Fordham O Wara: Bibliographical Pathfinder: African System for the Protection and Promotion of Human Rights (2002).
Table of Contents:
- Introduction
- Using the Guide
- Organization of African Unity / African Union
- The African Commission on Human and Peoples’ Rights
- The African Court on Human and Peoples’ Rights
- Individual and NGO Participation
- Frequently Asked Questions
- Conclusion
This pathfinder focuses primarily on materials available in major law libraries and web resources relating to the African Union. This guide will also assist the reader in getting general introductory information on the working of the African Commission on Human and People’s Rights and the African Court of Human and Peoples’ Rights. Lastly, the guide will introduce the reader to the participation of individual and non-governmental organizations in the African human rights system. Please note that the focus is on library and electronic sources that can give the reader a general overview of the African human rights system.
Scope and Organization
The
African integration efforts are complex and have involved many initiatives and
many regional and international organizations.
This guide is limited to the African system for protection of human and
peoples’ rights. The guide will
hopefully be readable and understandable to a researcher without any knowledge
on African regimes, geography or regional organizations. Some knowledge of human rights in general is
however necessary. The guide begins
with general information on the transition from the Organization of African
Unity to the African Union. It mentions
the resources available in both Internet and print media such as the library of
Congress, journal, periodicals and indexes available at the University of
Minnesota Libraries, and general websites with important information on the
OAU/AU. The guide then mentions similar
resources, including books, with information on the African Commission on Human
and Peoples’ Rights and the African Court on Human and Peoples’ Rights. The guide also tackles the contribution of
non-governmental organizations in the African system of human rights. Finally, the guide gives answers to a list
of frequently answered questions.
Limitations of this Guide
The African system of human rights has evolved against a background of dictatorships, colonialism, poverty, ignorance and disease. As a result, it has not generated much interest in academic discourse. Most of the material cited in this guide is from African government resources, a few books written on the topic, general research papers and print media also available on websites. Since the pool of information is limited, the information itself is also limited. This problem is compounded by the fact that the transition to the AU is still in progress and information changes daily. Hence, the information on electronic and print resources may not have been updated. Furthermore, the OAU/AU is an organization with a lot of organs and the human rights system constitutes just one aspect of the OAU/AU. This guide does not go into details on the relationship between the human rights system and the other systems available in the OAU/AU. In general, this guide is limited to the human rights system and should give the researcher a basis upon which to build his or her knowledge of the African human rights system.
3.
Organization
of African Unity (OAU) / African Union (AU)
Background
The OAU was established on 25 May 1963 in Addis Ababa, Ethiopia, on signature of the OAU Charter by representatives of 32 governments. A further 21 African states joined gradually over the years, with South Africa becoming the 53rd member on 23 May 1994. At the extraordinary OAU Summit in Sirte, Libya on 2 March 2001, heads of State declared the establishment of the African Union. By 9 July 2001, the Constitutive Act of the African Union had been signed by all OAU member states and ratified by fifty-one countries. Virtually all African states are members of the OAU/AU.
The OAU’s mission was to promote the unity and solidarity of African States; co-ordinate and intensify their co-operation and efforts to achieve a better life for the peoples of Africa; defend their sovereignty, territorial integrity and independence; eradicate all forms of colonialism from Africa; promote international co-operation, giving due regard to the Charter of the United Nations and the Universal Declaration of Human Rights; and co-ordinate and harmonize members’ political, diplomatic, economic, educational, cultural, health, welfare, scientific, technical and defense policies.
With parts of Africa still colonized or under apartheid between 1963 and into the early 1990s, much of the OAU’s attention had to be devoted to supporting the freedom struggles. Furthermore, this was the era of the Cold War when the big powers tended to back undemocratic, repressive governments. Now with the end of colonial rule as it existed before the 1960s, the end of apartheid in South Africa and the emergence of more democratically elected governments in Africa, the conditions in Africa have become more favorable for building economic, political and social unity. To effectively address the challenges of this new era, African leaders envisioned a newer approach. At the Lusaka Summit which decided to begin the transition to the AU in July 2001, leaders made several references to the AU being loosely based on the European Union model. It was, however, agreed that the AU should be something new, with the emphasis on being an African experience. Whereas the OAU was in principle a political organization that also discussed matters of economic and social concern, the AU should be an organization aimed at economic integration and social development, which should lead to political unity.
The AU’s mission, as contained in
the constitutive act, is to: achieve greater unity and solidarity between
the African countries and the peoples of Africa; defend the sovereignty,
territorial integrity and independence of its Member States; accelerate the
political and socio-economic integration of the continent; promote and defend
African common positions on issues of interest to the continent and its
peoples; encourage international cooperation, taking due account of the Charter
of the United Nations and the Universal Declaration of Human Rights;
promote peace, security, and stability on the continent; promote democratic
principles and institutions, popular participation and good governance; promote
and protect human peoples’ rights in accordance with the African Charter on
Human and Peoples’ Rights and other relevant human rights instruments;
establish the necessary conditions which enable the continent to play its
rightful role in the global economy and in international negotiations; promote
sustainable development at the economic, social and cultural levels as well as
the integration of African economies; promote cooperation in all fields of
human activity to raise the living standards of African peoples; coordinate and
harmonise the policies between the existing and future Regional Economic
Communities for the gradual attainment of the objectives of the Union; advance
the development of the continent by promoting research in all fields, in
particular in science and technology; and work with relevant international
partners in the eradication of preventable diseases and the promotion of good
health on the continent.
The official languages of the AU
are the same as in the OAU: African
languages, Arabic, English, French, Portuguese, but Arabic was moved up from 4th
place in the OAU to 2nd in the AU.
Reference Material on the OAU/AU
Library of Congress subject headings
Search the Library of Congress Catalog at http://lcweb2.loc.gov/pp/mdbquery.html
Subject headings and author searches: Organization of African Unity, African Union, African Commission on Human Rights, Human Rights--africa
Periodicals/Journals
Corinne A. A. Packer & Donald Rukare, The New African Union and its Constitutive Act, 96 American Journal of International Law 365-379, issue 2, (Apr. 2002)
Gives background information on the creation of the African Union and its Constitutive Act. Has a historical rundown of major events in the transition from the OAU to the AU. The article then gives an introduction on the constitution and functioning of the AU.
Magliveras, Konstantinos D. & Naldi, Gino J., The African Union – A New Dawn for Africa? The International and 51 Comparative Law Quarterly 415-25, part 2 (Apr. 2002)
Gives an introduction to the AU, its objectives, organs and functioning.
Periodical Indexes
Accessible through the University of
Minnesota Law School Library website at http://www.law.umn.edu/library/
(follow the Quick Links pull-down menu)
Legal
Trac
Accessible directly at http://web5.infotrac.galegroup.com/itw/infomark/0/1/1/purl=rc6_LT?sw_aep=umn_wilson
Subject headings: Organization of African Unity, African
Union; Organization of African Unity. Commission on Human and Peoples’ Rights;
Keyword
searches: Afric* AND human rights;
African Union
Index to Legal Periodicals
Accessible directly at http://vnweb.hwwilsonweb.com/hww/shared/shared_main.jhtml;jsessionid=QOXH4XTYW5JJXQA3DIKSFFI?_requestid=88592
Search terms: African Union, Organization of African
Unity.
PAIS
Accessible at http://www.lib.umn.edu/articles/alpha.phtml?id=P
Search terms: African Union, African Human Rights,
Organization of African Unity.
Index
to Foreign Legal Periodicals
Accessible at http://www.lib.umn.edu/articles/alpha.phtml?id=I
Subject
word: Organization of African Unity
Keyword: African Union, African Human Rights
Electronic Sources
A copy of
the OAU Charter is available on the
following websites:
The Official Website of the South
African Chairmanship of the African Union at http://www.au2002.gov.za/docs/key_oau/oau_charter.htm
Last updated on July 25, 2001.
The Economic Commission for Africa’s website at http://www.uneca.org/itca/ariportal/oaucharter.htm
Last updated on March 1, 2002
The ECA is one of five regional economic commissions
under the administrative direction of the UN Headquarters and reports directly
to the UN Economic and Social Council (ECOSOC) through the Conference of
African Ministers Responsible for Economic and Social Development and
Planning. It was established in 1958,
is headquartered in Addis Ababa, Ethiopia and its membership consists of the 53
African States. Its aim is to support
economic and social development of its Members States.
South Africa’s Department of Foreign Affairs Website at http://www.dfa.gov.za/for-relations/multilateral/treaties/oauchart.htm
The website
was last updated on June 5, 2001.
A copy of the Constitutive Act of the African Union is also available
on the following websites:
The Official Website of the South African Chairmanship of the African Union at http://www.au2002.gov.za/docs/key_oau/au_act.htm
Last updated July 25, 2001.
Available
in pdf format at the African Union’s website at http://www.africa-union.org/en/docs/Constitutive%20Act%20-%20final%20version%20(signed).PDF
Institute
for Human Rights and Development in Africa’s website at http://www.africaninstitute.org/html/constitutive_act_of_the_au.html
The
Institute for Human Rights and Development in Africa is a non-profit,
non-governmental pan-African organization headquartered in the Gambia. It is committed to contributing to the
development of the African human rights system through its programme
activities.
National
Model AU 2003’s website at http://www.moau-au.org/constitutive_act_of_the_african_union.htm
The Model AU is essentially a simulation of the proceedings
of the African Union. The Inaugural
Session of the National Model African Union to be held at Howard University,
Washington, D.C, from March 5 - 8, 2003, will end 23 years of simulating the
Organization of African Unity and begin the annual simulation of the African
Union.
For general information on the OAU, including a history on its creation, visit:
Creation of the OAU at http://www.oau-creation.com/
Organization of African Unity at http://ncb.intnet.mu/mfa/oau.htm
Africana.com’s website at http://www.africana.com/Articles/tt_474.htm
For information on the AU, including the transition from the OAU to the AU, visit:
The Official Website of the South African Chairmanship of the African Union at http://www.au2002.gov.za/docs/background/oau_to_au.htm
Last updated July 25, 2001.
The African Union’s website at http://www.africa-union.org/fr/home.asp
Background
paper on the AU by the World Federalist Movement is available at http://www.worldfederalist.org/ACTION/africanunion1001.html
The World Federalist Movement is a global citizens movement whose international secretariat is based in New York City, U.S. Founded in 1947 in Montreux, Switzerland, the Movement brings together organizations and individuals committed to the vision of a just world order through a strengthened United Nations. The Movement has 23 member organizations and 16 associated organizations. It also has ECOSOC consultative status at the United Nations.
South Africa’s Department of Foreign Affairs Website at http://www.dfa.gov.za/events/auback.htm
The website was last updated on June 5, 2001.
4.
The
African Commission on Human and Peoples’ Rights
Background
The African Commission on Human and People’s Rights was established by
the African Charter on Human and Peoples’ Rights which came into force on 21
October 1986 after its adoption in Nairobi, Kenya, in 1981 by the Assembly of
Heads of State and Government of the Organization of African Unity (OAU). Article 30-45 of the Charter established the
Commission on Human and Peoples’ Rights and charged it with the task of
promoting, protecting and interpreting the rights in the Charter and performing
any other tasks assigned to it by the OAU’s Assembly of Heads of State and
Government. The AU’s Constitutive Act’s
Article 3(h) outlining the objectives of the new African Union states that one
of the objectives of the Union shall be to “promote and protect human and
peoples’ rights in accordance with the African Charter on Human and Peoples’
Rights and other relevant human rights instruments.” The AU, therefore, inherited the African Charter on Human and
Peoples’ Rights and the Commission on Human and People’s Rights that the
Charter’s arts. 30-45 established.
Only two countries, Egypt and Zambia, made reservations to the African Charter on Human and Peoples’ Rights. The Charter is however silent on reservations and has no provision on their acceptance or rejection. Additionally, the Charter neither allows for derogation of the rights enunciated in the Charter nor permits claw-back clauses to limit those rights. Derogation clauses, such as art. 4 of the International Covenant on Civil and Political Rights (available at http://hrlibrary.law.umn.edu/instree/b3ccpr.htm), permit States to take necessary measures that may derogate from the rights provided for in the human rights instrument during times of war, public danger, or other emergency that threatens the independence or security of the State. Derogations may also occur through claw-back clauses, which allow a State to restrict the granted rights to the extent permitted by domestic law. Some critics of the Charter argue that some provisions are so ambiguous that they may function as claw-back clauses. For instance, art. 9(2) provides that “every individual shall have the right to express and disseminate his opinions within the law.” Since this provision restricts the right to expression within the law, critics argue that national legislation may legitimately restrict the right to expression and that art. 9(2) therefore functions as a claw-back clause.
Functioning and Composition of the Commission
Art. 31 of the Charter provides that the Commission shall consist of 11 members chosen from amongst African personalities of the highest reputation and that the members shall serve in their personal capacity. Art. 36 of the Charter further provides that the members of the Commission shall be elected for a six year period and shall be eligible for re-election. Art. 41 provides that the Secretary General of the Organization of African Unity shall appoint the Secretary of the Commission while under art. 42, the Commission itself shall elect its Chairman and Vice Chairman for a two-year period. The Secretary of the Commission serves full-time and is based in the Gambia. Under art. 41, the OAU bears the cost of the staff and services necessary for the duties of the Commission.
The Commission adopted its own Rules of Procedure (Rules of Procedure of the African Commission on Human and Peoples’ Rights), which have also been amended. Although the original rules gave a significant role to the OAU Secretary General in the work of the Commission, the amendments assigned many of these powers to the Secretary of the Commission.
Communications by State Parties and Confidentiality
Under Rule 88 communications by a State Party alleging that another State Party has violated the provisions of the Charter are only submitted to the Secretary General, the Chairman of the Commission and the State Party concerned. In this way, the Commission keeps its proceedings confidential. Additionally, art. 59 of the Charter provides that all measures taken within the provisions of the Charter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide.
Individual Communications
Under art. 55 of the Charter, the Commission can also entertain communications from individuals and non-governmental organizations alleging violations of rights in the Charter. The individuals and non-governmental organizations can bring the communications on their own behalf or on another’s behalf. Art. 55 of the Charter provides that a communication shall be considered by the Commission if a simple majority of its members so decide.
Art. 56 lists seven different requirements for the admissibility of an individual communication. Part 5 is the by far the first requirement considered by both the commission and the State concerned. It provides that the communication shall be considered if they “are sent after exhausting local remedies, if any unless it is obvious that this procedure is unduly prolonged.” Art. 58(1) provides an exception to the exhaustion of local remedies rule. It provides that “when it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of Human and Peoples’ Rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases.”
Reports by State Parties and by the Commission
Art. 62 of the Charter requires each State Party to submit every two years, a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized and guaranteed by the Charter.
Art. 54 of the Charter provides that the Commission shall submit to each ordinary Session of the Assembly of Heads of State and Government a report of its activities. The report has become known as the Annual Activity Report and is published and made publicly available by the Commission.
Other Functions of the Commission
The Commission has also undertaken a number of missions to States. Art. 46 of the Charter allows the Commission to resort to any appropriate method of investigation. The Commission has also adopted resolutions against particular countries and appointed thematic rapporteurs. An example of a resolution adopted by the Commission is the Resolution on the Guidelines and Measures for the Prohibition and Prevention of Torture and Cruel, Inhuman or Degrading Punishment or Treatment in Africa also known as the Robben Island Guidelines. The Resolution was adopted at the Commission’s 32nd ordinary session, held on 17-23 October in Banjul, The Gambia. Examples of thematic rapporteurs appointed by the Commission include: Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions; Special Rapporteur on Prisons and Conditions of Detention; and Special Rapporteur on Women’s Rights. Under art. 45(4), the African Heads of State and Government can also request the Commission to undertake other tasks for it, e.g. observing elections as part of OAU missions.
Reference Material on the African Commission on Human and Peoples’ Rights
Books and Periodicals
Rachel
Murray, The African Commission on Human and People’s Rights and International
Law (Hart Publishing 2000)
The book gives a theoretical introduction to the African System for protection of Human and Peoples’ Rights. It then traces the origin and development of the African Commission on Human and Peoples’ Rights. Finally, it analyzes the African Commission on Human and People’s Rights’ approach to the protection of human and peoples’ rights vis-à-vis the European and Inter-American Human Rights systems.
Inger Österdahl, Implementing Human Rights in Africa: The African Commission on Human and Peoples’ Rights and Individual Communications (Förlafattaren och Iustus Förlag AB, Uppsala 2002)
This is a book that gives detailed information on how individual communicationjs are handled by the African Commission on Human and Peoples’ Rights under the African Charter on Human and Peoples’ Rights. The book makes observations on decisions of the Commission with regard to individual communications. It also contains criticisms on the procedure followed by the Commission but is overall an invaluable resource on the individual communications mechanism of the Commission.
Institute for Human Rights and Development, Compilation of decisions on communications of the African Commission on Human and Peoples’ Rights: extracted from the Commission’s activity reports (2d ed. Institute for Human Rights and Development in Africa 2002).
Examination of state reports: African Commission on Human and Peoples’ Rights (Mar. 1991)- (Danish Centre for Human Rights, 1995-)
Available at the University of Pennsylvania
Rules of procedure of the African Commission on Human and Peoples’ Rights (The Commission 1995)
Available at Harvard University, Columbia University and New York Public Library.
Electronic Sources
A copy of
the African Charter on Human and
Peoples’ Rights is available on the following websites:
University of Minnesota Human Rights Library at http://hrlibrary.law.umn.edu/instree/z1afchar.htm
Human Dimension Program website at http://www.diplomacy.edu/africancharter/default.asp
The site is maintained by the DiploFoundation, a joint initiative for the promotion of information and communications technology and its application in the study, teaching and practice of diplomacy. The DiploFoundation was founded on November 20, 2002.
Human and Constitutional Right Resource Page at http://www.hrcr.org/docs/Banjul/afrhr2.html
The site is maintained by the Arthur W. Diamond Law Library at Columbia Law School, New York City, U.S.A
Africa Legal Aid website at http://www.afla.unimaas.nl/en/legal/africancharter.htm
Africa Legal Aid (AFLA) was launched in Maastricht, the Netherlands in 1995 and has a second office in Accra, Ghana. Africa Legal Aid counsels individuals and groups on human rights matters, promotes human rights awareness, researches human rights conditions in African countries, publicizes human rights violations, pressurizes States to comply with their human rights obligations, analyses human rights legislation and treaties, and contributes towards the development of a human rights jurisprudence for Africa.
http://www.hri.ca/partners/forob/e/docs/AfriChar.htm
The website is maintained by Human Rights Internet, an organization created for the exchange of information within the worldwide human rights community. It was founded in 1976 and is headquartered in Ottawa, Canada. It communicates with over 5,000 organizations worldwide. Its mission is to empower human rights activists and organizations and to educate governmental and intergovernmental agencies and officials and other actors in the public and private sphere, on human rights issues and the role of civil society.
Available in pdf format at http://www.law-enforcement-forum.dk/pdf/African%20Charter.pdf
The website is maintained by the Law Enforcement Forum, an international forum for researchers and practitioners in the field of Human Rights and Law Enforcement.
A copy of the Rules of Procedure of the African Commission on Human and Peoples’ Rights is also available on the following websites:
Human and Constitutional Right Resource Page at http://www.hrcr.org/docs/African_Commission/afrcommrules4.html
The site is maintained by the Arthur W. Diamond Law Library at Columbia Law School, New York City, U.S.A
http://textus.diplomacy.edu/Thina/ThBridgeFset.asp?IDconv=2821
The cite has an HTML copy of the Rules of Procedure.
Activity Reports of the African Commission on Human and Peoples’ Rights are available on the following websites:
Fifteenth Annual Activity Report is available at http://www.law.monash.edu.au/humanrts/achpr/activityreport15.html
Twelfth Annual Activity Report is available in pdf format at http://www.law-enforcement-forum.dk/pdf/Af%2012%20activity%20report.pdf
Tenth Annual Activity Report is available at http://www.up.ac.za/chr/ahrdb/acomm_10th.html
Ninth Activity Report is available at http://www.up.ac.za/chr/ahrdb/acomm_9th.html
Last updated July 22, 2002.
Eighth Annual Activity Report is available at http://www.law.monash.edu.au/humanrts/africa/ACHPR1.htm
The Commission’s Resolution on the Guidelines and Measures for the Prohibition and Prevention of Torture and Cruel, Inhuman or Degrading Punishment or Treatment in Africa (the Robben Island Guidelines) is available in pdf format at http://www.apt.ch/africa/rig/Robben%20Island%20Guidelines.pdf
A news summary of the Commission’s 32nd ordinary session, held on 17-23 October in Banjul, The Gambia, is available on LEXIS at PanAfrica: Commission Stresses Need to Strengthen Human Rights, UN Integrated Regional Information Networks, Africa News, Tuesday, October 29, 2002.
For a summary of a study on Human Rights in Africa outlining the history of the Charter on Human and Peoples’ Rights, visit http://jullep.free.fr/lydie/lydiehr2.htm
Afronet file, a quarterly publication of the Inter-African Network for Human Rights and Development, is available online at http://www.oneworld.org/afronet/afronet.htm
The publication began in 1997 and is based in Lusaka, Zambia.
5.
The
African Court on Human and Peoples’ Rights
Note that the African Court on Human and Peoples’ Rights is not yet established because the Protocol on the establishment of an African Court on Human and People’s Rights has not been ratified by 15 Member States required for it to enter into force.
Background
Art. 68 of the African Charter on Human and Peoples’ Rights allows for amendments to the Charter. Pursuant to this provision, the OAU Assembly of Heads of States and of Governments adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights at its 19th Ordinary Session on 9 July 1998 in Ouagadougou, Burkina Faso. The AU, as the successor organization to the OAU, inherited the “African Charter on Human and Peoples’ Rights and other relevant human rights instruments” in art. 3(h) of its Constitutive Act, thereby effectively inheriting the Protocol establishing the African Court on Human and Peoples’ Rights as well.
The process of drawing up the Protocol was initiated at the Summit of Heads of State and Government of the OAU in Tunis in June 1994. A resolution adopted at this Assembly requested the Secretary General of the OAU to convene a meeting of government experts to examine ways of enhancing the efficiency of the African Commission on Human Rights and to consider in particular the question of the establishment of an African Court on Human and Peoples’ Rights.
A draft Protocol was submitted to a meeting of government experts in Cape Town, South Africa, in September 1995. The draft Protocol was adopted at the meeting of Ministers of Justice in December 1997 before ratification in Burkina Faso.
As at the Commission’s 32nd ordinary session, held on 17-23 October, 2002 in Banjul, The Gambia, the Protocol on the establishment of an African Court on Human and People’s Rights had not been ratified by 15 Member States required for it to enter into force.
Jurisdiction of the Court
Pursuant
to art. 3 of the Protocol, the Court has jurisdiction in all cases and disputes
submitted to it concerning the interpretation and application of the Charter,
the Protocol and any other relevant Human Rights instrument ratified by the
States concerned. The Court also
decides disputes on its jurisdiction.
Pursuant
to art. 4, the court may provide an advisory opinion on any legal matter
relating to the Charter or any other relevant human rights instrument. The following entities can request the court
for advisory opinions:
·
A Member State of the OAU
·
The OAU
·
Any of the OAU’s organs
·
Any African organization recognized by the OAU
Under art. 5, the following entities
are entitled to submit cases to the Court:
·
The Commission;
·
The State Party which has lodged a complaint to the
Commission;
·
The State Party against which the complaint has been lodged
at the Commission;
·
The State Party whose citizen is a victim of human rights
violation;
·
African Intergovernmental Organizations
The
Protocol also allows interested State Parties to request permission to join in
a case. Relevant NGOs with observer status
before the Commission, and individuals can also institute cases directly before
the court provided that, in compliance with art. 34(6) of the Protocol, the
State against which the complaint has been lodged has first made a declaration
accepting the competence of the Court to receive such complaints.
Organization of the Court
Art. 11-15 of the Protocol provides that the Court shall consist of 11 judges elected by the Member States of the OAU for a six-year term of office, which is renewable once only. Under art. 14, the judges of the Court are elected by secret ballot by the Assembly of Heads of State and Government of the OAU.
Art. 15 stipulates that the terms of four judges elected at the first election expire after two years, and the terms of four more judges expire at the end of four years, while the terms of the remaining three expire after six years to guarantee continuity. The judges perform their functions on a part-time basis, except the President of the Court who performs on a full-time basis. The Court elects its President and Vice-President for a two-year period, renewable once only. Art. 21 provides that their functions are to be set out in the Rules of Procedure of the Court.
Court Procedure
Art. 6 of the Protocol provides for the Court to rule on the admissibility of cases taking into account admissibility criteria laid down in art. 56 of the Protocol. Regardless of the admissibility criteria, the Court may consider cases or transfer them to the Commission. The Court may also request the opinion of the Commission before ruling on the admissibility of a case.
Art. 10 lays down that the Court shall conduct its proceedings in public, unless it is decided, in particular instances, to hold them in camera, in accordance with the conditions established by the Rules of Procedure. Any party to a case is also entitled to be represented by a legal representative of his or her choice. Art. 10 also calls for any person, witness or representative of the parties to be provided with the necessary protection and facilities. A quorum of at least seven judges is needed for examination of a case and the Court may receive all elements of proof that it considers appropriate, whether oral or written.
Court Judgments and their Execution
Once the Court has finished examining the case, it deliberates on it, and renders its judgment within 90 days of having ended its deliberations. The judgments of the Court are decided by majority. Each judge may add his or her separate or dissenting opinion to the majority decision of the Court. The reasons for the judgment must be given, and the judgment is read out in open court, due notice having been given to the parties. If the Court finds that there has been a violation of a human or peoples’ right, it makes appropriate orders to remedy the situation, including the payment of fair compensation or reparation. The judgment of the Court is final and not subject to appeal. The Court may however interpret its own decision and even review it.
Execution of the Court’s judgments is basically voluntary. Under art. 30, the States Parties to the Protocol undertake to comply with the judgment in any case to which they are parties and to guarantee the execution within the time stipulated by the Court.
The Council of Ministers, under art. 29, is responsible for monitoring the execution of the Court’s judgments. Also, in a report submitted to each regular session of the Assembly of Heads of State and Government, the Court specifies, in particular, the cases in which a State has not complied with the Court’s judgment.
Reference Material on the African Court on Human and Peoples’ Rights
Electronic Sources
Summary of court background at http://www.apt.ch/africa/African%20Court.pdf
For a copy of a Resolution on the Ratification of the Protocol
to the African Charter on Human and Peoples’ Rights on the Establishment of
an African Court on Human and Peoples’ Rights, visit http://hrlibrary.law.umn.edu/africa/courtresolution-2002.html
The Resolution was passed at the Commission’s meeting at its 31st Ordinary Session in Pretoria, South Africa, from 2nd to 16th May 2002. It noted that 36 States have signed the Protocol and only 5 States have ratified it. For the Protocol to enter into force, 15 States must ratify it. The Resolution urged all OAU Member States to ratify or accede to the Protocol as soon as possible.
The Commission’s 32nd ordinary session, held on 17-23 October in Banjul, The Gambia, also urged quick ratification or accession to the Protocol as soon as possible.
6.
Individual
and NGO Participation
Art. 45(1) of the African Charter on Human and Peoples’ Rights requires the African Commission on Human and Peoples’ Rights to promote human and peoples’ rights including encouraging (a) “…national and local institutions concerned with human and peoples’ rights…” and (c) “co-operate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.” Art. 46 of the Charter further enables the Commission to hear from any other person capable of enlightening it. Rule 72 of the Commission’s rules of procedure provides that the Commission may invite any organization or persons capable of enlightening it to participate in its deliberations without voting rights. Rules of procedure 76-77 also permit NGOs to send representatives to the Commission’s sessions. Art. 5 of the Protocol on the Establishment of an African Court on Human and Peoples’ Rights also provides that the Court may entitle relevant NGOs with observer status before the Commission, and individuals to institute cases directly before it.
The Commission and the Court, therefore, allow NGOs with observer status before the Commission to participate in their sessions. The linchpin of such participation for any NGO is that it must have observer status before the Commission.
The Commission has adopted a resolution on the Criteria for Granting and for the Maintenance of Observer status with the African Commission on Human and Peoples’ Rights to NGOs working in the field of human rights. NGOs make applications to the Commission for observer status.
Examples of criteria include:
·
The NGO must have objectives and activities in consonance
with the fundamental principles in the OAU Charter and in the African Charter.
· The NGO must be an organization working in the field of human rights
· The NGO must declare their financial resources
· The NGO must have an established structure
· The NGO should not be political
NGOs dominate as authors of individual communications. For instance, the fact that the Commission has received many communications regarding Nigeria is due in part to the fact that there is a large number of efficient NGOs in Nigeria engaged in human rights filing many communications either in their own name or on behalf of the victims of human rights violations. The Tenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1996-97, for example, noted in Annex VI, part III, Section A(2) that several African NGOs had been requested to provide useful information to the Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions. In the Report on Mission of Good Offices to Senegal, Tenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, the Commission highlighted a situation in the Casamance in Senegal, where rebels were trying to gain separation of the area from Senegal. In that case an NGO petitioned the Commission on behalf of the rebels themselves.
Examples of cases that NGOs have brought before the Commission (listed in Inger Österdahl, Implementing Human Rights in Africa: The African Commission on Human and Peoples’ Rights and Individual Communications (Förlafattaren och Iustus Förlag AB, Uppsala 2002))
Case 71/92 Rencontre Africaine pour la Défense des Droits de l’Homme v Zambia, decided at the 20th Ordinary Session of the African Commission, 21-31 October 1996.
Case 87/93 Constitutional Rights Project (in respect of Zamani Lekwot and 6 Others) v Nigeria, decided at the 16th Ordinary Session of the African Commssion, 25 October-3 November 1994
Case 90/93 Paul S. Haye v The Gambia, decided at the 16th Ordinary Session of the African Commssion, 25 October-3 November 1994
Case 97/93 (II) John K. Modise v Botswana, decided at the 28th Ordinary Session of the African Commission, 23 October-6 November 2000, para. 19.
Reference Material on Individual and NGO Participation
Periodicals/Journals
Abdelsalam A. Mohamed, Individual and NGO Participation in Human Rights Litigation Before the African Court of Human and Peoples’ Rights: Lessons from the European and Inter-American Courts of Human Rights, 43 Journal of African Law 201-13, no.2, (1999).
Gives a summary on standing and jurisdiction before the African Court on Human and Peoples’ Rights. It also compares the African system for protection of human and peoples’ rights to the European and Inter-American systems.
The participation of NGOs in the work of the African Commission on Human and Peoples’ Rights: a compilation of basic documents (International Commission of Jurists 1996)
Available at the University of Minnesota Libraries, Yale University, Harvard University, University of Chicago and University of Texas.
Electronic Sources
A list of organizations granted observer status with the African Commission on Human and Peoples’ Rights is available in pdf format at http://www.achpr.org/observer_status.doc
Last updated December 5, 2000. The list published in 2000 contains 247 NGOs both based in Africa and in other continents. Examples of organizations on this list include:
· Amnesty International based in London, U.K.
Website at http://www.amnesty.org/
· International Commission of Jurists based in Geneva, Switzerland
Website at http://www.icj.org/
· The Arab Lawyers Union based in Cairo, Egypt.
· Human Rights Internet based in Ontario, Canada
Website at http://www.hri.ca
· The Catholic Commission for Justice and Peace in Zimbabwe
Website at http://www.ccjp.org.zm/
· The Fund for Peace based in Washington, D.C., U.S.A.
Website at http://www.fundforpeace.org/
·
Association
Internationale des Jeunes Avocats (AIJA) based in Paris, France
Website at http://www.aija.org/
· Arab Libyan Commission for Human Rights based in Tripoli, Libya
· The Danish Centre for Human Rights based in Copenhagen K, Denmark
Website at http://www.humanrights.dk/
A pdf copy of the Resolution on Granting Observer Status to National Human Rights Institutions in Africa is available at http://www.up.ac.za/chr/ahrdb/acomm_10th.html
The Resolution was adopted at the Commission’s 24th Session.
a) Why did Organization of African Unity Member States decide to form the African Union?
The Organization of African Unity was primarily formed to eradicate Africa of colonial rule. With the end of colonial rule and apartheid, African leaders felt the conditions were ripe for a newer organization with the goals of building economic, political and social unity. The newer organization is an outgrowth of the Organization of African Unity and is known as the African Union. It is loosely based on the European Union model and aims at economic integration, social development and eventually political unity.
b) Will the African Union have an entirely new human rights system or will it just continue using the structures of the former Organization of African Unity?
The AU will continue to base its human rights system on the African Charter on Human and People’s Rights just as the Organization of African Unity did. The AU’s Constitutive Act’s Article 3(h) outlining the objectives of the new African Union states that one of the objectives of the Union shall be to “promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.” The AU, therefore, inherited the African Charter on Human and Peoples’ Rights and the Commission on Human and People’s Rights that the Charter’s arts. 30-45 established.
c) Can anybody bring claims before the African Court on Human and Peoples’ Rights?
The African Court on Human and Peoples’ Rights is not yet established because 15 Member States have not yet ratified the Protocol on the establishment of an African Court on Human and People’s Rights. 15 Member States have to ratify the Protocol for it to enter into force. The African Commission on Human and Peoples’ Rights, however, can entertain communications from State Parties, individuals and non-governmental organizations.
d) Who appoints the African Court on Human and Peoples’ Rights’ judges?
Art. 11-15 of the Protocol on the establishment of an African Court on Human and Peoples’ Rights provides that the Court shall consist of 11 judges elected by the Member States of the OAU for a six-year term of office, which is renewable once only. Under art. 14, the judges of the Court are elected by secret ballot by the Assembly of Heads of State and Government of the OAU.
e) With all those corrupt African dictators, how is a Commission or Court on human and peoples’ rights going to fit into their establishments?
The Commission, after having found the State guilty of one or more violations of the Charter, typically recommends different measures to be taken by the State in order to remedy the wrongs committed. The decision of the Commission is typically non-binding and is non-executable in the African State concerned, unless the State agrees to execute the decision voluntarily. Even though a State may choose to ignore the Commission’s recommendations, the Commission still provides an alternative forum for individuals to address their grievances. The Commission is particularly useful in African States where domestic remedies may be ineffective in protecting human rights.
f) Who provides financing for the African Court on Human and Peoples’ Rights?
Under art. 41 of the African Charter on Human and Peoples’ Rights, the OAU bears the cost of the staff and services necessary for the duties of the Commission. Since the AU has pledged to implement the Charter, it will probably finance the African Court on Human and Peoples’ Rights as well.
g) Does the website of the African Union give a lot of valuable information on the function of the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights?
The website of the AU at http://www.africa-union.org is not very helpful in getting detailed information on the AU. It, however, provides a copy of the Constitutive Act of the AU, a link to press releases and general information on the AU, names of the AU’s President, Chairman and Secretary-General and flags of all the Member States.
This guide has attempted to create a picture of the African system of human rights by giving sources of information available electronically and in print. However, the sources cited are by no means exhaustive and there are a lot of unanswered questions concerning the African system of human rights. For instance, questions concerning the African Court on Human and Peoples’ Rights and its entry into force still remain. These questions are complicated by the fact that the transition from the Organization of African Unity to the African Union is still in progress and has only recently engendered interest in academic discourse. To date, the most reliable information on the transition is mostly available in newspapers and journals as these resources are better able to cover the day-to-day events concerning the transition. Certainly, the goal of establishing an effective system for change and development in Africa is a step in the right direction. Indeed it represents a ray of hope in an otherwise historically unpromising setting. Hopefully, this guide will be helpful in provoking more questions in the reader and guiding the researcher in the right direction when seeking information on the African system of human rights.