Non-Compliance of State Parties to Adopted Recommendations of the African Commission: A Legal Approach 1998.
Footnotes as in original. Also reprinted in R Murray and M Evans Documents of the African Commission on Human and Peoples’ Rights (2001) 758
- During its 22 nd Ordinary Session, held in Banjul, The Gambia, from 2 – 11 November 1997, the African Commission on Human and Peoples’ Rights was seized by its Secretary of the issue of non-compliance of state parties to adopted recommendations of the Commission on the communications submitted before it in accordance with the relevant provisions of the African Charter (Agenda Item 11-b).1
- It was particularly stated that the non-compliance of concerned state parties to the recommendations constituted one of the major factors of the erosion of the Commission’s credibility.
- After a lengthy discussion, it was decided that:
- A study should be conducted on the various aspects of the matter; and
- Recommendations made by the Commission on communications submitted before it, should be included in its Annual Report forwarded to the OAU Assembly of Heads of State and Government for adoption.
- The issue discussed here is that of ensuring the compliance of state parties to the recommendations of the Commission and thereby meeting the expectations of complainants that have entrusted the Commission with their complaints.
- The aim of this study is to propose a series of solutions for the Commission’s consideration whilst highlighting the difficulties in which the Commission found itself in the course of the past years vis-à-vis the attitude of state parties which, with the exception of Cameroon,2 has been to generally ignore its recommendations.
- The past practice of the Commission has been to consistently make use of a literal interpretation of the provisions of article 59(1) which stipulates the following “All measures taken within the provisions of the present Charter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide”. And indeed every annual report of the Commission contains all the decisions and recommendations adopted on the communications and the Assembly of Heads of State and Government has always adopted the Commission’s reports without debate. Moreover the states concerned by the recommendations so adopted have never raised any objection against the reports nor made any reservations; be it against the conclusions of communications brought against them, or against reports of missions undertaken in their territories by the Commission. In spite of all of this, state parties in their large majority have never given the expected outcome to the recommendations. With the sovereignty of the Assembly of Heads of State and Government and the Charter’s non-provision of alternative methods of compensation for victims of human rights violations, the said victims find themselves without any remedy after the aforementioned process followed by the Commission. This frustrating situation suggests that the Commission should interpret and apply the provisions of the Charter in a more dynamic way.
- Coming back to article 59(1) mentioned above, note could be taken of the fact that comparatively the terms are quite similar to the text of article 5(3) and (4) of the Optional Protocol (1) to the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations in its Resolution 2200 A (XXI) of 16 December 1966. However, the United Nations and most particularly the General Assembly has evolved in its perception of human rights issues. It thus decided to convene in 1989, a world conference with the aim of examining progress achieved so far in the domain of human rights since the inception in 1948 of the Universal Declaration of Human Rights, identifying obstacles to the full realisation and finding the means to overcome them, with the aim of bringing human rights closer to its natural subject, the human being. This process led to the Conference and to the Vienna Declaration adopted on 25 June 1993 by one hundred and seventy one (171) countries, the goal being to achieve a concrete implementation of human rights norms.
- The African Commission is a conventional organ precisely entrusted inter alia with the mission of helping in the development of the culture of respect of fundamental rights of the human being, throughout the continent. To enable it [to] aid in the advancement of human rights issues and justify its existence, it would be judicious for the Commission to explore other efficient ways and methods toward the state parties. [meaning unclear – ed]
- In this regard, the Commission could by reviewing the number of recommendations it had made on the communications where it had found that there had been violations of human rights, make the ratio [sic] with the number of concerned states, and then assign some of its members with explanatory and consultative mission to the said states. The aim being to have a frank and critical dialogue with the states and help them to comply with the said recommendations. This initiative could be limited in time and should involve both interested national and international NGOs.
- The other axis of intervention could be the systematic incorporation of all cases of human rights violations that were found by the Commission into the agenda of the Committee of Ambassadors and other plenipotentiaries accredited to the Organization of African Unity (OAU) and to the agenda of the OAU Council of Ministers. The idea here being to “heckle” states accused of human rights violations and therefore to get rid of the process of confidentiality which has shown its limits and insufficiencies.3
- Furthermore, rule 108 of the Rules of Procedure stipulates that: “The Commission may issue through the Secretary and for the attention of the media and the public, releases on the activities of the Commission in its private session”. By making use of this provision, the African Commission could get itself closer to the procedure adopted by the UN in its Resolution II (XXXV of 1979) concerning cases of forced disappearances in Chile. The said Resolution was adopted by the UN Commission for Human Rights and it appointed for the first time a Special Rapporteur to deal with a situation of human rights brought before it. The raison d’être of this approach was to get rid of the straitjacket of confidentiality which as aforementioned does not allow any progress since the state can at any time turn a blind eye.
- The Member(s) thus appointed could inter alia be mandated to assist state parties concerned, in close collaboration with the Secretariat, in preventive activities and to sort out human rights problems being faced by the states. The experience has shown that in most cases, violations of human rights suffered by individuals are as a result of the ignorance of state agents directly concerned with such matters in their daily activities.
- Moreover, this would enhance dialogue with state parties, ameliorate their perception of the Commission and in so doing contribute to the edification and enhancement of the rule of law on the continent; the rule of law being a situation where through the institution of a state, the rights of all would be recognised, respected without discrimination, and where public authorities submit themselves to the law in all of their endeavours.
1Cf Doc/OS/20 (XXII) Add 2 .
2Cf Communication No 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon.
3 See annexed Draft Resolution below.