standard later in the Protocol makes it even more important that land provisions 167 168

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See Articles 7(d) and 21 of the African Protocol. World Bank, Engendering Development through Gender Equality in Rights, Resources and Voice (Washington: World Bank, 2001); World Bank, Land Policies for Growth and Poverty Reduction (Washington: World Bank, 2003). WLSA, A Critical Analysis of Women’s Access to Land (Harare: WLSA, 2001). ‘Fourth World Conference on Women Declaration and Platform for Action’, 15 September 1995, UN Doc. A/CONF.177/20, paras. 16 and 17; CESCR, Poverty and the International Covenant on Economic, Social and Cultural Rights, 10 May 2001, E/C.12/2001/10, para. 5; Murray, Human Rights in Africa, p. 142. Articles 15(a) and 19(c) of the African Protocol.

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should have been more clearly articulated to remove all doubt about women’s entitlements.

‘Culture’ Always identified as impeding the enjoyment by women of their rights is the issue of culture. States regularly justify the non-implementation of women’s rights due to ‘community resistance’ borne of discriminatory interpretations of customs, customary laws and religion.171 Within the African system, it is arguable that the roots of this resistance can be traced to the African Charter itself. This is because of the Duties Chapter, which provides that individual obligations include the preservation and strengthening of positive African cultural values.172 The interpretation of what constitutes ‘African values’ has become a hostage to fortune, leaving open arguments that African values can, and do, permit differential treatment of the sexes in the enjoyment of certain rights.173 This is unfortunate, not least because the African Charter makes clear in the Preamble that it is incumbent on all to be ‘conscious of their duty to achieve the total liberation of Africa . . . and to dismantle . . . all forms of discrimination, particularly those based on race, ethnic group, colour, sex, language, religion or political opinion’ (emphasis added). Read together with Articles 2, 3, 18(3), 28 and indeed Article 29(7) itself,174 it seems clear, as Beyani175 and Oloka-Onyango176 have contended, that the positive African values that are to be upheld are those free from discrimination on the grounds of sex. This interpretation notwithstanding, it would take a person with ostrich-like tendencies to deny the impact on women that negative and retrogressive interpretations of the often homogenised ‘African culture’ have had on their enjoyment of rights. With this in mind, it is heartening that the African Protocol has gone further than the Charter, specifying that women have the right to live in a ‘positive cultural context’,177 and also that they are to be involved 171 172 173 174

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Banda, Women, Law and Human Rights, pp. 248–62. Article 27(7) of the African Charter. See also the Preamble. Viljoen, ‘The African Commission’, pp. 394–5. Article 29(7) frames the preservation and strengthening of African values within a context of ‘tolerance, dialogue and consultation’, requiring the individual to ‘contribute to the promotion of the moral well-being of society’. Clearly, the moral well-being of society is damaged if half of its citizens are subjected to intolerant, degrading and discriminatory treatment. Beyani, ‘Toward a More Effective Guarantee’. Oloka-Onyango, ‘Who’s Watching “Big Brother”’?, p. 1269. Article 17(1) of the African Protocol.

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in the determination of cultural policies at all levels.178 Moreover, the Preamble recognises women’s crucial role in the preservation of African values, which it defines as being based on ‘the principles of equality, peace, freedom, dignity, solidarity and democracy’. The Protocol has also adopted Articles 2(f) and 5(a) of CEDAW, calling for a modification of: the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.179

The challenge is for States to work with civil society, so-called ‘community leaders’, schools and the media to ensure that narrow and sexist interpretations of ‘culture’ are not allowed to hold sway.

Reservations Like the African Charter and, indeed, the ICCPR, the Protocol is silent on the issue of reservations, with the result that States are free to enter reservations.180 The Women’s Convention has been blighted by reservations;181 indeed, it has the dubious honour of being the most heavily reserved treaty. The objections to key provisions noted by African States during the drafting of the Protocol suggests that a similar approach will be taken to the Protocol itself. Although relatively few African States that are party to the CEDAW have entered reservations to it, those that have reserved have tried to exempt themselves from key provisions.182 It is therefore regrettable that the suggestion made by the East and Southern Africa group, that 178 180 181

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179 Article 17(2) of the African Protocol. Article 2(2) of the African Protocol. Article 19(3) of the Vienna Convention on the Law of Treaties. E. Linzaad, Reservations to UN Human Rights Treaties (Dordrecht: Martinus Nijhoff, 1995), p. 363; C. Chinkin, ‘Reservations and Objections to the Convention on the Elimination of all Forms of Discrimination Against Women’ in J. Gardner (ed.), Human Rights as General Norms and a State’s Right to Opt Out (London: British Institute of International and Comparative Law, 1997), p. 64. See, for example, the reservation of Niger to Article 2 of the CEDAW (State obligations), 5 (removal of stereotyping), 15 (equality before the law), 16 (family), and its rationale: ‘the provisions . . . cannot be applied immediately as they are contrary to existing customs and practices which, by their nature, can be modified only with the passage of time and the evolution of society and cannot, therefore, be abolished by an act of authority’. See also R. Holtmaat, Towards Different Law and Public Policy: The Significance of Article 5(a) CEDAW for the Elimination of Structural Gender Discrimination (The Hague: Ministry of Social Affairs and Employment, 2004).

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reservations to the Protocol should not be allowed, was not taken up.183 At the very least, certain key provisions should have been marked out as being the objects and purpose of the Protocol, and, therefore, not able to be reserved.184 Whether this would have made any difference or had any impact on State action is debateable. Attempts by the Human Rights Committee to delineate limitations to the making of reservations185 were met with resistance and censure of the Committee.186 Difficulties in the interpretation of norms, and States’ ability to meet these norms, are further compounded by State inconsistencies in entering reservations to provisions judged to be incompatible with religion. Of the States objecting to provisions of the draft African Protocol on Women’s Rights, it is only Egypt that has been consistent187 in its use of reservations to other human rights treaties, not least Article 18(3) of the African Charter. The failure by the other objecting States to enter reservations to the equality and non-discrimination provisions of other human rights treaties may indicate an acknowledgement that to do so would be to violate the norm of pacta sunt servanda, and so to undermine the object and purpose of the respective treaties.188 Whatever the reasoning, the inconsistency creates confusion, not least because States Parties appear to be binding themselves to different standards, depending on the treaty under consideration. It does not help that, while in one Article – the Revised Arab Charter189 – to which some African States are party, it provides, unequivocally, that States are under an obligation to ensure 183 184

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East Africa and SADC group, para. 17. In truth, it is doubtful if this would have made much difference in practice. The CEDAW experience highlights that, despite listing the provisions that the Committee considers comprise the object and purpose of the Convention and which cannot therefore be reserved under Article 28(2), most States continue to reserve those very provisions. Again, this depends on States’ commitment to fulfilling their obligations. See CEDAW, ‘Statement on Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’ in Commonwealth Secretariat et al., Assessing the Status of Women, p. 90. Human Rights Committee General Comment 24 on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), especially para. 18. H. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon Press, 2000), p. 1047. Egypt is the only State that entered an objection to the provision that a widow should be entitled to an ‘equitable’ share of property on the death of her husband. Government Experts draft (2001) para. 149. An example is Sudan, which objected to many draft Protocol provisions, but has ratified the ICCPR without reservation. League of Arab States, Revised Arab Charter on Human Rights, 22 May 2004, reprinted in International Human Rights Reports 12 (2005) 893.

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the enjoyment of rights ‘without distinction on grounds of race, colour, sex, language, religious belief, opinion, thought, national or social origin, wealth, birth or physical or mental disability’,190 in the same Article, it suggests that there is a different understanding of equality between men and women: Men and women are equal in respect of human dignity, rights and obligations within the framework of the positive discrimination established in favour of women by the Islamic Shariah, other divine laws and by applicable laws and legal instruments. Accordingly, each State party pledges to take all the requisite measures to guarantee equal opportunities and effective equality between men and women in the enjoyment of all the rights set out in this Charter.191

How is one to square the two provisions? Given the prohibition of discrimination on grounds of religion in Article 3(1), are Christian and other women not subject to the Shari’a to enjoy a different kind of equality? The contention that, under the Shari’a, women enjoy ‘positive discrimination’ is one that is contested.192 The current heightened sensitivity over issues of religion means that those reservations justified with reference to religion, many affecting women, are even harder to challenge. The matter is further complicated by the adoption, by the African Commission in the case of Legal Resources Foundation v. Zambia,193 of the United Nations Human Rights Committee’s definition of discrimination in its General Comment 18.194 The definition in the General Comment is itself based on Article 1 190 191

192

193 194

Article 3(1) of the Revised Arab Charter. See also Article 11 on equality before the law without discrimination. Ibid., Article 3(3). The invocation of the Shari’a creates normative confusion because, unlike the Cairo Declaration, which in Articles 24 and 25 explicitly states that it is to be interpreted through the prism of the Shariah, the Revised Arab Charter does not. Instead, it reaffirms the principles of the international bill of rights, amongst other international instruments. S. Ali, Gender and Human Rights in Islam and International Law (Washington DC: CQ press, 2000); J. Connors, ‘The Women’s Convention in the Muslim World’ in J. Gardner (ed.), Human Rights as General Norms and a State’s Right to Opt Out (London: British Institute of International and Comparative Law, 1997), p. 85; Amein, ‘Overcoming the Conflict’. Communication 211/98, Legal Resources Foundation v. Zambia, Fourteenth Activity Report 2000–2001, Annex V. Human Rights Committee General Comment 18 on Non-Discrimination, 21 November, 1989, CCPR/C/21/Rev.1.Add.1. See also its General Comment 28 on Equality of Rights between Men and Women (Article 3), 29 March 2000, CCPR/C/21/Rev.1Add.10. The Committee on Economic, Social and Cultural Rights Equality has followed suit in its General Comment 16 on the Equal Rights of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights (Article 3), 11 August 2005, E/C.12/2005/4. See also CEDAW General Recommendation 21, para. 8.

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of the CEDAW, which is, furthermore, the basis of the African Protocol on Women’s definition of discrimination, which the experts appear to have adopted without amendment at both the 2001 and 2003 meetings, to consider the draft.195 Perhaps the problem of ‘norm pick and mix’ is exacerbated by the non-binding nature of the African Commission’s findings. Moreover, while the functions of the Commission include the formulation and ‘laying down of principles and rules aimed at solving legal problems relating to human and peoples’ rights’, the guidance is not peremptory, for African governments ‘may base their legislations [sic]’ on the principles and rules.196

Implementation, commitment and resource allocation For there to be proper implementation of the Protocol at the national and regional levels, and for women to be able to demand that discrimination against them be remedied as anticipated by Articles 8 and 25, States will be required to commit adequate resources to the task. Although the Protocol calls on States to proritise ‘spending on social development in general, and the promotion of women in particular’,197 while taking the ‘necessary measures to reduce military expenditure’,198 experience shows that States continue to prioritise defence budgets over spending on social development and access to law. If, as acknowledged within the African system itself, the improvement of the lives of African women is key to development,199 then action will have to be taken to make real the demands of Article 10(3). Given the centrality of law to the delivery of justice to women, it is heartening to see that the Protocol in Article 8 focuses on access to justice, calling for legal aid to be made available to facilitate women’s access to courts.200 The State is also required to ensure equal gender balance in the judiciary,201 whose members should be ‘equipped to effectively interpret and enforce gender equality rights’.202 Moreover, the State is under an obligation to ‘sensitise everyone to the rights of women’.203 All this notwithstanding, access to justice for women remains a major impediment to their enjoyment of rights. In its concluding observations to the report submitted by Ghana, the CEDAW Committee noted: ‘The Committee 195 196 197 199 201 203

Government Experts draft, para. 29. Article 45(1)(b) of the African Charter (emphasis added). 198 Article 10(3) of the African Protocol. Article 10(3) of the African Protocol. 200 Murray, Human Rights in Africa, p. 153. Article 8(a) of the African Protocol. 202 Article 8(e) of the African Protocol. Article 8(d) of the African Protocol. Article 8(c) of the African Protocol (emphasis added).

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is concerned that, although women’s access to justice is provided for by the law, women’s ability in practice to exercise this right and to bring cases of discrimination before the courts is limited by factors such as limited information on their rights, lack of assistance in pursuing these rights, and legal costs.’204 Another aspect of the resource problem on the continent is linked to lack of access to material and information about legal and other developments in Member States, meaning that judges are often forced to rely on decisions and jurisprudence from the UN and other northern-based bodies, which are both easier to access and up to date. This should not be seen as a sign of African inferiority manifesting itself, but rather a reflection of a dearth of information on developments in other States.205 Resources should be sought, perhaps through international aid, for the updating and better dissemination of national law reports and materials.

Monitoring Article 26 of the Women’s Protocol provides that States Parties are under an obligation to report to the African Commission every two years on ‘legislative and other measures undertaken’.206 Interpretation of the Protocol is left to the African Court on Human and Peoples’ Rights.207 Although the African Commission has become better (under the reporting procedure) at engaging States about their treatment of women, it would have been preferable for the Protocol to have been given a separate treaty-monitoring body akin to the African Committee on the Rights and Welfare of the Child,208 and also the CEDAW Committee.209 Evidence from the UN system shows that the CEDAW Committee has played an important role in raising the profile of women’s rights throughout the organisation.210 It is noteworthy that the Human Rights Committee and the Committee on Economic, Social and Cultural Rights have both 204

205

206 207 208 209 210

CEDAW, Concluding Comments on the Committee on the Elimination of Discrimination against Women: Ghana, CEDAW C/GHS/CO/5, 25 August 2006, para. 15. See also para. 16. Murray is critical of what she sees as an over-reliance on non-African jurisprudence by the African Commission: Murray, ‘Women’s Rights and the Organization of African Unity and the African Union’, pp. 256. States are enjoined to report as per Article 62 of the African Charter. Article 27 of the African Protocol. The ACRWC provides for an eleven-member committee: see Article 33. Its remit is the promotion and protection of the rights and welfare of the child (Article 32). The CEDAW has a twenty-three-member committee, which receives State reports one year after ratification, and thereafter every four years: Articles 17 and 18. See note 95, ECOSOC Report, para. 8.

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relied on CEDAW jurisprudence when elucidating their general comments on discrimination and the interpretation of Article 3 on equality between men and women in their respective Covenants.211 As already noted, both the Committees under the ICCPR and ICESCR have adopted as their definitions of discrimination that found in Article 1 of the CEDAW. Within the wider UN system, the existence of the CEDAW Committee, working in conjunction with the Commission for the Status of Women and UNIFEM, has resulted in a higher profile for women’s rights throughout the organisation. The work of many UN agencies has been enhanced and enriched by CEDAW jurisprudence, helped in part by Article 22 of the CEDAW, which provides that ‘the Committee may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities’. Arguably, the inclusion of gender equality as being a specific goal in the Millennium Development Goals212 reflects, in part, the work that the CEDAW has done in highlighting the magnitude of discrimination and dispossession experienced by many of the world’s women. The success of the CEDAW can also be seen in the expansion of its mandate via the adoption of the Optional Protocol to CEDAW213 in 1999. The CEDAW Committee can now receive individual communications and undertake inquiries.214 The Committee’s work under this expanded mandate has, in the limited time that it has been running, been very impressive, not least in the area of gender-based violence.215 While, in the exercise of their mandate, the African Commissioners do their best with limited resources, it is difficult to expect them to canvass thoroughly all aspects of human rights violations, including those affecting women, within the time allocated to them.216 As a result, issues pertaining to the violation of the rights of women are dealt with in an ad hoc, and sometimes perfunctory, manner. In fairness to the Commission, 211 212 213 214 215

216

See Human Rights Committee General Comments 18 and 28 and CESCR General Comment 16. Millennium Development Goals at www.millenniumdevelopment goals.org. Accessed 17 October 2007. See also Millennium Declaration, 8 September 2000, GA Res.55/2. Optional Protocol to CEDAW, GA res. 54/4, 6 October 1999. S. Bully, ‘The Optional Protocol to CEDAW: First Steps’, Human Rights Law Review 6 (2006) 143. There is provision for States to opt out of the inquiry procedure if they wish. Ibid., Article 8. CEDAW Communication 2/2003, Ms A. T. v. Hungary, views adopted 26 January 2005. See also CEDAW, Committee Report on Mexico Produced by CEDAW under Article 8 of the Optional Protocol to the Convention and Reply from the Government of Mexico, UN Doc. CEDAW/C/2005/OP.8/MEXICO, 27 January 2005. This is recognised in the Kigali Declaration, Article 24.

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it is probably true to say that if States Parties did produce comprehensive reports faithfully, following reporting guidelines (which include the CEDAW reporting guidelines217 ), and were thoroughly examined on them, the work of the Commission would never be completed.218 Murray further notes that, whereas all States (but Morocco) have ratified the African Charter, not all States will ratify the Protocol, meaning that the Commission may be left ‘in a difficult position regarding how to interpret the Charter in respect of women’.219 For these reasons, the failure to set up a separate monitoring committee under the Women’s Protocol is to be regretted. The magnitude of the task of confronting gender-based discrimination calls out for a separate adequately resourced and institutionally supported monitoring body. Failure to provide such a body does not augur well for the future implementation of the Protocol, not least because it calls into question the AU’s commitment to women’s rights. There also seems to be institutional inconsistency, evidenced by the setting up of a separate committee to monitor Children’s rights but not women’s rights. This is particularly surprising in light of the elision of the rights of ‘womenandchildren [sic]’ in Article 18 of the Charter. More problematic, however, and reinforcing the criticism made by Murray of the African Union as being replete with mechanisms and organs (many of which do not appear to co-ordinate their activities),220 is the separate reporting requirement brought about by the Solemn Declaration on Gender Equality requiring the African Union Commission to submit to the Heads of State and government of Member States ‘an annual report, during our ordinary sessions, on measures taken to implement the principle of gender equality and gender mainstreaming, and all issues raised in this Declaration both at the national and regional levels’.221 To facilitate reporting on the Declaration, guidelines were drawn up in 2005.222 These guidelines anticipate that States will submit initial 217 218

219 220 221 222

CEDAW, Guidelines for Preparation of Reports by States Parties: 26/07/96, CEDAW/ V/7/Rev.3 (Basic Reference document). Ironically, like other monitoring bodies, the Commission may actually be enabled to complete its work within the limited time mandated for examining State reports by the dilatory reporting of some States Parties: Viljoen, ‘The African Commission’, pp. 463–70. Murray, ‘Women’s Rights and the Organization of African Unity and the African Union’, p. 270. Murray, Human Rights in Africa, Chapter 1. Solemn Declaration on Gender Equality in Africa, Article 13. See also Article 12. Guidelines for Reporting on the AU Solemn Declaration on Gender Equality in Africa, adopted at the First African Union Conference on Ministers Responsible for Women and Gender, Dakar, Senegal, 12–15 October 2005, AU/MIN/CONF/WG/2(1).

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reports in 2006, and thereafter reports will be submitted in four-year cycles, following a schedule drawn up by the Office of the Chairperson of the African Union.223 Although noting that the reports should focus on what States Parties have done at the ‘policy level’,224 with the first reports providing background data on mechanisms put in place to ‘support the empowerment of women’,225 and second and subsequent reports focusing on progress made and including gender-disaggregated data,226 it is clear from the list of criteria for report writing, and indeed acknowledged in the guidelines,227 that the reports are to replicate or closely mirror the reporting guidelines of the CEDAW, with its emphasis on de jure as well as de facto discrimination.228 Moreover, as with the CEDAW Committee and other UN human rights monitoring bodies, shadow reports produced by civil society are encouraged. Given the rights, law and policy focus, it comes as a surprise that the only mention of the African Charter and the African Protocol on Women’s Rights is in a list of instruments and initiatives that support women’s rights.229 The Declaration guidelines are silent on the inter-relation, if any, between the reporting guidelines under the Solemn Declaration and those under the African Charter, thus leaving open the possibility of duplication of effort. If anything, the Solemn Declaration guidelines anticipate the establishment of an African Union Women’s Committee (AUWC),230 which will report to the Chairperson of the African Union Commission, and one of its functions will include the receipt of comments from civil society organisations on the reports submitted by States Parties.231 Mirroring the work done by human rights monitoring committees, the AUWC will consider both the State and shadow reports before making ‘concluding comments and recommendations’, which it will forward to the Chairperson of the Commission.232 Suggesting a norm-generating role, the AUWC ‘will also make General Recommendations on emerging issues, which are in line with the Solemn Declaration but are not covered by the present Declaration’.233 The detail and specificity of the work to be done by the AUWC suggests that it is expected to fulfil the role of monitoring women’s rights issues 223 226 228 229 230

231

224 225 Ibid., Part E. Ibid., Part A (emphasis added). Ibid. 227 Ibid., Parts A, C, D, E. Ibid., Part A. Commonwealth Secretariat et al., Assessing the Status of Women. Guidelines for Reporting on the Solemn Declaration, Part B. The Solemn Declaration noted the decision made by the Chairperson of the African Union Commission to ‘transform the African Women’s Committee on Peace and Development (AWCPD) into the African Union Women’s Committee (AUWC), which will be located in the Gender Directorate and serve as an advisory Body to the Chairperson on Gender and Development’. Solemn Declaration, Preamble, para. 8. 232 233 Ibid., Part E. Ibid. Ibid.

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on the continent. Are Solemn Declaration reporting guidelines a belated attempt to remedy the omission of a separate monitoring body under the Protocol? If yes, should the provisions of the African Women’s Protocol not have been highlighted as essential to the understanding and, indeed, the interpretation of the Declaration itself? Much confusion would have been avoided if the Declaration had made clear how the AUWC work fitted into the work of existing human rights mechanisms on the continent. If anything, the silence may yet again result in the African Commission choosing not to focus on women’s rights because they are being considered elsewhere within the system, rendering invisible rights violations occurring to women within the ‘formal’ human rights system.234 The continent can ill afford duplication and waste.

Conclusion David Kennedy has warned us not to equate normative gains in human rights with bringing about substantive change in the lives of the people for whom human rights instruments are supposed to offer protection.235 On a continent where the mortality rates continue to plunge, where the democratic gains of the 1990s are in reverse (witness the controversial Ethiopian elections of May 2005 and the resulting violence), where there has been imprisonment of opposition party members, as in Uganda236 and a coup in Mauritania, coupled with deliberate and unconscionable violations of citizens’ rights by the State, such as in Zimbabwe where the ‘clean up operation’ of July 2005 left many homeless, the ongoing crisis in Darfur237 and where the AIDS crisis continues to ravage the continent, one cannot afford to ignore Kennedy’s caution. The situation is exacerbated 234

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237

A note from the Women, Gender and Development Directorate issued in anticipation of the January 2007 meeting of Heads of States and Government in Addis Ababa notes that only seven States had met the 20 June 2006 deadline for the submission of initial reports. These were Algeria, Ethiopia, Lesotho, Namibia, Senegal, South Africa and Tunisia. Y. Teriba, ‘Implementation of the Solemn Declaration on Gender Equality in Africa: First Report by all AU Member States, for Consideration at the January 2007 Summit to be held in Addis Ababa, Ethiopia’, undated. Available at www.africa-union.org. Accessed 17 October 2007. D. Kennedy, ‘The International Human Rights Movement: Part of the Problem?’, Harvard Human Rights Journal 15 (2002) 101. See also Chinkin, Wright and Charleswoth, ‘Feminist Approaches’, pp. 23–6. W. Ross, ‘Museveni: The Fallen Angel’, BBC News Online, 30 November 2005. Report available from http://news.bbc.co.uk/1/hi/world/africa/4482456.stm. Accessed 17 October 2007. Physicians for Human Rights, Assault on Survival: A Call for Security, Justice and Restitution (Cambridge MA: Physicians for Human Rights, 2006).

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by the over-blown institutional mechanisms developed by the AU, which are said to lack internal co-ordination and therefore dissipate resources and fail to meet the organisation’s objectives, which include the protection of human rights on the continent.238 For women, the problems identified are made complex by the fact that the violations experienced by them are, more likely than not, to be in the private sphere, at the hands of husbands and immediate family members. The failure of the State to respect, ensure, protect and fulfil rights within the public sphere is replicated at the micro-State (family and community) level.239 The impunity that we sometimes see operating at the State level is magnified within families. The inequality of bargaining power between family members, especially women and children, results in uneven enjoyment of their rights. Resistance to change poses a particular challenge to women who are dealing with social norms outside the purview of State law. Women’s lower levels of education and access to resources to enable them to learn about and challenge discriminatory norms all pose particular hurdles for women in their bid to enjoy, unfettered, the rights guaranteed in the Protocol and other human rights instruments. These challenges notwithstanding, the Committee on Economic, Social and Cultural Rights has observed that ‘[a]lthough human rights are not a panacea, they can help to equalise the distribution and exercise of power within and between societies’.240 The fact that women’s rights advocates fought for, and African States agreed to adopt, a document as far reaching as the Protocol shows, at the very least, a recognition on the part of States that women’s rights are important. It is now up to women to hold States, as well as the African Commission and, eventually, the court, to account. 238 239

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Murray, Human Rights in Africa, Chapter 1. Giddens contends that democratic societies are more likely to have ‘democratic families’, meaning societies where men and women are valued equally. A. Giddens, Runaway World: How Globalisation is Reshaping Our World (London: Profile Books, 2002), p. 65. Committee on Economic, Social and Cultural Rights, Poverty and the International Covenant on Economic, Social and Cultural Rights: 10/05/2001, E/C,12/2001/10, 10 May 2001, para. 6.

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INDEX

Abacha, Sani, 82, 191 Abiola, Moshood, 237 abortion, 458–59 Abrams, J.S., 149, 167 actio popularis, 35, 104 Addis Ababa Conference (1971), 3 Addis Ababa Declaration (2004), 424 admissibility of communications decisions delay, 90–91, 108, 137 review, 42, 92 grounds, 78, 92–128 anonymous communications, 94 author’s details, 93–94 clawback clauses, 98–99 compatibility with Charter/AU, 86 delayed communications, 125 disparaging language, 108–109 exhaustion of local remedies, 111–25, 134–36, 138 locus standi, 35, 102–105, 137 media as sole basis for complaints, 104–105, 110 ne bis in idem, 125–28 non-parties to Charter, 100–101 non-State actors, 101–102 personal jurisdiction, 100–105 previous international law settlement, 125–28, 135 reservations, 99 State responsibility, 101–102 subject jurisdiction, 96–100 temporal jurisdiction, 105–107 territorial jurisdiction, 107 international HR treaties and, 89, 96, 125 procedure, 88–92

statistics, 89, 137 working groups, 90, 384–85 advertising, 451 African Centre for Democracy and Human Rights Studies, 294 African Charter. See Banjul Charter African Charter on Popular Participation in Development and Transformation, 276 African Charter on the Rights and Welfare of the Child, 447 African Commission affiliate status, 311–14, 334–35, 430 African Court and, 40–43, 439 jurisdiction, 43 review of admissibility, 42 roles, 164 working group, 304–305, 403 assessment, 34–40 bureau, 11 composition, 8–10 gender equality, 10, 181 creation, 2, 4–5, 8 decisions. See decisions dialogic approach, 56, 68, 73, 75, 84, 168, 326 diplomatic immunities, 11 division of labour, 321 emergency cases, 34 funding, 15, 243, 287, 317, 438–39 headquarters, 11–12, 17, 19 independence, 9–10, 16, 57, 211, 383, 437–38 innovative approach, 39–40 judgments. See decisions languages, 341 mandate, 10, 81, 132

491

492

index

African Commission (cont.) Mauritius Plan of Action, 14 NGO participation. See NGOs and African Commission NHRIs and, 72, 290, 311–14 powers, 35 procedures, amendment, 401–403 promotion of democracy, 39 regional representation, 9 relations with partners, 402 reports to. See State reports Resolutions, 38–39, 295 Secretariat. See Secretariat sessions, 16–18, 317 extraordinary sessions, 297–98 hearing procedures, 18 languages, 18 NGO participation, 296–98 periodicity, 389 quorum, 18 status, 36 Strategic Plans, 14 structure, 10–11, 14, 15 website, 10, 332 African Committee on the Rights and Welfare of the Child, 45, 417, 469 African Court of Justice creation, 23, 409 jurisdiction, 409 merger, 41, 43, 44–45, 408–17 Protocol, 410–14 African Court of Justice and Human Rights budget, 407 decisions, 436–37 judges, 420 conflicts of interest, 433 election, 434–36 gender parity, 424–25 immunities, 433 independence, 432–34 regional representation, 425–26 removal, 433 remuneration, 434 jurisdiction, 426–32 advisory opinions, 432 competence, 426–28

locus standi, 429–32 subject-matter, 429 Protocol, 417–21 ratification, 421–22 regional courts and, 439 reservations, 423–24 structure, 420–21 African Court on Human and Peoples’ Rights admissibility, 130–31 advisory opinions, 42, 131–32 African Commission and, 40–43, 439 jurisdiction, 43 review of admissibility decisions, 42 roles, 164 working group, 304–305, 403 creation, 76, 129 exhaustion of local remedies, 131 independence, 10 judges, 406 jurisdiction, 41–42, 129, 417, 428 advisory opinions, 432 conciliatory jurisdiction, 129 locus standi, 42, 129–30 substantive jurisdiction, 131 temporal jurisdiction, 133 Women’s Protocol, 469 meetings, 407 merger with Court of Justice, 41, 43, 44–45, 408–17 critique, 414–17 NGO pressure for, 297 procedures, 129–36 Protocol, 46, 406, 414, 415–16 purpose, 132 seat, 407 staff, 407 African organisations, standing, 130 African Prisons Hotline, 358–59 African Union Assembly of Heads of State, sessions, 17 Banjul Charter and, 45–47 creation, 20–21 funding African Commission, 317, 438–39

index human rights enforcement record, 208–12 human rights principles, 21–24, 46–47, 95, 408–409, 442–43 independence of African Court, 9 languages, 18 NGO participation, 289–90 peoples’ rights and, 246 reporting system and, 72–73 Women’s Committee, 472–73 African values, 7, 25, 45, 464–65 AIDS, 63, 183, 459–60, 473 Akuffo, Sophia, 406, 407 Alapini-Gansou, Reine, 294, 370 Algeria admissibility decisions, 97 African Court and, 419, 422, 426 State reports, 55, 70 Women’s Protocol and, 447, 448 Amerasinghe, C.F., 111 amicable settlements African Commission, 80–85, 134, 168–69 African Court, 129 Egyptian case, 157 Amnesty International, 352, 364 Angola admissibility decisions, 91, 100 African Court and, 427 burden of proof, 152 death penalty, 398 ethnic deportations, 180 extrajudicial executions, 351 mass expulsions, 233 State reports, 55 Ankumah, E.A., 29, 37, 117 anonymous communications, 94 Anyangwe, Carlson, 399 apartheid, 251 Arab Charter, 466–67 Article 19, 295, 303, 306–307 Association for the Prevention of Torture, 295, 394 asylum seekers limitation on rights, 279 right to asylum, 231 special rapporteur, 180, 364–69, 376

493

autrefois acquit, 126 autrefois convict, 126 Bangladesh, Human Rights Commission, 292 Banjul Charter See also specific rights and freedoms African Union and, 45–47 African values, 25, 45, 464 clawback clauses, 26–28, 98–99, 216–17, 221–22, 229 collective rights, justiciability, 30–33, 34, 47, 98, 270 derogation, 176 entry into force, 8, 105 history, 1–8, 45–46 incorporation into domestic laws, 172–75 individuals’ duties, 28–29 limitation clause, 177 OAU and, 5–8, 45–46, 49–50 political context, 52 Protocols, 43, 44–45 See also Children’s Charter; Women’s Protocol reservations, 99 State obligations, 171–77, 214 protection, 175–76 State parties, 8 State reports. See State reports structure, 214 violations, ordinary v massive, 79 Banjul Conference (1981), 7–8 Banjul summit (2006), 212, 242 Banyamulenge people, 367 Baswara people, 393 Bedjaoui, Mohamed, 419 Bello, Bukhari, 370 Ben Salem, Hatem, 186–87, 346–53, 373 Benin, 55, 66, 102, 173, 205, 357 Beyani, C., 464 Botswana amicable settlement, 83 Baswara people, 393 death penalty, 190, 397 discrimination, 178 human dignity, 196

494

index

Botswana (cont.) political participation rights, 235 presumption of innocence, 202 provisional measures, 86–87 refugees in, 367 British Indian Ocean Territory, 261 Brundtland Report, 267 burden of proof, 149–59 Burkina Faso African Court Protocol, declaration, 131 fair trial, 204 human rights defenders, 369 ratification of Rome Statute, 428 reports, 55, 63, 64 Women’s Protocol and, 451 Burundi admissibility decisions, 100, 104 death penalty, 174 embargo, 136, 185 extrajudicial executions, 350 intervention in Congo, 179 media role, 110 property rights, 239, 240 ratification of Rome Statute, 428 State reports, 55 terrorism, 281 Butare colloquium (1978), 4 Cairo Declaration (1994), 450 Cairo Declaration on Human Rights in Islam (1990), 448 Cairo Institute for Human Rights Studies, 295 Cairo seminars (1970), 2–3 Cameroon admissibility decisions, 86, 101, 106, 108–109, 116–17 amicable settlement, 82 communication in disparaging language, 108–109 detention without trial, 155 evidence, 166 exhaustion of local remedies, 116–17 fair trial, 204 freedom of expression, 223–24 Mbororo people, 393 non-retroactivity, 86, 106

presumption of innocence right to work, 31 same-sex relations, 184 State reports, 55, 327 Canada, 118, 255 Cape Verde, 363, 398 capitalism, 7 CEDAW, 444, 445, 446–47, 448, 449, 451, 453, 454–55, 462, 465, 472 CEDAW Committee, 444, 455–58, 459, 468, 469–70 Central African Republic, 55, 66, 327, 357 Centre for Human Rights, 303 Centre for Reproductive Rights, 460 CERD, 252, 255 Chad civil war, 102 extrajudicial executions, 350, 351 inhuman treatment, 193 State reports, 55, 63 Chammari, Alya Cherif, 399 Chanock, M., 449 Chigovera, Andrew, 371, 372, 388, 391 Children’s Charter adoption, 44 death penalty, 189 objectives, 44–45 Chirwa, Vera, 10, 194, 354, 357, 358, 373, 388, 397 citizenship laws, 181 civil and political rights, 214–15, 241–43 See also specific rights civil law, 89, 172 Civil Liberties Organisation, 103 civil society See also NGOs African Commission and, 289–90, 333 Grand Bay Declaration, 289 shadow reports, 472 class actions, 104 clawback clauses, 26–28, 98–99, 216–17, 221–22, 229 Cobo, Mart´ınez, 248

index colonialism, 245, 251, 257, 262 common law, dualism, 173 communications admissibility. See admissibility of communications aims, 167–69 amicable settlements, 80–85, 134, 168–69 anonymous communications, 94 clarifications, 90 confidentiality, 79, 210–11 individual, 76 competence, 77 inter-State, 76, 134–36 languages, 91, 389 listing, 90 merits, 78–79 NGOs, 94, 308–10 procedures, 14–16, 77, 140 provisional measures. See provisional measures rapporteurs, 140 Secretariat’s role, 329–31 seizure, 77–78 State responses, time limits, 78 withdrawal, 87–88 working groups, 384, 385, 388–90 Comoros, 350, 351, 421, 428 compensation indigenous peoples, 275 property rights and, 238, 239, 240–41 victims, 207 confidentiality, 79, 210–11 Congo Brazzaville, 55 Congo (DRC) See also Zaire activity report, 209 admissibility decisions, 122–23 Banyamulenge, 367 Burundi and, 136 cross-border interventions in, 179 equality before the law, 178 exhaustion of local remedies, 122–23 extrajudicial executions, 350, 351 fair trial, 201

495

mass expulsions, 232 media role, 110 Rwandan intervention in, 179, 282 State reports, 55, 70 territorial jurisdiction, 108 Uganda and, 282 women, 438 conscience. See religious freedom Constitutional Rights Project, 103 constitutionalism, 46 constitutions, 172–75, 443 Conte, Lansana, 180 co-operation, evidence, 157–58, 170 corruption, 109, 225 Coˆ te d’Ivoire, death penalty, 398 Council of Europe, North-South Centre, 349 crimes against humanity, 457 cultural genocide, 258 cultural rights, justiciability, 32 customary law, 181, 453 Cyprus, 107 Daes, Erica-Irene, 264–65, 266 Dakar colloquium (1978), 4–5 Dakar Declaration (1967), 2 Danish Institute for Human Rights, 13, 310 Dankwa, Victor, 182, 194, 354, 373, 374 Dar-es-Salaam seminar (1973), 4 death penalty, 189–91, 396–99 decisions admissibility decisions, 42, 90–91, 108, 137 enforcement, 207–12 form, 14, 77 non-compliance with, 174 publication, 210–11 reasoning, 212, 234 DEDAW, 455 delay admissibility decisions, 90–91, 108, 137 exhaustion of local remedies and, 124–25 fair trial and, 204–205 submission of commnications, 125

496

index

democracy accountability, 238 AU primacy, 21–24 Charter on Democracy, 427 political participation rights, 234–38 promotion by Commission, 39 sustainable development and, 22 Denmark, funding, 340 derogations, 176 development rights Article 22, 270 ban on coercion, 278 choice and capabilities, 273–74 democracy and, 22 economic, social and cultural, 273 interpretation, 270–79 participation and consultation, 276–78 UN Declaration, 270, 272, 274, 276 violations of choice, 274–76 women, 276, 462 Diallo, Mactar, 399 dialogue approach, 56, 68, 73, 75, 84, 168, 326 diplomatic immunities, 11 discrimination. See equal treatment displaced persons special rapporteur, 180, 364–69, 376 women, 457 Djibouti, 81–82, 169, 398 documentation centre, 332–33, 337 domestic remedies. See exhaustion of local remedies due process, 118 East African Court of Justice, 439 Economic Commission for Africa, African Charter and, 3 economic rights. See socio-economic rights ECOWAS, 422 ECOWAS Court of Justice, 408, 417, 437, 439 Ecuador, 274 education. See right to education

Egypt admissibility decision, 126 African Court and, 422, 426 Charter reservations, 99 religious freedom and Islamic Law, 215 State reports, 55, 70 Women’s Protocol and, 447, 448–49, 466 El-Awa, Mohammed, 399 El Hassan, Yassir Sid Ahmed, 184 elections, 174, 235–37 emergency cases, 34 emergency laws, 27, 28, 174, 176 Enderois people, 246 environmental rights African treaties, 284 Article 24, 283 international law, 283–84 interpretation, 283–86 justiciability, 33 Ogoni people, 284–85 proportionality, 286 equal treatment See also gender equality; Women’s Protocol; women’s rights Banjul Charter provisions, 177–78, 441–42 discrimination on health grounds, 183–84 generally, 177–84 peoples (Art. 19), 250–57 political opinions, 182–83 race and ethnicity, 179–81, 250 religious groups, 218 sexual orientations, 184 socio-economic rights, 178–79 Eritrea activity report, 209 admissibility decisions, 92, 104, 128, 136 freedom of expression, 224–25 political detentions, 182 self-determination, 260 women’s constitutional rights, 443 Ethiopia activity report, 209

index admissibility decisions, 100–101, 113–14, 128, 136 exhaustion of local remedies, 113–14 prison mission, 357 Resolution, 295 women’s constitutional rights, 443 ethnicity. See equal treatment; peoples’ rights European Commission on Human Rights, 162 European Convention on Human Rights derogations, 176 freedom of assembly, 230 freedom of association, 226 freedom of expression, 221 jurisdiction, 428 religious freedom, 218 European Court of Human Rights composition, 181 environmental protection, 284 fair trial, 201 inhuman treatment, 194 national security, 280 standard of proof, 161 territorial jurisdiction, 107 time limits for complaints, 125 European Union, 14, 21 evidence admissibility, 162–67 burden of proof, 149–59 circumstantial evidence, 166–67 documents, 141–43 international practice, 139 missions, 146–48 oral hearings, 143–45 rules, 148–67 standard of proof, 159–62 State co-operation, 157–58, 170 time limits, 155 types, 141–48 weight, 162–67 exhaustion of local remedies African Court and, 131 availability, 117–18, 138 burden of proof, 112–14 colonial remedies, 117 delay, 124–25

497

due process, 118 exceptions, 118 financial means, 123–24 frequency of argument, 138 individual communications, 111–25 inter-State communications, 134–36 international law, 111 massive violations, 119–20 meaning of exhaustion, 112–14 ouster clauses and, 119 types of remedies, 114–17 expulsions, mass expulsions, 231–34 extrajudicial executions, special rapporteur, 346–53 Eyadema, Gnasingbe, 238 fair trial Article 7, 198–206 Article 26, 199 competent national organs, 200–202 delay, 204–205 executions and, 190, 191 Guidelines, 176 impartiality, 205 interpretation, 198 judicial independence, 206 legal representation, 203–204 non-retroactivity, 205–206 ouster clauses, 201–202 presumption of innocence, 202–203 Principles and Guidelines, 199, 203, 205 right to silence, 202 family, Banjul Charter, 178 Fanoush, Hamdi Faraj, 406 Finland, 101 forced labour, 195 Forster, Hannah, 396 freedom of assembly, 229–30 Article 11, 226 freedom of association, 225–29 Article 10, 225–26 clawback clauses, 26, 28, 229 coerced association, 229 solidarity and, 229

498

index

freedom of expression, 219–25 Article 9, 219 clawback clause, 27–28, 221–22 Declaration of Principles, 220, 222, 225, 303, 307–308, 371 Resolution, 38, 220, 225 special rapporteur, 220, 225, 303, 371–72 freedom of movement Article 12, 230–31 interpretation, 230–34 freedom of religion. See religious freedom Freetown Conference (1980), 7 funding African Commission, 12–14, 15, 243, 287 donor funding, 404–405 special rapporteurs, 13, 375–76 working groups, 13, 340, 390 Gabon, 428 Gambia admissibility decisions, 91, 110, 112, 114, 117, 121–22 amicable settlement, 81 Article 20 and, 260 Commission headquarters, 12, 17 coup, 174, 247 exhaustion of local remedies, 112, 114, 117, 121–22 freedom of association, 227 history of African Charter and, 7 human dignity, 195–96 media evidence, 110, 142 mental health detention, 183, 195–96, 198, 200 political participation rights, 260 prison mission, 357 ratification of Rome Statute, 428 reservations, 99 right to health, 32, 179 State evidence, 165 State reports, 55 subject jurisdiction, 96 suspension of Bill of Rights, 174 voter registration, 81 gender equality

See also women’s rights Addis Ababa Declaration (2004), 424 African Commission, 10, 181 African Court, 424–25 AU principle, 22, 443 Banjul Charter, 181–82, 441–42 genocide, 258, 457 Ghana admissibility decisions, 101, 116 African Court and, 427 detention without trial, 197 evidence, 159 exhaustion of local remedies, 116 freedom of movement, 232 ratification of Rome Statute, 428 State reports, 55, 70 women’s rights, 443, 468 Giddens, Anthony, 474 Gittleman, R., 29 good governance, 237 Grand Bay Declaration (1999), 30, 72, 172, 181, 184, 188, 206, 442 Great Lakes Protocol, 458 group rights. See peoples’ rights guerilla groups, 101 Guindo, Modibo Tounty, 406 Guinea, 55, 63, 180, 233 Guinea Bissau, 398 Guisse, El-Hadji, 406 Habre, Hissen, 427 health. See right to health HIV/AIDS, 63, 183, 459–60, 473 Holmes, Oliver Wendell, 219 Honduras, 264 housing, 462 human dignity See also torture Article 5, 191 interpretation, 195–96 prison conditions, 193–94 right to, 191–96 shari’a punishments, 194–95 slavery, 195 human rights See also international human rights law; specific rights and freedoms

index African Union, 21–24, 46–47, 95, 208–12, 408–409, 442–43 interdependence, 244 NHRIs. See national HR institutions OAU attitudes, 49–50, 95 sustainable development and, 22 human rights defenders Burkina Faso, 369 Declaration, 369 Nigeria, 370 Resolution, 38–39 special rapporteur, 198, 340, 369–70 Human Rights Watch, 300 ICCPR See also UN Human Rights Committee death penalty, 189, 190 derogations, 176 fair trial, 199 forced labour, 195 freedom of assembly, 230 freedom of association, 226 freedom of expression, 220, 221 freedom of movement, 231 human dignity, 192 peoples’ rights and, 246 political participation rights, 235 Protocol, declarations, 126 right to silence, 202 slavery, 192 State obligations, 172 torture, 192 ICESCR, right to health, 283–84, 285 indigenous peoples See also specific peoples assimilationism, 275 collective land rights, 244, 254–55, 266, 274 compensation, 275 ILO Convention, 246 Indigenous Peoples Decade meaning, 248–49 natural resources and, 264–65 NGOs, 292 way of life, 254–55 work in progress, 250 working group, 181, 248–49, 287

499

composition, 391 environment, 286 experience, 390–94 funding, 340 mandate, 390–91 missions, 250 natural resources, 265 NGO participation, 305 violation of development choices, 274–75 information, right to, 219–25 innocence, presumption, 202–203 Institute for Human Rights and Development in Africa, 186, 211, 301, 304, 352, 364, 375, 401 intellectual property, natural resources and, 267–68 Inter-American Commission of Human Rights burden of proof, 154 composition, 181 missions, 148 standard of proof, 161 Inter-American Convention on Human Rights derogations, 176 environment, 283 freedom of expression, 220, 221 freedom of movement, 231 property rights, 239–40 religious freedom, 218 Inter-American Court of Human Rights burden of proof, 150 collective land tenure, 266, 274 composition, 181 evidence, 154, 164–65 exhaustion of local remedies, 123, 125, 131 locus standi, 103 standard of proof, 162 State protection obligations, 175 time limits for complaints, 125 Vel´asquez Rodr´ıguez v Honduras, 264 Interights, 295, 304, 362, 364, 401 interim measures. See provisional measures International Bar Association, 206

500

index

International Commission of Jurists, 1–2 International Court of Justice common law proceedings, 144 exhaustion of local remedies, 111 Great Lakes case, 135 international security, 281 jurisdiction, 428 media evidence, 142 standard of proof, 161 support for special rapporteurs, 375 weight of evidence, 165 witnesses, 145 International Criminal Court, 428 International Criminal Tribunal for Rwanda (ICTR), 140, 186, 258, 407 International Criminal Tribunal for the Former Yugoslavia (ICTY), 140, 165, 167 International Development Agency, 310 international environmental law development, 283–84 indigenous peoples, 267 international human rights law admissibility of complaints, 89, 96 evidence issues, 139 exhaustion of local remedies, 111 purposive interpretation of treaties, 46 reporting procedures, 50–51 State sovereignty and, 88 time limits for complaints, 125 working groups, 380–81 International Labour Organisation, Indigenous Peoples Convention, 246 international tribunals competing actions, 125–28, 135 consensual nature, 111 exhaustion of local remedies, 111 non-retroactivity principle, 105–107 rules of evidence, 148–67 territorial jurisdiction, 107 Islam Cairo Declaration, 448 religious freedom and, 216, 218

IWGIA, 305, 391, 392 Iya, Philip Francis, 399 Jammeh, Yahya, 81 Jehovah’s Witnesses, 216 Jensen, Marianne, 391 Johm, Jainaba, 369, 370, 388 Kalimba, Zephyrin, 391 Kanyehamba, George, 406 Kapuri, Naomi, 391 Katanga, 97, 258–59, 260, 261 Kaunda, Kenneth, 180 Kennedy, David, 473 Kenya admissibility decisions, 101, 106, 118, 122, 124 Burundi and, 136, 281 death penalty, 190 detention without trial, 198 Endorois people, 246 evidence, 166 exhaustion of local remedies, 118, 122, 124 inhuman treatment, 193 non-retroactivity principle, 106 ratification of Rome Statute, 428 reports, 55 trade unions, 118 violence against women, 456 women and HIV, 459 Khattali, Mohammed, 391 Kigali Declaration (2003), 72, 172, 184, 188, 206, 289, 311, 416, 443 Kiss, Alexander, 284 Konare, Alpha Omar, 10 Kotrane, Hatem, 31 Lagos Declaration (1961), 1 languages African Commission, 18, 341 African Union, 18 communications, 91, 389 cultural genocide and, 258 State reports, 65–66, 74, 328 legal aid, 123–24, 468 legal representation, 203–204 Lesotho, 55, 101, 421, 426, 428

index liberation movements, 261–62 Liberia, 96–97, 350, 398 Libya African Court and, 421, 426 State reports, 55 Women’s Protocol and, 447, 448, 449 Limbourg Principles, 31 local remedies. See exhaustion of local remedies locus standi African Court of Justice and Human Rights, 429–32 African Court on Human Rights, 42, 129–30 communications, 35, 102–105, 137 exhaustion of local remedies and, 112 McKenzie, Karen, 396 Madagascar, 356 Mafoso-Guni, Kelello Justina, 406 Malawi 2004 presidential election, 10 admissibility decisions, 101 Banda regime, 373 inhuman treatment, 193 non-compliance with Commission decisions, 207 women’s constitutional rights, 443 Women’s Protocol and, 451 Mali African Court and, 421, 426 prison missions, 356, 357, 358, 359 ratification of Rome Statute, 428 State reports, 55 Women’s Protocol and, 449 Malila, Mumba, 194, 354, 357, 373 marriage inter-religious marriage, 218 registration, 453, 454–55 same-sex marriage, 184 Mauritania abuses of prisoners, 192 admissibility decisions, 112, 114 amicable settlement, 169 amnesties, 176 attacks on minorities, 280–81 coup, 473

501

cultural rights, 32 evidence, 156, 157 exhaustion of local remedies, 112, 114 fair trial, 200–201, 204 freedom of association, 228 missions, 83, 145, 146, 147 peoples’ equality, 252–53 political participation rights, 236 presumption of innocence, 202 race discrimination, 179 right to security, 33 slavery, 157, 179, 195 State reports, 55, 70 women’s rights, 157 Mauritius, 181, 356, 398, 421, 428 Mauritius Plan of Action, 14 Mayotte, 261 Mbaye, K´eba, 6 Mbororo people, 393 media basis for complaints, 104–105, 110 evidence from, 142–43 Melo, Angelo, 363–64 mental health Gambia, 183, 195–96, 198, 200 human dignity, 195–96 UN Principles, 195, 200 military service, 218 Millennium Development Goals, 462, 470 missions evidence from, 146–48 fact finding missions, 323 findings, 168 funding, 13 impartiality, 147 NGO participation, 146, 300–301 promotional missions, 322–23 questioning States, 65, 74 Secretariat’s role, 16, 322–26 Mogwe, Alice, 399 Moi, Daniel Arap, 118–24 Moldova, 107, 223 Monageng, Sanji, 396 Monrovia decision (1979), 5–6 Monrovia seminar (1979), 5, 6 Morocco, 101, 260, 261, 448, 471

502

index

Mozambique, 55, 190, 356, 358, 398, 421 multinational companies, 101, 263 Murray, Rachel, 40, 447, 471 Mutsinzi, Jean Ngabitshema, 406 Namibia admissibility decisions, 115 constitution, 173 death penalty, 190, 398 exhaustion of local remedies, 115 National Society of Human Rights, 336 reservations, 99 same-sex relations, 184 San people, 393 self-determination, 260 State obligations, 174 State reports, 55, 70, 336 women’s constitutional rights, 443 Women’s Protocol and, 453 national HR institutions affiliate status, 311–14, 334–35, 430 African Commission and, 72, 290, 311–14 relations with Secretariat, 334–37 standing in African Court, 430 nationality, women, 448–49 natural resources Article 21, 262–63 exclusive interest of peoples, 268 indigenous peoples and, 264–65 intellectual property and, 267–68 limits of rights, 268–70 positive duties, 263–64 property rights, 265–67 right to, 262–70 ne bis in idem, 125–28 NEPAD, 23, 271 Netherlands, 13 Ngoepe, Bernard Makgabo, 406 NGOs African Court standing, 42, 130, 430–32 AU accreditation, 431–32

expert opinions, 142 independence, 136, 296 indigenous peoples, 292 institutional support, 310 lobbying for African Court, 297 purpose, 290 strategies, 290 Sudan and, 187 NGOs and African Commission activity reports, 292–94, 297, 336–37 communications, 94, 308–10 fact-finding missions, 146, 300–301 Forum, 294–95 hearings, 18 independence issues, 9 interaction, 16 locus standi, 35, 102–103 mechanisms, 301–306 observer status, 291–94, 324, 431 oral evidence, 144, 145 participation in extraordinary sessions, 297–98 participation in ordinary sessions, 296–97 promotion, 287, 294–96 relations with Secretariat, 334–38 seminars and conferences, 295, 307 shadow reports, 299, 328 special rapporteurs, 345, 357, 359, 362 lobbying, 345, 371 reliance, 373–75 staffing, 317 standard setting, 306–308 State reporting system, 70–72, 298–300 working groups, 303, 385, 392, 401 Nguema, Isaac, 186 Nicaragua, 266, 281 Niger, 55, 393, 421, 428, 465 Niger Delta Development Community, 310 Nigeria actio popularis, 104 admissibility of communications, 89, 109, 120, 121–22

index African Court and, 422, 427 amicable settlement, 81 burden of proof, 152 constitution, 173 death penalty, 190–91 discrimination, 178 environmental rights, 33, 284–85 exhaustion of local remedies, 120, 121–22 extended imprisonment, 197 fair trial, 202–203 freedom of association, 227–28 freedom of expression, 200, 221–22 Human Rights Commission, 313 human rights defenders, 370 incorporation of Charter, 173 inhuman treatment, 192, 193 mission, 146, 191 natural resources, 263, 264, 268 non-compliance with Commission decisions, 207 non-derogation, 176 Ogoni rights, 32–33, 82–83, 184, 246, 263, 264, 268, 278, 284–85, 288, 309–10 ouster clauses, 120, 201 political detentions, 182, 197–98 political participation rights, 236–37, 260 property rights, 239 provisional measures, 85–86, 87 ratification of Rome Statute, 428 remedies, 80 right to health, 32 right to life, 184, 189 self-determination, 260 shari’a law, 85–86, 88, 190 Social and Economic Rights Centre, 309–10 State co-operation, 158 State reports, 55 Women’s Protocol and, 451 Niyizugero, Jean Baptiste, 396 Niyungeko, G´erard, 406 non-discrimination. See equal treatment non-retroactivity, 105–107, 205–206 non-State actors

503

admissibility of complaints against, 101–102 protection from, 175–76, 264 use of force, 261 Nordic Africa Institute, 13 Nyanduga, Tom, 187, 366, 367–68 Obasanjo, Olusegun, 82, 409 Odinkalu, C.A., 39–40, 109 Ogoni people, 32–33, 82–83, 184, 246, 263, 264, 268, 278, 284–85, 288, 309–10 Olinga, A.D., 136 Oloka-Onyango, J., 464 Ondziel-Gnelenga, Julienne, 361, 373 Open Society Justice Initiative, 301, 401 oral tradition, 211 Organization of African Unity Charter, 45 creation, 2 dissolution, 20–21 history of African Charter, 5–8, 45–46 human rights and, 49–50, 95 State sovereignty and, 95, 97–98 Othmani, Ahmed, 193 Ouagadougou seminar (1996), 188 Ouguergouz, Fatsah, 406, 407 ouster clauses, 119, 120, 201–202 Paris Principles, 312 peace and security Article 23, 279 internal security, 280–81 international security, 281–83 justiciability, 33 right to, 279–83 Peace and Security Council, 24, 188, 211, 282 Penal Reform International, 193, 302–303, 353, 357, 358, 359, 374 peoples’ rights See also indigenous peoples assessment, 287–88 concept, 213, 245–57 development. See development rights

504

index

peoples’ rights (cont.) environmental rights, 33, 283–86 equality of peoples (Art. 19), 250–57 beyond colonialism, 251 intent, 255–56 jurisprudence, 252–53 positive measures, 256–57 under use of Art. 19, 257 way of life, 254–55 existence. See peoples’ rights to existence justiciability, 270 meaning of peoples, 245, 247–48 natural resources. See natural resources peace and security (Art. 23), 279–83 prominence, 244 peoples’ rights to existence, 257–62 Article 20, 257 assistance, 257, 262 cultural genocide, 258 economic and social development, 257, 260 liberation movements, 261–62 meaning of existence, 258 self-determination, 257, 258–61 Pityana, Nyameko Barney, 391, 392 political participation rights Article 13, 234–35 elections, 235–37 interpretation, 234–38 Resolution, 235 self-determination and, 260 political will, 57, 242–43, 437 polygyny, 450 presumption of innocence, 202–203 prisons abuses of prisoners, 192 Commission Resolution, 38 conditions, 193–94 indefinite detention, 197 special rapporteur, 302–303, 353–60, 373–74, 375, 376 promotion missions, 17, 322–23 Secretariat’s role, 332–34 seminars and conferences, 307, 333

property rights collective land rights, 244, 254–55, 266, 274 compensation, 238, 239, 240–41 indigenous people, 244, 254–55 interpretation, 241 natural resources, 265–67 Women’s Protocol, 463–64 protection, 175–76 provisional measures approach, 85–87 arbitrary detentions and, 198 binding character, 37 death penalty and, 190, 191 non-compliance with, 208 Sudan, 187 race discrimination, 179–81, 250 Ratner, S.R., 149, 167 refugees mass expulsions, 231–34 seminar, 337 special rapporteur, 180, 364–69, 376 women, 457 regional representation African Commission, 9 African Court, 425–26 religion cultural genocide and, 258 definition, 218 polygyny and, 450 Women’s Protocol and, 466–67 religious freedom Article 8, 215 discrimination, 182 interpretation, 215–19 remedies See also exhaustion of local remedies lack of, 36–37 procedures, 79–80 reports. See State reports Rezag-Bara, Kamel, 294, 388, 391 right to education, 31, 60, 461 right to health discrimination on health grounds, 183–84 ICESCR, 283–84, 285

index justiciability, 31–33 reporting, 60 State obligations, 98 right to liberty Article 6, 197–98 interpretation, 197 right to life Article 4, 184 death penalty, 189–91 generally, 184–91 summary executions, 185–89, 190 right to work, 31, 60, 98 Rights and Democracy, 13, 303, 310 Robben Island Guidelines, 192, 295, 305, 308, 394–96 Russia, 107, 223 Rwanda African Court and, 421 Ben Salem and, 352 Burundi and, 136, 233, 281 ethnic discrimination, 179 extrajudicial executions, 350, 352 genocide, 185–86, 251, 346 Great Lakes case, 135 inhuman treatment, 193 intervention in Congo, 179, 282 killing of refugees, 179 media role, 110 missions non-compliance with Commission decisions, 207 property rights, 239, 240 remedies, 80 reports, 70 State reports, 55 SADC Tribunal, 408 SADR, 55 Saharawi people, 260, 261 San People, 393 Sao Tom´e, 356, 398 Saro-Wiwa, Ken, 86, 87, 121, 190–91, 298 Secretariat communications and, 14–16, 329–31 dissemination and promotion, 332–34

505

documentation centre, 332–33, 337 finding resources, 339–42 functions, 12–16, 318–20 lack of resources, 12–14, 342–43 legal section, 319 missions, 13, 322–26 networking, 334–38 seminars and conferences, 333, 337–38 staff, 317–18 State reports, 326–29 Strategic Plan, 318–19 technical support, 320–22 self-determination rights Article 20, 257 interpretation, 258–61 justiciability, 33, 97 political participation, 260 territorial integrity, 259 self-incrimination, 202 Sen, Amartya, 273 Senegal admissibility decisions, 97 African Court and, 427 death penalty, 398 history of African Charter and, 6 missions, 83, 146, 300, 301 prisons, 356 ratification of Rome Statute, 428 State reports, 55 Women’s Protocol and, 449 Senghor, Leopold Sedar, 5, 6 Sengupta, Arjun, 273, 275–76 sex discrimination. See gender equality sexual orientation, 184 Seychelles, 55, 63, 66, 73, 327, 398 shadow reports, 299, 328, 472 shari’a law See also Islam Nigeria, 85–86, 88, 190 punishments, 194–95 seminar, 337 Sudan, 182, 194–95, 216 Women’s Protocol and, 466–67 Sierra Leone, 152, 351 Sirte Declaration (1999), 21 slavery, 195, 337

506 socio-economic rights Declaration, 295 justiciability, 30–33, 34, 47, 98 non-discrimination, 178–79 State reports, 59–61 women, 461–62 working group, 295, 306 soft law, 39 solidarity, 229 Somalia, 444 Somda, Jean Emile, 406 South Africa African Court and, 421, 422, 424, 426 anti-discrimination law, 256 apartheid, 251 Centre for Human Rights, 211 Commission on Gender Equality, 313 constitution death penalty, 189, 398 human dignity, 196 Human Rights Commission, 311 prison missions, 356, 357 ratification of Rome Statute, 428 reservations, 99 same-sex marriage, 184 State reports, 55, 63, 66, 299–300 women’s constitutional rights, 443 Women’s Protocol and, 453 Sow, Malick, 396 special rapporteurs assessment, 372–78 Commissioners only, 372–73 extrajudicial executions, 346–53 freedom of expression, 220, 225, 303, 371–72 functions, 302–303, 321 funding, 13, 375–76 human rights defenders, 198, 340, 369–70 independence, 373 international system, 380–81 list, 344 mechanism, 302 NGOs and. See NGOs and African Commission

index prisons, 194, 302–303, 353–60, 373–74, 375, 376 record, 345 refugees, 180, 364–69, 376 standard setting, 376–77 summary executions, 186–87 unclear mandates, 376 United Nations, 344 women’s rights, 303, 308, 360–64, 376, 377, 444, 445–47 standard of proof, 159–62 State reports African Union role, 72–73 assessment, 73–75 Commission function, 52–53 contents, 57–65 dialogue, 56, 68, 73, 75, 326 discussion of reports, 55–56 examination process, 65–69 State representation, 66–67 time, 68–69 follow-up, 69–70, 208 Guidelines, 52–53, 56, 57, 58–65 development right, 271 evaluation, 62–65 human rights institutions and, 72 international law, 50–51 languages and translations, 65–66, 74, 328 NGO role, 70–72, 298–300 non-compliance, 53, 73 objectives, 50–51 obligations, 37–38, 50 periodicity, 75 practice, 52–57 publication, 300, 328 register, 327 Secretariat’s role, 326–29 shadow reports, 299, 328 State responsibility doctrine, 101–102 State sovereignty African Court and, 40 African priority, 2, 45 African Union and, 95, 408 international human rights law and, 88 non-interference, 262 OAU Charter, 95, 97–98

index States continuity, 172, 186 obligations under Charter, 171–77 Stockholm Conference (1972), 283 Sudan admissibility decisions, 116 arbitrary arrests, 197, 198 burden of proof, 151, 152–53 CEDAW and, 444 Commission report, 209 Darfur, 187–88, 209, 298, 438 evidence, 154 exhaustion of local remedies, 116 extraordinary session (2004), 187–88 freedom of expression, 222 incommunicado detentions, 116 mission, 146, 147, 187, 300–301 presumption of innocence, 202 provisional measures, 187 shari’a law, 182, 194–95, 216 State reports, 55 woman’s rights mission, 363 Women’s Protocol and, 447, 448, 449, 451 summary executions Ouagadougou seminar (1996), 188 right to life, 185–89 special rapporteur, 186–87, 346–53 widespread problem, 190 sustainable development, 22, 461 Swaziland constitutional repeal, 106, 175 freedom of association, 39, 227 judicial independence, 206 ouster clauses, 201 political participation rights, 236 remedies, 80 State reports, 55 Swedish International Development Agency, 13, 340 Switzerland, 349 Tanzania, 92, 136, 201, 281, 421, 428 terra nullius, 266 terrorism, 279, 337 Tlakula, Faith Pansy, 371–72 Togo, 55, 146, 449

507

torture Article 5, 191 Commission Resolution, 38, 39 prohibition, 192–93 Robben Island Guidelines, 192, 295, 305, 308, 394–96 working group, 305 Touareg, 393 trade unions, 226 TRIPS, 268 Tunisia admissibility decisions, 127 African Court and, 424, 426 prison mission, 356 Women’s Protocol and, 448, 449 Turkey, 107 Uganda activity report, 209 African Court and, 426 Burundi and, 136, 281 Congo (DRC) and, 179, 282 constitution, 173 Great Lakes case, 135 ICCPR Protocol declaration, 127 political detention, 473 prison mission, 356 property rights, 239, 240 ratification of Rome Statute, 428 State reports, 55 women’s constitutional rights, 443 Umozurike, U.O., 29, 30, 40 UN Commission on Human Rights, 3–4, 380–81 Committee Against Torture, 280 Committee on Economic, Social and Cultural Rights, 185, 454, 469, 474 Convention on the Rights of the Child, 44 death penalty, 397 Declaration on Development, 270, 272, 274, 276 Declaration on Friendly Relations, 261–62 High Commission for Refugees (UNHCR), 365–67, 368

508

index

UN (cont.) High Commissioner for Human Rights, 14, 340, 369 human rights covenants, 437 international security, 281 Judicial Independence Principles, 205, 206, 228 Mental Health Principles, 195, 200 origins of African Charter, 5 special rapporteurs, 344, 377 use of force, 261 UN Human Rights Committee abortion, 459 admissibility decisions, 89, 99, 103, 118 burden of proof, 149, 150 CEDAW jurisprudence and, 469 exhaustion of local remedies, 118 fair trial, 199 locus standi, 103 non-discrimination, 178 religious freedom, 217 reservations and, 466 standard of proof, 161 State co-operation, 158 subject jurisdiction, 99 UNDP, 461 Union Interafricaine des Droits de l’Homme, 103 United Arab Republic, 2 United Kingdom funding of Commission, 359 Privy Council, 117 United States, Nicaragua case, 281 Universal Declaration of Human Rights (1948), 1, 220, 231 values, African values, 7, 25, 45, 464–65 victims African Court standing, 130 compensation, 207 complaints by, 102–105, 137 Vienna Convention on the Law of Treaties, 423, 449 Vienna Declaration on Human Rights (1993), 31 war, 457–58

war crimes, 457 Western Sahara, 260, 261 witnesses capacity, 166 Commission hearings, 145 International Court of Justice, 145 Women’s Protocol adoption, 44, 182 culture and, 464–65 death penalty, 189 definition of discrimination, 453 development rights, 276, 462 drafting history, 445–53 2001 meeting of experts, 447–52 2003 ministers’ meeting, 453 initial draft, 446–47 economic, social and cultural rights, 461–62 entry into force, 441 genital cutting, 460–61 guardianship of children, 451 housing, 462 implementation, 468–69 jurisdiction of African Court, 132 monitoring, 451–52, 469–73 nationality, 448–49 polygyny, 450 property rights, 463–64 reproductive rights, 449, 458–60 reservations, 99, 465–68 subject jurisdiction, 96 violence against women, 451, 455 women’s rights African Commission and, 444 African HR framework, 441–44 AU Solemn Declaration, 443, 471 guidelines, 471–73 AU Women’s Committee, 472–73 Congo, 438 constitutions, 443 freedom of movement, 234 Islam, 448 Mauritania, 157 non-discrimination, 181–82 special rapporteur, 303, 308, 360–64, 376, 377, 444, 445–47 State reports, 61 sub-regional initiatives, 443

index working groups admissibility decisions, 90, 384, 385 communications, 384, 385, 388–90 composition, 384 costs, 390 death penalty, 190, 396–99 economic, social and cultural rights, 295, 306 funding, 13, 340, 390 indigenous peoples. See indigenous peoples legal basis, 381–88 NGOs and, 303, 385, 392, 401 non-Commissioners, 384 practice, 388–403 Robben Island Guidelines, 394–96 serious or massive violations, 386–87 specific issues, 400–403 torture, 305 World Bank, 249, 265 Zaire See also Congo (DRC) admissibility decisions, 95, 97, 119–20, 127 Burundi and, 281 exhaustion of local remedies, 119–20 inhuman treatment, 193 Katanga, 97, 258–59, 260, 261 massive violations, 119–20 media role, 110 peoples’ rights, 246 religious freedom, 216 right to education, 31 right to health, 31 right to self-determination, 33, 97

509

Zambia admissibility decisions, 99, 113 amicable settlement, 81 burden of proof, 157 Burundi and, 136, 281 Charter reservations, 99 clawback clauses, 99 deportations, 232 discrimination, 467 evidence, 163 exhaustion of local remedies, 113 freedom of association, 227 human dignity, 196 mass expulsions, 180, 232, 233 national origin discrimination, 180, 183, 235, 253 political participation rights, 235, 257 religious freedom, 216 State reports, 55 Zerrougui, Laila, 396 Zimbabwe activity report, 209 African Court and, 424 clemency orders, 175 criminalisation of same-sex relations, 184 freedom of expression, 223 media evidence, 142 missions, 146, 148, 183, 300, 301, 323 Murambatsvina operation, 368, 473 non-State actors, 175–76 political discrimination, 183 prison missions, 354, 356, 358 Resolution, 295 State reports, 55, 63 Women’s Protocol and, 451, 453 Zongo, Norbert, 369