The African Commission on Human and Peoples' Rights
Examination of State Reports 9th session, March 1991
Chairman: Mr. U.O. Umozurike
We shall take the, at least agree on an approach on Periodic Reports, we have so far received four that have been handed out to Commissioners. Unfortunately, two of the reports given to Mr. Ndiaye and Beye, they are both not here, so there are two reports that have not been so treated because Mr. Beye and Mr. Ndiaye are not here, in any case we have asked the states to come tomorrow, so they could be around. Maybe we decide on who to give them, the two. The other two -one by Mr. Kisanga and the other by Dr. Badawi - not by you, Okay sorry, Mr. Mubanga-Chipoya and Dr. Badawi are handling two. Before we come to them shall we decide what to do with the ones that were to be considered by Mr. Ndiaye and Mr. Beye. Are the reports here or were they given to them? They were given to them? We have the reports here - it is for Tunisia and Rwanda.
BADAWI [Original statement made in Arabic]:
Thank you, Mr. Chairman. Mr. Chairman, it is timely and judicious to ask one of the Commissioners to examine the report of Tunisia and another Commissioner to examine the report of Angola. The important thing, Mr. Chairman, is that the Commissioners should be able to examine those reports today. So that they can direct a discussion when the reports of these states are discussed. I have Libya's report, it is going to be the first report since it was the first report that was presented to the Commission. And then we have Mr. Mubanga-Chipoya and he has the Nigerian report. And then we have the two other reports which have been handed to two of the Commissioners here in this hall and attending this session. Thank you, Mr. Chairman.
Now, whom do we give the reports then for Tunisia and Rwanda to prepare for tomorrow? They are in French.
NGUEMA [Original statement made in French]:
I thank you, Mr. Chairman. I think the item on consideration of national Periodic Reports is an extremely important item. This is the first time we are going to enter into this procedure. We have not taken up this practice beforehand here, but I did have the opportunity to see how things are dealt with in Geneva, and in the way things are being handled here in our Commission, I am afraid we are not going to reach the expected results.
In Geneva, the members of the Committee meet before the session, there is a working group, it is not one individual, it is a working group which meets well before the opening of the session. I think three, four or five days before the beginning of the session, and after that each member of the Commission has a copy, one copy of the document, which enables this person even if he is not part of the working group to see, before the results of the working group are communicated, whether he has any extra points to stress or to raise questions about.
Well, here we cannot adopt the same procedure for reasons that are well-known, but I am afraid Mr. Chairman, that by receiving the reports today, for these reports to be dealt with tomorrow, that in fact we are going to be doing a sordid job, and I am all the more disturbed that this session is not an in camera session, but is a public session. Because people are looking at us, all of Africa is looking at us, actually, the world at large is looking at us. And the credibility of our Commission is at stake. We are used to working at night, that is quite right, but Periodic Reports which presuppose a confrontation of texts and documents that are sent by the states themselves quite apart from the report itself, we have to compare the basic documents and the reports themselves, but to do this type of work between 9 o'clock and 11 o'clock or midnight in order to present the work the next day, I must say I feel rather worried.
I do understand that we are rather in a corner, we have convened representatives of states to be here so we have no excuse whatsoever, but once more, and I said that this morning, these reports should have been distributed Monday or Tuesday at the latest, that is at the very beginning of our session. Why keep them to the eve of the day when they were to be discussed, whilst we knew that neither Mr. Beye nor Mr. Ndiaye were going to be here. Unless those who have had files during the last session have worked on them, very seriously, I think it is not advisable that we should give the impression of doing improper work in our Commission. I am not underestimating the capacity of my colleagues, and this does not mean either I could manage the job. But it is not a question of person and genius, it is a question of method, objectively appreciated. Whatever the person and genius of each one of us, there are things that we can appreciate in an objective way or evaluate in an objective way.
Now, to work on a report for a night and introduce it tomorrow morning, well of course we can do it, we can manage it, but that is not the problem. It is not only the question of participating in the Olympic Games as somebody said, but results have to be achieved. There are opinions which have been expressed that do not correspond to reality. I hope these opinions will not persist and will not go beyond this hall about our Commission. And this is why I am sorry that we are receiving the files only today, but I think we have to seriously work on them so that they are presented in a proper fashion at the next session.
I see that Mr. Mubanga-Chipoya is not accepting what I am saying. In fact the two reports we have before us are reports in French, so as for me I really cannot assume the task of working on two reports tonight. These are the few preliminary observations I wanted to make Mr. Chairman. But quite naturally, I shall adhere to any decision that is taken by the Commission. Thank you, Mr. Chairman.
Well, I do agree with my colleague Mr. Nguema on the disadvantage that we have to work under. That is just on the eve of the presentation of these subjects that we receive the dossiers. Especially, as we had indeed the information that our Rapporteurs on some cases would not be with us, but I am afraid we cannot give that answer, we cannot give that programme to the countries which we have invited to come over. It is just incredible, and I am sure they will not consider us serious if we give that explanation. I do appreciate the difficulty Commissioner Nguema would have to go through to make some study overnight and present it. But we should bear in mind that studies are supposed to have already been made of these reports at the last session. Commissioners Beye and Ndiaye, if I rememeber correctly, are supposed to have gone through their dossiers, summarized them and suggested what sort of questions we should put across to the countries concerned.
So much on that - this dossiers should now contain an effort from those countries at replying to those questions that were suggested, or if not, at least, we shall have the questions on the dossier which the Secretariat must have sent to those countries for answer. We can therefore begin from there. There should already be guidelines and even specific questions on the matter such as questions relating to basic documents, the Constitution, and matters like that, so that Commissioner Nguema will not really be beginning from scratch. Some basic work is supposed to have been done at the last session.
I would further suggest that perhaps Commissioner Badawi who is quite conversant with French might consider picking up one of the two dossiers in French, which otherwise would have to go to Commissioner Nguema, and handle it since I am sure he is already fully prepared on the Libyan dossier.
What we cannot do, is to postpone this matter when we have already invited the states to be present here. And what is more, I am sure we shall only deal with the preliminaries in this matter, we shall only deal with the basic documents, how the Charter was disseminated, how it was received - I think that is the amount of work we have to do. Except of course countries like Libya which did go into detail, in those cases then we might have to go further. But in cases like mine, there will only be preliminary matters concerning the Constitution, the position of courts, the distribution of the Charter, how it was received, what were the difficulties, those preliminary matters. At a subsequent session, we shall really go into detail with these states. So I hope with that clarification it should be possible to handle these countries tomorrow. Thank you.
BADAWI [Original statement made in Arabic]:
Thank you Mr. Chairman. Mr. Chairman, I entirely agree with the statement made by Commissioner Mubanga-Chipoya. Namely, the necessity of discussing the reports of the four states which have been preliminary examined during the last session. The states concerned have been advised that we were going to discuss their reports at this session. We cannot, Mr. Chairman, delay more than that in discussing the reports. The Charter has implemented Article 68 and up to now, we have not dealt with Article 62 of the Charter. So in fact at this session, we must start discussing the concerned reports. This is the first point.
The second point Mr. Chairman, relates to the distribution of these reports. First of all, these reports have been distributed to all of the members at the 8th Session, and each Commissioner would have had the opportunity to examine these reports - at least that is my understanding. These reports also have been distributed particularly to four Commissioners which have assumed the task of making a preliminary report on them. I have prepared the preliminary report of Libya, Commissioner Mubanga-Chipoya has also prepared the report on Nigeria, and Mr. Ndiaye prepared the report on Tunisia and Commissioner Beye the one on Rwanda. These reports are there, Mr. Chairman. Consequently, when the two reports of Tunisia and Rwanda will be distributed to any of the Commissioners here present, then the Commissioner is not going to start from scratch, but he is going to find before him the preliminary report which was written already by the Commissioner who was entrusted with the task of examining the report. I have here the copies of these preliminary reports, here before me. That was the second point.
The third point, Mr. Chairman - is that I also agree with Commissioner Nguema concerning the importance of perusing the Periodic Reports in an in-depth manner, but I do not agree with him in the comparison between the way the reports are examined in Geneva and the way or the procedure which we could follow here. In Geneva, in the Human Rights Committee, or in ECOSOC, the opportunity is given to these committees to set up working groups, to draw up preliminary studies, that is, read the report, understand it, analyse it and prepare questions which are sent beforehand to the states so that the delegates are able to respond to these questions.
We are working here within the limits of the possibilities of the Commission, and we have set up the same procedure here, but within our limits. There may be gaps, there may be shortcomings, but we have started to do that. Each one of the members of the Commission was entrusted with preparing a preliminary study and raising questions about the report. So consequently, I consider that we should go on on this basis, because we do not have the resources either from the point of view of time or from the point of view of budget in order to set up a working group. So I think we shall continue to entrust one of the members of the Commission, call him a Special Rapporteur and this Special Rapporteur is going to examine the report, is going to raise questions and on this basis, the discussion can take place.
The final point, I wish to make, Mr. Chairman, what I would propose now is the following: First of all,
... Rwanda with Commissioner Nguema, and I personally will examine one of those two reports along with Commissioner Nguema if he wants to. Now, at the beginning of tomorrow's session, Mr. Chairman, I shall introduce the report, that is, I will indicate briefly. At the beginning of the session tomorrow, Mr. Chairman, you will give me the floor, this is what I propose, to present the Libyan report either in a succinct manner - I will clarify that Libya is a party the Charter, that it has presented its report in accordance with Article 62, that some questions were put to Libya, and the framework in which the discussion is going to take place on the report.
I will clarify this report in the following manner - this framework will include giving the floor, through you, Mr. Chairman, to the representative of the Libyan Government, to present what is contained in the Libyan report and to answer the questions. After that, the floor will be open for each one of the members of the Commission to raise whichever questions they deem fit. When the members of the Commission will have asked their questions, the Chairman then may wish to thank the representative of the concerned state, and he will leave the Commission and the Commission will discuss whether the state has given the Commission the necessary information or not. If the report does not contain the information requested, which are the gaps in this report, and in the light of an agreement between the members of the Commission, we will conclude the discusison of the Libyan report by clarifying what the Commissioners have agreed upon on this report, that is, that we are requiring such and such information in another report or whatever our agreement has come to be.
Quite naturally, Mr. Chairman, this is not going to take place in the first session, this is the last part, the last part of the discussion will take place in the afternoon, because we will end the public discussion of the Libyan report, that is, presentation and the questions, and then the Nigerian report, presentation and questions, and then the report of Rwanda, presentations and questions, and then the Tunisian report, presentations and questions, and in the afternoon session, we will inform the representatives of the states of the results of the discussion of the Commission.
This was what I would propose, Mr. Chairman, concerning the discussion of the Periodic Reports we have before us and which we are obligated to discuss in this Commission. This proposal is very, very close to the practices of the Committees of the United Nations which are concerned with monitoring human rights. Thank you, Mr. Chairman.
Thank you very much. If we may just round up the discussion on the two reports, that is the reports on Tunisia and Rwanda. The first point is that I appreciate Mr. Nguema's difficulty, and also Dr. Badawi's offer to help, but I would like appeal to Nguema again that we had made adequate arrangements for this last time, and at the beginning of this conference, we tried to send messages to the Commissioners that were not here. Of course as soon as it became clear that they were not coming, we should have seized the opportunity to distribute those reports to other Commissioners, and not leave them until now. We decided this morning that the reports should be circulated, I have still not seen them, I never saw them, and I have still not seen them. When is this going to be carried out?
This being the first time, we are really taking Periodic Reports, it is not unexpected that we shall have difficulties. We are still building up a practice in many areas, practices and procedures, and this is one of them. Of course as some members have already said there is no question of postponing it, we will discuss how deep we will go in to them, but we take these reports and I appeal to Misters Nguema and Badawi to please do get the reports for us, so that we can take them tomorrow. The Secretary will note that it is important to circulate the reports at the earliest opportunity so that Commissioners would have knowledge of what they are treating and what they are expected to do.
I have noted the procedures suggested by Dr. Badawi for the two reports, is that all we need to know about them now? Do we need any more information? I would have been happier if I saw - has the report been photocopied at all? I would have liked to have a look on the report myself, not just rely on my colleagues. I still have not seen the reports yet, Mr. Secretary.
MUTSINZI [Original statement in French]:
Now concerning the two reports: that is the report of Rwanda it has been photocopies, as for Tunisia's report we do have a difficulty because it is a booklet. And we are having difficulties photocopying the booklet, in fact we have started already but it has not been finished. At the last session, it had been agreed that for voluminous documents, the distribution of all the documents was not required, but that some means had to be found to extract the fundamental elements contained in this Periodic Reports.
You will recall that we have referred to certain documents such as The Green Book, we had asked The Green Book be reproduced and we had agreed that it was impossible at least for the time being to reproduce The Green Book, but quite fortunately we had Amnesty International which has offered to reproduce such a document when we cannot go about doing it in our own Secretariat. The less voluminous documents are available - I have asked them to be circulated with the exception of the Periodic Report of Tunisia, because we have a technical problem for its reproduction. Thank you, Mr. Chairman.
NGUEMA [Original statement in French]:
Thank you, Mr. Chairman. I believe that the decision just adopted by the Commission has been dictated by reasons of time limits, but I think that it should not be seen as a matter of principle, so that in the future, we must have a rule governing such matters. I do understand perfectly that it is because member states are here that we should take up their respective reports and I do perfectly concur with that. But I should add that my colleague, Mr. Badawi had indicated that the reports had been received at the last session. I was not at the last session, so I did not get any of those dossiers unless they were sent to my own address, but even there it should be checked with the Secretariat of our Commission. As far as I am concerned I can assure you I received no report.
This is why I wanted to have a copy of the reports of Nigeria and Libya, and if possible of the other reports distributed, and that I have the possibility of taking cognizance of the preliminary reports on the national report. So, I neither have the national reports nor the preliminary reports of the Commissioners. I understand that these dossiers are with the Commission, I wonder whether it is at this time that the dossiers are being distributed but we are to begin perusing them. This having been said, of course I can take two reports of Tunisia and Rwanda, and make my comments on them tomorrow morning, quite comfortably. I thank you, Mr. Chairman.
Thank you, Mr. Chairman. In the spirit of further constructive suggestions and some information: Number 1, with respect to the person who assists Mr. Nguema with the preparation of the further supplement to the preliminary report prepared on Tunisia, I have brought copies, unfortunately they are in English, but I do have copies of the complete summary records of the Human Rights Committee's consideration of the Tunisia Report. It is quite extensive and I think it would also be a useful supplement to the Amnesty International background material which we have supplied each member of the Commission. So I think that could ease some of the burden on the Commission this evening.
Second, Amnesty International, of course, is not the only NGO who has sent an observer here from far away. There is also a representative of the International Commission of Jurists, and also a representative of Human Rights Internet, and you know there is some collective experience that these other NGOs have had with the procedures before other treaty monitoring bodies, and we stand ready to assist in providing some of our background experiences. The African Commission begins exploring the same sorts of problems that the Human Rights Committee and the Committee against Torture, and the Economic, Social and Cultural Committee and several of the other treaty monitoring bodies have already been through many years ago. So that you know that they can draw on the mistakes and the successes of all of those bodies.
In that particular connection, with respect to Mr. Badawi's suggestion about the in camera further consideration of what deficiencies there are, one of the other NGOs could correct me if I am wrong, but I believe it is quite clear throughout the questioning of the members of the Human Rights Committee what deficiencies each of those individual members see in the state party's report. And the decision about what further supplementary information is required is made in a public session.
Now, it may be that further detailed discussion about what sort of a final views might be expressed or general comments - that might be in a confidential meeting where people would be free to speak their mind. But I have also brought with me copies of the Human Rights Committee's summary records of the consideration of the Morocco Report, and in that particular examination last November, it was quite instructive because the members of the Human Rights Committee found significant deficiencies in that report and detailed them and asked the representative of Morocco to provide supplementary information, and that information will be presented and considered at the July session of the Human Rights Committe in Geneva.
But again I appeal to the members of the Commission to bear in mind that the general spirit of the Charter to promote and to protect human rights dictates the narrowest possible interpretation of the concept of confidentiality as Mr. Mubanga-Chipoya emphazised the other day.
And then one, well two other little minor points. One on photocopying, well both relate to the photocopying - one is, I believe there might be some misunderstanding on behalf of the Secretariat, Amnesty International offered to pay for its own copies when we were trying to get copies. There are quite a number of observers now, it is over 30, and I do not believe that I can authorize the dispersement of funds on quite that scale for Amnesty International, but there is also the posibility of using the photocopier at the hotel. They have a very good business centre and I believe there are other photocopy services that could be used at this stage.
I do hope the Commission will take up the suggestion that either formally or informally there will be some consultation with other NGOs that have experience with treaty monitoring bodies, because I do not think it would be proper Amnesty International is the only one that is making this intervention, because lots of others have had interesting experiences which I think could help.
... Your presentation?
The position is not changed much since the last session. Just now I want to begin by giving you a full brief on it. And if I am to read the discussion when the state is present, I will be slightly more different from, I will present a slightly different situation. Now, I want to give you as full details as possible. When the representative from Nigeria is here, it will be slightly different.
After the last session, I did point out, unfortunately, it really was not much of a report. The papers merely pointed out ameliorative steps taken in the field of human rights since the military government took over. They listed up to about 10, 9, no much more than that - up to about 14 by various decrees. Some laws have been cancelled which were apparently contrary to either the principles of rule of law or actually violated aspects of human rights. And they list these up to about 14 examples.
Other than that they merely sent us photocopies of the index of some aspects of the Constitution, and that was all. So, after the last session, the Commission decided that we should address a request to the Federal Republic government, indicating what information they should provide us with at this session. I am glad to report that on the dossier there is indeed a communication, the letter sent from our Secretariat to Lagos. This was sent about December 1990. So at least the country might have had maybe a month or two for possible reaction to what we did.
I must at the same time express the discomfort that the Secretariat left it so late, as late as December, when our decisions had been taken in October. It might just be possible that perhaps the Republic of Nigeria has not yet received this subsequent communication or that if they have received it, it came in so late that perhaps they have not tackled it. But otherwise, if that is the position, that it is either too late or they have not had the time to settle the request, then when they are here in person, we can repeat our request which was contained in this communication.
I think it is a principle of this system of Periodic Reports, whose purpose is of course implementation of whatever instrument you might be dealing with, that you do not actually leave a point until it has been satisfied. So at the very preliminary stage, we were concerned with the Charter, how it was received, what difficulties were experienced, the independence of the judiciary, those preliminary matters. Until we get a full explanation or the full account, until we get a full account from the country, we do not leave those preliminaries, until they have satisfied the Commission and we have made whatever advice we would want to make.
I should therefore propose that these will not be repeated in person to the delegation, that they satisfy us on these preliminaries before we go to the next step. It is really as simple as that in the Nigeria case, that we merely repeat what was communicated to them by our Secretariat, we will repeat it in person. If there are extra questions that the Commission would like to put in, they will be quite welcome. They would be additional to these. Otherwise, according to this communication, the basic requirements we would want and we would insist on they are satisfied before we go on to the next stage, was written here - one, how the Charter was received in Nigeria, how it was disseminated to the public, steps taken to implement it, indicate difficulties encountered in the exercise, a text of the Nigerian Constitution or any of the other legal instruments taking the place of the Constitution, six, we ask them to submit to the Commission the text governing the judicial system, its organisation, functions of courts, status of the judiciary, Supreme Court etc. and the bar, independence of the judiciary and so on and so forth. Basic preliminary matters.
I think it was in Egypt or was it Benghazi, we decided that before we actually go into detailed Periodic Reports we should make sure that each country satisfies this groundwork, as it were, the basis on which to build a system that would satisfy human rights. And I think this should be maintained, that every country should be seen to have satisfied that before we proceed. But as it appears to be the case in Libya where they actually provide satisfactorily the instruments, the Constitution and so on and so forth. Maybe they are depending on what my colleague might say, we might proceed to detailed examination in which I hope the guidelines on Periodic Reports would help us. That is to say, then we might take specific subjects and go into detail. Matters like civil and political rights, economic rights, cultural rights, specifically. But this comes in after we have already dealt with the groundwork, the foundation matters such as the Constitution and so on. I thank you, sir.
... that is there must be satisfaction before further progress is made. A state is required to make a report every two years. And we meet once every six months. Do we take account of the shortcomings and make sure that they are corrected in the next report or do we go on insisting on the accurateness of a report before we go on to the next on? If we do the later, may the proceedings of one not merge with the other one - of one report not merge with the next report? And so far six, sorry, four countries have given reports, two more have - three more have - seven out of forty - are we encouraging those states who have not given reports at all to give Periodic Reports? Shall we spend more time ensuring that those that try to give a report that is full and complete, I just wonder if we may not take all this in consideration?
Thank you, Mr. Chairman. Mr. Chairman, I take the last point which you have made which is very important in the sense that the Commission has to remind every state party that it is under obligation to report under Article 62. So in this session, in every session, we have to take a decision and write to states reminding them that every two years, a state party should submit a report. This I think we should keep reminding states, of their obligation under Article 62. This is number one, Mr. Chairman, of course as you indicated out of 43, around 43 only 4 or 7 states have submitted reports. This is number one.
Number two, discussing state reports is a process. And this process is supposed to start with the discussion of the first report to be submitted by a state, and it continues through the subsequent reports coming from the very state. So we have to keep this in mind. We cannot say - even if we have recommended this before - we cannot say that to Egypt, for example, Tunisia or Nigeria, stop, do not go into the other Articles, or do not give us extras until you fulfill certain information in your first report and we are satisfied that these points are taken care of.
So what we are supposed to do now, Mr. Chairman, and I think we are in agreement, in principle, myself and Commissioner Mubanga-Chipoya, are to start. You said yourself: We are at the beginning of a process - where this process will start later on will be developed according to our own experience in this process. So we are starting now with the states which have submitted reports.
Now, we will take the report for example of Libya. The report of Libya does not confine itself to the basic questions which Commissioner Mubanga-Chipoya has referred to. It is a general report, covers almost all the Articles of the Charter. Therefore, if members feel to pose questions concerning the material contained in the report, you will have to pose these questions. We will not limit ourselves to certain questions we said the state should inform us about first.
Once we consider the report, we will decide among ourselves whether this state has fulfilled its obligation or not. If we decide that the report is lacking certain information, we will decide that to request the representative of the state that please, in the next report, you have to give us such and such and such information. Unless we find out that there are certain elements which we cannot postpone for another two years to receive them. In this case, we will tell the representative of the state 'Please give us this information within six months'. That is to say by the time we meet again, we have to have this information before us.
So this is how I see it, Mr. Chairman, and that is why I suggested along the line of Commissioner Mubanga-Chipoya, that after the short introduction of the discussion leader, if one may say, and after the representative of the state has presented his report, including answers to questions which he was given before, and after other members have taken the liberty to pose other questions, and after the representative of the state responding to the new questions, the Commission will sit together, and the discussion leader will summarize the situation. You will see - I will say for example that I see that this report is complete or 'This report is not complete because it did not answer such and such questions'. Then the other members will add their comments, saying 'Yes, this summary is correct', or 'No, this summary should include this or that point'.
So after that stage, we will go again in a meeting, like this, with the representative of the state, and you will thank him for his cooperation, for his state's cooperation with us, submitting the report, sending him or her as representative to introduce the report, and then you will indicate that the Commission requests that the Government provides such and such information by such and such date, or in the following Periodic Report.
This is how I see it, Mr. Chairman, and that is why I was suggesting that when the Secretary informs the representative of the state concerned, he will explain to them also this procedure. In other words, he will tell them, 'when you come to the morning session, in the morning session there will be this discussion and in the afternoon session there will be discussion again in the sense that the Committee will pronounce on the status of the report'. The discussion leader himself to assist the representative of the state will explain this. In my introduction, I will explain that we are going in the following manner, so the procedure is clear.
I am just stating this, Mr. Chairman, given the fact that it is for the first time, we are taking the Periodic Reports. Now, I may take advantage and go one step further, because I have some reference to in camera, and I did not say that the Periodic Reports would be discussed in camera, by my understanding it is a public meeting where the NGOs will be present. I think this has to be clear. But it also has to be clear, from my point of view, that following the procedure of the similar organization, the representatives of non-governmental organizations are not going to pose questions to the state, to the representative of the state. It is only the members of the Commission who are posing the questions. Of course we are grateful because we are taking advantage of the NGOs in as far as the information we are receiving from them, but we are using this information as our own personal information, and then we are taking advantage of them being with us so they can relay the discussion in their own way. I thank you, sir.
I thank you, Mr. Chairman. Mr. Chairman, I am in entire agreement with Commissioner Badawi on the procedure. I was just wondering if we might not gain in time considering that according to our plan of work this session, tomorrow is actually the last working day, and Saturday we are supposed to go into finalizing the preparation of the report. With such very limited time, I wondered if in fact we might not cut off that final meeting of the Commission on each Periodic Report by either having you, Mr. Chairman, or probably the Rapporteur on each case prepare a summary of the questions to be answered or the steps to take by the state in order to satisfy the Commission the subsequent session.
What I am saying is this that - when the state comes in, we proceeds as has been indicated but that we finalize everything in that one session without having to have another subsequent meeting on our own. And that during the course of that first meeting with the state, somebody writes a summary as it comes out from the questions posed by the Commission. So that the matter would be as it were for that session - dealt with once and for all - without having to subsequently call the state again, because we just actually do not have the time. Tomorrow is, as things were arranged, supposed to be the last day, as a matter of fact, Saturday being reserved for preparing the report by the Secretariat.
The other point I want to refer to is - again I agree with Dr. Badawi - that indeed we cannot freeze, the whole idea is to introduce a dialogue, as it were, with the state. So we cannot rigidly say; 'No, you satisfy the preliminaries and no other thing'. No, as a matter of fact, the idea of two yearly intervals is not merely to give the chance to the country to prepare its answer, enough time to prepare the answer, but to give it time to satisfy what is required. The next two years, even the next pair, the fourth pair or the fifth pair or possibly even the tenth pair of years it still not have achieved. All we have to do, therefore, is to merely keep reminding. We have to have a friendly dialogue. We cannot say, because you have not completed the requirements of the preliminary documents, or you have not established an independent judiciary, you cannot proceed to the next. No, we will just have to note it down and remind them, but we will proceed on to the other matters. Thank you, sir.
There is a little point of difference in what you said and what he said and I think that this might well be decided in advance. I understand from what he said, after we have listened to a state representative and his answers to the questions, then we will decide what to do at that time. Namely, if there are shortcomings either of a minor nature we can limit, then the action ends there. But if it is serious enough and it is necessary to call for further report, further action then we go ahead. You are saying, it seems to me, if there is any shortcoming we keep reminding them - by calling for a report or calling for action - and we keep doing that until it is satisfied.
Thank you, Mr. Chairman. No, we have to keep reminding them that they still have not established an independent judiciary if that is the position. But we do not stop at that. We proceed and deal with other matters as well. What I wanted in the first point was that are we gaining time? Do we have the two meetings as suggested by Dr. Badawi on each state or can we compress the two to only one meeting? Thank you.
It is at the second meeting that you will convey the decision to the representative or do you suggest that this could be put in writing and sent to the representative? It is possible of course, a state may render, may submit a report without sending somebody here, in which case we may write in any event.
I was hoping you would draw a summary at the end of the session.
You do it. You are the Rapporteur.
Mr. Chairman, thank you very much. I take the point of Commissioner Mubanga-Chipoya concerning the time limitation. It could be done this session even with the limited time, but in this case we have to agree on the discussion leader, as you have said, to make a summary. And he will read this summary at the end of the discussion and hopefully that there will be no discussions, controversial discussions concerning the summary.
This is the only point which actually weakens a little bit the suggestion, but I think it could be done with a summary of the discussion leader which summarizes the discussion in the sense, saying that, as I said, thanking the representative but requesting additional information concerning such and such and such point.
Of course we have to bear in mind that we cannot be comprehensive at this stage in saying so many things. I think we have to - given the time again - we have to give the basics which we believe are missing, and of course if there is something serious, we have to refer to it. So this, Mr. Chairman, could be done with the understanding that the discussion leader would be given the floor at the end and he will summarize the discussion and you will thank the representative of the state and the summary of the discussion will be reflected in the report, and it will be communicated in writing later on to the state, in addition to what has taken place in this room. Thank you very much.
I think there are two reasons why his suggestion deserves thought. One is that even if we discuss with the representative, it is still necessary to put it in writing, because he may omit important points raised. Number two, there might well be a state whose periodic report is discussed and the state did not send somebody here. It is just possible. In other words, we still have to resort to writing. So in that sense we can collapse both into one operation.
[Examination of the Reports of Libya and Tunisia]
[I think we should start now. There is an oustanding question - namely the Nigerian officials want to know whether we will be having a closing ceremony and when, what time?]
Ladies and Gentlemen. I must emphazise that we are handling Periodic Reports for the first time, please our friends, NGOs feel free to make any input at this time. As to our procedure - what you do and how we are treating it. I did not think we could conclude in the presence of the Ambassadors, but now that they have left, I think we can summarize the conclusions on the two reports before we go on. But if you feel we should do it differently, please feel free to say so.
CHRISTOPHER HALL [Amnesty International]:
Thank you, Mr. Chairman. I do not really have detailed comments. I did hand copies of the summary records of the Human Rights Committee consideration of Tunisia, Morocco, and several other countries at recent sessions, possibly as a guide.
Now, I understand because of a number of technical problems and some other confusion that members of the Commission were unable to get all of the reports and the evaluations prepared by other members, and I realize this is the first time. There are quite a number of rights covered by the African Charter and it might perhaps, even though it is an initial series of reports, it might perhaps be useful to go through each one of the rights and ask very simple factual questions: which provisions in the Constitution, which statutes implement those particular Articles of the Charter? And then also some other basic information about court decisions interpreting those and then practice.
We have provided the African Commission with briefings based on our own information about the actual practice, and I realize that on initial reports you may not wish to go into great detail on practice. But, for example, in Tunisia there are very, very serious allegations of torture - supported not only by eye-witness testimony, but independent doctors' reports and photographs of injuries. Now you may not wish to examine those individual allegations, I can quite understand that in this forum and at this early stage, but that represents a very disturbing pattern and the Tunisian Government under the Committee against Torture, you know, has indicated that, you know, strongly believe that torture is not to be permitted. And I think that you could ask questions: How does the Tunisian Government handle allegations of torture? How long is the 'gare de vue' period? When do people, when are families notified of detention? When are lawyers permitted access? When do they have access to independent doctors? What sort of rehabilitation is there for torture victims? What steps have been taken to investigate allegations of torture? How many people have been prosecuted for torture? How has a victim of torture been compensated in the law?
These are very important questions. Another might be for example: How is the right to life protected in Tunisia? The new President had issued a public statement that no one would be executed while he was President in Tunisia, and yet there was an execution last year, and indeed someone else has been sentenced to death. We believe he was sentenced to death after an unfair trial.
There is no need necessarily on the initial reports to ask about the individual cases, but about these very, very disturbing situations that Amnesty International and other NGOs have documented. I think that type of questioning - it is non-confrontational, but it is simply asking what mechanisms within the law and in practice does the Government have to implement the rights it has undertaken to observe under the Charter. Thank you, Mr. Chairman.
Thank you, Mr. Chairman. I believe that the observations made by the representative of Amnesty International are very pertinent and I naturally should thank him for what he has said concerning Tunisia. I examined the case of Tunisia and I obtained the documents from Amnesty International, it was here that I got the documents from Tunisia and Rwanda.
I think that it is a good thing that we should have people that are knowledgeable in terms of the consideration of certain problems in our sessions, but I think that we should not also lose sight of the letter we sent to the member states. We sought from member states that they establish a general framework of legal life in their own countries, so that we are sure that there is such a framework, because at the time we started our work there were some countries that did not even have Constitutions. This was the basic elements that we were requiring from member states, and then subsequently and in the case of Periodic Reports, we shall go into the details of the observance of the provisions of the Charter in the various countries.
This is why I believe that at this time, as we are in the first sitting for Periodic Reports, of course with the documents at hand we could have gone into details, but at this time on the basis of the letters we have sent to the member states, we were simply seeking to establish the framework of observance of the Charter in terms of how the Charter has been incorporated, whether there are specific laws to that effect, etc. etc. This was the purpose of the letter we sent to the member states. We will have to come back to the documents we receive especially from Amnesty International and on the occasion of future reports, we will go into the details of how the right to life is observed, with issues such as torture, capital punishment, etc. I thank you, Mr. Chairman.
I thank you very much for the comments made, Mr. Nguema and the representative of Amnesty International. Now, can we now summarize our views on the two reports submitted - Libya and Tunisia? And I will call on Dr. Badawi to give the first summary and Mr. Nguema the second.
Thank you, Mr. Chairman. Relating to the discussion on the Libyan report, the report should reflect the appreciation of the Commission because of the fact that Libya presented its report according to Article 62, and that the Commission has discussed this report whilst the representative of the Libyan Government attended the session. And thirdly, that the Commission raised some questions which were already previously put to the Libyan Government, and the answer did not contain sufficient details on these questions.
Other questions were also raised, and the representative of the Libyan Government has promised to provide the Commission with additional information on the questions which were raised. This relates to the report. It is possible that the report should also include an indication - should include a summary of the Libyan report and in the discussion we can indicate some of the questions, if, however, this is possible in the report, of course. Taking into consideration the difficulties we have because we don't have summary records of the sittings.
On the other hand, Mr. Chairman, the Secretary of the Commission, on your behalf, will send a letter in which he indicates that the report has been discussed and in which he will raise the questions which were put during the discussion. The questions will be specific questions and the report will also indicate that the Commission, as was requested of the Libyan representative, to be supplied with supplementary information...
...at hand the question of the time at which the response will be made: will the Libyan Government give us this information in an additional report, a report to be submitted before the 10th session, or are we going to leave this information to be included in the second Periodic Report which is to be presented by Libya. In my opinion, Mr. Chairman, at this stage, it would be difficult, on the one hand, to include this information in the second Periodic Report, if we take into consideration the fact that two years from now, which is the time in which the second periodic report is going to be delivered. And on the other hand, it is also difficult to ask for this information before the beginning of the 10th session. Consequently, we can request that the report should be sent at an appropriate time for discussion in the 11th session. We can also say that we require the report for the 10th session because we still have four or five months before us and the clarifications that we are requiring are not too many. So in fact we also can require this information before the 10th session. I do not feel too strongly about the timing at which the report should be prepared - should the report be submitted before the 10th session or before the 11th session. But generally, this is what I would propose concerning the Libyan report. I thank you, Mr. Chairman.
I would like Commissioners to consider the advisability of the Commissioner that made the special study writing in collaboration with the Secretary or having to prepare a draft of the letter written by the Secretary, to help the Secretary prepare the draft of the letter since he made a special study of the report. In other words, Dr. Badawi should collaborate with the Secretary and in regard to Tunisia, Mr. Nguema should collaborate with the Secretary.
The other point that worries me, and I would like the Commissioners to consider this - this point is that a party is supposed to render a report every two years from the time the Charter came into effect or from the time it ratifies it if subsequently. In other words, this report should really be from 1988, but we then have more information and more information. In other other words, a second report should have been 1990 and the third report 1992.
In light of the fact that few states are responding, would it not be perhaps an encouragement to those that have cared to send us reports that in the case of Libya, we write back to them, taking note of the shortcomings, urging them to rectify this, to bear those shortcomings in mind in preparing the next report which is due - or the next report which shall be due in 1990. In other words, unless it is pressing, we round up a report, but we should direct our attention to ensuring that the next coming report would contain any further information that we may need. Otherwise, it might - we might be making it burdensome for those that care to reply at all, and those that do not reply, they say we do not do more than merely asking for states to send their Periodic Reports.
It is a suggestion. In other words, that the Rapporteurs collaborate with the Secretary in writing a letter on behalf of the Commission - that is number one. Number two - that in the absence of any serious or pressing shortcoming, we ask that those shortcomings are taken into account in the next Periodic Report, and we urge them to submit that next report. It is only a suggestion.
Thank you, Mr. Chairman. I believe that your suggestions are quite appropriate following the consideration of the report, we should write to the country indicating those issues which we should like to have clarifications on. It is quite natural that those who prepared the preliminary appraisal should work with the Secretariat to prepare the letter. I have no objections to that.
I simply wanted to share my impression with you regarding the sitting this morning, especially with the two Ambassadors. I have the feeling that the sitting was rather too diplomatic - we hear one party and then the other and then we rise. It is only later that we send out a letter and it is only later that we get reaction from the member state. I thought we should engage in a dialogue, in other words, we should not treat them as diplomats but rather as technicians of law that should be able on technical issues to elicit the responses. I have the feeling that we have just gone through a formality, a rite in which we fill the air with good sounding words, good though they may be, I believe we should have gone into the depth of matters.
If we are to send a letter to the Government, why should we have them here? We could have sent the letters directly to the Government without hearing these people. We would have obtained the same results. But I am afraid that the process is not yet quite what it should be, but as this is only the beginning where we can improve upon our methods - we should improve our methods. I believe that one of the ways we can do that is by having a more active exchange as compared to the neutral diplomatic tone which we indulge in. I thank you.
I was personally concerned about our own preparedness especially in the second report which we received only this morning. It was not a situation where we could put up a fight with the other side, when we ourselves were standing on weak ground. Furthermore, an Ambassador is not like sending someone from the Ministry, and we are here we are putting legal questions: to what extent is the Charter incorportated in the law of your country? Unless the Ambassador is a lawyer - how difficult.
However, we will take hand of this in the future. We are doing it for the the first time as you rightly point out. Yes?
Thank you, Mr. Chairman. This is just one minor point, but I believe both the Committee against Torture and the Human Rights Committee when a government sends a member of the Foreign Ministry or an Ambassador to represent it, they make quite clear that they are not satisfied with this, and that they would prefer that someone, either from the Ministry of Justice or intimately related to the implementation of the treaty obligation, is present. It is a very polite request, but nevertheless this is repeatedly made clear to the government concerned. Thank you.
Thank you Mr. Chairman. Mr. Chairman, once more we should like to say that we are starting to discuss Periodic Reports in extremely difficult circumstances. The Tunisian report in fact was not circulated to the members. The Tunisian report was only made available to the Commissioner who is examining this report and who is to lead the discussion on the report. So, Mr. Chairman, this has to be taken into consideration.
I will hope that in the future that the Secretariat will make sure that all of the reports have been circulated to the members of the Commission. And also have been circulated to the concerned organizations so that each member of the Commission and all organizations concerned may have the opportunity of reading these reports and preparing themselves for the discussion of these reports. Now under the circumstances I did not expect any in depth discussion of, for instance, the Tunisian report.
Number two, Mr. Chairman: the dialogue. Of course what was stated on the importance of having a delegation which is able to have a dialogue with the Commission, this is an extremely important matter. And in fact we can make a recommendation, or in the letter to be addressed to the concerned state stating that its report was going to be discussed at a certain session, in that letter we should clarify that we would wish that the representative who is going to attend the discussion of the state's report, that this individual will be sufficiently prepared to answer questions and have a constructive dialogue with the Commission. This can be mentioned in the letter which is going to be sent to the states informing them of the time at which their report is going to be discussed.
The third point, Mr. Chairman, and it is of paramount importance. We have to remind the states which have not presented their reports that they are obligated to do so according to Article 62, and we have to agree on the date of the forthcoming periodic report to the state which have already submitted reports. Libya has already presented its first report to the OAU in Addis Ababa on 7 December 1989. We are now discussing this report today on 22 March 1991. Will the next report presented by Libya be presented two years from today? Because the next Periodic Report in fact cannot be presented in 1991 -we are now discussion the first Periodic Report and we are in 1991.
So we have to agree on the date at which we will request the concerned state to submit its next report. And I think that it is logical that the date be fixed two years from today, unless some other members have a better idea on the time at which the next report should be submitted. The Secretariat, then, should set out the dates at which the state is going to be asked to submit the report.
I would like to conclude my statement, Mr. Chairman, by saying that in the case of Libya, it was very clear, as was stated by the Libyan representative, that there was four member missions that were to come in order to discuss the report. Of course he could have asked postponement of discussing the report until the delegation would arrive, maybe at a forthcoming session, but it is quite important that when we ask the state concerned to discuss the report, we should ask the state to send a delegation which is able to have a dialogue with the Commission.
I thank you Mr. Chairman.
Thank you, Mr. Chairman. Following up what several of the experts have said, as well as what Amnesty International said, we believe that for a proper consideration of the report of a state party it will be necessary to prepare in advance a little more, even given the problem of resources of which we are all aware.
I think it would be appropriate that whenever the Commission sets the hearing of a State party's report that first of all it must be done sufficiently in advance so that a copy of the report is distributed, as members have said, to all the members of the Commission as well as the specialized agencies and NGOs, well enough in advance so that comments and questions can be prepared by the members and, of course, particular by the member charged with briefing the report as has been done here.
It is also, I would think, vitally important that the non-governmental community know sufficiently well in advance when the reports of particular states will be discussed so that NGO or specialized agencies can transmit to members of the Commission any background information they wish the members of the Commission to have for their consideration of the state reports. And in this way I think we can avoid the situation, even if it requires that a state report not be considered until six months or even a year after it has been submitted, it would still be necessary in order that the report be considered properly with all the background information available to the members of the Commission.
Thank you Mr. Chairman.
Thank you, Mr. Chairman. I simply wanted to complement what I said earlier on, and say that as far as the quality of the delegate that should defend the national report is concerned, at the level of the Commission we should not be taking into account their titles or their functions in their respective countries. The countries should know that when they send people to the Commission, those people should be, as it was said earlier on, competent to give us explanations on the various questions. It is quite possible that an ambassador be in a position to do that - an ambassador may be a legal expert. But of course it is imperative that the member states should know that the people they send should be sufficiently prepared to answer questions. They should be of a given calibre so that when they go back they are able to bring their influence to bear on the authorities ensure that the observations we make are translated into action, that is so far as the periodic reports are concerned.
My other comment is as to the manner in which our Commission should have established contact with the various governments. In my country, I was the receiver of a letter from the Secretary of our Commission to the Minister of Foreign Affairs. The Secretary of the Commission was drawing attention to the fact that some number of resolutions had been adopted, but they should be implemented by the various countries. Now the first thing, they thought they should do was to resort to one of the members of the Commission, so they resorted to me and I received a letter, as though I was the person at the level in my country, and I do not have the competence in the implementation of legislation. As though they thought it was an affair not for them and if there was anybody in the country that had any relations with the Commission, he should be the one to receive the letter. So that it is a matter of understanding at national level, but the procedure used by my country in this respect is not a good one at all and should not be recommended.
But these letters, I wanted to say, should be sent, on your behalf, to the Ministries for Foreign Affairs. We had discussed this in the past when the Commission writes to the member states it should be the Chairman that is the top executive of the Commission so that even if it is the Secretary that should prepare the letter, they should prepare the letter in your name because we are addressing Ministers of Foreign Affairs.
My last point is about the need to take cognizance of the dossiers well before the session. That is, before the various Commissioners leave their respective countries they should know that this and that report will be tabled. As far as I am concerned, I do have dossiers on all African countries. I have a filing system and in my filing system, I classify all the documents I receive from Amnesty International, Africa Watch etc. etc. And all these organizations are literally flawless with information on the human rights situation in various countries. I classify them per country so that when a given Periodic Report is being considered for a given country, it is very easy for me to take out the documents concerning that particular country to bring them here, and that I am able to contribute to the detailed consideration of the report for that country. This is only possible if we know before we leave home that such and such document or Periodic Report is being discussed, is going to be discussed by the Commission.
So that in the future, Mr. Chairman, and this is the suggestion I am making, it could of course be the rule in our Commission that we know before we come. I thank you.
Thank you, Mr. Chairman. I am taking the floor to offer some explanations to Commissioner Nguema concerning his observations on missives sent to member states.
There are procedures and instructions in the Organization of African Unity as to the methodology to be used in seizing member states. I think the Commission should abide by the methods used by the various agencies of the OAU. In the OAU for example, it is not the Secretary that writes to the Minister of Foreign Affairs, it is not the Secretary General of the OAU, it is not the Chairman that writes to the Minister of Foreign Affairs, it is by our full note verbale that the member state is seized, so it is the Secretariat of the Commission, through a note verbale, that seizes the Minister of Foreign Affairs. Those notes verbales are also used on the basis of provisions that are enforced on the agencies of the OAU.
I therefore think that to write a letter on behalf of the Chairman may not be in accordance with the OAU procedures. Surely some of your ambassadors know the procedures in international organizations and the procedure in the OAU.
Who will then write the letter?
The Secretariat sends the note verbale.
I think we should decide on a point Dr. Badawi raised - and this is a substantial point - namely like Libya who has done the report, when is the period for the next report. I may just recall that Article 62 says that 'A state shall undertake to submit every two years from the date the present Charter comes into force a report' and so on and so forth. So I think it is necessary for us to agree when is the next period of the next report for a country whose report has just been dealt with? Is it two years from now or two years from the time it submitted the report?
May I remind that we still have two more reports to cover. Then Dr. Badawi suggests that the next report shall be due in two years' time from now. Can we accept that?
Mr. Chairman, I believe that states are obligated to provide reports every two years and that is the treaty obligation not necessarily two years after the last report, but just every two years.
That seems to comply strictly with the laws, so it would have been from the time of submission. The Charter came into force in 1986, so for Libya it should be 1988, but it did not submit until 1989 and that report has just been approved. So when is the next report to come? Yes.
Yes, Mr. Chair, the representative of Human Rights Internet is correct. The obligation to submit reports, for example, under the Human Rights Committee it is every five years, under the Committee against Torture it is, I believe, every four years, and that schedule remains in effect to the end of time, absence of exceptional circumstance where the committee has permitted a country to submit a report late, but for example, I know, I believe that it was Saint Vincent and the Grenadines had problems in putting together its report and I believe it got an extension.
But basically, the philosophy is that any administrative problems in consideration of reports should not delay this process, so that for example the Vietnameese report was considered last year, it was six years late. The obligation to submit the next report continues, but I believe there can be some adjustments but basically, the principle is that the time should be fixed indefinitely. The consideration of the report may take place within a few months after the report is submitted, or sometimes as much as a year or two later because of the press, but basically, the obligation is to continue submitting reports.
..it was due in 1988 and was submitted in 1989 - what period is the next one to cover?
The second Periodic Report, if you are adopting a simular system, the second report is now overdue and you would then schedule it for early consideration, I mean as soon as the second report comes in, but it is now 1991 and it is, what, roughly six months overdue so to that extent Libya is now in breach of its reporting obligation, unless the Commission were to authorize an extension.
But the idea is that each two year period under the treaty will be covered. There will be a report indicating what steps during that two year periode were taken to implement the Charter, and what obstacles were met, and how the state party attempted to overcome it. Otherwise, the system will break down because of temporary administrative difficulties as the Commission is getting under way, and I think that would be unfortunate. You could end up with a system where you would have the second report covering a five year period, and I don't think that that would be adequate.
Since these reports are public documents under your own Rules of Procedure and for general distribution, they themselves have a value even before the consideration by this Commission, because they can be distributed widely throughout both that state party's jurisdiction and throughout Africa as an assistance for that state party and for NGOs in evaluating implementation. So the very first step of production and distribution of that state report under a relatively fixed schedule has an independent value, apart from the consideration by this Commission.
Thank you, Mr. Chairman. I should like to thank our colleague for the clarifications he has given to us.
If we want to implement Rule 62 of the Rules of Procedure, then Mr. Chairman, in fact it is Rule 62 of the Charter and Libya is signatory to the Charter. The Charter came into force three months after the last signature, therefore on the 25th June 1986. Therefore Libya is expected to present a report on the 25th June - rather the Charter came into effect on the 25th June 1987 and it is in June 1989 that Libya should have presented its report, and it is in December 1989 that Libya submitted its first report, while the report should have been submitted in June, that is, between June and December, Libya delayed its report. Now we are saying that Libya should present its report in June 1992.
We are talking about a state that is signatory to the Charter. The text is very clear, it is three months after the entry into force or after the last signature that the Charter came into force. If we take into consideration the fact that it is on 26th June that the Charter came into force, then Libya submitted its report only on 7th December 1989. This means that Libya should submit another report on 26th June 1990. But this did not happen. If we ask Libya to submit another report, it should be the second report. Normally in fact we should have invited Libya present two reports: first the report in June 1990 and the second report in June 1992. There is, therefore, a practical problem concerning the implementation of Article 62 of the Charter. It is clear that it is stipulated in the Charter that each state party shall undertake to submit a report every two years, but given the circumstances, it would be illogical to request the state to present two reports in one or two years.
Therefore, what I am suggesting, Mr. Chairman, is that we should inform Libya that the second report that should have been presented in 1990 should in fact be presented on the 26th June 1993, this is in two years. This is for practical reasons, Mr. Chairman, because it is 1991 that we considered Libya's Periodic Report. But this is a type of problem, we will be meeting later on when some countries submit their first report only after three or four years, while the report should have been submitted earlier on.
In fact the starting point should be the date on which the state ratified the Charter. It is a practical problem. Because in the other cases, I do not know how the Human Rights Committee dealt with this but it is a practical problem. We have to regulate this problem in a specific way in relation to each state. So we will take Libya and we will see. It should have submitted a report two years after its ratification. It did in 1989. It was our problem - we have not discussed this report until 1991.
Now, it should have submitted another report according to this 1991, so we should have been discussing now two reports from Libya. One it has submitted in 1989, that is the one, and another one it should have submitted in 1991. It is not the case. So what we are going to do - we going to write to Libya a letter saying; 'according to Article 62 - and this will take your point into consideration - you should submit a report each two years. Now, given the fact that your first report was submitted in 1989 and there should have been another report in 1991, and given the fact also that the Commission could not consider your first report until 1991, so we hope you will be able to submit your second and third report in one report in 1993'.
So actually Libya will be submitting one report, but it will be called a second and third report. If we have to take the point which was raised that we have to go by the rule that it is every two years. If it is every two years, it means three reports - we already have one. The second report which is coming in practice 1993, will be two reports in one report. That is another suggestion, Mr. Chairman, to solve the problem of sticking to the obligation of Article 62 and to the reality that in fact we will be getting only one report which we will be calling second and third report.
Thank you sir.
I think the last one covers us legally speaking - namely asking Libya to combine its second with its third report. And that would not break the rhythm. I hope we take note of that.
[Examination of the Report of Rwanda]
[The report of Nigeria was then scheduled to be examined]
Nigeria. Is there a Nigerian here?
We have to decide whether we can take Nigeria's case - is it obligatory? It is not obligatory is it, that the state must be there? We are obliged to inform the state, but is it obligatory that the state must be there? Yes?
The idea is to establish a dialogue, Mr. Chairman, to see how the Commission can work with separate countries in tackling what problems they might be facing in implementing the Charter. But I suppose in the absence of the country, as the case now, the Commission can choose to discuss as to what to do. We may, for example, consider improving the communication that we send to them, extending it and again repeating the invitation that they should come. I thank you.
BADAWI [Original statement made in Arabic]:
Thank you, Mr. Chairman. Mr. Chairman, there is a practice which must be respected by the Commission according to its rules of procedure, and that is to notify the state that its report was going to be discussed at a certain, specific time, so that this state is given the opportunity to discuss the report whilst its representative attended the session, and consequently, there would be a dialogue as indicated by Commissioner Nguema. This is in fact the procedure we have followed relating to Nigeria, because according to the rules of procedure, we are obligated, not to discuss a report if we must discuss the report as long as we have asked the state to participate in the sitting. But however, in the light of the circumstances we are in, that is, that the session is being held in Lagos, then it is not possible to apply these procedures and consequently, Mr. Chairman, I would propose that the Secretary to the Commission or one of his assistants go, even during the break to inform the competent authority in Nigeria, and of course you yourself know more than anyone else whom to contact. That we were going to discuss the report of Nigeria and are they going to send someone or not. I think, Mr. Chairman, that this procedure is very important, and before saying that we cannot discuss this report now or whether we are going to discuss the report in the absence of a representative of the Nigerian Government. Thank you, Mr. Chairman.
Thank you, Mr. Chairman. I am Rapporteur on this country and before me is a telex communication to..
- it is a telex, it was sent on 25 February 1991 by our Secretary, Mr. Mutsinzi - maybe I should read it - it says: It is addressed to Mr. Awaoo Akakalu, special assistant to the Honourable Attorney General of the Federation and the Ministry of Justice, Lagos, Nigeria. 'Please convey following message to Ministry of Foreign Affairs/ External Affairs, Federal Republic of Nigeria. Following our note verbale of 17 December 1990 relating to initial report presented by your country in accordance with Article 62, African Charter on Human and Peoples' Rights, honored to confirm: 1) Holding in Lagos, Nigeria, 18 to 25 March 1991. 9th Ordinary Session, African Commission, Lagos Sheraton Hotel. 2) Initial report submitted by your country will be examined at said session on 21st or 22nd March 1991 and representatives of state parties may participate in the proceedings of the Commission at which reports are considered. Stop. High consideration. N. Mutsinzi, Secretary to the Commission'.
If we had time with us, we would want to seek another occasion to meet representatives from Nigeria. But as we are actually meeting in Nigeria, in Lagos, surely the country knows, and if they have chosen not to come, no communications, no other extra letters will make them come. In any case, when are we to do that, because today is supposed to be the last formal working day. I think instead of losing any more time, let us just discuss what in the circumstances we should do. And this I am afraid cannot be anymore than deciding on what sort of invitation or to be precise, beef up the invitation mention some more aspects which we would expect them to deal with which we did not mention in the area of communication, and leave it at that. Unless we want to take up the matter and consider it under confidential proceedings in which we might consider perhaps addressing a thought to the Assembly of the Heads of State on the matter. But otherwise the time does not allow us to put off a decision on the matter, we cannot have another day on this matter. We still have two or three main items on the agenda to attend to and equally important items. I thank you, sir.
That telex says that the representative of Nigeria 'may' not 'should' - that was why I asked the question whether the state is obliged to be present. In fact I have asked the young man, the official wearing glasses, this morning, he has been the one relating to us - I asked him this morning if someone is coming, and he said 'Definitely, oh yes' - so I am surprised, it is probably a failure on part of someone. So maybe if you want us to we can communicate to the Ministry again? Do we postpone or do we go ahead? Dr. Badawi.
Thank you, Mr. Chairman. Mr. Chairman, I still stand by what I suggested, that out of the spirit and the sense of the exercise of discussing the report. That is a process which involves the presence of the state, establishing a dialogue with the state. So this is a compelling logic which we have to take into consideration. The second consideration, Mr. Chairman, is out of courtesy - we are invited by the Nigerian Government, we are hosted by the Nigerian Government, so out of courtesy, which would not take much of our time, we are, I feel personally, obliged to get in touch, you personally maybe, Mr. Chairman given the information which you have just indicated now, to check with them, will somebody come, or shall we go ahead and discuss the report? Now, Commissioner Mubanga-Chipoya is raising an important issue, the question of time. The question of time - we agreed, Mr. Chairman, that we have to end our substantive discussion by Friday, that is today, to give the Secretariat the time to prepare the draft report with the understanding that there will be vacant, empty spaces in the draft report which are going to be filled later on with whatever issues we can exhaust on Sunday, and Monday. So the time now, as far as my watch is concerned is 15 past 5. Even if we go now discussing the Nigerian report, theoretically speaking, it could take us more the 45 minutes, theoretically speaking. So what I would suggest, Mr. Chairman, that we take a break for 10 minutes. In these 10 minutes, you will communicate with the Nigerian Government and on the strength of the reply which you will be getting from them, we will decide our programme of work - including the possibility of considering the Nigerian report, because we have to give some thought on how we are going to procede from now on. Because again as I said, we agreed that we will finish the substantive work to give the Rapporteur the time to give the Secretariat the draft to work on it for tomorrow. So maybe within these 10 minutes we can agree among ourselves on how we are going to proceed. You know, as far as the time element is concerned and as far as the draft report is concerned. I thank you, sir.
If we agree on the principle of listening to the Nigerians, in any case, we can fix the time, I would suggest maybe Monday. There is that now, it is 5.15, the offices have closed, and someone that would come, they would not just send somebody, he should have prepared himself, and there would not be enough time for the gentleman or lady to prepare himself to face the Commission. Moreover, to get around at this time of the day, the traffic jam is pretty serious. It may be better that we agree that we can take this first thing on Monday then I can spend the weekend and try to make contacts to be sure that someone comes over the weekend. That might be a better idea. Mr. Mubanga-Chipoya.
I thank you. I do not know what would be more discourtious. You sent by letter, by ordinary letter, we sent a communication last year and this telex also was sent and you have also been in touch, talking to some officer who said they would be coming. If we keep at it in this way, wouldn't that be discourtious in itself? Why do not we give them more, greater chance to prepare themselves so that they would probably give us fuller answers to a number of the questions which we might pose in the second communication? I am not insisting on that but I just see that we don't have that sort of time to keep going on, we should just regard this matter like any others in which the country has not shown up and leave it as such. I do not know, it might be embarrassing as a matter of fact for us to keep going back to say are you coming, are you coming - after three examples of contact. But I leave it to the Commission. I thank you.
I suggest Mr. Chairman, that we stick I suggest to your proposal that we take the Nigerian report on Monday morning at 9 o'clock, and we can inject the summary of the discussion on that report in the report of the Commission, so there will be no difficulty as far as that element is concerned, but I think we will have to stick, as you said at the beginning, to our agenda otherwise we will keep hopping from one item to another item and at convenience without any control. So I hope that what you have suggested will be carried. Especially, if Commissioner Mubanga-Chipoya does not feel strongly about what he has just said. Thank you, sir.
[Rwanda - summing up]:
We may now round up the case of Rwanda, since the Gentleman is stitting here, I do not think we have to ask him to leave but we would not give him the opportunity of responding. I think we should try to make some kind of - make sense or give a summary of our attitude. Mr. Nguema is the Rapporteur for - you would then do a letter which I would - a letter that does not go quite as far as you went. Some of the issues you raised may not have arisen directly from the Periodic Report, on the other hand, the situation in Rwanda is well-known to anyone who keeps abreast of African affairs. I would like to associate myself with you and the Secretary in the letter that will be written in response to the report of Rwanda. I did not assume that facts have been put before the Commission and proven or disproven, but we would always of course request that a situation be created in any of the countries where individual rights are respected. And of course our Charter talks about peoples' rights too, and that is where we are different from the European Charter, European Convention - the emphasis on people as against, simply, individuals. I hope that we will be able to do a letter, I will ask the rest of our colleagues to trust the three of us to do an appropriate letter in response to the Periodic Report of Rwanda.
Mr. Chairman, I believe that we are in the second stage of discussing among ourselves and simply, I would like that this letter which the Commissioner Nguema will draft, will take into consideration the rules of procedure of this Commission, under which up to this moment, we are working in the sense that we have to ask for additional information if we find that the report of the state does not give us the type of information out of which we can appreciate the situation. And secondly, we have to bear in mind sub-paragraph 3 of Rule 85 which says that the Commission may address, may address general observations to the state concerned as it may deem necessary. So I do hope to avoid any misunderstanding or any confusion but at this stage, we will be asking for information. We are not asking for specific action because this specific action will come under the general recommendation, according to our rules of procedure, at a later stage. I thank you, sir.
You will want to summarize, Commissioner Nguema? So that I let you take the floor after?
A clarification of your authorization, please. I was not too clear in my mind when you said that our Commission was concerned with the right of the individuals and the rights of communities. Does that mean that we have to take into account the rights of the Hutu community, the Tutsi community or the Tua community? I think that according to the interpretation and even the principles which are enforced in the OAU at the level of states, I think it is admitted that we do not have to take into account the rights of the various ethnic groups, to consider them as peoples' rights. For the OAU, the 'peoples' is the whole group composing the nation - the groups as a whole that we find within a state. So if I well understood, does that mean that what we must ask from Rwanda must take this into consideration? Do they have to be - should we recognize a certain identity or a certain autonomy to the various ethnic groups? It was simply a clarification--the situation of individuals' rights and communities' rights. I thank you, Mr. Chairman.
I was hoping to present a summary that could take account of all of what we have said. I may not have succeeded in doing that. I do not for instance agree with Dr. Badawi that we should ask for information in the circumstances that Rwanda finds itself, and as for your contention it seems pretty obvious that one of the peculiarities of the African Charter is its emphasis not just on individuals but on peoples, and this starts right from the very title and runs throughout, in fact Article 19 says; 'No people may dominate another people' - there is no way that people here simply means all the people of the country - it is people that have an identifiable interest, and this may be carpenters, may be tribes, may be fishermen or whatever. So it is possible for us to do a letter and I was hoping that when it was left to three of us, rather than the Rapporteur and the Secretary, that when I am added to the two of them, that our colleagues would trust that we would do a letter that would represent our views without stirring up anymore dust or invoking unnecessary controversy. Dr. Badawi.
Thank you, Mr. Chairman, but I will take it that this letter will have to be discussed among the members of the Commission to decide upon its content. This is I just would like to make it clear because this is a very important matter, Mr. Chairman, and we cannot leave it to one or two or three. We have, as members of the Commission, to decide on the content in the light of the Charter and the rules of procedure to avoid any repercussion on our work. So I hope that this will be clear, Mr. Chairman, so there will be no misunderstanding. I thank you, sir.
I thank you, Dr. Badawi. I withdraw my former suggestion and I will ask you and Dr. Nguema to produce a draft which we shall discuss. Mr. Mubanga-Chipoya.
I have sought the floor to merely emphasise that the rights of the individual, accepted in general terms, should be brought out in whatever letter you decide to send. The importance of the right of the individual seems to be quite high. So high that we begin with them in the Charter. The rights of groups actually come later. And I am inclined to have the understanding of peoples along the lines of Commissioner Nguema, because otherwise you might lead to dissention within the state. The rights of the groups here, peoples, are necessary in the context of satisfying the rights of the individual. I do not know whether I have come out clearly. While an individual would not defeat the claims of a group, but the rights of the group are to be understood in the context of satisfying the rights of the individual. One is not necessarily subsidiary to the other. Without beginning a debate on this - this aspect of the rights of the individual should come out in whatever communication you send to the Government of Rwanda. I thank you.
I think we have agreed. We shall look at the letter that both Dr. Badawi and Mr. Nguema will write, and I am rather surprised that this argument is cropping up. I thought it was well know that this is precisely one of the peculiarities of our Charter that the European approach to human rights is almost the case of emphasising the right of the individual against the whole state. But as Africans we think of the individual, we think of his duties in society, because it is only in society that he can fully achieve his maximum enjoyment. It is possible to balance both of them without stirring any more controversy. It is possible to write a letter without showing preference for one as against the other. And I believe that any two of our Commissioners can do such a letter, and therefore I have suggested that those who seem to be unduly concerned - who have a special interest in just how the letter is worded, that they do it and then we discuss it. Mr. Mubanga-Chipoya.
Not as if we are setting out the rights of the individual on one side and the rights of the community on the other. We have to protect both - the indications are that possibly the rights of the individual might be violated in Rwanda, as it is, by the arrangement of quarters. So what I am asking for is merely a general, at this stage, a general reference to the right of the individual. Do not let us set out to deal with the rights of the individual on one side and then the rights of the community on the other in this letter to Rwanda. No, both aspects of the rights should be referred to in general terms and left at that. This is what I am trying to suggest. Thank you.
Are you afraid then that the two of them will not be able to write a letter that would be a good basis for discussion?
Far from it.
So why do not we just leave it at that.
It is too short - the letter is not long enough. It cannot be long enough to deal with such a complex matter and acquire understanding on the other side. So it would be better just to refer to it in general terms. It would need full discussion between us and the country at an appropriate time.
Before we write the letter?
So we should not write any letter now?
No, you do write a letter now. We - you have to recall what has happened now.
We must react to the Periodic Report, in writing. It is just that letter we are talking about.
That it is. Yes. We are.
NGUEMA [Original statement made in French]:
I thank you, Mr. Chairman. I think it may be necessary to clarify our work methods, our procedure and maybe the nature of the problems we are dealing with. There is a first problem which is raised that is the letters to be sent to the states after examination of their Periodic Reports, their initial periodic reports. Of course, I have the impression that it is only the letter addressed to Rwanda which is subject to agreement in our Commission because I did not hear of any letter to be drafted by two or three people in our Commission to be sent to Libya or to the other states which have submitted their Periodic Reports. This is a question of principle, Mr. Chairman. Either all of the Commission approves the letter, or the Rapporteur is entrusted to draft this letter, with your approval of course Mr. Chairman. Or on the contrary, is it only regarding Rwanda that this principle must exist? This is one point, Mr. Chairman.
The second point is the problem which has just been under discussion - peoples, on the one hand individuals on the other. I do not think we should launch on such a discussion which was started when the Charter was being drafted. Certain people wondered whether we should consider ethnic groups within the states as being peoples, and I think that up to now we could not define in the Charter the term 'peoples', but if my memory serves me right it had been understood that eventually in case of conflict or in case of problems arising this definition would be left to the appreciation of the Heads of State. But in any case, when the term 'peoples' was introduced in our Charter, at that time, we meant peoples which had been colonized by European states, for instance the Nigerian people. We did not not distinguish the Yorubas or the Minas or etc. These are not the communities or the peoples we were aiming at. We were saying Nigeria has been colonized and Nigeria must be considered as a people who must be liberated and freed. I think that actually we meant the colonized people and peoples which are under dependence or which are subject to racial discrimination such as South Africa, and we had those peoples in mind at that time. Which leads me to say that when we examined the problem of Rwanda, whilst we do know is that there are ethnic groups in Rwanda with their problems, should we recognize, should we consider that these ethnic groups are peoples which must affirm their identity. I think it is an error that we are committing quite often because we have the impression that when we say peoples we say 'right to self-determination.' Well, there are people who wish to have an identity without going to the point of self-determination. They may simply wish to have recognition of the language they practice within their nation, they may wish to claim the right to have churches from the point of view of religion without going to the extent of reclaiming independence within the state. This is to say that the term peoples has various degrees concerning the identity and objectives to be reached. But for the moment, concerning states I think the dominant opinion when the Charter was elaborated, was that the term peoples related to colonized peoples or peoples which were under racial domination or under occupation by a foreign state. But in Africa, it was not meant to recognize the identity of the various ethnic groups composing the states.
Well, I am not insisting, Mr. Chairman, but I believe that things have to be clear. Either we excuse Rwanda's attitude or we approve it or we must place ourselves in conformity with the dominant opinion concerning the Charter which is the dominant opinion of what is admitted in the states. I thank you, Mr. Chairman.
Mr. Nguema, the argument is indeed very interesting, but it seems to me that it is not really necessary for our work at this stage. We can meet after dinner tonight to talk more about self-determination - to me a subject of great interest. 24 years ago when I started writing my thesis for the doctorate that was my topic: self-determination in international law. But this is not necessary for our work now. What bothers me more is that you are contending why should you be asked to write a letter with someone else other letters written just by the Rapporteur. It is because of the issues that have been raised that made me think that perhaps - I mean two heads are better than one, if two people write then it is likely to be more representative, it may present a more balanced view, than if one person writes. If on the other hand you insist on writing because you are the Rapporteur, you want to write it and we will discuss it by all means do so, but I thought a good deal of the argument of the disagreement could be removed initially by two of you, maybe starting at two ends. If you agree, it would be easier for us to agree. But if you insist on writing the letter alone for our consideration, please go ahead. But let us move on to something else if you do not mind.
NGUEMA [Original statement made in French]:
Mr. Chairman, with your authorization I entirely agree to draft the letter with two or three members of the Commission, I entirely agree with that. All the more so that I must leave tomorrow morning at 6 o'clock for Dakar where I have other commitments, so I find it quite suitable that we should meet after dinner. I entirely agree. I thank you, Mr. Chairman.
Thank you very much. Dr. Badawi and Mr. Nguema will do an appropriate reply to Rwanda which we shall see. We are taking Nigeria on Monday, 9 o'clock.
[Nigeria was not examined at the 9th Session but at the 13th Session in April 1993]
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