The African Charter on Human and Peoples Rights: The System in Practice 1986–2006

- The African Charter on Human and Peoples' Rights, 2nd Edition: The. System in Practice Edited by Malcolm Evans and.
Table of contents

Contributors include experts who have been actively involved in the implementation of the Charter - commissioners, NGOs and academics. Offering a detailed evaluation of the Charter as a mechanism for the promotion and protection of human rights in Africa, the contributions cover the Charter's reporting system, the interpretation of different rights by the Commission, the prospects for the African Court on Human and Peoples' Rights and the role of NGOs.

This authoritative and comprehensive volume will interest lawyers acting for government and non-governmental organisations, as well as academics and postgraduates. Read more Read less. Prime Book Box for Kids. Cambridge University Press; 2 edition February 17, Language: Related Video Shorts 0 Upload your video. Try the Kindle edition and experience these great reading features: Share your thoughts with other customers.

Write a customer review. There was a problem filtering reviews right now. Please try again later. When human rights activists talk about international human rights law, they often look to the EU or the UN. Yet, as this book discusses, Africa has a very rich human rights treaty system including a new continental court.

The African Charter on Human and Peoples' Right 1987-2000: An overview of its progress and problems

The book combines a textual analysis of the treaties, jurisprudence, and practical experience to provide a nuanced and realistic assessment of the human rights mechanisms, the African Human Rights Commission, and the state of first and second generation rights. Hopefully more activists and legal scholars will look to this book and try to make use of the continent's own human rights law to address human rights problems in Africa.

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Firstly, although the Commission has started to lay down clearly at the end of some of its decisions what action is required of the state, [63] this is not done consistently. Without a clear indication of what is required it is arguable that the state may feel less pressure to respect the Commission's ruling and there is also no benchmark against which to assess any response it might make.

In addition, there has been no attempt by the Commission to check whether its rulings have been implemented or not. Certainly, there does not appear to have been any follow-up or supervisory function undertaken by the OAU organs. The Commission submits its annual report to the OAU before it can be made public.

In previous years little discussion was ever taken on the contents of the report at this level.

The African Charter on Human and Peoples' Rights

There have now been improvements, with debate taking place at the meetings of the Council of Ministers. Article 58 enables the Commission to alert the Assembly of Heads of State and Government to situations of serious or massive violations, with the possibility that the latter will request the Commission to undertake. Without such a mechanism, the Commission often believes its job is finished once the decision is published, the communication does not get the necessary publicity, and it is not clear whether the victims received the remedy they deserved.

The issue of publicity is particularly important. The Commission has developed a practice of publishing its decisions on communications in detail in its activity reports. Unfortunately, these reports are not disseminated widely. Those working closely with the Commission obtain them relatively easily, but there is no website for the Commission and no press release accompanying the adoption of decisions, for example. Although the reports are not withheld by the Commission and can be found in various other places on the internet [66] and obtained from various individuals, there is no coherent policy by the Commission of disseminating them at all levels, national, local and international.

Few international bodies are aware of the Commission's decisions and the extent to which African and other governments receive copies is not known. It appears that even some of the OAU organs do not necessarily receive a copy of the Commission's reports. This goes clearly to the heart of the effectiveness of the Commission's communication procedure and some improvements could be made with minimal cost. Many NGOs have offered to set up a website for the Commission and others have offered to work with the Commission to publish its documents.

Although a website is clearly inadequate for dissemination in all circumstances, particularly at the local level, it would be a useful starting point. What is hampering such efforts is the reticence of the Commission to distribute its material, which is difficult to explain sometimes. It is submitted that there is a perception among the Commission that at present documents are controlled and that if they were widely disseminated the Commission would be opening itself to criticism and. The lack of dynamism and sometimes confidence of the Commission in its own powers and functions, which is due in part to the lack of independence of some of its members, is most apparent here.

The System in Practice 1986–2006

As a result, there is little interest in or attention paid to its work in the international arena. Rarely is the work of the Commission mentioned in detail in leading international textbooks, drawn upon by other international human rights bodies, or discussed in any meaningful way. The Commission is thus depriving itself of the respect it could have and the resultant impact that this would have on states to comply with its decisions. Under article 62 of the Charter states are obliged to submit reports every two years on the legislative and other measures taken to implement the Charter.

As with other international reporting mechanisms it is clear that states are behind in their obligations. Even where reports have been submitted the procedure by which they are examined could be improved. States are invited to send a representative to the session, where questions are posed by Commissioners. Although these questions are increasingly focused, drawing upon information received from other sources, there is still not the 'constructive dialogue' the Commission says it is aiming for. The combination of all these difficulties means that the Commission does not really monitor the ongoing situation in states through this mechanism.

African Human Rights Law Journal (AHRLJ) - Murray, R

Other methods available include the regular item on the agenda on the human rights situation in Africa. At one stage the Commission produced a document summarising some information but with no clear indication of its subsequent action. Article 46 [73] either in conjunction with or separate from article 58 [74] could be used by the Commission to undertake a study on a particular country on its own initiative. So far, however, it has not exploited these provisions.

A positive development is that Commissioners have started to use their promotional functions more effectively. Commissioners are assigned particular countries for promotion. Often this means merely visiting the country. However, Commissioners have recently produced detailed reports of promotional visits [75] with clear indications of action taken by them in relation to the authorities. All these mechanisms provide the Commission with an opportunity with which to monitor the situation in a state, but it is regrettable that so far the Commission has not used them to their full potential.

A dynamic Commission, composed of individuals committed to human rights, would go some way to ensuring that these resources are employed appropriately. This reactive rather than proactive attitude of the Commission impacts on its work with NGOs. The awareness of the Commission of this source of support has led it, on many occasions, to place the blame for its inaction on the failure of NGOs to support it.

NGOs are expected to partner the Commission when it comes to holding seminars and to find the funding. While this might be realistic to a certain extent, it has resulted in the Commission almost abdicating any responsibility for its actions, or inaction. This Commissioner has been in the post for six years, but so far nothing.

He has failed to visit countries, specifically Rwanda and Burundi, and failed to establish the database of victims or intended compensation fund. The Special Rapporteur on Women's Rights has also attributed her inability to function to the lack of funding, again calling on NGOs to live up to their commitments. There must be a change in attitude from the Commission. While it is important that human rights promotion and protection are seen as the responsibility of all individuals and organisations, the status of an international institution such as the African Commission puts it in a powerful position to take a proactive role.

The Commission should be exploiting its position, not hiding behind NGOs for its failure to act.


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Some recent developments suggest other influences on the Commission may become increasingly important. The Commission has recently formalised its relationship with these institutions, adopting criteria for them to apply for 'affiliated status' and thus participate and speak at its sessions. The Commission has at least recognised the difficulties of ensuring that such institutions are not just another arm of the government by requiring in its criteria that there is adherence to the Paris Principles.

At its 28th session it heard from the institution in Niger and condemned the interference in its work by the government. How the Commission's relationship with such institutions will develop in the future is not clear. Obviously such institutions could have an influential role and provide support for NGOs, as long as the Commission ensures that only independent bodies are accepted. If it chooses to accept bodies closely tied to the governments, however, the Commission will have to contend with pressure from two government sources, influence which it might not be able to resist.

Several issues were controversial in the drafting of the Protocol, most notably whether individuals and NGOs should be able to submit a case to the Court directly, its relationship with the Commission, and also where the Court should sit. These provide that the Commission, the state party which lodged a complaint, the state against which a complaint was lodged, and the state whose citizen was a victim and African intergovernmental organisations are entitled to submit cases to the Court. Article 34 6 additionally requires states which have ratified the Protocol to make a declaration saying that they accept the jurisdiction of the Court in those circumstances.

It is thus not clear exactly what standing NGOs and individuals may in fact have. The relationship with the Commission is not fully clarified by the Protocol. The Preamble notes that the establishment of a Court is necessary to 'complement and reinforce the functions' of the Commission and article 2 states that the Court should, in carrying out the Protocol 'complement the protective mandate' of the Commission.

Thus it would appear that the Commission will continue to be solely responsible for promotion. Article 4 prohibits the Court from giving an advisory opinion on a matter that is presently before the Commission. Article 8 requires the Court to have regard to the 'complementarity between the Commission and the Court' when determining its Rules of Procedure.

Article 29 requires that the Court transmit its judgment to the Commission, among other things. However, when contentious cases will go to the Court is not clear. Article 5 1 a enables the Commission to submit a case to the Court, but article 6 1 states that the Court will have a role in decisions on admissibility.

This provision notes that 'when deciding' on admissibility the Court 'may request the opinion of the Commission which shall give it as soon as possible'. Further, article 6 3 enables the Court, under issues of admissibility, to 'consider cases or transfer them to the Commission'. The Commission has been talking for some time about holding an extraordinary session to consider this relationship, but so far no date or firm arrangements have been made.

There is no reference in the Protocol and still no consensus on where the Court will sit. Then only will it be necessary to determine whether the Court and Commission should both sit in The Gambia or elsewhere, requiring the difficult political decision of moving the Commission. Alternatively, it will need to be considered whether the Commission should remain in The Gambia and the Court placed elsewhere, a decision which has considerable significance for their future relationship.

Behind the Commission and central to its functioning lies the OAU. The African Charter expressly notes the central role played by the OAU and its organs in the funding and functioning of the Commission. However, given the changes with the adoption of the Constitutive Act of the African Union and the increased attention paid to human rights, at least in its provisions, [91] it is possible that this relationship will become more important.

The Commission and OAU could collaborate on various issues. The Commission has for years discussed the possibility of an early warning mechanism, with former Commissioner Umozurike proposing a nine-point plan at a seminar on the issue. The OAU's Conflict Mechanism has an early warning system, also in its early stages, but there has been no attempt to connect the two. Similarly, the African Commission has recently paid attention to refugees.

The OAU's Refugee Division was suggested as a possible partner, but the Commission chose to determine its own procedures first before collaborating with the Division. Thus, both the Commission and the various OAU organs have been unwilling to forge close relationships. Certainly, when advocating closer involvement with the OAU one must bear in mind that there may be unwanted political influence.

But a balance can be struck whereby the OAU provides the Commission with the support necessary to carry out its functions, such as appointing adequate and effective staff committed to the cause of the Commission, and taking an increased interest in and contributing to the publicity of its documents and work.

An examination of the evolution of the African Charter since its inception clearly shows that it has developed procedures and frameworks which could enable it to be a dynamic and effective system. Unfortunately, the members of the Commission so far, in general, have not felt able or willing to exploit these possibilities.

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The result is an organisation which is undertaking important work, has special rapporteurs on important themes and is adopting radical and progressive jurisprudence, but which seems to want such activities to remain secret and not scrutinised by any other than the small group of NGOs and those who regularly attend its sessions. This is depriving the local and international community of its contributions and the necessary publicity to pressurise governments to respect its decisions. Every individual may freely take part in the cultural life of his community.