Rights & Democracy
Chapter 1 – The African System of Human Rights: Institutional Mechanisms And Their Interconnections
– Ndiaga Loum
More than 20 years after the adoption of the Charter of Human and Peoples’ Rights, the time has come to take stock. This is not an exhaustive review, but rather a critical analysis of the African human rights promotion and protection system, from its infancy to the present day.
This analysis will evaluate the effectiveness of the system, from the qualitative content of the Charter to the powers and limitations of the African Commission to guarantee respect for human rights, as set out by the Charter. Based on the lessons learned from this evaluation, we will address the question of the recent creation of the African Court on Human and Peoples’ Rights. Will it serve as a complementary mechanism for strengthening the protection system already in place? Or will it simply be one more institution created by states with a penchant for creating institutions, but little interest in providing real support to make them work?
The Content of the Charter
The Charter sets out two main types of rights: the rights of peoples and the rights of individuals.
The Rights of Individuals
These rights conform to international norms and should not be problematic. However, my concern is that certain fundamental individual freedoms will be treated as “poor cousins” on the pretext that they cannot be defended in the same way, given the context of powerful age-old traditions that prevent their effective exercise. This is the case for freedom of expression in relation to religion, as evidenced by the experience of Senegalese journalists in the context of the “brotherhoods.”1 However, other issues, such as sexual freedom in the form of homosexuality, for example, are more difficult to address through the prism of the universality of human rights; here, individual freedoms must navigate a sea of collective passions. Each time the issue is raised before an African human rights body such as the African Commission, there is a real struggle to achieve a calm debate that would make it possible to establish common legal ground.
The Rights of Peoples
Articles 19 to 24 guarantee rights such as the rights of peoples to equality and prohibit the domination of one people by another; the right to existence and self-determination; the right to sovereignty over their wealth and natural resources; the right to economic, social and cultural development; and the right to a satisfactory environment favourable to their development.
The category of “peoples’ rights” has been contested by certain “purists” within the legal profession who have failed to understand the importance of the concept of “people.” Others have argued that “people” must be defined in order to understand its inclusion in the African Charter, believing that it refers to different ethnic groups that live together within a state, referred to variously as “ethnic groups,” “tribes,” “clans,” or “societies.”2 The concept of “people” appears to be ambiguous under the Charter. Sometimes “people” refers to a group of individuals benefiting from universal suffrage within a given state, the citizens, the electoral body (articles 13 and 20 in the Charter3). The term also refers to “population,” which includes nationals and foreigners (articles 2, 12, and 21 of the Charter4); in other words, as “state” people.5 Oddly, it is also interpreted that “peoples’ rights” is merely a mathematical calculation, that is, simply a question of adding up the different rights of all of the individuals within a givenstate.
I argue, however, that this interpretation is rooted in a failure to understand two realities: firstly, a failure to understand the context in which the Charter was developed, that is, in a key period in the history of African nations, most of which, 20 years after independence, were still striving for greater autonomy. The greatest political expression of this desire was their participation in the non-aligned movement at the end of the 1960s; secondly, a failure to understand the political nature of the message the authors of the Charter were trying to convey, namely, that in the historical context, the Charter’s vocation could not be strictly legal (see its Preamble). At the time the Charter was written, South Africa, one of the most important countries in Africa from a strategic point of view, was still under racist colonial domination. This domination excluded the black majority from decision-making. The authors of the African Charter wished to remind the world that human rights were also the rights of the black peoples of South Africa to freedom from apartheid. The Charter forcefully highlighted the right of peoples to self-determination, and the jurisprudence of the African Commission has never stopped interpreting these terms as meaning the rights of different peoples within a state. In one of its reports, it stated, “the rights of all peoples of Rwanda.”6 In order to provide an interpretation of these rights and avoid any confusion, the African Commission had to affirm on several occasions that peoples enjoy the right to self-determination as they do all the rights guaranteed by the Charter, but that the exercise of these rights must not violate the territorial integrity of existing independent states. By stating this, the Commission wished to avoid a perverse or abusive use of the right to self-determination by a secessionist group to justify, for example, secession from an independent state. Any contradictory interpretation by the Commission would constitute a blank cheque for the plethora of secessionist movements in Africa to exploit the permeability of Africa’s fragile borders, inherited from the colonial era, in order to launch attacks against a country from the safety of a neighbouring country.
The African Commission: The First Mechanism for Monitoring the Application of the Charter
The African Charter established the African Commission on Human and Peoples’ Rights. Its mandate is to promote and protect the rights guaranteed under the Charter. The Commission is composed of 11 members elected by the Conference of Heads of State and Government of the African Union (AU). Once elected, these members serve as individuals. Article 36 of the Charter stipulates that the members of the Commission are elected for six years and may be re-elected. The Commission is assisted in its functions by a Secretary and a staff appointed by the Secretary General of the AU. The Commission’s Secretariat is located in Banjul, Gambia. If rights promotion is its primary function, rights protection is its “Achilles heel.”
The Missions Assigned to the African Commission by the African Charter
Article 45 of the Charter sets forth the African Commission’s functions, as follows:
a) Collect documents, conduct studies and research on African problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate information, encourage national and local human rights organizations, give its views or make recommendations to governments;
b) Formulate and lay down principles and rules aimed at solving legal problems related to the enjoyment of human and peoples’ rights and fundamental freedoms upon which African governments may base their legislation;
c) Cooperate with other African and international institutions interested in the promotion and protection of human rights;d) Ensure the protection of human and peoples’ rights under the conditions set out by the present Charter;
e) Interpret all of the provisions of the present Charter at the request of a state party, an institution of the AU or an African organization recognized by the AU;
f) Perform any other tasks which may be entrusted to it by the Conference of Heads of State and Government.
Note that there is no mention in the statements of the Commission’s power to sanction, a jurisdiction that has been amputated from its key functions. Despite this, if the unstated objective of the authors of the Charter was to make it more of a political organ that would correspond to the African culture of non-litigious conflict resolution, it is clear that the African Commission has been given a heavy load. Carrying out its mandate not only requires the political will of states to collaborate, but sufficient funding from the African Union to ensure that the principles laid out will not be empty ideals.
The Jurisdictions Assigned to the African Commission by the Charter
The African Commission has long found itself in a paradoxical situation: the scope of the missions with which it has been entrusted contrasts with the absence of a genuine power to sanction. It can observe rights violations, issue reports to the African Union and make recommendations to states, but it cannot guarantee an effective follow-up of its decisions and, ultimately, must turn for this to the Conference of Heads of State and Government. This absence of power to sanction or to compel disarms the jurisdictional function of this body so poorly known by African populations.
Moreover, the 11 commissioners of the Commission are not permanent and must often work at great distances. Given that they have to combine their function as commissioner with their professional responsibilities in their respective countries, they have relatively little time, given the scope of their tasks. The Commission’s activities are further hindered by its financial and material difficulties.
The Secretariat of the Commission, the very linchpin of the institution, is located in Gambia and has to contend with a slow Internet connection, a poorly-equipped documentation centre, and an almost laughable number of jurists (three permanent jurists, with others on short-term contract whose renewal is dependent on funds from international NGOs)—all of which does not provide a environment conducive to fulfillment of its formidable mandate. And yet, the Secretariat is responsible for receiving individual complaints as well as those from NGOs, classifying them and ensuring follow up with the complainants and defendants, writing draft decisions, summarizing state reports, formulating requests for visits to states, registering applications for observer status from NGOs or affiliated status from national human rights institutions, writing final reports for the Conference of Heads of State and Government and preparing the ordinary sessions of the Commission organized every six months. Given the vast scope of its task and the paltry sums at its disposal, it is nothing short of a miracle that the Commission still exists.
The African Commission is aware of its limitations but is nevertheless trying to make a difference by playing a mediation and reconciliation role. Practical experience shows that despite all of the difficulties it encounters, the Commission has ruled on a truly impressive number of cases of human rights violations in Africa. In addition, the quality of the legal argumentation behind some of its decisions has helped to clarify the debate around doctrine and jurisprudence in unprecedented legal situations, with the opposing parties often having diametrically opposed interpretations of the same law under the Charter or another ratified international legal instrument.
Moreover, it should be stressed that the Commission offers a rare opportunity for NGOs to democratically express themselves (close to 400 have observer status). During the public sessions of the Commission’s biannual, NGOs interact directly with state representatives on human rights situations in African states. In fact, NGOs hold their forum on human rights in Africa on the eve of each ordinary session of the Commission. The resolutions voted on during the NGO forums are then brought to the attention of the Commission, which can amend and adopt them.
The Commission’s quasi “complicit” relationship with NGOs has been a great source of contention for certain African states. They question its independence and accuse it of serving as a mouthpiece for human rights activists, who they accuse of serving as the surrogates of Western powers that fund them in order to attack uncooperative states. However, this accusation is exaggerated, even unfounded, if we look at the internal functioning of most of the members of the Commission. Our practical experience with the Commission has clearly shown that the members of the Commission are concerned about its independence, which legitimizes their functions as commissioners and could, at the same time, expose them to accusations of being too soft by victims and their spokespersons, namely, NGOs. The fact that criticism is levelled at it by both sides paradoxically helps to establish its credibility, and its impartiality vis-à-vis both NGOs and states.
The Commission also employs specific mechanisms such as Special Rapporteurs (women’s rights, freedom of expression, prisons and detention conditions, the situation of human rights defenders, refugees and displaced persons), and working groups (indigenous and aboriginal populations, death penalty), which allow it to build its intervention capacities in emergency situations. This openness ensures the support of certain international partners (such as Pretoria’s Centre for Human Rights, the Danish Institute for Human Rights, Rights & Democracy, Frontline, Interights) which, in addition to providing financial and material support, also offer the Commission qualified personnel on a temporary basis, thereby contributing to its human resources capacity.
While the Commission’s work has led to the denunciation, condemnation and possibly even the reduction of human rights violations in Africa, the African human rights protection system suffers from the absence of a jurisdictional mechanism with the power to sanction and compel states, and to offer reparations to victims of rights violations, following a fair trial. In all likelihood, this gap has now been bridged with the creation of the African Court on Human and Peoples’ Rights.
Complementary Mechanism: The African Court on Human and Peoples’ Rights
This Court is the fruit of a long process, as will be discussed later. The creation of a court was a source of serious debate at the time of the development of the Charter. Opponents argued that Africans preferred a less adversarial form of conflict resolution, which corresponded more to the role of the Commission than to the litigious procedures of a jurisdictional body like a court. In the words of Judge Kéba M’Baye, one of the “founding fathers” of the Charter, “We can use justice to solve conflicts in a friendly manner, but we are rarely in conflict in the litigious sense of the term.”7
Since then, a lot of water has flowed under the bridge and some of those early detractors have changed their minds about the Court. Among them was Judge Kéba M’Baye, who, a few years later, said this about the African human rights protection system: “Of course, we must recognize that it is far from perfect. In particular, it lacks a human rights court. But this is not an omission (…). However, the time has come to reopen this discussion.”8 In 1998, that is precisely what happened when the Conference of Heads of State of the African Union met in Ouagadougou, Burkina Faso, and retained the principle of reforming the mechanism of the Charter by introducing a Court. The additional protocol creating a court entered into effect on January 25, 2004 following its ratification by 15 African states.
The Court’s stated objective is to bridge the gaps in the Commission. The Court should be seen as a complementary rather than competing mechanism to the Commission. What are the jurisdictions of this Court? Does it have specific jurisdictions that will set it apart from the Commission? Is there a risk of overlapping and conflicts of interpretation between them?
The Jurisdictions of the African Court on Human and Peoples’ Rights
Under Article 5, Paragraph 3 of the Additional Protocol to the Charter on the creation of the Court, the Court can receive communications from individuals or from non-governmental organizations having observer status with the Commission, on condition that the state in question has previously recognized the Court’s jurisdiction to receive such communications, in accordance with Article 34 Paragraph 6 of the Protocol. What is to be made of this clause that is a priori open but a posteriori limited? The Court is supposed to contribute to strengthening human rights protection in Africa by offering victims the possibility of reparation for rights violations following due process and a ruling rendered by an independent and impartial justice. Undeniably, this would be a satisfactory outcome. However, how can these victims hope for reparation when they are not allowed to appeal directly before the Court? On the positive side, the Protocol allows for that possibility. On the negative side, however, very few African states would be inclined to of-fer their “own victims” the possibility of taking the stand in an international jurisdiction. And yet this is what this new and unique institution is supposed to offer. The Protocol is clear on this: the possibility for victims and NGOs to appeal to the Court is subject to the authorization of the states, under Article 34, Paragraph 6. It is no surprise that to date only two states, Burkina Faso and Mali, have recognized this jurisdiction for victims and NGOs. But there is room for hope, since the African Commission can, suo moto, decide to refer a case to the African Court. This makes the Commission a kind of interface between the Court and individuals.
Among the Court’s jurisdictions, it has the power to interpret, that is, to play a consultative role. Under Article 4 of the Protocol, the Court can, at the request of a state or an organization recognized by the AU, render a verdict on all legal questions regarding the interpretation of Charter provisions. It should be noted that this jurisdiction extends to all other African human rights instruments, as well as all human rights treaties or conventions ratified by the concerned states. Of course, opinions rendered by the African Court (like those rendered by the European and Inter-American courts) are not binding on states. The states are free to respect or disregard them. This in no way diminishes their importance, since they are interpretations which, given the legitimacy of the body that issues them, enjoy a presumption of quality and will carry weight in legal arguments on human rights issues.
Moreover, the Court and the African Commission share a consultative role. From this perspective, these institutions have competing jurisdictions. Article 45, Paragraph 3 of the Charter attributes to the African Commission a consultative role, as does Article 4 of the Protocol with regard to the Court. Could this eventually put the Court and the Commission on opposing sides, if they gave differing interpretations of a particular provision?
The Coexistence of the Court and the Commission within the African Human Rights Protection System
How can we ensure the peaceful coexistence of these two institutional mechanisms? What measures can be put in place to ensure effective collaboration between the Court and the Commission?
How can we ensure that the members will perceive these mechanisms as complementary rather than competing? Concretely, how can the Commission share with the Court the benefits of its 20 years of experience in the field of human rights litigation? These are important questions, since the creation of the Court will certainly have concrete repercussions on the activities of the Commission. The coexistence of these two institutions requires a detailed clarification of their respective functions. While the mandate of the African Commission is set out in detail in Article 45 of the African Charter, Article 2 of the Protocol on the relationship between the Commission and the Court does not set out any specific provision for the particular functions of each mechanism. It states, in general, that, “the Court shall, bearing in mind the provisions of this Protocol, complement the protective mandate of the African Commission on Human and Peoples’ Rights.”
From Article 2, it can be deduced that the function of the Court is limited to the provisions of the Charter relating to protection, which means that, far from replacing the Commission, the Court strengthens the protection mandate of this mechanism. The Commission maintains the mandate of human rights protection and promotion conferred upon it by the Charter, but now has the possibility of submitting matters to the Court. The Court and the Commission share the protection mandate. It is still possible that the activities of the Commission and the Court will overlap, given that Article 45.3 confers on the Commission the power of interpreting any provision of the Charter at the request of a state party, an AU institution or an African organization recognized by the AU. However, while the Commission’s mandate to interpret is limited to the African Charter, Article 3 of the Protocol extends the Court’s jurisdiction to interpret and apply the Charter, the Protocol and any other instrument relevant to human rights and ratified by the state concerned. This begs the question: if there is ever a disagreement between the Commission and the Court on the interpretation of a given rule, how will it be resolved?9
On a closer reading of the texts, it would appear that any interpretation by the Commission could be brought to the attention of the Court. This would seem to imply that the Court has a key role in interpreting the provisions of the Charter, as well as other relevant human rights instruments. Will the Commission necessarily be bound by the authority of the Court’s interpretation? This could generate some reticence by the Commission if it feels that the Court is “stealing its limelight” after so many years of experience on these issues.
The concern here is to avoid sterile debates on the legitimacy of each body which, in turn, could generate conflicts over jurisdiction. It is essential that the African Union bring these two complementary institutional mechanisms together into a formal framework in order to work out, together, the limits of their respective, beyond that, the regulatory framework of their collaboration. It will not be fruitful for each body to first write up their own internal regulations before formally meeting under the auspices of the AU. This will simply plunge the whole process into “legalism” in which the content of both sets of internal regulations are compared in order to determine a framework for collaboration between the Court and the Commission.10
On a final note, there is no basis for claiming that the existence of the Court renders the Commission de facto obsolete. The Commission should be able to fulfil (assuming there is a partial rewriting of its founding texts) a role similar to the one played by the Inter-American Commission in the inter-American human rights system, serving to filter the cases presented, as a last resort, to the Court. If, one day, the elimination of the Commission is put on the table, one possible solution would be to merge it with the Court, thus turning it into an Office of the Prosecutor, along the lines of the ad hoc international criminal courts.11
1- Islam in Senegal is defined by powerful local connotations, and is subdivided into several religious brotherhoods, the most influential of which are the Mourides and the Tijaniyya. The relationship between the brotherhoods and the media is often conflictual, and tends to limit journalistic freedom. See Ndiaga Loum, Les médias et l’État au Sénégal : l’impossible autonomie, éditions L’Harmattan, Paris, 2003.
2- E. Nchama, Développement et droits de l’Homme en Afrique, PUBLISUD, 1991, p. 140.
3- P.F. Gonidec and J. Owona, “Les droits de l’homme : la Charte africaine des droits de l’homme et des peuples,” in Encyclopédie juridique de l’Afrique, Vol. 2, p. 370.
4- D. Segui, L’apport de la Charte africaine des droits de l’homme et des peuples au droit international de l’homme, in RADIC, Special Issue, 1991, p. 706.
6- Resolution on the situation in Rwanda, Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1993-94, ACHPR/APT/7, Annex XII, Para. 2.
7- K. M’Baye, “Rapport introductif sur la Charte africaine des droits de l’homme et des peuples,” International Commission of Jurists (Ed.), Droits de l’homme et des peuples en Afrique et la Charte africaine. Geneva, 1986, pp. 28-29.
8- K. M’Baye, Les droits de l’homme en Afrique, Paris, Pedone, 1992, p. 266.
9- See the document published by Amnesty International, Credibility in Question: proposals for improving the efficiency and effectiveness of the African Commission on Human and Peoples’ Rights (IOR 63/02/98).
10- As this publication went to press, the Court had already adopted its rules of procedure. The Commission is scheduled to adopt its rules of procedure at its 5th Extraordinary Session in July 2008 after which the Commission and Court intend to meet in order to harmonize their respective rules. See N. Loum, Le Tribunal pénal international de La Haye : une exigence humanitaire ? Mémoire de DEA de sciences politiques, Université Montesquieu Bordeaux IV, 1997.