Circumventing obstacles to the implementation of recommendations by the African Commission on Human and Peoples’ Rights

2.1 Institutional credibility versus state sovereignty

For some 30 years, the human rights commitment of the African Commission and state parties has been anything but mutual and quite often at a distant parallel. The obligation of states as primary implementers of human and peoples’ rights and the responsibility of the Commission as monitor are always in constant friction. The implementation of the African Charter marked by perplexing contradictions, thereby causing its intended beneficiaries to suffer considerably. It is ironic that while there has been nearly one hundred per cent ratification of the Charter by African states, this has not necessarily matched compliance.9 African states have neglected to channel the same speed and energy with which they subscribe to international instruments, into domestic action for better human rights results. The rush in treaty adoption is very quickly decelerated by domestic inaction. Several reasons explain this unpleasant trend.

The African Commission, for one, is not a judicial body and does not have a status that is equal to a continental court of law such as the African Court. It is only a quasi-judicial body and its decisions and recommendations often are conceived of as not binding on state parties. This reality evidences many a scenario where state parties found culpable under the African Charter and supplementary instruments do not comply with its decisions and recommendation and do so without the slightest consequence.10 Despite the African Commission’s international status, independence, high moral fibre and impartiality, it has had more than a fair dose of determined resistance from states. With a natural penchant for suspiciously holding tenaciously to their sovereignty in the face of internal infractions, the idea of constantly being told what to do by a panel mandated to monitor human rights compliance in Africa, may be a hindrance to states. However, the blatant disregard for a continental institution of the Commission’s calibre without a feel of the ‘heat’, if not some ‘burns’, from the AU, exacerbates an already-growing culture of impunity and fatal abuse of continental principles and institutions.

It cannot be true that the African Commission is not worthy of support and commendation. During the discharge of its arduous mandate over the years, the Commission has steadily evolved as an apparatus for entrenching human rights and democratisation in Africa. By subtly but increasingly ‘bending the arm’ of repressive African states through its promotional, protective and interpretive authority, it tends to realise, on an ongoing basis, the goal of fostering a human and peoples’ rights culture in Africa. As seen in the classic cases of Centre for Minority Rights Development v Kenya ( Endorois case),11 Purohit v The Gambia ( Gambian mental health case),12 International Pen & Others ( on behalf of Saro-Wiwa ) v Nigeria ( Saro-Wiwa case)13 and Socio-Economic Rights Action Centre (SERAC) v Nigeria ( SERAC case),14 it tends to beam its searchlight on errant states to assess their conduct vis-à-vis the demands of the African Charter. The avalanche of high-profile decided cases is evidence of its determination to break through the sacred curtains of state sovereignty, to tread uncharted grounds, to interrogate spaces previously jealously guarded by states, and to pronounce on issues that states previously considered as being exclusively their internal affairs. As the African Commission rightly noted in Article 19 v Eritrea ,15 the African Charter would be rendered meaningless if states were permitted to construe its provisions in a manner that limits or negates its substantive guarantees. Consequently, even if to a lesser extent, the Commission’s naming-and-shaming of states importantly reinforces the need to push states to act within the tenor of their obligations under international law. 16

It is generally acknowledged that the work of the African Commission is essential to the effective observance of human rights in Africa.17 However, as recognised by the OAU/AU Ministerial Conference on Human Rights, ‘the primary responsibility for the promotion and protection of human rights lie with the state’.18 This imperative makes the Commission an appropriate mechanism for continuous dialogue with African governments on the implementation of their article 1 obligation.19 The following two grounds clarify that by the nature and tenure of its establishing mandate, the Commission is (a) a necessary counter measure against repressive and abusive state conduct; and (b) a forum for continuous engagement and dialogue with state parties on the discharge of their article 1 obligation.

The activation of the African Commission in 1987 ushered in great expectations among keen human rights watchers. It signalled for the first time that the massive human rights violations that preceded the pre-Charter era would be rebuffed by a vigilant continental human rights watchdog. Several indices precipitated this rousing expectation. First, the formation of the African Commission was a breakaway from the past in terms of the OAU’s approach to human rights monitoring. The surge in civil wars and armed conflicts between the early 1960s and late 1970s, including the gross human rights violations perpetuated by Bokassa in the Central African Empire, Nguema in Equatorial Guinea and Idi-Amin in Uganda led to an unprecedented number of crises on the political and refugee fronts.

The OAU Assembly, as a necessary response, adopted the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1969 (OAU Refugee Convention) as a standard-setting measure to address the chaos and instability that came with the transnational exodus of people. However, although laudable in many respects, this response was inadequate and did very little to salvage the situation. Specifically, the OAU Refugee Convention, among other reasons, failed to accommodate a treaty mechanism that would have been responsible for monitoring compliance. With no monitoring body in place, the potential of the Convention as a catalyst for change in national laws and practices was immediately lost.20

Not surprisingly, at that time African states had little tolerance for human rights scrutiny. There was such a rigid attachment to the principles of sovereignty, territorial independence and non-interference in the internal affairs of member states, that it compounded the OAU’s ability to intervene during crises to prevent or curtail the deterioration of human rights.21 This leeway, sustained by the provisions of the OAU Charter, occasioned the ‘grandstanding’ of regimes notorious for perpetuating massive human rights violations and conflicts. In the face of brutal atrocities, the OAU stood idly by, while hapless victims had to bear the torrents of agony and pain meted out to them. However, criticism of the OAU’s position of indifference, coupled with pressures from the United Nations (UN), eventually led to the 1979 UN-sponsored Monrovia Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa.22 These spurred African states to action and to concede, to a limited extent, a portion of their sovereign authority, even if only pertaining to human rights-related matters. This series of events led to the African Commission’s creation under the African Charter.

Second, the attendant recognition of fundamental freedoms and the Commission’s establishment brought about a relative limitation of state sovereignty. It gave rise to the authority of the African Commission to monitor, identify and otherwise recommend action(s) that reasonably warrant African governments to address domestic human rights concerns. It signalled a new era of continental thinking and expectation from states in that it set the tone for domestic human rights conditions to cease to be entirely deferred to states. It also demonstrated that states were to be increasingly monitored by the Commission for better human rights compliance. Simultaneously, the Charter’s provision for Commission recommendations to not only states but also the OAU/AU Assembly manifestly opened up a possibility for decisive action by the OAU/AU should states fail to implement their article 1 obligation. This promising possibility, were it to be supported by the necessary political will of the AU Assembly, created room for a significant paradigm shift in the way state parties deal with the Commission’s recommendations and decisions. However, this has hardly been the case.

The African Charter’s one foot in the door of states’ sovereignty, nonetheless, has not prevented the Commission from reiterating the sovereignty principle in favour of states. In Gunme v Cameroon ,23 the Commission observed that while a state could not rely on the excuses of sovereignty and territorial integrity to ignore allegations of political or ethnic domination by one group over another, the Charter could not be relied on to threaten the territorial integrity and sovereignty of a state party.

Lastly, if status is a yardstick for compelling state compliance, then the African Commission’s institutional essence largely is reinforced by its competence and extensive mandate. It is composed of eleven commissioners selected from amongst African personalities of the highest reputation and proven credentials in terms of integrity, impartiality, high moral standing and competence in human and peoples’ rights. The commissioners are elected by the AU Assembly from a list of suitably qualified persons nominated by state parties to the African Charter. Commissioners serve in their personal capacity and no two commissioners may come from the same state. The kernel of these salient requirements is to have a commission that is not susceptible to national or diplomatic influence and cloaked with an international persona that commands the respect of all state parties. This intention is further illustrated by the Commission’s ability to make its own rules and regulate its own proceedings.

In terms of the extensiveness of its mandate, the African Commission is one of the very few mechanisms in the world responsible for monitoring all three generations of human rights at the same time. Consistent with the idea in the African Charter that all human rights are indivisible, interrelated, interdependent and justiciable,24 it has occasionally read into the Charter rights that are not expressly provided for, but which can be associated with existing substantive rights. As an apparatus for social change, the Commission presents a platform for supporting states in mainstreaming civil and political rights, socio-economic rights and development-related rights in domestic legislation. In the SERAC case, the Commission took a progressive approach towards the interpretation of the African Charter’s text when it held that ‘[g]overnments 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’.25 In that case, the Commission also took on the responsibility of locating the right to housing in the African Charter, even where no express provision was made for it. It held that although the Charter does not categorically provide for the right to shelter, this right could be deduced from the combined provisions of articles 14, 16 and 18(1) pertaining to the right to enjoy the best attainable state of mental and physical health, the right to property and the protection of the family. 26

One manifest burden on the African Commission is its inability to derive the much-anticipated results that regular dialogue with states should otherwise have afforded it. Despite the increasing need to foster state compliance through frictionless and non-combative channels,27 the goal of hosting fruitful state-commission engagement has not yielded the desired outcomes. Under the African Charter, states are invited to frequently engage with the Commission through the avenues of state participation, state reporting, promotional visits and communications, among others. These channels provide state parties with a veritable forum to frequently dialogue on the implementation of their regional and international obligations. To guide the engagement process, the African Commission has made comprehensive provisions in its revised Rules of Procedure of 2010 (Rules of Procedure) to not only facilitate state reporting and participation, but also to keep track of its recommendations.28

As a general principle under the Rules of Procedure, state parties may be invited to discuss any human rights issue that is of interest to them.29 Where they are not invited, they may request to participate and may propose the inclusion of matters in the African Commission’s agenda or merely join the session to enlighten the Commission on issues within their peculiar knowledge. However, the state reporting process and communications procedure, by far, are the most important contact points between the Commission and states. In the case of the reporting process, state parties are availed an important opportunity to redeem their reporting obligations under article 62 of the African Charter and article 26 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003 (African Women’s Protocol). To ease the process, the African Commission has laid down specific guidelines in addition to its Rules of Procedure on how national periodic reports should be developed and submitted.30 It has also issued further guidelines on how reports should be made on specific thematic issues such as socio-economic and women’s rights.31 After consideration of state parties’ reports, the Commission issues what are often referred to as Concluding Observations.32

In the case of communications, a similar stream of engagement is open to states.33 Under this channel, state parties may initiate inter-state proceedings against other states, have proceedings instituted against them by individuals, groups or non-governmental organisations (NGOs) for breaches of the provisions of the African Charter or may request to participate as amici curiae in proceedings in which they originally were not parties. The adversarial nature of proceedings originated by communications in no way diminishes the rapport between states and the African Commission. Given that the Charter encourages the amicable settlement of disputes, the Commission facilitates the settlement process and plays a key role in drawing up a memorandum of understanding between the parties.34 In Henry Kalenga v Zambia 35 the Commission amicably resolved a communication alleging false imprisonment against Zambia. This channel of engagement has equally been utilised by the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee). In 2016, the Children’s Committee brokered a landmark settlement between the Institute for Human Rights and Development in Africa (IHRDA) and Malawi.36 The IHRDA had sued Malawi because section 23(5) of the Malawian Constitution defined a child as any person below 16 years of age and was inconsistent with article 1 of the African Charter on the Rights and Welfare of the Child 1990 (African Children’s Charter), which defines a child as anyone below 18 years. Following agreement between the parties, Malawi undertook constitutional reforms to bring its definition of the child in line with that of the African Children’s Charter, thereby giving a striking example of circumstances where a state has employed the avenue of dialogue and constructive engagement to comply with its human rights obligations.

By itself, the African Commission’s quasi-judicial status is not as consequential as the wilful defiance by state parties, and the non-binding nature of its recommendations does not necessarily warrant the negative exercise of state discretion. Indeed, had the Commission’s interaction with states been productive, the chances of government reticence to recommendations after participating in the reporting process or the Commission’s contentious proceedings would have been less likely.37 In the face of their article 1 obligations, the non-bindingness of the Commission’s recommendation does not outrightly permit states that consciously participate in the reporting process to thereafter flout so-called ‘non-binding’ decisions and recommendations. If a state is bound by its commitments under a treaty, which in this case are the duties to protect rights, adjust its laws and policies and report on those measures, then it must not be allowed, after making a report, to plead non-bindingness . It is paradoxical to undertake obligations under a treaty and thereafter to refuse to comply with decisions which are made in furtherance of those undertakings. Such irony seriously affects the entrenchment of accountability in the African human rights system.

Indeed, different analytical approaches have been developed to explain why states comply with international law. For the purposes of this article, three approaches are identified, namely, the enforcement approach, the managerial approach and the process or social construction approach.38 Under the enforcement approach, while realists argue that state compliance is less likely to occur if the cost of compliance outweighs its benefits, rational institutionalists are of the opinion that the monitoring, sanctioning and adjudicatory mechanisms of international organisations and regimes add to the burden of non-compliance by states.39 On the contrary, the managerial approach contemplates that non-compliance is involuntary; that states often are not compliant with international law due to the limited resources at their disposal and, therefore, by no deliberate effort on their part.40 Scholars in this school argue that state compliance with international rules is not necessarily persuaded by the threat of sanctions, but through ‘the dynamic created by the treaty regimes’ to which states belong.41 To keep compliance at an acceptable level, they argue, states must be allowed to operate within the interactive process of constant dialogue among parties to the treaty, the treaty body and the wider public.42 However, social constructivists argue that compliance with international rules can occur only where they are domestically recognised by states through a ‘process’ of legitimacy, socialisation and internalisation.43

Intense contestations have emanated from these schools of thought as to why nations obey international law. Henkin states that with international law lacking an enforcement machinery, state implementation of international norms only occurs when it is in their interests to do so.44 This suggests that compliance occurs based primarily on moral, rather than legal, considerations. It is predicated on the assumption that nations ‘conform’ to rather than ‘obey’ international rules. Koh explains that a state’s compliance with international law, rather than an outright phenomenon, involves ‘the complex process of institutional interaction’ between global norms and domestic legal orders.45 He argues that compliance by states with international norms can best be understood by reference to the process by which they interact with international rules in a way that translates international obligations into action.46 However, there are those that argue that the ‘process’ argument does not sufficiently address the legal implications of state consent to a treaty. Under international law, the ratification of a treaty implies that a state agrees to be bound by its provisions and consequences and undertake to execute its provisions in good faith. This is understood by the Latin maxim pacta sunt servanda . According to Von Stein, the voluntariness of international treaties makes them legitimate and binding, and states are bound by the treaties to which they consent.47 Lister equally argues that since international law functions as a single system, ‘it must be consented to all together or not at all’.48 Hence, Guzman stresses that the importance of consent to the functioning of the system warrants that deviation from it must be carried out with caution. 49

Therefore, considerations of process as a reference point in the compliance dialogue cannot preponderate over the significance and implication of consent to be bound and to ensure domestic compliance. As will be explained below, further consent to the Constitutive Act and the African Court Protocol to be bound by decisions of the AU and the Court even further reinforces the obligations of states to ensure compliance or be sanctioned.

2.2 Connecting the broken link between the African Charter obligations and the mandate of the African Commission

The founding of the African Commission as a quasi-judicial monitoring mechanism under the African Charter does not from the outset sanction state defiance. This is implicit because the Charter evidences an inextricable link between its substantive provisions and the Commission’s mandate. The state obligation to be bound by the entire African Charter accordingly leaves no ostensible room for indiscriminate compliance, neither does it entertain subjective interpretations of the weight to be appropriated between its substantive provisions and the Commission’s recommendations. If a progressive interpretation of state parties’ omnibus obligations under article 1 is to be undertaken, then a favourable assumption can be made that the expectation of compliance with recommendations emanating from the Commission is implicit in that obligation. As such, by that article, states that have willingly asserted an intention to be bound by the Charter can arguably be understood to have invariably expressed a disposition to give positive, rather than dismissive, consideration to the Commission’s recommendations.

Several indices support the argument in favour of a comprehensive state duty - that is, the intention expressed at the time of ratification to recognise rights and be favourably disposed to the African Commission’s recommendations. First, under article 1 of the African Charter, state parties are obliged - not persuaded - to recognise the rights, duties and freedoms enshrined in the Charter and to undertake to adopt legislative and other measures to give effect to these.50 This prescriptive obligation is further enhanced by the similarly voluntary state undertaking to submit periodic reports on the measures so adopted every two years. Analogous obligations abound in the African Women’s Protocol, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa 2016 (Older Persons’ Protocol) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities 2018 (Disability Rights Protocol).51 It follows, therefore, that the threefold obligation to recognise the enshrined rights, to adopt measures that bring domestic law in consonance with treaty prescriptions and to make regular periodic reports, indispensably highlights the essence of the African Commission’s role in bringing about states’ compliance with the Charter and its supplementary protocols.

Second, in addition to its reporting function, the African Commission probes into human rights issues in Africa and makes recommendations to governments that require implementation at the national level. No mode of conducting human rights inquiries or investigations is specifically prescribed under the Charter. Rather, the Commission may make inquiries through ‘any appropriate method of investigation’, such as through document gathering, studies and research into human rights issues, seminars and symposia, fact-finding missions to the state concerned or the consideration of communications (complaints) submitted to it.52 Apart from inquiries of these kinds, it is also vested with the authority to formulate and prescribe rules and principles pertaining to human and peoples’ rights upon which African governments can, and often times should, legislate. To do this, the African Commission may act pursuant to an inquiry or a need merely to give normative clarification on any of the Charter provisions or its supplementary protocols.

In all this, the African Commission finds itself making some pronouncement which congruently eventually requires some state action. From the consideration of state reports, the Commission issues Concluding Observations; from inquiries, it issues reports; and from communications decisions (and accompanying recommendations). In all three categories of outcomes, the Commission makes some form of recommendation or decision which, to be effective, demands some ostensible conduct by state parties. The pertinent question that soon comes to mind is whether a state party to which the Commission has issued such a recommendation is bound to implement it. The answer, in this author’s view, is hardly a straightforward answer. Several considerations, rather than an outright ‘no’, will apply. While a state party is not automatically bound - on the surface of the plain text of the African Charter - to implement African Commission recommendations, it is bound by article 1. That commitment, arguably, is greatly complemented by the obligation to regularly submit periodic reports to the Commission, as a compliance monitor under article 62 of the African Charter and article 26 of the African Women’s Protocol.53 In effect, where a state fails to honour article 1 or any other treaty obligations, the African Commission can activate its ‘recommending’ power under article 45 of the Charter by making ‘concluding observations’ on potential measures to take to bring national action in line with the state’s international human rights obligations.

Third, it is possible to argue that the obligation to take not only legislative but also ‘other measures’ to give effect to the provisions of the African Charter in article 1 contemplates practicable measures suggested by the African Commission. If progressively interpreted, and it is hoped that the African Court will have a chance to make a pronouncement on the issue in the nearest future, ‘other measures’ as envisaged by the Charter cannot be divorced from measures which the Commission suggests after a thorough consideration of a state party’s report. Given its expertise and function, there is no doubt that it is in the most favourable position to recommend feasible and attainable measures that can help states comply with their obligations under the African Charter. Besides, by the tenure of article 45 of the Charter, it is a mandatory function of the Commission to ‘give its views or make recommendations to governments’. The use of ‘shall’ implies that the Commission’s duties under article 45 are not disjointed from the combined provisions of articles 1 and 62 of the Charter. Accordingly, it is suggested that the Commission’s responsibility to make recommendations necessarily emanates from its duty to monitor state compliance with their obligations under article 1 and to report on this under article 62. Consequently, the absence of a categorical statement in the Charter on the ‘bindingness’ of the Commission’s recommendations does not automatically imply that they are non-binding. Based on the above, it is inferred that state parties, nonetheless, cannot ignore such recommendations.

4.1 From non-binding recommendations to binding AU decisions

To circumvent the first hurdle of non-compliance, it is vital that the African Commission’s recommendations in its activity reports to the AU Executive Council and Assembly be considered and adopted as binding decisions of the Union.81 This is because under the African Charter, the Commission functions within the framework of the OAU/AU and is placed under the supervisory authority of the OAU/AU Assembly.82 The AU Assembly is the apex organ of the AU responsible for monitoring the implementation of AU standards, decisions and policies, and ensuring compliance by member states.83 It superintends the actions of all AU organs and bodies and takes final decisions on their recommendations. In relation to the Commission, the Assembly conducts several important administrative and supervisory functions. First, under the African Charter, the African Commission has an obligation to submit to the Assembly a repo