Conference paper: Perspectives on the African Commission on Human and Peoples' Rights on the occasion of the 20th anniversary of the entry into force of the African Charter on Human and Peoples' Rights

 Bahame Tom Nyanduga
 LLB (Hons) (Dar es Salaam), LLM (LSE, London)
 Member of the African Commission on Human and Peoples' Rights
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 Edition: AHRLJ Volume 6 No 2 2006
  Pages: 255 - 267
 Citation: (2006) 2 AHRLJ 255-267
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This contribution is based on a paper presented at the International Conference on Human Rights in Africa, as part of the 15th African Human Rights Moot Court Competition in Addis Ababa, Ethiopia, 1 September 2006. The views expressed in this paper do not represent the views of the African Commission.

Summary

In this contribution, which was delivered as a speech to the participants of the 15th African Human Rights Moot Court Competition, one of the members of the African Commission, Commissioner Nyanduga, provides an overview of the major successes, challenges and prospects of the African Commission. After providing a historical background, Commissioner Nyanduga highlights the SERAC case as one of the Commission's significant successes. He concludes that, although the Commission remains hampered by numerous constraints, such as limited resources and poor state reporting, the establishment of an African Court, in particular, holds the prospect of improved enforcement of human rights on the African continent.

1.  Introduction

The struggle for the realisation of basic rights and fundamental freedoms for the peoples of Africa is chronicled by the struggles for independence and freedom waged during the second half of the 20th century. These struggles marked a watershed in the assertion by the African peoples of their right to equality, dignity, the right to self-determination, and the right to live in peace and freedom, as enjoyed by other peoples and nationalities throughout the world.

The end of World War II saw the establishment of the United Nations (UN) in 1945 and the subsequent adoption of the Universal Declaration of Human Rights (Universal Declaration) in 1948. These momentous events did not immediately usher in liberty, freedom and dignity for the African peoples. Many African states remained under colonial and racist domination. Colonialism, apartheid and racial discrimination were, by their very nature, an antithesis to the core principles, objectives and values enshrined in the Charter of the UN and the Universal Declaration.

The decolonisation process and the wars of liberation waged by African peoples across the continent during the four decades starting from the late 1950s, led to the granting of independence to colonial territories in Africa. The defeat of racist regimes in the mid-1970s and 1980s resulted in the establishment of majority governments in Southern Africa. The installation of a democratic government in South Africa in 1994 marked the end of the struggle against foreign domination and began political self-determination on the African continent. [1] Thence, the destiny and the struggle for the realisation of basic rights and fundamental freedoms for the peoples of Africa lay squarely in their own hands.

2.  Lack of post-independence human rights enforcement

Attaining political self-determination for the peoples of Africa has always been considered an important milestone in the struggle for the full realisation of basic rights and fundamental freedoms. At independence, many African states adopted independence constitutions which contained bills of rights. These states also acceded to various international human rights instruments and a number of regional instruments, proclaiming and guaranteeing their citizens basic rights and fundamental freedoms.

These independence constitutions did not survive long in many African states. Many governments were overthrown through military coups d'état. [2] The independence constitutions, which had guaranteed multi-party democracy and the enjoyment of basic rights and fundamental freedoms, were suspended or abolished, and replaced by governance through military decrees. In other African states, multi-party democratic governments were replaced by one-party 'democracies'. Botswana and Senegal were the exceptions to these forms of governance.

Military governments and one-party 'democracies' exercised a monopoly of political power, varying in degree from outright dictatorships to those which exercised varying degrees of political tolerance. The Cold War politics exacerbated the political hegemony by the military and one-party regimes, which in turn curtailed the enjoyment of basic civil and political rights of their people. Some of these regimes unleashed human rights violations on a massive scale. Civil wars became the order of the day, as marginalised ethnic groups and political movements fought for their share of the national cake of governance. The collapse of the Berlin wall at the turn of the 1990s and the changed dynamics of the international political order following the end of the Cold War, necessitated political transformation in a number of African states. They became multiparty democracies.

Notwithstanding the existence of political and military dictatorships and the regression in the human rights situation during the 1970s and 1980s, the African Charter on Human and Peoples' Rights (African Charter) was adopted by member states of the Organization of African Unity (OAU) in 1981. As if to highlight the ironic human rights situation in Africa, a military coup overthrew the democratic government of Liberia, where the 1979 OAU Summit had adopted a resolution on the preparations of a draft for the African Charter. [3] Subsequently Liberia experienced massive violations of human rights, culminating in two decades of misrule and a brutal civil war. 

Yet, the protection of human and peoples' rights in Africa was professed as a priority by each and every state, and by the continental organisation, the OAU (now the African Union (AU)). [4] The declarations about Africa's commitment to democratic governance and human rights were tempered by the scourges of ethnic clashes, civil wars and conflict, leading to a wave of refugees and the internal displacement of millions of people in all the regions of the continent. The genocide in Rwanda in 1994 marked the lowest point in human rights on the continent and the gravest violation of human rights in an independent African state. Conflicts continue on the continent, in the Darfur region of Sudan, in some parts of the DRC and in Northern Uganda, as well as in Somalia. These conflicts are responsible for the dire situation of human rights in Africa. Twenty years after the entry into force of the African Charter, the reality is a far cry from the ideal foreseen by those African jurists who drafted the African Charter. [5]

Whether or not African states individually, or collectively through the continental organisation, have fulfilled their commitments and the objectives of the OAU Charter, or the African Charter, the Constitutive Act of the AU and other human rights instruments, remains one of the major challenges in ensuring the respect, promotion and protection of human and peoples' rights on the continent. It is my expectation that the democratisation process currently underway on the continent will underpin a climate for the better enjoyment of human and peoples' rights on the continent.

The human rights discourse in Africa, therefore, can only be appreciated within the historical context of the continent, as well as the individual country-specific experiences.

3.  The African Commission on Human and Peoples' Rights

The African Charter was adopted in 1981 by member states of the OAU during a time when African states were in the forefront of fighting against colonial and foreign domination. The entry into force of the African Charter and the establishment of the African Commission on Human and Peoples' Rights (African Commission) did not eliminate violations of human and peoples' rights from the African political scene. In other words, no overnight change happened in the way in which fundamental rights and freedoms in Africa were respected. The African Commission was established in 1987 [6] (upon the entry into force of the African Charter on 21 October 1986) as a mechanism to inquire into the human rights situation of the state parties to the Charter. This was done by means of communications or complaints in respect of alleged violations against the African Charter, as well as through the examination of state reports [7] and through other methods of investigation. [8]

The African Charter gives the African Commission a mandate to promote and protect human and peoples' rights in Africa. [9] In order to carry out this mandate, the Commission adopted a number of mechanisms and methods. The Commission from time to time also conducts missions of a promotional nature to state parties, and in a number of cases it has carried out missions to investigate situations of serious human rights violations.

The African Commission holds two ordinary sessions a year, each lasting two weeks. During these sessions, it hears communications and carries out some of its promotional functions. [10] Over the years it has become quite clear that the four weeks during which the Commission meets in any particular year are not adequate for the Commission to discharge its mandate. The Commission is composed of 11 members from different corners of this vast continent. The members are supported by a skeleton staff of between five to eight legal officers, the majority of whom are on short-term donor-funded contracts. Members of the Commission serve a six-year tenure on a part-time basis.

Considering the scale and enormity of the human rights problems facing the continent, and the resource constraints facing the African Commission, it is important to reflect on how the Commission's role can be enhanced as it celebrates its 20th year of existence.

The African Commission has over the years heard communications submitted on behalf of individuals against state parties, which are alleged to have violated rights enshrined under the African Charter. The decisions adopted by the Commission in respect of these communications have established a body of human rights jurisprudence in Africa.

4.  Special mechanisms

Under the protection mandate, the African Commission has established special mechanisms which have enabled it to undertake investigations and protection in a number of thematic areas. The mechanisms currently operational are:

•      the Special Rapporteur on the Rights of Women in Africa;

•      the Special Rapporteur on Freedom of Expression in Africa;

•      the Special Rapporteur on Human Rights Defenders;

•      the Special Rapporteur on Detention and Prison Conditions in Africa; and

•      the Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa.

The African Commission has also established a number of working groups which conduct, or have conducted, important studies on a number of thematic human rights issues, such as freedom of expression, [11] and promoting the Robben Island Guidelines against Torture in Africa. [12] The Working Group on Minorities and Indigenous Populations in Africa has played a pioneering and significant role in highlighting the plight of marginalised populations in a number of African countries. The work of this Working Group is a major contribution to defining the human rights of marginalised minority indigenous groups, who deserve equal and non-discriminatory protection by African states. The report of the Working Group published by the Commission in collaboration with the International Working Group on Indigenous Issues, IWGIA, is a major contribution to better understand the human and collective rights of indigenous populations and communities in Africa under the African Charter. [13]

The mechanisms of the African Commission are crucial in the attainment of its mandate. The Commission benefits from the flexibility of these mechanisms. A Special Rapporteur can organise his or her work, undertake missions to state parties and report to the Commission. The reports by the Special Rapporteurs and the Working Groups are adopted as Commission reports, and they play a part in the evolving role the Commission plays in filling the gaps and the progressive development of the African Charter.

5.  Challenges to the African Commission

There are a number of challenges facing the African Commission in the discharge of its mandate. Foremost is the problem of resources. Article 41 of the African Charter obliges the Secretary-General of the OAU (the Chairperson of the AU Commission) to ensure that the African Commission is provided with all the necessary resources to enable it to discharge its functions effectively. Resources enable it to conduct its statutory annual sessions and a handful of promotional missions only. The Commission cannot conduct any urgent mission it considers appropriate, whatever the gravity of the situation, unless extra-budgetary resources are made available by the AU Commission.

Special mechanisms are barely functional, due to predominantly donor funding. This situation indirectly impacts on the independence and impartiality of the Commission. Articles 31 and 38 emphasise the impartiality of the members of the Commission in the discharge of their duties. In order for the Commission to discharge its mandate effectively, the problem of resource constraint has to be addressed urgently and immediately. These resource constraints impact on the quality and caliber of the staff at the disposal of the Commission.

The AU Assembly has adopted a number of decisions which call on the AU Commission to ensure that the African Commission is provided with adequate resources in order to discharge its mandate.

The second challenge to the African Commission — and a daunting challenge for that matter — is the lack of enforceability of its decisions. The lack of enforceability arises from the fact that the African Charter does not provide for a specific provision or mechanism to ensure that Commission's decisions are binding. Article 52, which relates to the inter-state communication procedure, requires the Commission to try all appropriate means to reach an amicable solution, failing which it is required to prepare a report and communicate it to the AU Assembly with such recommendations as it deems useful.

The African Commission submits a report of its activities, under article 54, to every ordinary session of the AU Assembly of Heads of State and Government. Decisions on communications which arise from complaints by individuals, are also included in the report submitted to the Assembly. Decisions of the Commission are also sent to the state party involved as recommendations. In the case of recommendations made pursuant to in-depth studies of special cases revealing massive violations of human rights, [14] the measures remain confidential until publication is authorised by the Assembly.

State parties are obliged under article 1 to adopt legislative or other measures to give effect to the rights, duties and freedoms enshrined in the African Charter, and therefore have an obligation to enforce the decisions of the African Commission. However, this notwithstanding, decisions of the Commission are not fully implemented in most cases. After having considered a communication, the Commission has to make findings on whether a state party has violated the Charter provisions or not. If a state is found to have violated any right under the Charter, article 1 obliges that state party to recognise the right which is said to be violated and act in accordance with the Commission's recommendations.

To highlight the problem regarding the lack of enforceability of the Commission's decisions, when submitting its instrument of accession to the AU, the Republic of South Africa stated the following: [15]

[W]hile acceding to the African Charter on Human and Peoples' Rights, it is the view of the Republic of South Africa that there should be consultation between state parties to the Charter, inter alia, to:

           (i)  consider the possible measures to strengthen the enforcement mechanisms of the Charter;

          (ii)  clarify the criteria for restrictions of rights and freedoms recognised and guaranteed in the Charter;

. . .

I am not aware whether this very important proposal, aimed at enhancing the enforceability of the African Commission's decisions, was ever followed up on by the South African government in any of the AU political organs.

It is expected that the dilemma faced by the Commission on the unenforceability of its decisions will be remedied through the establishment of the African Court on Human and Peoples' Rights (African Court), pursuant to the entry into force of the Protocol to the African Charter on the Establishment of the Court, and its subsequent operationalisation. The election of judges during the Khartoum AU Summit, and their swearing in during the Banjul Summit, are important milestones in the realisation of an effective remedy for the violation of human and peoples' rights in Africa.

Article 27(1) of the Protocol states as follows:

If the Court finds that there has been violation of a human or peoples' right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.

The mandatory language used in the Protocol is significant. Article 29 of the Protocol states further that the judgment shall be notified to the parties, and that the Council of Ministers shall monitor its execution on behalf of the Assembly. Article 30 obliges state parties to undertake to comply with the judgment within the time stipulated by the African Court and to guarantee its execution.

Article 31 requires the Court to submit a report to each regular session of the Assembly and the report shall, among other things, specify in particular the cases in which the state party has not complied with the Court's judgment. It is my expectation that the Protocol will be respected, thereby ensuring that the decisions of the Court are not routinely ignored, as are the recommendations of the Commission.

The African Commission continues to experience problems regarding non-compliance with its recommendations and decisions, either completely or partially.

A Working Group of the Commission has been established to look into, among other things, the question of follow-up on the Commission's decisions, and to ensure that the recommendations made by the Commission and adopted by the Assembly, which become, constructively, part of the decisions of the Assembly, can be implemented as such.

Article 23(2) of the Constitutive Act of the AU states:

[A]ny member state that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other member states, and other measures of a political and economic nature to be determined by the Assembly.

It is my humble view that the new architecture of the AU, which is anchored in a respect for democratic good governance, a respect for human and peoples' rights and the rule of law, should compel the AU and its member states to practise what they preach.

6.  Deterrence or tolerance

The publication of the Annual Activity Reports of the African Commission, which include decisions, recommendations and resolutions commenting on the situation of human rights in member states, has not been a very successful deterrent to human rights violations. The dramatic increase in the number of communications received by the Commission from member states where violations allegedly occur, to a certain extent betrays the fact that the mechanisms of the African Commission are not very effective as a deterrent, and as a corollary, the respect of the African Charter by the specific governments concerned is questionable.

This analysis is backed by, for example, the number of communications received from non-governmental organisations (NGOs) during the Abacha regime in Nigeria. The large number of submissions of communications by NGOs to the African Commission also reflects the strength of civil society in many African states from which communications are submitted. The role of NGOs in the protection of human rights in Africa has over the first 20-year period become a very important factor in the work of the African Commission. The working relationship between the Commission and the NGOs is reflected in a resolution granting observer status to NGOs, which enables them to interact with the Commission in a number of its activities. [16]

7.  State reporting

The state reporting mechanism enables the African Commission to maintain dialogue with state parties under the terms of article 62. It requires every state party to submit periodic reports on legislative, administrative and other measures taken, to give effect to the rights and freedoms recognised by the African Charter, as well as stating any problems encountered in its implementation. State parties have not submitted their reports on a timely basis as provided for under the Charter. Up until the time of the submission of the Nineteenth Activity Report at the June 2006 AU Summit, 16 out of the 52 AU state parties to the African Charter had not submitted a single report since the entry into force of the Charter.

A substantial number of states have submitted their state reports once or twice, while a few have reported three times. The problem is not confined to the African Charter. Their heavy reporting obligations to other supervisory bodies under various international human rights instruments are onerous to many African states because of inadequate capacity. The African Commission has engaged in dialogue with various stakeholders to see how these obligations can be met.

8.  The challenge of guaranteeing economic, social and cultural rights

The African Commission is faced with a major challenge in ensuring that state parties accord equal respect to promoting, respecting and guaranteeing economic, social and cultural rights, as that which they give with regard to civil and political rights. The Commission has over the last two decades entertained numerous communications alleging violations of civil and political rights under the African Charter. The main body of jurisprudence of the Commission has been developed based predominantly on these rights. 

The adoption by the African Commission of the landmark decision in Social and Economic Rights Action Centre (SERAC) and Another v Nigeria, [17] which addressed violations of several group rights such as the right to property, [18] the right to protection of the family unit, [19] the collective right to free disposal of natural resources, [20] and the right to a satisfactory environment [21] showed the comprehensive nature of the African Charter.

Briefly, the facts of the case involved the suppression of the Ogoni people, a minority group living in the Niger Delta, by the use of the military during the Abacha regime, which constituted violations of a number of provisions of the African Charter. A number of observations and lessons may be drawn from this decision.

While a number of African states have enacted constitutional exclusion clauses, making economic and social rights non-justiciable, it is worth noting that Nigeria enacted the African Charter in its domestic legislation, hence economic and social rights can be adjudicated before the Nigerian courts. Secondly, during the determination of the Ogoni communication, the African Commission waived the exhaustion of local remedies rule, because the Nigerian government had not responded to numerous correspondences concerning the communication. The Commission was forced to decide on the facts as presented by the complainants. Further, it was also established that the Nigerian military government had enacted various decrees which ousted the jurisdiction of local courts, hence depriving the people the right to seek redress through the domestic remedies.

The African Commission found that the Nigerian government had violated a number of rights under the African Charter, including the right to housing or shelter, even though it was not explicitly provided for under the Charter. That notwithstanding, it found that the right to shelter had been violated through a combined reading of a number of rights provided for under the Charter, in particular the right to property, the right to enjoy the best attainable state of mental and physical health and the right to the protection of the family.

In terms of the violation of article 21, which provides for the right to freely dispose of natural resources and the duty imposed on state parties to 'undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their natural resources', the Commission stated: [22]

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. This duty calls for positive action on the part of governments in fulfilling their obligations under human rights instruments. The practice before other tribunals also enhances this requirement as is evidenced in the case Velàsquez Rodríguez v Honduras. In this landmark judgment, the Inter-American Court of Human Rights 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. Similarly, this obligation of the state is further emphasised in the practice of the European Court of Human Rights, in X and Y v Netherlands. In that case, the Court pronounced that there was an obligation on authorities to take steps to make sure that the enjoyment of the rights is not interfered with by any other private person.

The allegations concerning a violation of the right to benefit from the operations of oil companies made by the Ogoni during the Abacha regime are not very much different from those made by the Movement for the Emancipation of the Niger Delta, which has in recent days been responsible for abduction of oil company employees.

Of note in the handling of this problem is the fact that the democratic government of Nigeria has not applied the heavy-handed tactics employed by its predecessor in trying to resolve the problems in the Niger Delta. This confirms the view that human rights benefit from democratic governance.

With regard to the SERAC case, the Commission also found violations of the right to adequate housing, the right to protection against eviction and the right to food, which it found to be inseparably linked to the right to dignity of the human being. The Commission stated that the right to food was 'therefore essential for the enjoyment and fulfilment of such other things as health, education, work and political participation'. [23]

In one of its concluding observations, the Commission states the following: [24]

The uniqueness of the African situation and the special qualities of the African Charter on Human and Peoples' Rights imposes upon the African Commission an important task. International law and human rights must be responsive to the African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make it clear that there is no right in the African Charter that cannot be made effective. As indicated in the preceding paragraphs, however, the Nigerian government did not live to the minimum expectations of the African Charter.

The Commission does not wish to fault governments that are labouring under difficult circumstances to improve the lives of their people. The situation of the people of Ogoniland, however, requires, in the view of the Commission, a reconsideration of the government's attitude to the allegations contained in the instant communication.

9.  Conclusion

Let me conclude by pointing to what the African Commission has been able to achieve in the last 20 years in its findings and conclusions based on the facts submitted to it by the individuals against whom violations were committed. I must pay tribute to the NGO community for ensuring that the communications procedure became operational. The NGO community in Africa and beyond has become a major stakeholder in the work of the African Commission. NGOs have contributed towards the recognition of the rights enshrined in the African Charter. The development of the African Commission's jurisprudence would not have been possible without the proactive role played by NGOs in ensuring that communications alleging violations were submitted to the Commission, in most cases on behalf of individuals and groups of peoples who on their own could not reach the Commission.

It is imperative that, notwithstanding the operationalisation of the African Court, the African Commission continues to discharge its mandate under the African Charter. The challenges highlighted above need to be addressed by the state parties to the African Charter, the AU and the African Commission itself. The African Charter remains unknown to many people on the continent, let alone policy makers in governments. The promotional mission of the Commission therefore remains very important to ensure that the people of Africa are aware of the rights guaranteed under the African Charter. State parties need to live up to their commitments under the Charter.

The rights guaranteed under the African Charter will be realised only if concerted efforts are made at every level to disseminate the Charter through schools and academic institutions, conferences and symposia. This will ensure that the African Charter and other human rights instruments are known and respected by citizens and government officials alike. This can only happen if state parties and the AU Commission ensure that the necessary resources are made available for human rights education, and if state parties and the African Commission conscientiously discharge their responsibilities and obligations under the African Charter.

It is my hope that these challenges will be addressed so that 20 years on, the human and peoples' rights on the continent will be respected and guaranteed for every individual in Africa, as envisaged under the African Charter.