The African Commission on Human and Peoples’ Rights

The African Charter• Entered into force on 21 October 1986• Aims to reflect the “historical tradition and values

of African civilization” (Preamble)• Unique features:– Recognises rights of peoples, such as rights of all

peoples to self-determination and right of peoples to freely dispose of natural wealth

– Emphasises the duties of individuals towards the community and state

– Gives people fleeing persecution the right to obtain asylum (and not just to seek it)

Civil and Political Rights• The majority of universally accepted civil and political rights

are contained in the Charter:

– freedom from discrimination (Articles 2 and 18(3))– equality (Article 3)– life and personal integrity (Article 4)– freedom from slavery (Article 5)– freedom from cruel, inhuman or degrading treatment or

punishment (Article 5)– rights to due process concerning arrest and detention

(Article 6)– right to a fair trial (Articles 7 and 25)

Civil and Political Rights

– freedom of religion (Article 8)– freedom of information and expression (Article 9)– freedom of association (Article 10)– freedom of assembly (Article 11)– freedom of movement (Article 12)– freedom of political participation (Article 13)– the right to property (Article 14)

Protocols that Expand the Charter Rights

• Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2005)

• African Union Convention on Prevention and Combating Corruption (2003)

• African Charter on the Rights and Welfare of the Child (1999)

Statements that Expand the Charter Rights

• Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003)

• Declaration of Principles on Freedom of Expression in Africa (2002)

• Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines) (2002)

• Principles and Guidelines on Economic, Social and Cultural Rights (2010)

Other International Law and Principles

• The Commission “shall draw inspiration from international law and peoples’ rights” (Article 60)

• The Commission shall take into consideration “other general or special international conventions” (Article 61)

Claw-back clauses

• Sir Dawda K. Jawara v. the Gambia Communication No. 147/95-149/96

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

• See also Media Rights Agenda and Others v. Nigeria Communication No. 224/98

Who can bring a Complaint?

• Individuals and NGOs (Article 55)Ordinarily, the author should have the consent of the victim. However, when it is impossible to get consent, the Commission might waive this requirement (See e.g., Article 19 v State of Eritrea, Communication No. 275/03); and Interights & Ditschwanelo v Botswana, Communication No. 319/06)

• It is possible to bring a class or representative action

• No need for observer status – anyone can simply write in a communication

Admissibility: Article 56

Cases must:

• Indicate their authors even if authors request anonymity• Be compatible with the Constitutive Act of the AU or with

the present Charter• Not be written in disparaging or insulting language directed

against the State concerned and its institutions or to the AU• Not be based exclusively on news disseminated through the

mass media• Be sent after exhausting local remedies, if any, unless it is

obvious that this procedure is unduly prolonged

Admissibility: Article 56(5)

• Any local remedies must be “available, effective and sufficient”

• See Majuru v. Zimbabwe and Jawara v. the Gambia – A remedy = “available” if the petitioner can pursue it

without impediment– A remedy = “effective” if it offers a reasonable prospect

of success– A remedy = “sufficient” if it is capable of redressing the

complaint

Available?

“One purpose of the exhaustion of local remedies requirement is to give the domestic courts an opportunity to

decide upon cases before they are brought to an international forum, thus avoiding contradictory judgements of law at the national and international levels. Where a right is not well provided for in domestic law such that no case is

likely to be heard, potential conflict does not arise.”

(Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria Communication No. 155/96)

Effective?

• Local remedies must be actually attempted: the complainant cannot rely on past or other experiences for not attempting

• In Article 19 v. Eritrea, the Commission held that “it is incumbent on the Complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of local remedies. It is not enough for the Complainant to cast aspersion on the ability of the domestic remedies of the State due to isolated incidences”.

“It is not enough for a Complainant to simply conclude that because the State failed to comply with a court decision in one instance, it will fail to do comply in their own case. Each case must be treated on its own merits. Generally, this Commission requires Complainants to set out in their submissions the steps taken to exhaust domestic remedies. They must provide some prima facie evidence of an attempt to exhaust local remedies.” Chinhamo v. Zimbabwe

Sufficient? Civil v Criminal Remedies

• Are civil remedies sufficient where violations constitute serious criminal offences? See Gok and Guler v. Turkey; Assenov and Others v. Bulgaria

• No obligation to engage in private prosecution – Zimbabwe NGO Forum v. Zimbabwe

• Civil remedies insufficient – Al Kheir v. Egypt

Admissibility: Article 56(5)

• Exceptions to Exhaustion of Local Remedies Rule:– Unduly prolonged remedies (e.g. appeal pending for

12 years or election petition pending for four years) – Element of fear – fleeing one’s country – Jawara v. the

Gambia, but see later Majuru v. Zimbabwe, Chinhamo v. Zimbabwe – burden of proof stricter

– Situation of serious or massive violations (complainant must demonstrate nature and scope of the violation – for example, that there are so many victims and the violations are so serious that it is impractical to try the claims before domestic courts)

Admissibility: Article 56(6)

Cases must:• Be submitted within a reasonable period from

the time local remedies are exhausted, or from the date the Commission is seized with the matter

- No clear interpretation of “reasonable period”- Advisable to submit as soon as possible

Admissibility: Article 56(6)

• Communications inadmissible after: – 22 months (Michael Majuru v. Zimbabwe Communication No.

308/05)“Even if the Commission accepts that he fled the country and needed time to settle, or that he was concerned for the safety of his relatives, twenty two (22) months after fleeing the country is clearly beyond a reasonable man’s understanding of reasonable period of time.”

– 31 months (violations in Darfur) (Darfur Relief and Documentation Centre v. Sudan Communication No. 310/05)

– 11 years (legality of death by hanging ) (Southern Africa Human Rights NGO Network and Others v. Tanzania Communication no. 333/06)

• Commission treats every case on its own merit depending on the reasons given for the delay

• Try to file within six months

Admissibility: Article 56(7)

• Communications will be considered if they:“Do not deal with cases which have been settled by those States involved in accordance with the principles of the Charter of the United Nations, or the Constitutive Act of the AU or the provisions of the present Charter.”

Merits

• Once a communication is declared admissible, the Commission proceeds to consider the substantive issues of the case

• According to Rule 108 of the Commission’s Rules of Procedure:– The complainant should respond with the arguments on the

merits within 60 days – The respondent State party has a right of reply for 3 months

after receiving the complainant’s arguments on the merits– The complainant then has 30 days to respond to the State’s

arguments

Remedies

• Remedies are determined by what the complainants request in their communication

• In order to encourage the Commission to specify a remedy, complainants must clearly request a remedy and justify why it is appropriate

Types of Remedies

• Civil Liberties Union v Nigeria: repeal of decrees/laws

• Amnesty International v. Zambia: permit deportees to return to the country

• Modise v. Botswana: granting citizenship• Other remedies:– Reforming electoral laws– Moral satisfaction– Compensation

Recommendations (or Decisions)of the Commission

• Commission’s final decisions are called recommendations

• Recommendations are made after consideration of the facts submitted by the author, the State party’s observations (if any) and the proceedings before Commission

Recommendations (or Decisions) of the Commission

• The recommendations remain confidential until they are adopted by the Assembly of the Heads of State of the AU at its annual meeting (Article 59)

• The complainant then receives a letter from the Secretariat of the Commission with the decision

Enforcement

• Commission is quasi-judicial body – final recommendations are therefore not legally binding

• The enforcement of the Commission’s decisions depends entirely on the good will of the offending State

• The commission usually requires the State to inform it, within 180 days, of the measures taken to implement the recommendations

Enforcement

• It is left to the complainant to come up with a strategy to ensure enforcement

• Institutions best placed to undertake enforcement:– Executive – proposing, changing laws– Courts – for freeing detainees, determining quantum of

awards– National human rights institutions – for

recommendations on compliance- Cases can be brought by the Commission to the

African Court for non-enforcement if the State has ratified the Protocol

Important cases• Social and Economic Rights Action Center (SERAC) and Center for Economic

and Social Rights (CESR) v. Nigeria, Communication No. 155/96 (2001)• Centre for Minority Rights Development (Kenya) and Minority Rights Group

International on behalf of Endorois Welfare Council v. Kenya, Communication No. 276/03 (2009)

• Egyptian Initiative for Personal Rights and Interights v. Arab Republic of Egypt (Taba Case), Communication No. 334/06 (2011)

• Zimbabwe NGO Forum v. Zimbabwe, Communication No. 245/02 (2006)• Egyptian Initiative for Personal Rights and Interights v. Egypt (Al Kheir

Case), Communication No. 323/06 (2011)• Katangese Peoples' Congress v. Zaire, Communication. No. 75/92 (1995)• Givemore Chari (represented by Gabriel Shumba) v. Zimbabwe,

Communication No. 351/07 (2012)