FPP Briefing Paper - October 2001

This Briefing was produced with the support of a grant from the Ford Foundation


This briefing paper provides an overview of the African system for the protection of human and peoples’ rights. This system is based upon the African Charter of Human and Peoples’ Rights and implemented through the African Commission of the same name. While this system suffers from a number of deficiencies, particularly related to the Commission’s lack of enforcement powers and qualifications to the rights recognised in the African Charter, it is nonetheless a tool that may be of use to Indigenous peoples and organizations in Africa. While an explanation of the procedure for filing a complaint with the Commission is provided here, this briefing paper should not be considered as a complete explanation of the process.

I.     The African Charter of Human and Peoples’ Rights

In 1981, the member states of the Organisation of African Unity adopted the African Charter of Human and Peoples’ Rights, also known as the ‘Banjul Charter’, to stand as the primary human rights instrument for the African continent. [1] This Charter is an international treaty that is legally binding on those states that have ratified it and is intended to set international standards of behaviour that African states are required to observe. To date, 53 African states have ratified the Charter.

A.        Rights set out in the Charter

The Charter contains two primary categories of rights:

Individual rights (Arts. 3-17), such as the rights to equality before the law; to life, liberty and freedom from torture, cruel, inhuman and degrading treatment, from slavery and other forms of exploitation; to fair trial; to participate in government; to assemble; to freedom of association, religion, conscience and movement and residence; to health, work and education; and the right to property, although limited by ‘public need.’

Peoples’ Rights (Arts. 19-24), such as the right of peoples to equality and to be free from domination by other peoples; the right to exist and to self-determination; the right of peoples to freely dispose of natural wealth and to economic, social and cultural development; and the right to a satisfactory environment favourable to their development.

While some have argued that ‘peoples’ rights’ refers only to the rights held by all the people of a given state, the Commission has clearly interpreted this term to mean to the rights of different peoples within the state. For instance, in one report it referred to the rights of ‘all the Peoples of Rwanda.’ [2] It has also stated more than once that these peoples are entitled to the right to self-determination and the other peoples’ rights set forth in the Charter, but that these rights may not be exercised in violation of the principle of territorial integrity of existing, independent states. What this means is that self-determination may not be used to justify secession from independent states and must be exercised internally. [3]

Both individual and peoples’ rights are subject to the general provisions found in Articles 1, 2 and 26 which provide, respectively, that:

The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them. (Art. 1)

Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. (Art. 2)

States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter. (Art 26)

Articles 1 and 2 obligate all states parties to the Charter to implement and give effect to the rights found in the Charter, without discrimination, in their domestic laws and to ensure that individuals and peoples may enforce those rights through domestic courts and administrative procedures. Article 26 continues in the same vein requiring that states parties ensure that domestic courts are independent and that governmental and non-governmental human rights institutions may operate and promote and protect the rights found in the Charter.

While the Charter contains a number of positive elements when viewed in the context of international human rights law in general, many of the rights set out there are weakened by qualifications or exceptions, i.e., the right to property mentioned above. The Charter’s protections may also be weakened by the inclusion of a section containing the duties of individuals towards society and the state (Arts. 27-29). While these duties by themselves may not weaken the Charter’s sections on rights, some have argued that they provide the state with an excuse for not fully respecting rights or at least further qualifying the permissible exercise of rights.

The African Charter on Human and Peoples’ Rights and the Rules of Procedure of the African Commission on Human and Peoples’ Rights can be found at the following web site:

English: http://www.achpr.org/english/_info/charter_en.html

French: http://www.achpr.org/francais/_info/charter_fr.html

II.    The African Commission on Human and Peoples’ Rights

Article 30 of the Charter established the African Commission on Human and Peoples’ Rights “to promote human and peoples’ rights and ensure their protection in Africa.” The Commission is composed of 11 human rights experts of high moral standing who are not representatives of states, but act in their own capacity. These experts are chosen from a list of names submitted by African states and are elected to serve on the Commission for renewable 6-year periods. The Secretariat of the Commission is located in Banjul, The Gambia.

Article 45 of the Charter describes the functions of the Commission as:

1.  To promote Human and Peoples’ Rights and in particular:

(a)   to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights, and should the case arise, give its views or make recommendations to Governments.

(b)   to formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations.

(c)   co-operate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.

2.  Ensure the protection of human and peoples’ rights under conditions laid down by the present Charter.

3. Interpret all the provisions of the present Charter at the request of a State party, an institution of the OAU or an African Organization recognized by the OAU.

4.  Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.

In 1995, the African Commission adopted its revised Rules of Procedure that explain how the Commission will operate. [4] These Rules were developed pursuant to authority granted the Commission by Article 42(2) of the Charter.

III.  Filing Complaints about Violations of Rights set out in the African Charter

Article 55 of the Charter authorises African individuals, groups and NGOs to file complaints with the Commission if they believe that the rights set out therein have been violated by a state that has ratified the Charter. These complaints are the primary means that Indigenous peoples, NGOs and others have of seeking redress for human rights violations within the African human rights system. [5]

A.        Who may file a complaint?

Complaints may be filed by individuals, NGOs, groups of individuals and Indigenous peoples either on their own behalf or on behalf of others. The author (person submitting the complaint) need not reside in the state against which the complaint is made.

B.        Who must the complaint be filed against?

The complaint must be filed against a state that has ratified the Charter.

C.        What may be complained about?

The complaint must allege violations of the rights set out in Charter and those violations must be attributable to the state against whom the complaint is made. Individuals, Indigenous peoples and NGOs may also submit complaints alleging “a series of serious or massive” violations of human and peoples’ rights by a state party to the Charter (Art. 58, Charter). In the case of allegations of ‘a series of serious or massive’ violations, the requirement that domestic remedies be exhausted may be waived by the Commission. [6]

D.        What must be included in a complaint?

The following information must be included in a complaint filed with the Commission: [7]

• Author(s)’ name, address, age and profession by justifying his very identity, if ever he/she is requesting the Commission to be kept anonymous;
• Name of the state party referred to in the communication;
• Purpose of the communication;
• Provision(s) of the Charter allegedly violated;
• The facts of the claim;
• Information about measures taken by the author to exhaust local remedies, or explanation why local remedies will be futile;
• The extent to which the same issue has been settled by another international investigation or settlement body.

The requirement that domestic remedies be exhausted means that prior to filing a complaint with the Commission, all available domestic judicial procedures must be used and completed. The only exceptions to this rule are if the remedies are ineffective (even if you win in local courts, it will not fix your problem), the remedies are unreasonably delayed or if remedies do not exist in domestic law. Failure to exhaust domestic remedies or to prove that one of the exceptions noted here will result in the complaint being declared inadmissible and the Commission will not look at its substance or merits.

E.         What happens next?

Complaints are initially sent to the Secretary of the Commission, who prepares a list of complaints received and submits the list to the Commission for consideration. The Commission decides to consider a complaint if a simple majority of its members decides to do so (Art. 55(2), Charter, Rule 102(1)). The register of complaints received and submitted for consideration by Commission is available to the public.

1.         Admissibility

Once the Commission has accepted a complaint for consideration, it will then determine if the complaint is admissible (does it satisfy the requirements that permit the Commission to review it). Examination of the complaint from this point on takes place in private sessions of the Commission (Rule 106). The Commission [8] determines if a complaint is admissible according to the requirements set out in Art. 56 of the Charter (Rule 116), which provides that:

Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission, shall be considered if they:

1.  Indicate their authors even if the latter request anonymity;

2.  Are compatible with the Charter of the Organization of African Unity or with the present Charter;

3.  Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity;

4.  Are not based exclusively on news disseminated through the mass media;

5.  Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;

6.  Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

7.  Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Before the Commission can declare a complaint admissible it must give the state in question the opportunity to submit information about the admissibility of the complaint (Rule 117(1) and (2)); or may request additional information from the author. If the state fails to respond in writing within three months of receiving the Commission’s request for information, the Commission may declare it admissible (Rule 117(4)).

At this point, the Commission may declare the complaint inadmissible, in which case the proceedings terminate (Rule 118), or may declare it admissible, in which case it will inform the state and author of its decision and transmit the full text of its decision and other relevant documents to the state, which has three months to respond in writing explaining “the issue under consideration and indicating, if possible, measures it was able to take to remedy the situation” (Rule 119(2)). If the state fails to respond, the Commission will act upon the information it has before it (119(4)). In practice, however, the Commission often allows the state more than three months to respond.

2.         Merits

The next phase of the proceedings is an examination of the substance or merits of the complaint to determine if there has been a violation or violations. To make a decision on this issue, the Commission may establish a working group of up to three of its members (Rule 120(1)), which will set forth its observations after examining all of the written information submitted by the author and the state. These observations will indicate if there has been a violation or violations of the rights recognised in the Charter.

Rule 120(2) does not require that observations be directly communicated to the author(s) of the complaint, but rather that they remain confidential until such time as the Assembly of Heads of State and Government of the Organisation of African Unity permit release to the general public, however, in practice the Commission does send them to the author. The author may also attend the private sessions of the Commission when their case is heard.

In determining if there has been a violation of human rights the Commission looks in the first instance to those rights found in the Charter. However, it is important to note, particularly with regard to describing the violations and the attendant state obligations when writing a complaint to the Commission, that the Commission is authorized to look to other international human rights instruments ratified by the state in question to determine what the correct principles of law maybe in a given case (Arts. 60 and 61, Charter). Thus, if the state in question has ratified a UN instrument or an ILO instrument that recognizes and guarantees Indigenous peoples’ rights, the Commission may interpret the rights found in the Charter in light of and in connection with the rights found in those instruments.

The other implication of Arts. 60 and 61 is that they highlight the interrelationship between African and other human rights law and reinforce the general principle that nothing in the African Charter may diminish the human rights obligations of states under other ratified human rights instruments. In other words, states may not use the African Charter to justify non-compliance or diminished compliance with obligations accepted under other international instruments.

F.         Are the Decisions of the Commission Binding on States?

In theory, the decisions of the Commission are not binding on states, they are simply recommendations that the state may adopt at its discretion. In other words, the state is not required to follow the decision of the Commission. In practice also most of the states that have been examined by the Commission under the Article 55 complaints procedure have not complied with its decisions. [9] However, the Commission has stated more than once that, in its view, its decisions are authoritative interpretations of the African Charter and therefore binding on states parties.

G.        What can the Commission do?

Once the Commission has reached a decision on the merits of the case, the decision is transmitted to the Assembly of Heads of State and Government of the Organisation of African Unity, which is empowered to determine whether to proceed with additional actions (Rule 120(2)). However, extraordinary situations excepted, the General Assembly may simply request that the Commission conduct an in-depth study of the situation and submit a report along with its recommendations to the Assembly. The result is that it is the political body of the OAU that makes all the decisions and has the final say about what will happen with each complaint evaluated and judged by the Commission. Moreover, as noted above, the Commission’s observations and all measures taken by the Commission or the Assembly to attempt to address the violations remain confidential unless the Assembly decides otherwise (Art. 59, Charter). This is clearly a very unsatisfactory conclusion to the process.

On the positive side, the Commission does have the potential to influence state behaviour even in the course of a confidential procedure and appears to have done so in the past. Even the fact that a complaint has been filed with and is under review by the Commission may motivate some governments to re-evaluate their behaviour and highlight the issues at the domestic level. Finally, the impact of resorting to the African Commission’s complaints procedure will be most effective if it is done as part of a larger coordinated campaign that seeks to address the perceived violations from a number of different angles and if the complainants are able to and effective in using domestic and international publicity to pressure their government to respect their rights.

Summaries of cases decided by the Commission are contained its Annual Reports, some of which can be found at:

English: http://www1.umn.edu/humanrts/africa/comision.html

IV.   Other Means of Communicating with the African Commission

Indigenous peoples organizations and NGOs have other means of raising issues of concern with the Commission in addition to the complaints procedure described above.

1.    Rule 6(3)(f) of the Commission’s Rules of Procedure allows an NGO to make proposals for the inclusion of items in the Provisional Agenda for the following session of the Commission. These proposals must be submitted in writing to the Secretary at least 10 weeks prior to the opening of the Commission’s session (Rule 6(5)(a)) and must be approved by two thirds of the Commission members voting and present (Rule (6)(5)(b)).

2.    NGOs may request and obtain observer status with the Commission. Observer status allows the NGO to attend the public sessions of the Commission and to receive official Commission documents on a regular basis (Rule 75). This status will also enable NGOs to become more familiar with the members of the Commission, which in turn may help with raising issues of concern.

3.    Indigenous peoples and NGOs may request specific time to consult with the Commission (Rule 76) or the Commission may invite Indigenous peoples or NGOs to aid in its investigations or other work (Rule 76 and Art. 46, Charter)

4.    Indigenous peoples and others may submit information to the Commission in connection with the periodic reports required from each state party concerning the measures taken to give effect to the Charter in domestic law and practice (Art. 46). These periodic reports are due every two years, although almost all of the African states have not fulfilled their obligations in this respect; have not filed any reports yet, while others are one or more reports behind schedule.

V.    The African Court on Human and Peoples’ Rights

In 1994, the OAU decided to establish a working group of governmental experts to look at means of strengthening the African human rights system and to consider the establishment of an African Court of Human Rights. After a number of attempts to approve a draft instrument establishing a court failed, the OAU, in 1998, approved and adopted a Protocol to the African Charter establishing an African Court of Human Rights. The Court will begin operations once 15 states have ratified the Protocol. This may be many years in coming as only three states have ratified the Protocol as of the end of 2000. [10]

The purpose of the Court is to complement the Commission and to enforce the rights guaranteed in the Charter read in conjunction “with any other relevant human rights instruments ratified by the States concerned” (Art. 7, Protocol). In the case of complaints filed by individuals and NGOs, the Court’s decisions are binding upon only those states that have ratified the Protocol and made a specific declaration in accordance with Art. 36(6) of the Protocol accepting adjudication of such complaints. The Court has the power to issue orders to remedy human rights violations, including the payment of compensation to the victim (Art. 27).

The establishment of the Court is an important step forward for the protection of human rights in Africa, especially given the restrictions placed on the African Commission by the Charter. However, it may be many years before the Court begins to operate and it remains to be seen how many states will make the declaration required for individuals and NGOs to seek enforcement of rights therein.

The Additional Protocol establishing the African Court on Human Rights can be found at:

English: http://www1.umn.edu/humanrts/africa/draft_additl_protocol.html

VI.   The Working Group of the African Commission on Indigenous Peoples/Communities in Africa

On November 6, 2000, the African Commission on Human and Peoples’ Rights resolved to establish a Working Group on the Rights of Indigenous peoples/Communities in Africa, with a mandate to:

·    examine the concept of indigenous people and communities in Africa ;

·    study the implications of the African Charter on Human Rights and well-being of indigenous communities especially with regard to :

-          the right to equality (Articles 2 and 3)

-         the right to dignity (Article 5)

-         protection against domination (Article 19)

-         on self-determination (Article 20) and

-         the promotion of cultural development and identity (Article 22)

·    consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities.

This working group is important and must be closely monitored for a number of reasons. First, it is the first time that the African Commission has addressed the issue of Indigenous peoples in Africa and the rights that may apply to them under the Charter. Second, the mandate of the Commission is to look at peoples’ rights as well as individual rights. Third, the Working Group includes Indigenous persons among it members. Finally, the working group may decide that there are no Indigenous peoples in Africa or that the concept is inappropriate in the African context thereby precluding further discussion of Indigenous rights, at least within the African system.

VII. The Institute for Human Rights and Democratic Development in Africa

The Institute for Human Rights and Democratic Development in Africa, an African NGO based in the Gambia, provides a number of services to organizations and individuals seeking to use or learn more about the African human rights system. According to its web site, the organization offers the following services:

·    provides concrete training and capacity building in how to investigate, prepare and present cases of human rights violations before the African Commission.

·    also serves as counsel for individuals and NGOs, litigating their cases against states parties before the African Commission.

·    gathers the expertise of those who have worked within the African system, as well as vital documentation, and makes these available through its publications.

·    researches emerging areas of human rights law as a first step in strategic litigation to develop African human rights jurisprudence.

·    in its work, cooperates with many NGO partners, and provides institutional support to some.

The Institute can be reached at the following address:

P.O. Box 1896, Banjul, The Gambia
Tel.: 220-496-421 / 495330 / 495331 / 495398
Fax: 220-494-178
Email: Info@AfricanInstitute.org

Web site: http://www.africaninstitute.org/

VIII. Ratifications of the African Charter (as of January 2001) [11]