The African Union Assembly of Heads of State and Government (AU Assembly) at its last session, held in Khartoum, Sudan, in January 2006, considered and authorised the publication of the 19th Activity Report of the African Commission on Human and Peoples' Rights (African Commission or Commission) (Doc EX CL/236 (VIII)). This procedure is regulated by article 59 of the African Charter on Human and Peoples' Rights (African Charter). For only the second time, the Assembly did not approve the publication of an activity report by the Commission as submitted.
It will be recalled that the first occasion was in 2004, when Zimbabwe objected to the publication of the Commission's 17th Activity Report on the basis that it was not granted an opportunity to respond to allegations contained in the Report on an on-site mission to Zimbabwe conducted by the African Commission in 2002. As a result, the whole Report was placed under wraps pending submission of the Zimbabwean response. After the Commission had received these comments, they were included in the Report, which the AU Assembly approved at its next session (in 2005).
On the most recent occasion, the Assembly authorised the publication of the 19th Activity Report of the African Commission and its annexes, except for the part containing the resolutions on Eritrea, Ethiopia, Sudan, Uganda and Zimbabwe. It then added a request to the concerned member states to make available to the African Commission, within three months of the adoption of the Assembly decision, their views on the resolutions. The African Commission is requested to submit a report thereon to the next ordinary session of the Executive Council (July 2006).
The AU Assembly further instituted a practice that in all future instances, the African Commission must ensure that it enlists the responses of all state parties to its resolutions and decisions before submitting them to the AU Executive Council or the AU Assembly for consideration. States are given three months to communicate their responses to resolutions and decisions to the Commission.
The AU Assembly decision blurs the important distinction between the Commission's promotional and protective mandates and significantly curtails the ability of the African Commission to fulfil its mandate to be a watchdog in respect of human rights on the continent.
Under the African Charter, only protective measures dealing with communications are confidential until authorised by the AU Assembly. States have always, under a well-developed communications procedure, been allowed to express their views on communications, and their views have been taken into account in findings. These findings are included in the activity report after states have had ample opportunity to participate in the proceedings. Giving states another opportunity to express their 'views' after a `decision' has been taken serves no purpose.
By contrast, the African Commission's promotional mandate is not confidential and plays itself out in public sessions. Resolutions on countries usually arise from public discussion at the NGO forum preceding the Commission's sessions and from the public debate during the Commission's sessions on the human rights situation in Africa. These discussions inform the resolutions of the Commission. Not being 'findings' or 'decisions', these resolutions form part of the Commission's promotional mandate. Its legal basis is in article 45 of the African Charter, which is not part of the chapter dealing with the Commission's protective mandate. As these resolutions are therefore not subject to authorisation, the AU Assembly is not competent to block their publication. Resolutions need not be sent to states for their comments. There is no legal basis to require this, and as a practical matter, such a requirement (and the timeframes of a three month response period) will seriously impede the African Commission's ability to respond in a timeous and meaningful fashion to emergency situations of serious human rights violations.
The approach followed in this regard flies in the face of the promise of a greater commitment to human rights in the AU Constitutive Act. It is accepted that the Commission does not have the teeth of a court to bite, but the approach followed by the AU Assembly strips the watchdog in a significant way of its ability even to bark.
Turning to more positive developments: At the same session, the AU Assembly confirmed the names forwarded to it by the Executive Council (Doc EX CL/241 (VIII), and thereby elected the first 11 judges of the African Court on Human and Peoples' Rights (Assembly/AU/Dec 100 (VI)). They are: Ms Sophia AB Akuffo (Ghana, elected for a two-year term); Mr GW Kanyiehamba (Uganda, two-year term); Mr Bernard Makgabo Ngoepe (South Africa, two-year term); Mr Jean Emile Somda (Burkina Faso, two-year term); Mr Hamdi Faraj Fanoush (Libya, four-year term); Mrs Kelello Justina Mafoso-Guni (Lesotho, four-year term); Mr Jean Mutsinzi (Rwanda, six-year term); Mr Fatsah Ouguergouz (Algeria, four-year term); Mr Modibo Tountry Guindo (Mali, six-year term); Mr El Hadji Guisse (Senegal, four-year term) and Mr Gërard Niyungeko (Burundi, six-year term).
Generally, these judges comply with the requirements of independence and impartiality. One judge, Mr Somda, is a legal adviser to the Burkinabe Minister of Justice. Hopefully, the AU Assembly will determine the seat of the Court at its next session, in June 2006, and the Court will start functioning later in 2006.
The first human rights treaty adopted by the AU, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Women's Protocol), entered into force on 25 November 2005. Highlighting this important event, the Journal in this issue focuses on some aspects of the Women's Protocol, which to date has been ratified by 17 African states (see Table of Ratifications in this issue).
The editors thank the following people who acted as referees over the period since the previous issue of the Journal appeared: Divine Afuba, Jean Allain, Cecile Aptel, Wolfgang Benedek, Christelle Diwouta, Bernard Dougherty, John Dugard, Kristin Henrard, Mosunmola Imasogie, Waruguru Kaguongo, Hye Young Lim, Tshepo Madlingozi, Gino Naldi, Charles Ngwena, Diane Orentlicher, Michael Reisman, Engela Schlemmer, Gabriel Shumba and Ben Twinomugisha.