Godfrey M Musila
LLB (Hons) (Nairobi), LLM (Human Rights and Democratisation in Africa) (Pretoria)
Doctoral Research Fellow, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), Johannesburg, South Africa
Edition: AHRLJ Volume 6 No 2 2006
Pages: 441 - 464
Citation: (2006) 2 AHRLJ 441-464
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The author would like to thank Prof Theunis Roux of SAIFAC for his useful comments on an earlier draft of this paper. This paper was presented at the International Human Rights Conference held on 2 September 2006 in Addis Ababa, Ethiopia.
The question of remedies lacks clarity in international human rights law, in particular under the African Charter on Human and Peoples' Rights. Yet, no protected right would have any meaning to its claimants without the provision for effective mechanisms to give effect to it, including an effective remedy when breached. The very concept of a right carries with it a duty to redress its violation. While the African Charter does not contain a specific provision on the right to an effective remedy, a somewhat rudimentary jurisprudence and practice has emerged through 'situational' interpretation. This article considers the chequered practice of the African Commission with regard to this right under the African Charter, arguing that the 'remedies jurisprudence' from the Commission lacks in theorisation, is inconsistent and unco-ordinated. As such, the African Commission's laudable efforts in elaborating substantive Charter standards are not complemented by a reasoned remedies jurisprudence. The article outlines the right to effective remedies in two respects. It reviews generally the African Commission's jurisprudence specific to this right with a view to establishing its thinking. In this regard, because of the focus of the African Commission's jurisprudence, the article pays more attention to domestic remedies as opposed to locating this jurisprudentially in international human rights law generally.
By reviewing the practice of the African Commission in respect of the communications procedure, which it concludes as being for the most part deferential to states, it evaluates the Commission's effectiveness as a forum of recourse for human rights violations. It also considers, in an abridged manner, how the Protocol to the African Court on Human and Peoples' Rights may change, if at all, the regime on remedies under the Charter.
The African human rights system, founded on the African Charter on Human and Peoples' Rights (African Charter),  has in its 20 years travelled a difficult road. Inspired by other initiatives of its kind, and though charged with the mandate of offering region-specific solutions for human rights concerns while drawing from the former experiences, it has not been immune to the obstacles that confront a somewhat revolutionary idea in an unreceptive political environment where human rights were largely considered a foreign (Western) concept.  From the African Charter's embryonic days at the 1961 Lagos Conference on the Rule of Law, to its eventual adoption in Nairobi, to Banjul 20 years later, it has been a journey of many false starts indeed.  Celebrated at inception as the most important development in human rights protection on the continent, commentators got over the euphoria and began to interrogate the African Charter for what it really was — a far from perfect, sparsely-drafted instrument that would need creativity to achieve its intended objectives. It has been no surprise, therefore, that the Charter and its main oversight body, the African Commission on Human and Peoples' Rights (African Commission), have received some of the most trenchant criticisms relating to various aspects, ranging from the scope and content of protected rights to the nature of enforcement mechanisms established and to various practices under the African Charter.  Yet, in this period there have also been a lot of recognisable developments rightly applauded by commentators.  Most notably, the constructive elaboration of sparsely-drafted Charter provisions has seen some of the most outstanding jurisprudence issue from the African Commission.  As a result, there exists now a burgeoning corpus of continental human rights jurisprudence. This development has been accompanied by the deployment of various procedures aimed at effectively implementing various African Charter mandates. This paper argues with respect to effective remedies that, due to the unco-ordinated nature of the African Commission's decisions, no jurisprudential thread is apparent. The generally short and unreasoned closing comments on remedies have stunted the Commission's jurisprudence. This has not served to illuminate this problematic area in human rights protection and international law generally. Further, the Commission's deferential attitude towards states and inappropriate insistence on amicable settlements has rendered the Commission an ineffective forum of recourse for victims of human rights violations.
A survey of the jurisprudence of the African Commission shows that the question of remedies has been considered in two different contexts: admissibility proceedings and 'substantive jurisprudence' in the elaboration of specific rights under the African Charter, in particular at the stage where the African Commission recommends remedial action by states after finding a violation. The question has, however, been largely canvassed within the context of the admissibility procedure, hence seems to have dictated, as we note later, the main focus of Commission's commentary on national remedies. This paper does not, however, delve into a detailed examination of the admissibility procedure, which has received able and comprehensive comment elsewhere. 
Before the African Commission, as is the case for any international forum adjudicating a state's human rights performance through individual complaints, the question of exhaustion of local remedies, among other factors,  is often the subject of inquiry at the preliminary stage. During this process, when the Commission has to consider whether to admit a complaint for further consideration on merits, domestic mechanisms are subjected to scrutiny to establish, among other things, how effective they are (or have been) as avenues of recourse for the alleged human rights violations. Apart from the admissibility inquiry, as used in this paper, the concept of effective remedy can be considered in the light of two components: as a substantive right in its own right, and as a constituent element of other rights enshrined under the African Charter.
2. The right to an effective remedy
While the protection of human rights is a primary aim of modern international law, terminological uncertainty bedevils the subject of remedies in international law generally.  Additionally, questions abound largely with respect to the lack of adequately theorised jurisprudence from international as well as national tribunals on the subject of remedies.  Given the number of international oversight bodies disposing different mandates, with limited 'cross-fertilization', the existing corpus of jurisprudence on the question of remedies is for the most part unco-ordinated and incoherent.  At the regional level, although the African Commission has repeatedly pronounced itself on the question of effective remedies, demonstrably, it has not usefully illuminated it, a fact that perhaps has led commentators to afford but fleeting attention to the question in the African regional human rights context. 
Generally, the term 'remedy', often used interchangeably with 'redress', can be understood to refer to 'the range of measures that may be taken in response to an actual or threatened violation of human rights'.  It entails substantive as well as procedural facets.  In its substantive sense, remedy connotes the outcome of proceedings, and the relief afforded to the claimant.  In this sense, it covers a range of measures which includes, but which is not limited to, declarations, compensation and reparations.  The avenues and enabling processes by which claims relating to human rights violations are articulated fulfil its procedural element. These may include courts, administrative tribunals, commissions or other competent bodies.  For our purposes, the focus is on the African Commission.
In Jawara v The Gambia,  the African Commission set out the three elements of a remedy that stand Charter muster: availability, effectiveness and sufficiency. The Commission proceeded to elucidate:
A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint.
Although the African Commission has elaborated three aspects of a remedy, distinguishing effectiveness from availability (accessibility) and sufficiency, it is submitted that all three elements should be considered, as used in its literature and jurisprudence, constitutive of a remedy that is 'effective' for human rights violations under the African Charter.  As is evident from this jurisprudence, for a remedy to be considered effective, substantive as well as procedural benchmarks must be met. As reiterated here, the Commission has repeatedly stated that domestic avenues of recourse adopted must 'vindicate a right',  speaking to 'sufficiency' of the remedy, and that the path to securing such remedial measures should not be riddled with procedural hindrances, whether calculated or incidental to an otherwise proper process.  Another element that merits special mention as a constituent of an effective remedy is the question of time. In terms of article 56(5), as reiterated by the Commission, one does not need to exhaust local remedies if these are unduly prolonged,  clearly demonstrating that time is an important factor and that a delayed remedy cannot be regarded as an effective one.
3. The substantive basis of the right to remedy
As noted in the introduction, the African Charter does not provide specifically for the right to an effective remedy, a fact decried in literature.  This 'omission' can be explained by at least two factors. One could take the view that it is one of the many substantive rights that should have been included in the Charter but were not, especially when the regional initiative is seen within the context of the general character of the Charter as a tentative, sparsely drafted instrument described variously as 'opaque' and 'difficult to interpret'  and which was perhaps the best that could be achieved, considering the prevailing political realities at the time of its adoption.  It is also possible that the drafters of the African Charter could have considered it superfluous to include such a right, which would be considered as an implied right. This is reflected in the Latin maxim ubi jus ibi remedium: For the violation of every right, there must a remedy. In this regard, the view is that in a justiciable regime of rights such as that established by the Charter,  the right to a remedy is so self-evident that it need not be specifically enshrined.  In a human rights treaty such as the African Charter, the right is constituent of the general obligation requiring state parties to give effect to the norms contained therein.  In some cases, as is the case for the African Charter, it is bolstered by references to remedies in the formulation of certain rights.  Apart from the general obligation contained in article 1, two other provisions in the Charter are relevant to remedies. Article 7 enshrines the right of an individual to have their cause heard, including the right of recourse 'to competent national organs against acts violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force'. For its part, article 26 obliges states to guarantee the independence of the courts and to allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of rights enshrined in the Charter. 
Despite the apparent lack of express normative sanction in the African Charter relating to remedies, the African Commission has based its mandate to order remedies in part on the scattered provisions outlined above, in particular article 1,  and in part on its relevance as the sole oversight body established under the Charter and on the utility of the individual communications procedure. Indeed, the Commission's jurisprudence reviewed further below has arisen largely out of the need by the Commission to justify itself as a relevant institution relating to all Charter rights, after the initial view that its relevance was limited to gross human rights violations. In Free Legal Assistance Group and Others v Zaire,  the African Commission stated:
The main goal of the communications procedure before the Commission is to initiate a positive dialogue, resulting in an amicable resolution between the complainant and the state concerned, which remedies the prejudice complained of . . .
In the wake of this decision, one commentator observed that the Commission 'thus recognises that the bottom line of the communications procedure is the redress of the violations complained of'.  The ever-burgeoning body of jurisprudence is a result of its continued assertion of this power.
This lack of clarity as to a specific substantive basis of the right to an effective remedy does not obtain with respect to other major international human rights instruments, both of regional and universal reach, which have specific stipulations in this regard. The Universal Declaration of Human Rights (Universal Declaration) provides that everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.  For its part, the International Covenant on Civil and Political Rights (CCPR)  similarly obliges states to provide an effective remedy to any person whose rights have been violated.  Under the European Convention, the right to an effective remedy is equally separately justiciable.  Similarly, the American Convention on Human Rights,  as well as the American Declaration of the Rights and Duties of Man,  are explicit in this regard. Even, at the African level, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa departs from the approach of the African Charter by providing for an effective remedy as a free-standing right, requiring states to 'provide for appropriate remedies to any woman whose rights or freedoms . . . have been violated'.  Save for the Universal Declaration, which is not binding as a matter of treaty law,  the inability to obtain a remedy through national mechanisms for an infringement of protected rights is therefore a free-standing and separately actionable breach of these treaties. Pursuant to these specific stipulations, both the Inter-American and European systems have accumulated sizeable case law. 
4. Forum and redress: What remedies?
The question as to what remedies are envisaged under the African Charter is an essential one. To compound the lack of a free-standing right to an effective remedy under the African Charter, neither the Charter nor the rules of procedure specifies what remedy or range of remedies may be ordered on a finding of a violation of a Charter right, which remedies may be relevantly applicable domestically in terms of Charter standards. The jurisprudence of the African Commission has so far focused almost entirely on national remedies.  Indeed, the criteria established in Jawara relates to national remedies. As a consequence, little has been said about how specific substantive rights in the African Charter relate to remedies discourse at international law. The paper returns to this question later.
The African Commission has in its admissibility jurisprudence adopted the view that national mechanisms that meet the effectiveness yardstick for admission of a matter must be of judicial provenance. Apparently, remedies not of a judicial character, including of a quasi-judicial nature, will not suffice.  What seems to be the operating principle can be teased out of some of its decisions. In clarifying what is a 'local remedy' in terms of admissibility requirements, the Commission has ruled many communications inadmissible for failure to exhaust local remedies. In one such case, the matter was not admitted for consideration on merits on account that the complainant had only approached the Commission on Human Rights and Administrative Justice of Ghana, (CHRAJ) although the CHRAJ had ruled in his favour and awarded him compensation. It stated in Cudjoe v Ghana  that:
It should be clearly stated, the internal remedy to which article 56(5) refers entails remedy sought from courts of a judicial nature, which the Ghanaian Human Rights Commission is clearly not.
This view resonates with earlier decisions which regard favourably complainants who have made an attempt to go to the courts for redress. In Cudjoe, which we return to shortly, the complainant had not seized any court to appeal the state's failure to implement the decision of the administrative commission before approaching the African Commission. In the Jawara case, perhaps the most important pronouncement on the subject of admissibility thus far, the Commission reiterated the need to exhaust judicial remedies: 
The existence of a remedy must be sufficiently certain, not only in theory but also in practice, failing which, it will lack the requisite accessibility and effectiveness. Therefore, if the applicant cannot turn to the judiciary of his country because of generalised fear for his life (or even those of his relatives), local remedies would be considered to be unavailable to him.
Similarly, in Constitutional Rights Project,  the African Commission granted an exception to the exhaustion of local remedies rule because the domestic process related to 'a discretionary, extraordinary remedy of a non-judicial nature'. It is contended here that the insistence on judicial remedies is unduly narrow and injudicious as it does not contemplate all possible deployable measures as disclosed by state practice. This 'rigidity' excludes other avenues of redress that may satisfy state obligations relating to the right to an effective remedy. In fact, the African Commission's insistence on remedies of a judicial nature, while the Commission has favoured amicable settlement of complaints lodged with it, is paradoxical. A court of law or any institution of that nature with its onerous procedural prescriptions, especially in the adversarial tradition, is hardly the forum before which to conduct an amicable discussion. On the African continent, as elsewhere, experience teaches that the dealings between an all-powerful state and victims who seek to 'tarnish' its name internationally by complaining about human rights breaches at home can hardly be described as amicable. 
Recognising that victims can never really be restored fully to the status quo ante, an effective remedy for harm caused should imply any measure taken to 'wipe out', as far as possible, the injury and satisfy the victim of the violation by effectively and adequately addressing the alleged violation.  It should not matter whether such measures are judicial or otherwise. Increasingly on the continent there are initiatives, prompted by the need to address the question of access to justice, to consider other institutions not necessarily of a judicial character to which human rights violations can be referred for redress. In a number of countries, national human rights commissions are vested with various powers relevant to redress human rights breaches, including adjudicatory powers with substantial weight attached to their properly determined findings and decisions.  Administrative tribunals and other commissions that may not satisfy the current Charter standard have been, or are widely in use. If one adopts the position, informed by practice, that a particular remedy need not be judicial to be suitable, the conclusion would be that the Commission missed an opportunity to pronounce itself comprehensively on the question of acceptable remedies. It is argued that to the extent that all disputes and cases in general end up in the courts, the Commission's position relating to judicial remedies would be correct, if it relates only to domestic avenues to be exhausted before recourse to the Commission or any other relevant international forum, and not as a general rule relating to what remedies are acceptable to remedy violations of African Charter rights.
This position is supported by the African Commission's own view espoused in the Fair Trial Guidelines  and the recent addition to the African Charter, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, which compliments the Charter with respect to women's rights. The Protocol recognises the variety of remedies that may be used appropriately to provide redress:
The parties shall undertake to (a) provide for appropriate remedies to any woman whose rights or freedoms, as herein recognised, have been violated (b) ensure that such remedies are determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by law.
The emphasis here is on the appropriateness of the remedy and the competence of the relevant body. The Commission may be said to defeat its articulated purpose — to furnish redress for human rights violations, by insisting on avenues that may not be peremptory under relevant domestic law, or otherwise futile, therefore denying complainants the opportunity to obtain a remedy before it. While it is true that a 'domestic remedy', as contemplated by article 56 of the African Charter, includes all avenues of appeal or review,  in Cudjoe it is not clear on the facts whether the domestic human rights commission's decision was final (which would render recourse to 'mainstream' courts legally untenable and unnecessary). The African Commission seems to have assumed that merely because the body pronouncing itself on the remedy was administrative in nature, an option remained available before the courts and that failure to seize such meant local remedies remained. The Commission should have seized the opportunity to clarify this question. A sampling of domestic experiences, together with a study of international practice, may be necessary to assist the Commission in formulating proper guidelines globally applicable under the African Charter and supplementary instruments.
5. Analysing the jurisprudence
Although the early years of the African Commission were marked by want of confidence, and to an extent a measure of self-interested hesitancy,  the absence of clarity in the African Charter regarding remedies has not prevented it from making orders necessitated by a need to remedy violations which it has found. While the Commission has clarified its role with regard to the complaints procedure, its stand and approach have been for the most part inimical to its articulated function. It has in most, if not all, its dealings attempted to steer clear from confrontation with governments, even when not warranted. Unfortunately, this stance has affected negatively its ability and willingness to make firm orders relating to remedial measures to be undertaken by states for human rights violations. Its almost demure approach applied in almost all cases is exemplified in Free Legal Assistance Group and Others v Zaire. 
Further, as a review of its jurisprudence discloses, the recognition of its main role has largely not been backed by concrete action. Perhaps attributable to the fact that state parties were reluctant to vest real adjudicatory powers in any oversight body (having rejected the idea of a court altogether at the drafting stage of the African Charter),  the African Commission has had to grow hesitantly into its quasi-judicial role by, so to speak, 'testing the waters' and seeking universal approval and acceptance. Consequently, where there has been the slightest indication after a complaint was lodged with it that the respondent state was prepared to settle the matter domestically, the Commission has been more than happy to adopt and endorse what in many cases has been a false promise aimed at avoiding the Commission's public attentions and injurious publicity.  As a consequence, victims have been 'robbed' of the opportunity, in some cases, the only one available, to obtain justice. 
Contrary to the lack of a specific provision on effective remedies, there is clarity with respect to the question of protective measures,  which the African Commission has administered liberally. Pursuant to this, the Commission has made orders almost as a matter of routine for preservative measures ranging from the stay of an execution,  torture and degrading treatment,  release of illegally detained persons,  among others, pending final determination of relevant communications.  A cursory reading of decisions relating to provisional measures discloses the same difficulties in implementation which affect its substantive case law.  As is argued below, the creativity and relative boldness of the Commission with respect to remedies, though not entirely satisfactory, have been demonstrated in the unsure zone beyond sanctioned provisional measures.
Substantively, it appears that none of the communications presented to the Commission has alleged specifically the violation of a right to an effective remedy. Should this have been the case, however, it is unlikely that the Commission would have entertained such complaint on its merits for lack of compatibility with the African Charter, as this requires that the particular provision breached be cited.  Expecting the Commission to make orders for remedies as a matter of routine, complainants have rarely motivated requests for remedies. As argued below, this means that the Commission has had limited if no assistance in developing proper jurisprudence on remedies.
Orders made for remedies have either been immediate, as in the case of provisional measures, or long-term and permanent. As noted above, while the Commission has been willing to make orders for provisional measures as a matter of routine when requested, its record in the latter case is less than impressive. Beyond provisional measures, it has been more inclined to order for remedies couched in broad formulations lacking generally in specificity, for instance requiring that the respondent state adopt relevant legislation,  or bordering on the vague or 'futuristic', requiring that the state undertakes 'measures to see the full respect of the Charter'.  In the case of specific individual remedies, such as compensation, when requested, the Commission has, in an approach similar to the Inter-American Court and Commission,  rightly left it to the state to make the final determination as to quantum of damages in terms of domestic law after finding a violation of a Charter right.  Rarely the Commission has defied what appears as practice to make specific orders with respect to individuals, especially where the violation has been particularly blatant. 
While the African Commission's efforts to shed its initial image as a mere 'talk shop' and transform it to a forum where an attempt to tackle human rights violations is made, the Commission has not interrogated the ease with which complainants can obtain ordered remedies, especially where the trend has been to defer to the state concerned without follow-up and to trust that it will act accordingly. While complainants have to furnish proof that remedies at the domestic level are either unavailable or ineffective before their complaint can be heard, the Commission has let states 'off the hook' on the slightest indication that they are prepared to address the situation. Having found during the admissibility procedure that domestic remedies are either ineffective or not available, one can rightly conclude that a failure to take a firmer stand when deciding on remedies has been one of the main shortcomings of the Commission, as reflected below.
6. The Commission process as a 'remedy'
To make a holistic assessment regarding the achievements of the African Charter, one must look not just at how well standards have been elaborated, but also how supervisory mechanisms established under the Charter function to achieve their mandate — for our purposes, providing effective recourse under the communications procedure where domestic systems have failed. This section looks at the performance of the African Commission processes (in this case, the communications procedure) as an avenue of recourse available to victims of human rights violations. The reason is evident: if the forum to which an appeal for recourse is made does not work, the reason for doing so is negated.
At least three elements are important in assessing the Commission process as an effective avenue for human rights violations: the provision of a substantive right that enables individuals or relevant organisations to approach it for redress; procedural facility in realising this right; and mechanisms of implementing decisions rendered, especially given that it is a supra-national entity bereft of the usual enforcement capabilities available to states. In the first instance, one of the most significant contributions of the Commission since it was constituted in 1987 is, in spite of doubt in the text,  determining that the African Charter permits individual complaints (communications) and that the Commission has a mandate to examine them.  The fact that a major part of the Commission's work (and indeed any meaningful international oversight mechanism) relates to the implementation of this protective procedure points to its significance.
As regards implementation mechanisms and procedure, a number of factors have impeded pursuit of remedies before the Commission. First, by strictly applying the admissibility criteria, access to the Commission for many deserving cases has been difficult.  Second, the communications procedure (with respect to decisions elaborated) lacks an effective verification process, with the Commission relying solely on the good faith of governments, even where this has been demonstrably absent.  This raises issues of conformity with state obligations under article 1 of the African Charter. While the Commission firmly embraces the principle recognising that one of its main functions is to endeavour to provide a remedy for all violations, its implementation has been wanting.  A number of communications bear this out. In the matter Kalenga v Zambia,  as has been the case for matters involving an amicable settlement (urged without fail by the Commission), the Commission failed to take measures to establish the veracity of a letter from a government minister stating that the complainant had been released from administrative detention, and proceeded to declare the matter amicably resolved.  A similar scenario played itself out in Comité Culturel pour la Démocratie au Bénin and Others v Benin,  where a settlement was presumed, merely because the political environment within which violations complained of no longer existed on a change of government.  Despite this, the Commission has on some occasions tried to acquit itself by requiring states to report, though belatedly, on measures taken to implement its decisions through the state reporting mechanism  noting rightly in one case that 'the release of the alleged victims does not nullify any violation of the victims' rights' and that the reply of the government concerning the release of the complainant did 'not absolve it of the liability in respect of any violations that may have occurred'.  Third, the Commission process has in many instances been so long as to negate the purpose of recourse to it. In lamenting that 'delay has characterised findings on admissibility' (where the most delays have been incurred), Viljoen  seems to apportion blame largely to the Commission and its Secretariat. It seems apparent that the Commission appears not to uphold standards that it strictly applies to states with regard to effectiveness of remedies, and to complainants regarding the exhaustion of local remedies. While it has repeatedly affirmed that where domestic remedies are unduly prolonged, it would be needless for a victim to pursue them, it has not lived by this creed. Perhaps because of its insistence on dialogue even when states have not been enthusiastic to engage in constructive talk, complaints have not been addressed in time, rendering the communication procedure an ineffective remedy. 
Related to, though distinct from verification of decisions, the normative standing of decisions of the African Commission is another important factor. While there is growing consensus on the acceptance of the Commission's determinations as binding decisions, the lack of firm judicial imprint must have something to do with states failing to implement them.  States have largely ignored or dragged their feet when it comes to giving effect to the Commission's decisions, which are mere recommendations until they are formally adopted through the formal structures of the African Union (AU) with its attendant political baggage.  For this reason, commentators consider the Protocol to the African Charter on Human and Peoples' Rights Relating to the Establishment of the African Court on Human and Peoples' Rights (African Court Protocol)  as a major development in the enforcement of human rights on the continent on account that the decisions of the African Court will be judicial in nature, thus directly binding.  Before considering the African Court Protocol, and how it may change the regime on remedies, a brief sketch of the issues the African Commission could have dealt with in its decisions in the context of remedies is given.
7. Sketching the real substantive issues
The remedies jurisprudence of the African Commission can be said to be a case of redundant elaboration. First, by focusing largely on admissibility, specifically on the rule on exhaustion of local remedies, its jurisprudence relates, and is restricted to, national remedies.  Nothing has been said of the remedies possible under the African Charter and international human rights law generally. Second, no analysis whatsoever has been undertaken of the relevant provisions on remedies, (specifically article 7) and no links have been established at the Charter and international level between these and provisions enshrining specific substantive rights. In Jawara, as in a number of other cases, the Commission has indicated that the local remedies rule must be applied in tandem with article 7, which guarantees the right to a fair trial.  Third, the Commission has in its decisions on remedies rightly left it to states to supply redress within their laws and domestic processes after finding a violation. While the Commission has elaborated the general state obligations under the African Charter as entailing the duties to respect, protect, promote and fulfil,  it has not proffered much jurisprudential guidance to states on this important question. The result is that the Commission's jurisprudence, to the extent that it can be discerned, is lacking in theorisation. Of the four constituent state obligations enunciated by the Commission, the secondary duty to protect, perhaps the most relevant to this debate, requires that the state 'protect right-holders against other subjects by legislation and the provision of effective remedies'  which necessitates, as per the Commission, 'the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realise their rights and freedoms'.  The Commission has nevertheless not, in any of its decisions or elsewhere, clarified the broad principles or what specific remedies would be applicable generally under the Charter. Where reference has been made to international law, this has mostly been general, as in Amnesty International and Others v Sudan, a case alleging, among others, summary executions during war, in which the Commission stated that '[t]he state [Sudan] must take all possible measures to ensure that they are treated in accordance with international humanitarian law'. 
Considering that previously the African Commission has found a violation but failed to pronounce itself on remedies,  the Commission's current enunciation on remedies can be said to be an improvement. This is, however, still largely inadequate as the formulation is in the main both exhortatory and general.  Typically, the Commission's conveniently brief 'holding' to communications variously 'urges', 'requests', 'invites' or 'recommends' for states: 'to draw all legal consequences of [its] decision[s]';  'to take necessary steps';  'draw necessary legal conclusions'.  The African Commission (and the African Court, once operational) needs to be firmer, clearer and less ambiguous when specifying remedies. 
Granted that the Commission cannot supervise or interfere with the national implementation of the African Charter and remedies ordered in vindication of protected rights, as the Commission has on various occasions reiterated,  failure to provide broad theoretical direction on possible non-compliance of various measures and state practice in this regard reflects a lack of depth in its decisions that may as well be viewed as a major failure in its duties. The inadequacy of its jurisprudence is cast in stark relief by the particularistic and untheorised pronouncements on remedies ordered by it. Consequently, the impact of universally contested issues such as amnesties widely deployed in post-conflict Africa and other situations entailing gross human rights violations on effective remedies have but received a fleeting mention.  The dynamism of remedial aspects respecting gross violations of which it was thought the Commission had an original mandate remains unexplored.  While 'fishing' for cases by an already burdened institution is not urged here, pronouncing itself on what is internationally impermissible in terms of specific remedies and circumstances is hardly remote from the gist of its mandate at any given time. It flows from a finding of a violation of the African Charter. In fact, it would be perfectly consistent with its ample Charter mandate requiring it to  give its views or make recommendations to governments . . . to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples' rights and fundamental freedoms upon which African governments may base their legislation . . . and interpret all the provisions of the present Charter.
Complainants may also be to blame for the skeletal and unco-ordinated state of the Commission's remedies jurisprudence because of their failure to specifically articulate themselves adequately or at all with respect to remedies. Shelton notes that in only one complaint to the Commission has an applicant specifically requested compensation.  Lack of input from complainants may be said to have stunted remedies jurisprudence.
Without going into detail, one can for instance sketch a few scenarios that have previously begged for authoritative comment by the Commission. These are mere sketches and necessarily warrant a more profound scrutiny. For instance, on the question of applicable remedies, a declaration of rights alone can hardly be sufficient for most violations. Prosecutions may be mandatory in certain circumstances, especially with regard to human rights violations that amount to international crimes. While in the Mouvement Burkinabé case,  the Commission prescribed the prosecution of persons involved in alleged human rights breaches, no underpinning reasons were proffered in the light of international law generally. Compensation may only be legally proper and adequate for certain crimes.  Although relevant cases have been brought to it, the Commission has not, in the context of remedies, interrogated issues related to 'massive violations', which involve more than the complainant(s) and do require innovative remedies beyond individualised relief and the concerns of an individual victim. 
8 Future prospects: Enter the African Court
It is argued here that the adoption of the African Court Protocol, which has now entered into force, is likely to change the question of remedies in a number of respects by addressing some of the weaknesses of the African Commission.  This is, however, dependent on two main factors considered — institutional and contextual. To begin with, unlike the African Charter, the African Court Protocol brings necessary clarity and specificity to the question of which remedies are applicable under the Charter. While reiterating the substantive basis for provisional measures,  the African Charter clarifies the African Court's power relating to remedies: 
If the Court finds that there has been a violation of human and peoples' rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.
While this legal sanction to make an order on compensation, as well as reparation orders, is addressed to the African Court, in view of the Court's complementary relationship with the African Commission,  it is particularly useful in clarifying the power of the Commission in this regard, should the Commission continue to receive and determine complaints even after the African Court becomes fully operational.  By mandating the Court to make 'appropriate' orders, article 27 codifies a wide discretion that can, and should be, invoked to make orders other than compensation and reparations, drawing from the experience of other international human rights oversight bodies such as the Inter-American and European Courts of Human Rights. In its continued role, the African Commission should, as it has done previously, draw on the facility in the African Charter allowing it to draw from the experience of other regional and international human rights oversight bodies as well as domestic jurisdictions to develop progressive jurisprudence.  This argument is pursued further in the concluding sections of this paper.
It has been suggested that the African Court is better equipped that the African Commission to meet its protective mandate under the African Charter.  Apart from the qualifications of the judges of the African Court (who are required to have legal and human rights backgrounds), to the extent that they are not — as in the case of the commissioners of the Commission — diplomats and civil servants with the tendency to lean in favour of (nominating) governments, they will enjoy greater independence.  One may take the view that the African Court has come to fruition at a time when there is renewed commitment to human rights within the AU, whose Constitutive Act now implants human rights squarely on the agenda of the continental body.  Whilst some commentators have expressed their optimism about the possible gains of the transition on the human rights and democracy fronts,  others, drawing on history, are not as positive.  While the universal acceptance of the African Court by all members of the AU is not expected,  the current political context creates an environment favourable for the operation of the African Court which should take with zeal to its mandate of further elaborating the African Charter and other relevant standards, including the right to an effective remedy, which, as argued, has not received much reasoned attention from the African Commission.
This paper argued that the remedies jurisprudence of the African Commission is wanting in three basic respects — depth, consistency and co-ordination. In its 'practice', the Commission has oscillated between rigidity, perhaps explained by the lack of a substantive basis for this right as well as its questionable standing as an oversight body, and a somewhat hesitant, barely positive situational response to the need to fulfil its general protective mandate under the African Charter by which it has recognised that no violation should go without redress. While it has not developed any meaningful jurisprudence of its own in this regard, it has equally been unprepared to deploy the facility in the Charter that sanctions the application of more progressive jurisprudence from other relevant international oversight bodies which, though not entirely satisfactory, is more advanced.  Even where the Commission has pronounced itself on remedies, its undue 'deference' to states has stunted its ability to objectively and fearlessly execute its mandate, hence its overemphasis on dialogue, amicable settlement and good faith. In this regard, it was concluded that while the African Court Protocol changes the situation normatively by expressly enshrining for remedies, more is required in order to ensure that rhetorical commitment to human rights are matched by gains by victims of human rights violations. 
One thing to reiterate here is that, while other regional experiences have their specific problems with respect to remedies, the depth of available jurisprudence is inspiring. While the African Commission still grapples with 'getting off the blocks', the bodies mandated with the implementation of those regional instruments have made some strides in developing reasoned jurisprudence in this regard. Though largely scattered and lacking in a theorisation, important issues have been addressed, including possible remedies applicable in various circumstances such as in cases of massive violations. Notably, the Inter-American Court (and Commission) have been bold enough to order states to take specific actions and have developed innovative means to structure damage awards, such as establishing trust funds.  The African Commission (and Court) can learn from the shortcomings of their regional counterparts: failure by litigants as well as the institutions themselves to draw meaningful lessons from each others' failures; the adoption of a narrow reading of existing international and national jurisprudence, thus 'refusing to recognise that both bodies of law offer support for far broader remedies'; a failure to understand (as the African Commission has) the importance of their role in remedying human rights violations and that this goes beyond individual complainants, a fact disclosed by their rigidity in the interpretation of their remedial mandates.  If resources were all it takes, one can be confident that the African Court and African Commission, to the extent that it will retain its relevant mandate once the African Court is operational, have a rich pool from which to craft a well-reasoned jurisprudence on remedies.
 African [Banjul] Charter on Human and Peoples' Rights adopted 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, (1982) 21 International Legal Materials 58, entered into force 21 October 1986.
 The African regional human rights system was preceded by the European and Inter-American systems established by the European Convention on Human Rights and Fundamental Freedoms (1950) and the American Convention on Human Rights (1978), together with the American Declaration on the Rights and Duties of Man (1948).
 On the legislative history of the Charter, see M Hansungule 'The African Charter on Human and Peoples' Rights' (2000) 8 African Yearbook of International Law 265; AEAnthony 'Beyond the paper tiger: The challenge of a human rights court in Africa' (1997) 32 Texas International Law Journal 511; C Heyns 'The African regional human rights system: The African Charter' (2004) 108 Penn State Law Review 679 685-686.
 See eg J Oloka-Onyango 'Beyond the rhetoric: Reinvigorating the struggle for social and economic rights in Africa' (1995) 35 California Western International Law Journal 1; M Mutua 'The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties' (1995) 35 Virginia Journal of International Law 339; C Heyns 'The African human rights system: In need of reform?' (2001) 1 African Human Rights Law Journal 155; S Gutto 'The reform and renewal of the African regional human and peoples' rights system' (2001) 1 African Human Rights Law Journal 175; KAAcheampong 'Reforming the substance of the African Charter on Human and Peoples' Rights: Civil and political rights and socio-economic rights' (2001) 1 African Human Rights Law Journal 185; CA Odinkalu 'The role of case and complaints procedures in the reform of the African regional human rights system' (2001) 1 African Human Rights Law Journal 225.
 See M Evans & R Murray (eds) The African Charter on Human and Peoples' Rights: The system in practice, 1986-2000 (2002). Plaudits relate mainly to the Commission's contribution in elaborating standards.
 See C Heyns (n 3 above) 688-689. Some of the landmark decisions include Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (elaborating a number of rights, but notably the right to the environment; a number of Constitutional Rights Project cases against Nigeria (concerning fair trial guarantees, the right to life and self-determination among others); Modise v Botswana (2000) AHRLR 25 (ACHPR 1997) (respecting the right to political participation); and Commission Nationale des Droits de l'Homme et des Libertés v Chad (2000) AHRLR 66 (ACHPR 1995) (in respect of the interpretation of the African Charter).
 On the African Commission's practice regarding the admissibility procedure generally, see F Viljoen 'Admissibility under the African Charter' in M Evans & R Murray (n 5 above) 61-99. See also generally NJ Udombana 'So far, so fair: The local remedies rule in the jurisprudence of the African Commission on Human and Peoples' Rights' (2003) 97 American Journal of International Law 1.
 In terms of art 56 of the African Charter, a matter will only be admitted for consideration if it is compatible with the Charter; its authors are not anonymous; it is not written in disparaging language; is submitted within a reasonable time; and does not deal with cases which have been settled by the state(s).
 D Shelton Remedies in international human rights law (2003) 1-4; SL Haasdijk 'The lack of uniformity in the terminology of the international law of remedies' (1992) 5 Leiden Journal of International Law 245, cited in Shelton 4.
 Shelton (n 9 above).
 For a discussion of the various mandates, see Shelton (n 9 above) 177-237.
 As part of her study on remedies in international law, Shelton substantially considers the Inter-American and European regional experiences, but affords only cursory treatment of the African human rights system. See Shelton (n 9 above) 219-216.
 Shelton (n 9 above) 4.
 Shelton (n 9 above) 7.
 As above.
 A range of measures exist both at national as well as international law (in the latter case, based on the law of state responsibility).
 Shelton (n 9 above) 7.
 (2000) AHRLR 107 (ACHPR 2000) para 32.
 In the Commission's Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (Fair Trial Guidelines) Part C(b), the Commission notes that the right to an effective remedy includes access to justice, reparation for the harm suffered and access to the factual information concerning the violations. See Guidelines http://www.justiceinitiative.org/db/resource2?res_id="101409" (accessed 31 July 2006).
 Constitutional Rights Project (in respect of Akamu & Others) v Nigeria (2000) AHRLR 180 (ACHPR 1995) para 8.
 As above.
 n 10 above, paras 28-30.
 See G Naldi 'Future trends in human rights in Africa: The increased role of the OAU?' in M Evans & R Murray (n 5 above) 1, citing KO Kufuor 'Safeguarding human rights: A critique of the African Commission on Human and Peoples' Rights' (1993) 18 Africa Development 18 (1993) 65 66-69 and W Benedek 'The African Charter and the Commission on Human and Peoples' Rights: How to make it more effective' (1993) 11 Netherlands Quarterly of Human Rights 25 31.
 Odinkalu (n 4 above) 398.
 See generally C Heyns 'Civil and political rights in the African Charter' in M Evans & RMurray (n 5 above), alluding to substantive inadequacies of the Charter in this regard. See also Acheampong (n 4 above) and Heyns (n 4 above).
 Commission Nationale v Chad (n 6 above), noting that the rights enshrined in the African Charter are not mere platitudes, but impose obligations that have to be implemented.
 See N Roht-Arriaza (ed) Impunity and human rights in international law and practice (1995) 17, noting that the idea that violations should be redressed, that reparation should be made to the injured is 'among the most venerable and most central of legal principles'.
 Art 1 of the African Charter provides: 'The member states of the Organisation of African Unity [AU], parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.'
 Eg arts 7(1) & 21(2) of the Charter which provide for recourse to national tribunals for human rights violations and compensation for spoliation of natural resources respectively; art 10 of the Charter establishes expressly the right to compensation for miscarriage of justice; art 7 of the Charter on the right to freedom and security of the person prohibiting arbitrary arrest and illegal detention provides for a right to remedies such as compensation where this right is infringed.
 Art 26 African Charter.
 For an elucidation of general state obligations under the African Charter, see generally SERAC (n 6 above); Commission Nationale v Chad (n 6 above).
 (2000) AHRLR 74 (ACHPR 1995) para 37.
 Odinkalu (n 4 above) 374.
 Art 8 Universal Declaration.
 Art 2(3). See also arts 9(5) & 14(6) of CCPR 999 UNTS 171 (1967).
 M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 58, noting that art 2(3) refers to both judicial and non-judicial remedies. See eg Communication 821/98 Rodger Chongwe v Zambia CCPR/CAO/D/84/1998 (2000) para 7.
 Art 13 European Convention for the Protection of Human Rights and Fundamental Freedoms ECHR 213 UNTS 22, as reaffirmed by art 47 of the Charter of Fundamental Rights of the European Union have provisions providing similarly that everyone whose rights and freedoms as set forth in the instruments are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
 Art 25 American Convention of Human Rights 1144 UNTS 123, as elaborated in the celebrated case Velasquez Rodriquez v Honduras (Preliminary Exceptions) (1987) 1 Inter-Am Ct HR (ser C), para 91 requires that states 'have an obligation to provide effective judicial remedies to victims of human rights violations' and in Genie Lacayo v Nicaragua (1998) 30 Inter-Am Ct HR (ser C) relating to the procedural elements of the right.
 Art XXIV American Declaration on the Rights and Duties of Man.
 Art 25(a) Protocol to the African Charter on the Rights of Women.
 The right to a remedy codified in the Universal Declaration may have crystallised into customary international law, as the other main provisions of the declaration. See art 18 of the Namibian Constitution which suggests as such.
 See Shelton (n 9 above) 122-143 discussing some of the cases.
 See analysis at section 5 below.
 Viljoen (n 7 above) 84.
 (2000) AHRLR 127 (ACHPR 1999) para 13.
 n 18 above, para 35 (my emphasis).
 n 20 above, paras 10-11 (my emphasis).
 Communications to the Commission recount variously of victims who had to go into exile, and were tortured and generally subjected to ill-treatment on this account.
 See Viljoen (n 7 above) 83 referring to the general principle.
 See eg sec 116 of the Constitution of South Africa, read together with the Human Rights Commission Act 54 of 1994. The Ugandan National Human Rights Commission has quasi-judicial powers and has been instrumental in addressing fundamental rights violations in that country. The Kenyan National Human Rights Commission, though largely inactive, is vested with similar powers.
 Part C(c)(1) stating that 'any person claiming a right to remedy shall have such a right determined by competent judicial, administrative or legislative authorities'.
 Viljoen (n 7 above) 83 citing Njoku v Egypt (2000) AHRLR 83 (ACHPR 1997) para 57.
 See V Dankwa 'The promotional role of the African Commission on Human and Peoples' Rights' in Evans & Murray (n 5 above) 335-352; A Motala 'Non-governmental organisations in the African system' in Evans & Murray (n 5 above) 246 279.
 n 32 above.
 See F Viljoen 'A Human Rights Court for Africa, and Africans' (2004) 30 Brooklyn Journal of International Law 1 4-5, discussing the circumstances of the abandonment of the idea of an African human rights court.
 American Convention on Human Rights, under which the conciliation procedure specifically provided for in art 48(1)(f) is applied when it proffers a real prospect of success. Velásquez Rodriguez (n 38 above) paras 44-45 (1987). See also Odinkalu (n 4 above) 402.
 See eg Modise v Botswana (n 6 above) where the African Commission invited the government of Botswana to consider amicable settlement prompting a lengthy and unsuccessful process at the Commission even after the state had failed to resolve the matter at hand for 16 years. See also International Pen (on behalf of Senn & Another) v Côte d'Ivoire (2000) AHRLR 70 (ACHPR 1995) and Association pour la Défence des Droits de l'Homme et des Libertés v Djibouti (2000) AHRLR 80 (ACHPR 2000).
 Rule 111(1) of the Rules of Procedure of the Commission provides that '[b]efore making its final views known to the Assembly on the communication, the Commission may inform the state party concerned of its views on the appropriateness of taking provisional measures to avoid irreparable damage being caused to the victim of the alleged violation. In so doing, the Commission shall inform the state party that the expression on its views on the adoption of those provisional measures does not imply a decision on the substance of the communication.'
 International Pen & Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998); Avocats Sans Frontières (on behalf of Bwampamye) v Burundi (2000) AHRLR 48 (ACHPR 2000).
 As above.
 n 57 above.
 The African Commission has made varying orders for measures to be taken by defendant states depending on the complaint at hand so that the Commission's process is not rendered void.
 Problems arise from the African Commission's deferential attitude and lack of an effective verification mechanism.
 For a complaint to be compatible with the African Charter, it must, among other things, allege a breach of a right set out in the Charter. See art 56(2); Viljoen (n 7 above) 69.
 Haye v The Gambia (2000) AHRLR 102 (ACHPR 1995), in which the Commission requested 'the government of The Gambia to bring its laws in conformity with the provisions of the Charter'.
 See Avocats Sans Frontières v Burundi (n 53 above), requesting Burundi 'to draw all the legal consequences of this decision; and to take appropriate measures to allow the reopening of the file and the reconsideration of the case in conformity with the laws of Burundi and the pertinent provision of the African Charter on Human and Peoples' Rights [and] calls on Burundi to bring its criminal legislation in conformity with its treaty obligations emanating from the African Charter'.
 n 38 above.
 Embga Mekongo v Cameroon (2000) AHRLR 56 (ACHPR 1995).
 See Malawi African Association & Others v Mauritania (2000) AHRLR 149 (ACHPR 2000) consisting perhaps of the most concrete and specific recommendations by the Commission yet; Pagnoulle (on behalf of Mazou) v Cameroon (2000) AHRLR 55 (ACHPR 1995), requiring the reinstatement of a judge and the release from prison of a detained person (in the latter instance, the release had already been effected by the time of the order). See also Mouvement Burkinabé des Droits de l'Homme et des Peuples v Burkina Faso (2001) AHRLR 51 (ACHPR 2001), where the Commission, holding that Burkina Faso was in violation of arts 3, 4, 5, 6, 7(1)(d) and 12(2) of the African Charter, recommended that the Republic of Burkina Faso draws all the legal consequences of this decision, in particular, by identifying and taking to court those responsible for the human rights violations cited above; accelerating the judicial process of the cases pending before the courts; and compensating the victims of the human rights violations stated in the complaint (my emphasis).
 See art 55 captioned 'other communications'. This is now settled position. Decisions by the Commission reiterate this point.
 See Heyns (n 3 above) 694.
 On admissibility, see Viljoen (n 7 above).
 See Viljoen (n 55 above) 15.
 Odinkalu (n 4 above) 375.
 (2000) AHRLR 321 (ACHPR 1994).
 The communication had been filed with the Commission in 1986, the letter was written in 1990 stating that he had been released in 1989.
 (2000) AHRLR 22 (ACHPR 1994).
 Odinkalu (n 4 above) 376 in a commentary on the case notes that there was no evidence that the Commission made sufficient effort to verify from the authors whether they considered the steps taken by the new government to be sufficient.
 See Legal Resources Foundation v Zambia (2001) AHRLR 84 (ACHPR 2001), where the Commission requested Zambia 'to report back to the Commission when it submits its next country report in terms of article 62 on measures taken to comply with [its] recommendation'.
 See Civil Liberties Organisation v Nigeria (2000) AHRLR 179 (ACHPR 1994). See also International Pen (n 57 above) para 7, stating that the release of victims does not extinguish the responsibility of the government for any violations that it may have committed in respect of their imprisonment. A cause of action may still stand for reparations for the prejudice suffered by imprisonment.
 Viljoen (n 7 above) 64.
 Modise v Botswana (n 6 above), which took 16 years in domestic courts and another 16 years before the Commission made a decision. In this, inconsistency is evident as the Commission has been willing in some cases to proceed where co-operation from the state has been wanting. See for instance Commission Nationale des Droits de l'Homme et des Libertés v Chad (n 6 above) para 25, where the Commission decided that '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'. See also Modise (n 6 above) para 95.
 See generally GM Wachira & A Ayinla 'A critical examination of the African Charter on Human and Peoples' Rights: Towards strengthening the African human rights system' in International Commission of Jurists (Kenya Chapter) Judicial Watch Report (2006).
 As above.
 Protocol to the African Charter on Human and Peoples' Rights Relating to the Establishment of the African Court on Human and Peoples' adopted in Addis Ababa, Ethiopia, in June 1998; entered into force in January 2004.
 Viljoen (n 55 above).
 See Udombana (n 7 above).
 Jawara case (n 18 above) paras 33-34.
 See generally SERAC case (n 6 above).
 SERAC case (n 6 above) para 47. On the general obligations under the African Charter, see generally NJ Udombana 'Between promise and performance: Revisiting states' obligations under the African Human Rights Charter' (2005) 40 Stanford Journal of International Law 105.
 As above.
 (2000) AHRLR 297 (ACHPR 1999) para 48.
 See eg Huri-Laws v Nigeria (2000) AHRLR 273 (ACHPR 2000); Forum of Conscience v Sierra Leone (2000) AHRLR 293 (ACHPR 2000).
 See Introduction, Compilation of decisions of the African Commission (2001) 13.
 Eg Avocats Sans Frontières (n 59 above).
 Eg Constitutional Rights Project & Others v Nigeria (2000) AHRLR 227 (ACHPR 1999).
 Eg Pagnoulle (n 69 above).
 In one of its latest decisions, despite the complexity of the case and the wide-ranging violations alleged, the Commission merely urged the respondent states 'to abide by their international obligations' (including under the UN Charter) and recommended 'that adequate reparations be paid, according to the appropriate ways to the complainant state for and on behalf of the victims of the human rights'. See Communication 227/97, DRC v Uganda, Rwanda & Burundi 20th Activity Report 96-111.
 In Legal Resources Foundation v Zambia (n 79 above) para 59, the Commission stated that 'an international treaty body like the Commission has no jurisdiction in interpreting and applying domestic law. Instead a body like the Commission may examine a state's compliance with the treaty in this case the African Charter . . . [T]he point of the exercise is to interpret and apply the African Charter rather than to test the validity of domestic law for its own sake'.
 See Malawi African Association (n 69 above). See also cursory references to amnesty in the Commission's Fair Trial Guidelines, Part C(d).
 In Malawi African Association (n 69 above), the opportunity was missed by the Commission to pronounce itself on the question.
 Art 45 African Charter; Legal Resources Foundation v Zambia (n 79 above) para 61.
 Shelton apportions blame to complainants and their representatives for not addressing the question of remedies in their communications, considering it as a given once a violation is found. The relevant bodies have thus been denied an informed opinion on the question.
 n 69 above.
 For a study of the compatibility of national amnesties with the African Charter, specifically with respect to effective remedies, see generally GM Musila 'Whistling past the graveyard: Amnesty and the right to an effective remedy under the African Charter: The case of South Africa and Mozambique' unpublished LLM thesis, University of Pretoria, 2004.
 Massive violations may involve the violation of several rights (with respect to a single complainant) or violations involving many people. In Free Legal Assistance Group & Others v Zaire (n 32 above), the Commission did appreciate that massive violations, especially where many people are involved, require special attention.
 On the possible benefits the African Court will bring to the African regional human rights system, see generally Viljoen (n 55 above).
 On this, art 27 provides that, in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.
 Art 27 African Court Protocol.
 Arts 2, 5 & 6 African Court Protocol.
 On the dynamics of the relationship between the Court and the Commission, see Heyns (n 4 above) 162-173. It has been suggested that with both bodies operational, the Court should handle 'the most important cases' with the Commission reserved for the role of receiving and 'sieving' complaints.
 Arts 60 & 61 of the African Charter provide a normative sanction.
 Viljoen (n 55 above).
 Judges appointed with the input of various stakeholders are elected in their personal capacities.
 See art 3 of the Constitutive Act of the African Union adopted 11 July 2000, entered into force 26 May 2001.
 See generally VO Nmehielle 'The African Union and African Renaissance: A new era for human rights protection in Africa?' (2003) 7 Singapore Journal of International and Comparative Law 412.
 See eg NJ Udombana 'Can the leopard change its spots? The African Union treaty and human rights' (2002) 17 American University International Law Review 1177.
 So far, only 15 states have ratified the African Court Protocol. For the African Court to entertain individual complaints, a declaration is required in terms of art 36(4) of the Protocol.
 Shelton (n 9 above), lamenting the lack of co-ordination in jurisprudence from the European and Inter-American Courts of Human Rights.
 See Heyns (n 3 above) 700-702.
 Shelton (n 9 above) 181.
 See generally RB Bilder & B Stephens 'Remedies in international law: Book review and note' (1995) 95 American Journal on International Law 258; Shelton (n 9 above) 37.