SECTION 10: STRATEGIES AND TOOLS - REGIONAL LEVEL
THE AFRICAN COMMISSION ON HUMAN
AND PEOPLES RIGHTS AND ESC RIGHTS
The Purpose of Module 28
The purpose of this module is to examine possibilities for activists to pursue enforcement of ESC rights through access to the African Commission on Human and Peoples Rights.
The adoption of the African Charter on Human and Peoples Rights  is easily the boldest step taken by African states to address the widespread and systematic violations of human rights in the African continent during the 1970s through the late 1980s.
Embodied in the African Charter are provisions on basic civil and political rights and on economic, social and cultural rights. These are guaranteed without distinction of any kind such as race, ethnic group, color, sex, language, religion or political or any other opinion, national and social origin, fortune, birth or other status. Furthermore, the Charter articulates human rights-based duties for states parties as well as individuals. Thus, individuals have duties towards their fellow beings, family and society, and must exercise their rights and duties "with due regard to the rights of others, collective security, morality and common interests.
Economic, Social and Cultural Rights Provisions of the African Charter
The African Charter entrenches the principle of indivisibility and interdependence of all human rights. According to the preamble of the Charter, "It is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as their universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights (para. 8).
The Charter guarantees several ESC rights. Article 15 provides that "every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work. The right to the best attainable state of physical and mental health is guaranteed to every individual. States parties are obligated to take necessary measures to ensure that sick people receive medical attention (art. 16). The physical health of families is guaranteed, alongside protections for women, children, the aged and the disabled (art. 18). Every individual is also guaranteed the right to education (art. 17), and the freedom to take part in the cultural life of his community. Article 22 recognizes the right of all peoples to their economic, social and cultural development, with due regard to their freedom and identity, and in the equal enjoyment of the common heritage of mankind, while article 24 recognizes the right of all peoples to a general satisfactory environment.
The Charter does not include some ESC rights, such as the right to housing. However, these may be claimed derivatively; for example, article 14, which guarantees the right to property, may provide a basis for claiming the right to adequate housing. Despite the fact that the right to food is not expressly guaranteed under the Charter, the African Commission on Human and Peoples Rights established under the Charter has declared that food deprivation constitutes a violation of the Charter because it contravenes the right to respect of the dignity inherent in a human being.
The African Commission on Human and Peoples Rights
The African Charter established the African Commission on Human and Peoples Rights. The mandate of the commission is to promote and protect the rights guaranteed under the Charter. The commission is composed of eleven members who are elected by the Assembly of Heads of State and Government of the Organization of African Unity (OAU). Members, upon election to the commission, shall serve in their personal capacity. Article 36 of the Charter stipulates that members of the commission shall be elected for a six-year period and shall be eligible for reelection. In the discharge of its functions, the commission is supported by a Secretary and staff appointed by the Secretary-General of the OAU. The commissions Secretariat is based in Banjul, the Gambia.
As a treaty-monitoring body, the commission is charged with broad promotional, protective and interpretive responsibilities,  including the examination of states parties reports,  and consideration of interstate,  individual and NGO communications.
As with other treaty-monitoring bodies, the African Commission is mandated to receive and examine states parties reports on legislative and other measures taken to give effect to the Charter within their jurisdictions. This is a nonadversarial procedure designed to encourage states parties to voluntarily ensure the full implementation of the rights recognized under the Charter. Review of states reports is usually conducted in open sessions of the commission and can provide a useful opportunity for NGOs to provide independent reports and other critical information to the commissioners in order to sharpen their scrutiny of the human rights situation in the state under review.
However, many states parties to the Charter continue to default in their reporting obligation to the commission. Where reports are submitted, they are generally incomplete and do not provide sufficient information for effective review of the states human rights situation. Notwithstanding the African Charters express recognition of the indivisibility and interdependence of all human rights, ESC rights have been largely ignored by states parties to the Charter as well as by the African Commission. The ESC rights provisions are the least cited aspects of the Charter. Although, the states reporting guidelines issued by the African Commission requires the inclusion of ESC specific information, states parties reports to the commission hardly contain any useful information on the implementation of the ESC rights provisions of the Charter.
The process for filing an individual or NGO communication to the commission is as specified under articles 55-58 of the African Charter. The commissions Secretariat is required under article 55(1) to make a list of the communications it receives  and transmit the list to the members of the commission, who shall indicate which communications should be considered by the commission by a simple majority decision. 
The requirements for admissibility of a communication are specified under article 56 of the Charter. To be eligible to file a communication, the complainant must be the alleged victim of a violation(s) of a right under the Charter (or a representative, if the victim is unable to file on his or her own behalf). An individual or NGO alleging serious or massive human and peoples rights violations may also submit a communication. The communication should refer to the Charter, where relevant provisions exist;  indicate the author (even if anonymity is requested)(art. 56); must not be based primarily on news reports (art. 56); and must not be written in a language disparaging or insulting to states parties or to the OAU (art. 56).
Before a communication can be considered on its merits, the complainant must demonstrate that all domestic remedies have been exhausted (art. 56). This requirement was designed to ensure that the commission does not become a tribunal of first instance. Even where no domestic legal action has been attempted by the complainants, the commission will review a complaint where it is impractical or undesirable for the complainant to seek a remedy from domestic courts, or where, due to the seriousness of the human rights situation and the large numbers of people involved, such remedies are as a practical matter unavailable or "unduly prolonged.
These exceptions to the "local remedies rule provide important safety nets for communications that would otherwise not be admissible by the commission. The commission disregarded the local remedies rule in a complaint submitted by the Lagos-based Social and Economic Rights Action Center (SERAC) and the New York-based Center on Economic and Social Rights (CESR). The communication was filed on behalf of the Ogoni communities in the Niger Delta region of Nigeria. The communication addressed widespread contamination of soil, water and air, and the destruction of homes. The communication also documented the burning of crops and killing of farm animals, and the climate of terror that has been visited upon the Ogoni communities in violation of their rights to health, a healthy environment, adequate housing and food. On the question of exhaustion of local remedies, the communication stated that "local remedies do not bar the communication because of the futility of legal action in Nigeria resulting from the operation of ouster clauses contained in military decrees removing jurisdiction of the courts from entertaining human rights cases. The communication was filed in 1996. Three years later, the communication is still awaiting the commissions examination and decision.
Another controversial feature of the African Commissions procedure is the rule on confidentiality provided for under article 59 of the African Charter. It provides that "all measures taken within the provisions of the present Chapter shall remain confidential until such a time as the Assembly of Heads of States and Government shall otherwise decide. Pursuant to this provision, the examination of communications by the commission is usually conducted during private sessions, with the exclusion of the complainants.  The commission may, however, "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.
In appropriate cases, the African Commission may consider the application of interim measures in order to hold the status quo or prevent irreparable prejudice against a complainant pending the examination or determination of a communication. The commission has also sought to conduct on-site investigations of allegations of widespread and systematic violations of human rights. Such missions require the permission of the state party concerned.
While the Charter provides that states parties must accede to its jurisdiction, the commissions jurisdiction is far from compulsory and its enforcement powers are limited to only making recommendations to the Assembly of Heads of States and Government. Commenting on the nature of its communications process, the commission has observed: "It is the primary objective of the commission in the communications procedure to initiate a dialogue between the parties which will result in an amicable resolution to the satisfaction of both and which remedies the prejudice complained of. An inevitable condition of this dialogue is the requirement that both parties act in good faith and show their willingness to participate in coming to an amicable resolution.  Thus the commission perceives itself as a mediator cognizant of its inherent incapacity to compel a particular outcome even in extremely obvious and deserving cases of flagrant human rights violations.
Author: The author of this module is Felix Morka.
1. African Charter of Human and Peoples Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3/Rev.5, reprinted in 21 ILM 58 (1981), entered into force 21 Oct. 1986 (hereafter cited as African Charter).
2. African Charter, art. 45 outlines the functions of the African Commission on Human and Peoples Rights as follows:
3. African Charter, art. 62, states: "Each State party shall undertake to submit every two years, from the date the present Charter comes into force, 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 present Charter.
4. African Charter, arts. 47-54.
5. For ease of delivery, it is advisable to address such communications to the Commissions Banjul Secretariat, Kairaba Avenue, P.O. Box 673, Banjul, The Gambia, tel: +220.392.962/fax: +220.390.764, rather than to the OAU Secretariat in Addis Ababa, Ethiopia.
6. This is unlike the practice of most treaty-monitoring bodies, in which the Secretariat is authorized to decide the question of receivability of a communication.
7. Though there is no formal requirement that the communication refer to the Charter, the Commission has refused to receive some Amnesty International communications on the basis that the organization deliberately did not refer to the Charter. See Evelyn A. Ankumah, The African Commission on Human and Peoples Rights: Practice and Procedures (Dordrecht: Martinus Nijhoff Publishers, 1996), 59-60.
8. Although the Commission may and did, in fact, allow a complainant to testify in person before the Commission in Communication No. 59/91 in the matter of Mr. Emgba Louis.
9. El Hadj Boubacar Diawara, Communication 18/88, dated 15 July 1988 and received by the Secretariat of the Commission on 21 October 1988, decision taken at the 16th session, Banjul, The Gambia, October 1994, at para. 35.