The concept of human rights is at the center of Africa’s
contemporary jurisprudence and has steadily become a much talked about topic in
modern times in various countries. There are lots of debates on a daily basis
from every end of the continent in local and international platforms about
human rights and as it stands, and no country wants to be left behind in the
debate. However, the big question is whether the debates produce effective
results aimed at the respect and promotion of human rights in general or at
best whether or not these countries conform to the human rights standards and
norms. The fathers of Africa had envisaged a continent where peace, unity,
solidarity and fraternity would bind the common purpose of the African man and
that is why, they collectively decided to come up with the idea of having one
body that will achieve these ideals. They formed the Organization of African
Unity which was later became known as the African union (AU).
The African Union was established by Article 2 of the Constitutive
Act of the African Union with a specific aim of promoting peace and security in
Africa[1]. The
AU is comprised of 55 countries of Africa with Morocco being the last to join
in June of 2017. In order to achieve these ideals, the constitutive act, goes
further to create three specific organs within the union such as; the Assembly
of Heads of State, the African Union Secretariat and the Executive council.
These three organs have specific mandates as such; the AU Assembly is the
supreme organ of the union comprised of heads of state of all member states
charged with the mandate of overseeing the functioning of the organization. The
AU Secretariat has the mandate to operate as secretariat of the AU based in
Addis Ababa Ethiopia while the Executive council is charged with making
decisions concerning policies that are of interest among member states of the
African Union. The act equally guarantees human rights[2] in
the continent and that is why the union came up with the idea of having a
charter which went further, to establish an independent judicial institution
from the AU per se. The institution was established to hear matters of human
rights violations committed within member states called the African commission
on Human and peoples’ rights. To further ensure that, the rights of citizens in
Africa are effectively safeguarded to a greater extent, a protocol to the
African Charter was adopted and creating a Human Rights court called the
African. The court was created to complement the works of the commission even
though it comes with a specific mandate which is still in line with the Mandate
of the commission.
The efforts made by the AU to see a continent where human rights
are respected, promoted, protected and fulfilled, necessitated the organization
to extend its vision towards creating specific human rights instruments and
mechanisms to deal with specific violations such as; The African Charter on the
Rights and welfare of The Child[3]
and the protocol to the African Charter on the Rights of a woman also known as
the Maputo Protocol[4].
These instruments are unique because they carry in them specific provisions
that deal particularly on child and women rights issues as human beings who are
pruned to vulnerability. The Maputo protocol is Suis generis when
compared to other treaties that deal with women rights issues across the world
because it makes specific safeguards about women rights such as women’s sexual
and reproductive rights. The objectives of the African children’s charter are
very well achieved due to the adoption of the protocol to the African children’s
charter which created the African committee of Experts for the rights and
welfare of the Child (ACERWC) to hear specific cases involving violations of
children’s rights in Member states.
There are other regional human
rights mechanisms in Africa that go alongside to achieve the grand objectives
of the African Union. They include the ECOWAS Community Court, the Southern
African Development Community (SADC) tribunal, and the East African Court of
Justice (EACJ). Among these three, only the ECOWAS court has in its mandate,
jurisdiction to hear human rights cases brought before it by individuals, NGOs of
member states of the ECOWAS bloc[5].
Tribunals like the SADC had
ousted the human rights jurisdiction of the court after a controversial
decision was passed against Zimbabwe in the case of Mike
Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe[6].
In that case, the SADC tribunal delivered a judgment against Zimbabwe by
holding that it refused the Applicants-white farm owners the opportunity to
seek remedies from local courts. Zimbabwe rebelled against the decision and in 2012;
the
SADC Summit of Heads of State revised the Protocol and limited the court’s
jurisdiction only to hearing matters of dispute between members of SADC.
The
EACJ equally has no competence to entertain human rights cases apart from
disputes between member states. However, the
EACJ has in some rare circumstances decided cases of human rights violation
while invoking Artcile27 (1) of the treaty creating the court. In Katabazi v. Secretary General of the East
African Community. The EACJ held inter alia that “jurisdiction with respect
to human rights requires a determination of the Council and a conclusion of a
protocol to that effect. Both of those steps have not been taken. It follows,
therefore, that this Court may not adjudicate on disputes concerning violation
of human rights per se.” However, “…it will not abdicate from exercising its
jurisdiction of interpretation under Article 27(1) merely because the reference
includes allegation of human rights violation.”
THE WORKING
OF THE AFRICAN COMMISSION
As
already mentioned above, the African commission of human and peoples’ rights
hereinafter referred to as the commission, is an independent institution of the
African union. It is created by article 30 of the African Charter and was
adopted in 1981 in Banjul. That is why it is often referred to as The Banjul
Charter which later came into force in November 2 1987. It is composed of 11
commissioners elected by the AU assembly of Heads of state and each
commissioner is nominated by a member state to serve in the commission for 6
years term but once elected; they act independently in individual capacities
and not as state representatives to the commission. They are eligible to
re-elections to uncounted number of times and the commission is headed by a
chairperson.The charter requires the commission to hold at least 2 ordinary
sessions yearly. It is equally empowered to hold several extra-ordinary
sessions which must be summoned by the chairperson on the request from majority
commissioners or from the AU Commission Chairperson.
The charter creating the
commission conferred on the commission four specific mandates such as to; interpret
the African Charter, promote human rights of individuals and peoples, protect
human rights of individuals and peoples and to perform any task(s) that has
been assigned to it by the Assembly of Heads of states.
Under its mandate to interpret,
it means the commission is charge with the duty to interpret various articles
and provisions of the African Charter on instruction from any AU organ, member
states, the court, or the committee.
The commission has an interesting
pattern by which it promotes human rights across the continent; i.e. by
creating special mechanisms on various human rights issues in the form of
working groups, committees, appointing special Rapporteurs detailed work on the
human rights situation of specific countries, etc. These avenues have their
defined mandates and they are charged to report back to the commission on their
work and activities.
The mandate of protection is a
very fundamental one as it stretches on the aspects of remedying alleged
violations to victims. In this regard the commission has devised various ways
to achieve this mandate such as sitting as a forum to hear violation cases by receiving individual complaints from
victims or from NGOs and even member states themselves, Obliging states to file
reports on the human rights situation of their countries and equally requiring
NGOs with observer status before it, to prepare alternative reports presented
by states in order to have a balanced picture with the reports presented by the
state, the NGOs and even the special Rapporteurs.
Another aspect of protecting
human rights under this very mandate is carrying up implementation follow-up
with countries that have been delivered judgment against them. Even though the follow-up
mechanism is not very effective as at now, it is worthwhile because it
demonstrates the commissions commitment into ensuring that the recommendations
that it makes are not just rendered nugatory. In situations where a violation
is ongoing while the suit is pending, the commission can grant provisionary or
interim measures that aim at maintaining the status quo pending the hearing and
determination of the case before it. Such measures are mandatory especially in
situations where failure to do so will lead to irreparable damage.
The above analysis is just an
explanation on the various African Human rights mechanisms. Nothing has been
mentioned so far about their operations and rules of procedure. It should be
noted that, each of these mechanisms above function in a specific manner under prescribed
rules of procedure for each. They have heard and determined series of human
rights cases in Africa and have so far produced reach jurisprudence in human
rights law in Africa. In some of the mechanisms such as the African commission,
the court and the committee, there is a special admissibility requirement for
complaints filed before it i.e. that local remedies must be exhausted before
the case can be seized at the international level. The local remedy requirement
does not however apply with the ECOWAS court.
There is equally an extra-rule in
the African court that, before the court can be seized, in addition with the
rule to exhaust local remedies, the complainant must satisfy the court that,
the member state has ratified the treaty creating the court and made the
special declaration accepting the jurisdiction of the court to allow individuals
and NGOs to take individual cases to the court according to Article 34(6) of the Protocol. This
condition has made access to the court very difficult due to the fact that out
of the 55 countries of the African Union, only 30 states have ratified the
protocol and only 8 of the 30 have signed the declaration. Rwanda signed the
declaration and later withdrew it meanwhile in the 61st Ordinary
session of the African Commission held in Banjul, the President of the Gambia
Adama Barrow, made a pronouncement that the Gambia government shall make the
declaration but of which since then, such declaration has not been made.
Therefore as it stands today, States that have made the declaration
are: Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Tanzania, and
Tunisia.
Author
Ashu Hailshamy ESQ.
(LL.B Hons, B.L Hons)
Barrister & Solicitor of The Supreme Court of
The Gambia
Legal Intern, Institute for Human Rights and Development
in Africa (IHRDA)
949 Brusubi Layout, AU Coastal Highway
P.O. Box 1896, Banjul, The Gambia
Email:
ashu.shamy@yahoo.com
[1][1] The Constitutive Act of the AU
available in http://www.achpr.org/instruments/au-constitutive-act/#3
[2] Per Article 3 (a) of the
Constitutive Act of the AU “ The objectives of the union shall be to : …Promote
and protect human and peoples' rights in accordance with the African Charter on
Human and Peoples' Rights and other relevant human rights instruments”
[3] Adopted on July 01, 1990 and came into force on November 29, 1999
available at
https://au.int/en/treaties/african-charter-rights-and-welfare-child
[4] Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa (adopted 13 September 2000,
entered into force 25 November 2005), OAU Doc. CAB/LEG/66.6 [hereinafter Maputo
Protocol], available at https://au.int/sites/default/files/treaties/7783-sl
protocol_to_the_african_charter_on_human_and_peoples_rights_on_the_rights_of_women_in_africa.pdf
[5] The
ECOWAS Court was conferred jurisdiction to determine cases of human rights
violations that occur in any Member State pursuant to the supplementary
Protocol A/SP1/12/01 on Democracy and Good Governance 2005.
[6](2008)
SADC Tribunal, Mike Campbell (Pvt) LTD and Others v. Zimbabwe, Case No. SADC
(T) 2/2007 (Case No. 2 of 2007), Main Decision of 28 November 2008, available
at http://www.saflii.org/sa/cases/SADCT/2008/2.pdf.
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