The African Charter on Human and Peoples' Rights: A Commentary 019881058X, 9780198810582

The African Charter on Human and Peoples' Rights (ACHPR) is the principle regional human rights treaty for the Afri

305 39 6MB

English Pages 896 [887] Year 2019

Table of contents :
Table of Contents
Table of Cases
Table of Legislation
List of Abbreviations
1. Introduction
2. Article 1: Obligations of Member States
3. Article 2: Non- Discrimination
4. Article 3: Equality Before the Law and Equal Protection of the Law
5. Article 4: The Right to Life and Integrity of the Person
6. Article 5: Respect of Dignity; Prohibition of Slavery and Torture and Other Forms of Ill-Treatment
7. Article 6: Right to Liberty and Security of the Person
8. Article 7: Right to a Fair Trial
9. Article 8: Freedom of Conscience and Religion
10. Article 9: Right to Receive Information and Freedom of Expression
11. Article 10: Freedom of Association
12. Article 11: Right to Assemble
13. Article 12: Freedom of Movement
14. Article 13: Participation in the Government, Access to the Public Service and to Public Property
15. Article 14: Right to Property
16. Article 15: Right to Work
17. Article 16: Right to Health
18. Article 17: Right to Education, Cultural Life and the Promotion of Morals and Traditional Values
19. Article 18: Protection of the Family, Rights of Women, Older Persons and Persons with Disabilities
20. Article 19: Equality of Peoples
21. Article 20: Peoples’ Right to Existence, Self-Determination and Freedom from Foreign Domination
22. Article 21: Disposal of Wealth and Natural Resources
23. Article 22: Right to Development
24. Article 23: Right to Peace and Security
25. Article 24: Right to General Satisfactory Environment
26. Article 25: Human Rights Teaching, Education and Publication
27. Article 26: Independence of the Courts and Establishment of National Institutions
28. Articles 27– 29: Individual Duties
29. Articles 30– 40: The African Commission on Human and Peoples’ Rights
30. Articles 41–44: Appointment of Secretary, Election of Chair and Vice Chair, Voting, Privileges and Immunities
31. Articles 45 and 46: Mandate and Procedure of the African Commission
32. Articles 47–54: Inter-State Communications and Activity Reports
33. Articles 55 and 57: Individual Communication Procedure
34. Article 56: Admissibility of Individual Communications
35. Article 58: Serious or Massive Violations and Emergencies
36. Article 59: Confidentiality and Publication
37. Articles 60 and 61: Applicable Principles
38. Article 62: State Reporting
39. Articles 63–68: Signature, Ratification and Adherence, Reservations and Protocols
Index

Recommend Papers

The African Charter on Human and Peoples’ Rights Volume 2: The Political Process 1847013546, 9781847013545

Landmark study of the African Charter on Human and Peoples' Rights. Documents on one side the international communi

115 16 43MB Read more

The African Charter on Human and Peoples’ Rights Volume 2: The Political Process 1847013546, 9781847013545

Landmark study of the African Charter on Human and Peoples' Rights. Documents on one side the international communi

115 35 5MB Read more

The African Charter on Human and Peoples' Rights [2-volume Set] 1847013538, 9781847013538

Landmark study of the African Charter on Human and Peoples' Rights, one of the most important documents in modern A

104 61 10MB Read more

The African Charter on Human and Peoples’ Rights Volume 1: Political, Intellectual & Cultural Origins 1847013538, 9781847013538

109 88 5MB Read more

The African Charter on Human and Peoples’ Rights Volume 1: Political, Intellectual & Cultural Origins 1847013538, 9781847013538

Landmark study of the African Charter on Human and Peoples' Rights, one of the most important documents in modern A

112 21 4MB Read more

Human Rights under the African Charter 3030417387, 9783030417383

This book critically examines the civil, political, socioeconomic, and group rights protected under the African Charter

119 34 3MB Read more

The African Commission on Human and Peoples’ Rights and International Law 9781472562135, 9781841131229

The African Commission on Human and Peoples’ Rights, established in 1987, was the third regional instrument, after the E

176 43 1MB Read more

Documents of the African Commission on Human and Peoples’ Rights 9781472562432, 9781841130927

Fourteen years since its establishment,the work of the African Commission on Human and Peoples’ Rights has not received

163 47 36MB Read more

The EU Charter of Fundamental Rights: A Commentary 9781849468350

The Charter of Fundamental Rights of the European Union enshrines the key political, social and economic rights of EU ci

191 66 14MB Read more

Indigenous Peoples and Human Rights 9780719037931

466 31 2MB Read more

The African Charter on Human and Peoples' Rights: A Commentary
019881058X, 9780198810582

Author / Uploaded
Rachel Murray

0 0 0
Like this paper and download? You can publish your own PDF file online for free in a few minutes! Sign Up

File loading please wait...

Citation preview

OXFORD COMMENTARIES ON INTERNATIONAL L AW General Editors: Professor Philip Alston, Professor of International Law at New York University, and Laurence Boisson de Chazournes, Professor of Law at the University of Geneva

The African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights A Commentary

RACHEL MURRAY

3

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Rachel Murray 2019 The moral rights of the author have been asserted First Edition published in 2019 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018956530 ISBN 978–0–19–881058–2 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Table of Contents Table of Cases Table of Legislation List of Abbreviations 1.

Introduction

2. Article 1: Obligations of Member States 3. Article 2: Non-Discrimination 4. Article 3: Equality Before the Law and Equal Protection of the Law 5. Article 4: The Right to Life and Integrity of the Person 6. Article 5: Respect of Dignity; Prohibition of Slavery and Torture and Other Forms of Ill-Treatment 7. Article 6: Right to Liberty and Security of the Person 8. Article 7: Right to a Fair Trial 9. Article 8: Freedom of Conscience and Religion 10. Article 9: Right to Receive Information and Freedom of Expression 11. Article 10: Freedom of Association 12. Article 11: Right to Assemble 13. Article 12: Freedom of Movement 14. Article 13: Participation in the Government, Access to the Public Service and to Public Property 15. Article 14: Right to Property 16. Article 15: Right to Work 17. Article 16: Right to Health 18. Article 17: Right to Education, Cultural Life and the Promotion of Morals and Traditional Values 19. Article 18: Protection of the Family, Rights of Women, Older Persons and Persons with Disabilities 20. Article 19: Equality of Peoples 21. Article 20: Peoples’ Right to Existence, Self-Determination and Freedom from Foreign Domination 22. Article 21: Disposal of Wealth and Natural Resources 23. Article 22: Right to Development 24. Article 23: Right to Peace and Security 25. Article 24: Right to General Satisfactory Environment 26. Article 25: Human Rights Teaching, Education and Publication

vii xv xix 1 16 44 90 101 132 184 205 253 266 294 307 318 344 364 386 400 437 458 484 497 508 521 538 547 558

vi

Table of Contents

27. Article 26: Independence of the Courts and Establishment of National Institutions 28. Articles 27–29: Individual Duties 29. Articles 30–40: The African Commission on Human and Peoples’ Rights 30. Articles 41–44: Appointment of Secretary, Election of Chair and Vice Chair, Voting, Privileges and Immunities 31. Articles 45 and 46: Mandate and Procedure of the African Commission 32. Articles 47–54: Inter-State Communications and Activity Reports 33. Articles 55 and 57: Individual Communication Procedure 34. Article 56: Admissibility of Individual Communications 35. Article 58: Serious or Massive Violations and Emergencies 36. Article 59: Confidentiality and Publication 37. Articles 60 and 61: Applicable Principles 38. Article 62: State Reporting 39. Articles 63–68: Signature, Ratification and Adherence, Reservations and Protocols Index

565 576 597 610 629 655 664 684 753 767 782 794 807 847

Table of Cases AFRICAN COMMISSION ON HUMAN RIGHTS Communication 2/88, Iheanyichukwu A. Ihebereme v USA, 13 July 1987�� 665–66 Communication 7/88, Committee for the Defence of Political Prisoners v Bahrain, 26 February 1988�� 665–66 Communication 8/88, Nziwa Buyingo v Uganda, 22 March 1995 �� 184 Communication 11/88, Henry Kalenga v Zambia�� 663 Communication 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996 �� 103–4, 141, 188, 213, 256–57, 260–61, 401 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996��52, 62, 83–84, 103–4, 148, 188, 332, 334, 335, 338, 754, 755 Communication 35/89, Seyoum Ayele v Togo, 27 April 1994�� 684 Communication 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997��197–98, 234, 248, 387 Communication 43/90, Union des scolaires nigériens, Union générale des étudiants nigériens au Bénin v Niger, 27 April 1994�� 684 Communication 45/90, Civil Liberties Organisation v Nigeria, 27 April 1994�� 684 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999�� 40–41, 51, 83–84, 105–6, 108–9, 110–11, 118–19, 128, 149–50, 159, 172, 190, 197, 236–37, 257, 261, 263, 285–86, 755 Communication 53/90_7AR, Albert T. Capitao v Tanzania, 27 April 1994 �� 684 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l'Homme v Mauritania, 11 May 2000�� 17, 36, 38–39, 47, 62, 103–5, 112, 118–19, 143, 147, 158–59, 186, 202, 203, 220, 241, 280–81, 304, 315, 325, 339–40, 364, 541, 667 Communication 57/91, Tanko Bariga v Nigeria, 27 April 1994�� 684 Communication 59/91, Embga Mekongo Louis v Cameroon, 22 March 1995 �� 249 Communications 64/92-68/92-78/92_8AR Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa v Malawi, 22 March 1995��103–4, 147, 158–59, 186, 190–91, 234 Communication 65/92, Ligue Camerounaise des Droit de l’Homme v Cameroon, 24 April 1997�� 666 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l'Homme (RADDHO) v Zambia, 31 October 1997�� 50, 75, 89, 335, 341 Communication 72/92, Bamidele Aturu v Nigeria, 27 April 1994�� 684 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995 �� 38–39, 105, 110–11, 172, 190, 201, 249, 296, 304–5, 563, 754–55 Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March 1995�� 501 Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria, 22 March 1995�� 34 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000��136–37, 138–39, 167, 329, 340, 351, 363, 364 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995 �� 189–90, 202, 221–22, 242–43, 251, 299–300, 305

viii

Table of Cases

Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998 ��22, 27, 48, 280–81, 290, 353–54, 362, 363 Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996��189, 234, 280–81, 684 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998 �� 193, 242, 364–65, 582–83 Communication 107/93, Academic Staff of Nigerian Universities v Nigeria, 27 April 1994�� 684 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995��18, 209 Communication 131/94, Ousman Manjang v Gambia (The), 27 April 1994�� 684 Communication 135/94, Kenya Human Rights Commission v Kenya, 11 October 1995 �� 684 Communication 136/94, William Courson v Zimbabwe, 22 March 1995�� 65 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998��23, 34, 111–12, 115–16, 118–19, 132–33, 136, 144, 163, 172, 189–90, 201, 224, 248, 296, 300, 307, 315 Communication 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999 ��33–34, 172, 188, 582 Communication 143/95-150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 5 November 1999 �� 33–34,  190 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000��19, 23, 38–39, 73, 83–84, 189–90, 198–99, 242, 270–71, 280–81, 312, 325, 358, 664, 753 Communication 148/96 Constitutional Rights Project v Nigeria, 15 November 1999�� 197–98, 201, 202 Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999�� 142, 147, 158–59, 172, 180 Communication 153/96, Constitutional Rights Project v Nigeria, 15 November 1999��191, 197, 202, 234 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001�� 33, 44–45, 49, 121, 151–52, 509, 548 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003 ��103–4, 337, 657 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997�� 74, 83–84, 334, 338 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004�� 132–33,  169–70 Communication 198/97, SOS Esclaves v Mauritania, 5 May 1999�� 169 Communication 199/97, Odjouoriby Cossi Paul v Benin, 4 June 2004�� 233–34 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001��93, 97, 98, 99–100, 105–6, 123, 134–35, 161, 198, 234, 330, 360 Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000 ��105, 172, 194, 201, 299 Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999 �� 201, 202 Communication 209/97, Africa Legal Aid v Gambia (The), 11 May 2000 �� 684 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001�� 19, 47, 51, 55, 56, 57, 76–77, 83–84, 88, 361–62, 684, 775 Communication 212/98, Amnesty International v Zambia, 5 May 1999�� 73, 83–84, 254–55, 257, 278, 295, 330, 346 Communication 215/98, Rights International v Nigeria, 15 November 1999 �� 329, 338 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001��40–41, 207, 224, 239, 684–85 Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003 �� 148–50, 159, 193, 224, 225, 684–85 Communication 223/98, Forum of Conscience v Sierra Leone, 6 November 2000��102,  118–19 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000��134–35, 139, 148, 158–59, 172, 214, 224, 280 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000 �� 132–33, 134–35, 136–37, 141, 158–59, 162, 194, 267–68, 329

Table of Cases

ix

Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003��75, 84, 85, 105, 107–8, 329, 457, 498, 527, 539–40, 656 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003 �� 186, 266, 279, 290, 295–96, 304–5, 308–9, 316, 325–26, 328–29, 340 Communication 231/99, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi, 6 November 2000�� 93,  217–18 Communication 232/99, John D. Ouko v Kenya, 6 November 2000�� 148, 172, 201, 281–82, 300, 305, 326–27, 329, 339–40 Communication 233/99-234/99, Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) v Eritrea, 29 May 2003�� 656–57 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003�� 73, 132–33, 139, 142–43, 144–45, 172, 179–80, 182, 262, 264, 333 Communication 240/01, Interights et al (on behalf of Mariette Sonjaleen Bosch) v Botswana, 20 November 2003��36, 115–16, 119 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003��17, 32, 33, 40–41, 46, 79, 85, 86, 88, 90–91, 96, 98, 99, 100, 136–37, 166–67, 179–81, 187–88, 223, 237, 354, 362, 400 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004�� 296, 301 Communication 243/01, Women’s Legal Aid Center (on behalf of Sophia Moto) v Tanzania, 7 December 2004�� 209, 251 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006�� 23–24, 25,151–52, 153, 208, 772, 27–28, 29, 36, 40–41, 66–67, 150, 151–52, 153, 208, 772 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Cote d’Ivoire, 29 July 2008��36, 48, 49, 76–77, 82–83, 86, 88, 89, 241, 345, 359, 360, 361–62 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004 ��53, 82, 84, 85, 118, 180, 332, 338 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003��38–39, 74, 84, 85, 158, 185, 188, 189, 190, 191, 193, 198–99, 202 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005��17, 20, 33–34, 41–43, 209, 251, 252, 295–96, 305, 308–9, 316, 317, 352, 362 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006�� 45–46, 48, 90, 91, 93, 95, 96, 97–98, 99, 222–23, 248, 509, 630 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004 �� 259, 260, 261, 665 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011�� 22–23, 41–43, 114, 117–18, 130, 206, 215, 217–18, 221, 222, 249 Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004�� 685 Communication 262/02, Mouvement Ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008��52, 84, 85, 86–88 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009��37–38, 54–55, 70–71, 84–85, 86–89, 128, 134–35, 189, 203, 304, 316, 317, 484–85, 506–7 Communication 269/03, Interights (on behalf of Safia Yakubu Husaini et al.) v Nigeria, 11 May 2005�� 115–16 Communication 272/03, Association of Victims of Post Electoral Violence & Interights v Cameroon, 25 November 2009�� 17, 21, 23–24, 25–26, 27, 28, 30, 31, 33–34, 37–38, 52–53, 59, 84–85, 86–87, 111, 129, 130, 215–16, 249–50 Communication 273/03, Centre for Advancement of Democracy, Social Justice, Conflict Resolution and Human Welfare v Nigeria, 11 May 2005�� 498 Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014�� 164, 193, 207–8, 222, 223, 226, 228–29, 238, 243 Communication 275/03, Article 19 v Eritrea, 30 May 2007�� 39,  40–41 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009�� 253, 256, 257, 259, 260, 261, 264, 457, 512–13

x

Table of Cases

Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013�� 46–47, 48, 117, 139–40, 163–64, 211–12, 230, 234–35 Communication 278/03, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013�� 566 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009�� 21–22, 30, 38–39, 41–43, 102, 103, 106, 108–9, 110–11, 128, 129, 130, 134–35, 136–37, 139–41, 151–52, 180, 181, 183, 184, 185, 187, 199–200, 202, 203, 325, 326–27, 331, 337, 340, 341, 401, 461, 524 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009 ��21–22, 209–10, 236–37, 282, 284, 387 Communication 286/04, Dino Noca v Democratic Republic of the Congo, 22 October 2012 ��21–22, 23–24, 30, 41, 50, 92–93, 98, 100, 207–8, 231, 364–65 Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012��134, 144, 172, 182, 183 Communication 288/04, Gabriel Shumba v Zimbabwe, 30 June 2017�� 102, 196 Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006�� 291 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008��20, 25, 27, 33–34, 41–43, 75, 85, 86–87, 88, 132–33, 139, 140, 147, 155–56, 162, 172, 180–81, 182, 183, 188, 193, 197–98, 203, 204, 334, 335–36, 339–40 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009��48, 53, 55, 57, 66, 75–76, 85, 88, 92, 94–95, 96, 97, 98, 99, 100, 207–8, 223–24, 236–37, 251–52, 270–71, 278, 290, 334, 339–40, 341, 565 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012��20, 25, 30, 41–43, 102, 104, 105–6, 109–10, 123, 124, 129, 130 Communication 296/05, Centre on Housing Rights and Evictions v Sudan�� 180 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009 ��270, 280–81, 286, 288, 290, 291 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011�� 20, 25, 29, 40–43, 52, 58–59, 82–83, 207, 223–24, 225, 226, 233–34, 235, 249–50, 252, 566 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013��91, 92–93, 94, 95–96, 97–98, 100, 206, 207, 213, 231, 236–37, 248–49, 252 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012��62, 268–69, 275 Communication 313/05, Kenneth Good v Botswana, 26 May 2010�� 19, 23–24, 40–41, 56–57, 270, 278, 280, 282–83, 287, 289, 290, 291, 461, 582 Communication 317/06, the Nubian Community in Kenya v the Republic of Kenya, 28 February 2015��21–22, 23–24, 33–34,  137–39 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016��21–22, 33–34, 41–43, 46, 50, 54, 56–57, 60, 72, 73, 83, 86, 87, 88, 132–33, 136, 138–39, 143, 253, 329–30, 338, 346, 353–54, 360, 523, 756 Communication 319/06, Interights & Ditshwanelo v the Republic of Botswana, 28 June 2016��19, 21–22, 33–34, 41–43, 114, 115–16, 120, 164, 182 Communication 321/06, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013�� 629–30 Communication 322/06, Tsatsu Tsikata v Ghana, 29 November 2008 and 14 October 2014 ��224, 225, 226, 227, 233, 243, 784 Communication 323/06, Egyptian Initiative for Personal Rights & Interights v Egypt, 16 December 2011��21–22, 23, 26, 29, 41–43, 57, 63–64, 83, 84–85, 86–87, 90–92, 94–96, 97–98, 99–100, 136–37, 139, 141, 142–43, 148, 151, 152–53, 181, 182, 400 Communication 323/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 12 October 2013 ��53, 56–57, 73–74, 84, 86, 87, 88, 266, 269, 270–71, 272, 278, 280–81, 282, 287, 291, 582

Table of Cases

xi

Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013��500–1, 509, 526 Communication 333/2006, Southern African Human Rights NGO Network v Tanzania, May 2010��784 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 3 March 2011�� 104–5, 115, 120, 129, 130, 131, 135, 136, 144, 150, 159, 171, 172, 182, 183, 220, 222, 228–29, 237–38, 248, 250, 252, 566, 784–85 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013 ��55, 56, 57–58, 82, 83, 93, 348, 783, 808–9 Communication 339/07, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018�� 194–95, 230–31, 237, 249 Communication 351/07, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 1 March 2012�� 105 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and Interights) v the Arab Republic of Egypt, 28 April 2018��22, 257–58,  810–11 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011�� 161,  808–9 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013�� 20, 21–22, 23–24, 26, 29, 40–43, 48–49, 134–35, 140–41, 142, 149–50, 152–53, 179–80, 181, 182, 185, 188–90, 197–98, 202, 203, 228–29, 234, 250 Communication 373/09, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010�� 22, 23–24, 43, 364 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011�� 636–37 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014�� 20, 23–24, 33–34, 41–43, 185, 193, 299, 301, 326–27, 330–31, 340, 388–89 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015��139, 148, 152–53, 171, 185, 248 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v the Republic of Djibouti, 12 May 2014�� 162, 172 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v the Republic of Djibouti, 4 October 2014��37–38 Communication 389/10, Mbiankeu v Cameroon, 1 August 2015��33–34 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014�� 212, 284 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016�� 225 Communication 445/13, Human Rights Council and Others v Egypt, 19 May 2016�� 206 Communication 464/14, Uhuru Kenyatta and William Ruto (represented by Innocence Project Africa) v Republic of Kenya, 14 March 2014 �� 498 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 8 August 2015�� 115–16 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016 �� 206 Communication 477/14, Crawford Lindsay von Abo v the Republic of Zimbabwe, 31 March 2016��684–85

AFRICAN COURT OF HUMAN RIGHTS Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Ruling on Reparations, 5 June 2015��41–43 Actions Pour La Protection Des Droits De L’homme (APDH) v Republic of Cote d’Ivoire, App. No. 001/2014, Judgment on the Merits, 18 November 2016��41–43 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment of 26 May 2017�� 365, 509 Alex Thomas v United Republic of Tanzania, App. No. 005/2013, Judgment, 20 November 2015��22, 218, 252, 784 Amiri Ramadhani v United Republic of Tanzania, App. No. 010/2015, Judgment, 11 May 2018��22, 835

xii

Table of Cases

Anaclet Paulo v United Republic of Tanzania, App. No. 020/2016, Judgment, 21 September 2018 ��95–96, 194–95,  219 Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment of 28 March 2014 �� 207–8, 213–14, 216, 233–34, 784 Judgment on Reparations, 15 June 2015�� 250–51 Delta International Investments SA, MR AGL de Lange and Mrs M De Lange v Republic of South Africa, App. No. 002/2012, Decision of 30 March 2012 �� 822 Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018 �� 218, 223, 232, 252 Femi Falana v African Union, App. No. 001/2011�� 581–82 Ingabire Victoire Umuhoza v Republic of Rwanda, App. No. 003/2014, Ruling on Withdrawal of Declaration, 3 June 2016; and subsequent judgment 24 November 2017�� 821–22 Kijiji Isiagi v United Republic of Tanzania, App.No.032/2015, Judgment, 31 March 2018 ��95–96 Lohé Issa Konaté v Burkina Faso, App. No. 004/2013 Judgment of 5 December 2014�� 269, 273–74, 281, 282, 283, 287, 289, 582, 784 Separate Opinion of Judges Sophia A. B. Akuffo, Bernard M. Ngoepe and Duncan Tambala, 5 December 2014�� 279 Judgment on Reparations, 3 June 2016 �� 290–91 Michelot Yogogombaye v Republic of Senegal, App. No. 001/2008, Judgment, 15 December 2009�� 821–22 Minani Evarist v United Republic of Tanzania, App. No. 027/2015, Judgment, 21 September 2018�� 252 Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016��223, 252, 784 Rutabingwa Chrysanthe v Republic of Rwanda, App. No. 022/2015, Order, 3 June 2016 �� 643–44 Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania, and Reverend Christopher R Mtikila v United Republic of Tanzania, App. Nos. 009/2011, and 011/2011��346, 348, 350–51, 359, 362, 783–84, 820–21 Thobias Mang’ara Mango and Shukurani Masegenya Mango v the United Republic of Tanzania, App. No. 005/2015, Judgment of 11 May 2018�� 21–22, 224, 228–29, 232 Reverend Christopher R. Mtikila v the United Republic of Tanzania, App. No. 011/2011, Ruling on Reparations, 13 June 2014��361–62,  363 Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment�� 820–21

EAST AFRICAN COURT OF JUSTICE Burundian Journalists Union v Attorney General of the Republic of Burundi, Reference No. 7 of 2013 �� 276 Uhai Eashri Health Development Initiative (Rwanda) v Human Rights Awareness & Promotion Forum (HRAPF) & the Attorney General of the Republic of Uganda, 20/2014-21/2014�� 65

ECOWAS COMMUNITY COURT OF JUSTICE Barthelemy Dias v Republic of Senegal, ECW/CCJ/JUG/05/12, 23 March 2012��188–89,  224 Djot Bayi & 14 Others v Nigeria & 4 Others, ECW/CCJ/APP/10/06, 28 January 2009��136–37,  197–98 Hadijatou Mani Koraou v Niger, ECW/CCJ/JUD/06/08, 27 October 2008��54, 170 Manneh v The Gambia, ECW/CCJ/JUD/03/08, 5 June 2008�� 654 Musa Saidykhan v the Gambia, ECW/CCJ/JUD/08/10 16 December 2010��136–37,  204 Registered Trustees of the Socio-economic and Accountability Project (SERAP) v Nigeria & UBEC, ECW/CCJ/JUD/07/10, 30 November 2010�� 440 Nosa Ehanire Osaghae, Jonah Gbemire, Peter Aiko Obabiafo Plaintiffs, Daniel Ikponmwosa. Suing for themselves and on behalf of Niger Delta People v Republic of Nigeria, ECW/CCJ/JUD/03/17, 10 October 2017 �� 754 SERAP v Federal Republic of Nigeria, ECW/CCJ/JUD/18/12, 14 December 2012�� 551 Simone Ehivet and Michel Gbagbo v Côte d’Ivoire, ECW/CCJ/JUD/03/13, 22 February 2013�� 185, 327 Siriku Alade v the Federal Republic of Nigeria, ECW/CCJ/JUD/10/12, 11 June 2012�� 197–98,  201–2

Table of Cases

xiii

EUROPEAN COURT OF HUMAN RIGHTS Al-Saadoon and Mufdhi v UK, App. No. 61498/08, 2 March 2010�� 164 Burdov v Russia, App. No. 59498/03, 7 May 2002 �� 222–23 Campbell and Cosans v UK (1982), 4 EHRR 293 [1982] ECHR 1�� 143 Denmark, Norway, Sweden, the Netherlands v Greece (1969) 12 YB 1�� 141 Hornsby v Greece, App. No. 18357/91, 19 March 1997�� 222–23 Hugh Jordan v UK, App. No. 24746/94, 4 August 2001�� 108 Ireland v UK, App. No. 5310/71, 13 December 1977�� 141 Kuric and Other v Slovenia, App. No. 26828/06, 26 June 2012�� 138–39 Selçuk and Asker v Turkey, (1998) 26 EHRR 477 �� 151 Soering v UK, App. No. 14038/88, 7 July 1989�� 164 Tyrer v UK, App. No. 5856/72, 15 March 1978 �� 144–45

INTER-A MERICAN COMMISSION ON HUMAN RIGHTS Edwards v Bahamas, Case 12.067, Report 48.01, OEA/Ser.L/V/II.111, Doc.20 (2000)�� 120

INTER-A MERICAN COURT OF HUMAN RIGHTS Advisory Opinion OC-18/03 of 17 September 2003 requested by the United Mexican States Juridical Condition and Rights of Undocumented Migrants�� 46 Advisory Opinion OC-5/85 of 13 November 1985 on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Inter-Am. Ct. H.R. (Ser. A) No. 5 (1985)��270–71,  286 Advisory Opinion OC-8/87, Series A, No. 8 (1987)�� 150 Claude Reyes et al v Chile�� 269 Loyza Tamayo v Peru�� 523 Velásquez Rodríguez v Honduras, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)�� 27, 109–10, 153, 511–12 Yean and Bosico v the Dominican Republic, Order of 8 September 2005�� 138–39

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Public Ministry v Dragoljub Kunarac, Radomir Kovac and Vukovic Zoran, Judgment of 12 June 2002, IT-96-23 & 23/1 �� 170

UN HUMAN RIGHTS COMMITTEE Carpo v Philippines, Communication No. 1077/2002, UN Doc.CCPR/C/77/D/1077/2002�� 120 Gridin v Russian Federation, Communication No 770/1997, UN Doc CCPR/C/69/D/770/1997�� 224 Hijrizi v Yugoslavia, Communication No 161/2000, UN Doc CAT/C/29/D/161/2000 �� 151 Karnel Singh Bhinder v Canada, Communication No 208/1986, UN Doc CCPR/C/37/D/208/1986�� 261 Randolph Barrett and Clyde Sutcliffe v. Jamaica, Communication No. 271/1988, UN Doc. CCPR/C/44/D/271/1988�� 164 Thompson v St Vincent, Communication No. 806/1998, UN Doc.CCPR/C/70/D/806/1998�� 120

NATIONAL JURISDICTIONS Botswana Attorney General v Dow [1992] BLR 119, Court of Appeal of Botswana�� 54 State v Ntesang [1995] 4 BCLR 426; [1995] 2 LRC 338�� 164 Thomas Sibanda v the Attorney General of Botswana & Secretary of the Independent Electoral Commission, Case No. MAHLB-000347-09 (High Court) �� 354–55 Utjiwa Kanane v the State, Botswana Court of Appeal, Criminal Appeal No 9 of 2003 (30 July 2003) unreported�� 65

Ghana Ahumah Ocansey v the Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney General and the Electoral Commission, (2010) AHRLR 165 (Supreme Court)��354–55

xiv

Table of Cases

Kenya Charles Onyango-Obbo and Anor v Attorney General (Constitutional Appeal No. 2 of 2002) (Supreme Court)�� 266 Cord v the Republic of Kenya and Others, H.C. Petition No. 628 of 2014 (High Court)�� 266

Nigeria Fawehinmi v Abacha (1996) 9 NWLR (Pt.475) 710 (Court of Appeal)��17–18 General Sani Abacha and Others v Chief Gani Fawehinmi [2000] 4 SCNJ 401 (Supreme Court)�� 209 Mohammed Garuba and Others v Lagos State Attorney General and Others, Report, (1994) 4 Journal of Human Rights Law and Practice 205�� 209 Registered Trustees of the Constitutional Rights Project (CRP) v the President of the Federal Republic of Nigeria and Others (1994) 4 Journal of Human Rights Law and Practice 218�� 209

South Africa BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs, 2004, 5, SA 124 (SW)�� 552–53 Chairperson of the Constitutional Assembly, Ex Parte: In Re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744; 1996 10 BCLR 1253 (CC) �� 547 Government of the Republic of South Africa & Others v Grootboom & Others 2000 11 BCLR 1169 (CC) 1184�� 547 S v Magwanyane and Another, 1995 3 SA 391 (CC)�� 114, 118 South African Constitutional Court in Christian Education South Africa v Minister of Education [1999] 2 SA 83 (CC)�� 144

Tanzania Mbushuu v Republic (1994) LRC 349; [1995] 1 LRC 2016 (High Court)�� 164

Uganda Attorney General v Susan Kigula and 417 Others, Constitutional Appeal No. 3 of 2006 [2009] UGSC 6, 21 January 2009 (Supreme Court)�� 164 Uganda Law Society and Jackson Karugaba v Attorney General, Constitutional Petitions 02 of 2002 and 08 of 2002 (unreported) (Constitutional Court)�� 239

United States Brown v Board of Education of Topeka, 347 U.S. 483 (1954) ��92–93

Zimbabwe Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and Others [1993] 4 SA 239 (Supreme Court)�� 164

Table of Legislation African Charter on Human and Peoples’ Rights (ACHPR) Art 1��16–43, 73, 154, 212, 375, 551, 678–79, 681–82 Art 2�� 29, 44–89, 90, 91, 253, 254–55, 262, 322, 335, 345–46, 360, 395, 468–69, 478–79, 485, 487–88, 491, 493, 671, 672, 840–41 Art 3�� 45–46, 47, 66–100, 214, 544,  823–24 Art 3(1)�� 92,  94–96 Art 3(2)�� 92,  96–97 Art 4�� 29, 50–51, 101–31, 162–63, 248, 472, 492, 677, 702–3, 792, 809 Art 5�� 6, 21–22, 29, 48–49, 57, 73, 101, 117, 132–83, 191, 200, 263, 318–19, 409, 410, 420, 424, 468–69 Art 6�� 81–82, 112–13, 156–57, 162, 184–204, 207–8, 248 Art 7�� 34, 37, 52, 93, 112–13, 118–20, 152, 156–57, 163, 190, 205–52, 565, 566–67, 568, 569, 573, 574–75, 702–3, 729–30, 784–85, 786, 835 Art 7(1)��207–21, 237,  241–42 Art 7(1)(a)�� 205, 207–8, 209, 212, 221–23, 226 Art 7(1)(b)��211–12, 223–27,  786 Art 7(1)(c)�� 29, 92–93, 227–33, 239–40, 249 Art 7(1)(d)�� 233–34, 237–38, 239, 566–67,  746 Art 7(2)�� 242–43, 755, 822 Art 8��51, 188, 253–65, 582–83, 810–11 Art 9�� 22, 48, 266–93, 296, 305, 697, 810 Art 9(1)��269–73,  279 Art 9(2)�� 255, 266, 273–81, 282–83, 284, 285–86, 287, 296, 576 Art 10��261, 294–305, 308, 309, 317 Art 10(1)��299, 300, 301–4, 358 Art 10(2)�� 303–4 Art 11�� 296, 304, 307–17 Art 12��75, 199–200, 318–43, 630 Art 12(1)��325–30,  336 Art 12(2)��325, 329–31, 336, 544, 585 Art 12(3)�� 331–33 Art 12(4)�� 334, 544 Art 12(5)�� 50, 329, 334, 335–36, 485 Art 13��47, 49–50, 72, 76–77, 344–63, 471, 504, 590, 783–84, 824 Art 13(1)��294–95, 345–46, 348–60,  501–2 Art 13(2)��344, 345–46,  360–61

Art 13(3)��345–46, 361,  809–10 Art 14��50, 52 Art 15�� 386–99 Art 16��51, 148, 368, 389–90, 400–36, 553 Art 16(1)��401, 410–11, 431, 432 Art 16(2)��401,  410–11 Art 17��437–57, 472–73,  558–59 Art 17(1)�� 437–49 Art 17(2)�� 449–56 Art 17(3)�� 449–56 Art 18�� 458–83 Art 18(1)�� 158–59, 461, 462–63, 464, 470 Art 18(2)�� 462, 463 Art 18(3)��56–57, 62–63, 461, 464–75, 634, 800, 840–41 Art 18(4)�� 77–78, 81, 423–24, 476, 478–79 Art 19�� 54–55, 72, 484–96, 526 Art 20��358, 497–12,  590–91 Art 20(1)��346, 498, 501, 504, 506 Art 20(2)�� 504–11 Art 20(3)�� 504–11 Art 21��366–67, 374, 378, 416–17, 508–26, 527,  545–46 Art 21(1)��511,  512–13 Art 21(2)�� 366–67, 512–13, 514–15, 516, 518 Art 21(4)�� 516, 591 Art 21(5)��509, 511, 512 Art 22�� 404, 511, 515, 521–56, 553–54,  754–55 Art 22(1)��530 Art 22(2)��526,  527–28 Art 23��200–1, 498, 538–39, 588–90 Art 23(1)�� 539–43 Art 23(2)�� 337, 543 Art 24�� 418, 545, 547–57 Art 25�� 28, 558–64, 574 Art 26��237–38, 347–48, 559, 561, 565–198 Art 27�� 135, 269–70, 288, 301, 453–54, 580, 581–210, 596 Art 27(1)�� 581–208,  583 Art 27(2)�� 135, 259, 261, 287, 288, 350–51, 454, 579, 580, 582–83, 596 Art 28�� 584, 596 Art 29��303, 477, 576–77, 585–96, 792–93 Art 29(1)�� 585–86 Art 29(2)��585, 588, 589 Art 29(3)��588 Art 29(4)�� 592–218 Art 29(5)��588 Art 29(6)��585,  595–96

xvi

Table of Legislation

Art 29(7)��585, 594–221 Art 29(8)��591 Art 30��597,  667–68 Art 31�� 576–77, 597, 602–3, 674–75, 839 Art 32�� 597, 603 Art 33�� 597, 606 Art 34��597 Art 35��49, 597 Art 36�� 597, 606, 809–10 Art 37��597,  809–10 Art 38�� 597, 607 Art 39��597 Art 39(2)��608 Art 39(3)��608 Art 40��598 Art 41��610 Art 42��610 Art 43�� 610, 627 Art 44��610 Art 45��291–92, 580–81, 629, 630–5, 637, 640–41, 644, 776, 811–12 Art 45(1)�� 636–37,  642–43 Art 45(2)��659 Art 45(3)�� 636–37,  767–68 Art 46�� 629, 630, 634–35, 673–74, 676 Art 47�� 655, 657–19, 661 Art 48�� 655, 661 Art 49�� 655, 660–61, 662 Art 50�� 655, 659 Art 51�� 655, 661 Art 52�� 655, 662 Art 53�� 655, 660 Art 54��655, 662–25,  769–70 Art 55��642, 656–57, 664, 665–47, 673–74, 675, 684, 717, 753, 828 Art 56��233–34, 658–59, 667, 684–99, 825 Art 56(1)��667, 693–98 Art 56(2)��62, 667, 698–99, 706 Art 56(3)�� 268–69, 284–85, 568, 667, 706–7, 711 Art 56(4)��676, 711–13 Art 56(5)�� 567–68, 667, 713–14, 743 Art 56(6)�� 268–69, 743, 748 Art 56(7)��666, 748, 752 Art 57��664 Art 58��541, 641, 664, 753–117, 809–10, 828 Art 59��630, 636, 639, 673–74, 767–144, 813 Art 60�� 782, 824 Art 61��782 Art 62�� 794–806 Art 63�� 807, 808 Art 64��807,  811–12 Art 65��807,  808–9 Art 66��807,  813–14 Art 67��807 Art 68��807

OTHER INTERNATIONAL AND REGIONAL HUMAN RIGHTS INSTRUMENTS African Charter on the Rights and Welfare of the Child (ACRWC)�� 10, 244, 422–23, 438, 449, 461, 470, 472, 576–77, 588 Art 5��101 Art 6��139 Art 11�� 31–32, 438, 441–42, 443 Art 13��31–32 Art 14��406–7 Art 15�� 396–97 Art 45�� 767–68 American Convention on Human Rights (ACHR)��636–37,  743 Art 4��101 Art 8��217–18,  786 Art 13�� 270–71 Art 29�� 270–71 Convention on the Elimination of All Forms of Racial Discrimination (CERD) �� 60–61,  782 Art 1��60–61 Art 2��60–61 Art 3��60–61 Art 4��60–62 Art 5��60–61 Art 6��60–61 Art 7��60–61 European Convention on Human Rights (ECHR)�� 8–9, 215–16, 743,  823–24 Art 2��101 Art 6��786 Art 14��45–46 International Covenant on Civil and Political Rights (ICCPR)�� 39–40, 45–46, 214, 253, 254, 660–61, 701, 782, 823–24 Art 6��117–18, 472,  785–86 Art 7��241 Art 14�� 205, 217–18, 784, 786, 823–24 Art 19�� 287, 583, 824–25 Art 22�� 294, 301 Art 25��345–46, 350–51, 359, 783–84, 824 Art 40��254 Optional Protocol 2��112–13, 115,  116–17 International Covenant on Economic, Social and Cultural Rights (ICESCR)�� 32, 386, 400–1, 449,  716–17 Art 11�� 33 Art 12��33, 430 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)�� 12, 31–32, 431, 438, 464–65, 470, 840-–42 Art 1�� 451–52,  468–69 Art 2�� 451–52,  466–67 Art 3�� 466–67

Table of Legislation Art 4�� 466–67 Art 4(2)��418 Art 5��451–52,  460 Art 6�� 466–67 Art 7�� 466–67 Art 8�� 466–67 Art 9�� 466–67 Art 10�� 466–67 Art 11�� 466–67 Art 12�� 466–67 Art 12(1)��438 Art 12(2)��438 Art 13�� 466–67 Art 13(j)��392 Art 14�� 411, 419–20, 425, 428, 430–31,  466–68 Art 14(2)��426 Art 15�� 388, 394, 395–97, 466–67 Art 15(a)�� 393–94 Art 16�� 466–67 Art 17�� 466–67 Art 18�� 466–67 Art 19�� 466–67 Art 20�� 466–67 Art 21�� 466–67 Art 22�� 466–67 Art 23�� 466–67 Art 24�� 466–67 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights ��11–12, 598, 767–68, 792–93,  815–44 Art 2��826 Art 3(1)�� 764–65 Art 4��826 Art 5��643–44,  817 Art 5(1)��823, 826, 831 Art 5(2)��821,  831–32 Art 5(3)�� 643–44 Art 6(1)��825 Art 6(3)��825, 826, 827 Art 7�� 783–84,  823–24

xvii

Art 8��826 Art 10��821 Art 10(2)�� 820–21 Art 12(2)��819 Art 14(3)�� 819–20 Art 15��820 Art 19��820 Art 20��820 Art 23��820 Art 25(1)��820 Art 27��832,  834–35 Art 27(1)��41,  833–34 Art 30��33–34 Art 33��826 Art 34(6)��643–44, 805, 817, 821–23, 824, 827, 831, 833 United Nations Convention Against Torture (UNCAT) 132–33,  151 Art 1��140–41, 144, 149, 786 Art 5��149 Art 15��220 Art 16��142 United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)��461, 464–65, 466–67, 795, 841 Art 1�� 63 United Nations Convention on the Rights of Persons with Disabilities (CRPD)��477, 564, 814, 842–43 Art 33��476–77,  564 United Nations Convention on the Rights of the Child (UNCRC) ��439, 461, 474 United Nations Optional Protocol to the Convention Against Torture (OPCAT)�� 10, 155–56, 176, 564, 790 Universal Declaration of Human Rights (UDHR)�� 9, 60–61, 167–68, 253, 782, 823–24 Art 19��583 Art 25�� 823–24 Art 27��449

List of Abbreviations African Committee of Experts on the Rights and Welfare of the Child African Charter on Human and Peoples’ Rights American Convention on Human Rights African Court of Justice African Charter on the Rights and Welfare of the Child African Governance Architecture African Human Rights Law Journal African Human Rights Law Reports Access to Information and Protection of Privacy Act African Journal of International and Comparative Law African Maghreb Union African Policing Civil Oversight Forum African Peer Review Mechanism Association for the Prevention of Torture African Union African Union Commission Coalition of African Lesbians UN Convention on the Elimination of All Forms of Discrimination Against Women CEEAC Economic Community of Central African States CEN-SAD Community of Sahel-Saharan States CEJIL Center for Justice and International Law CERD Convention on the Elimination of All Forms of Racial Discrimination COMESA Common Market for Eastern and South Africa CPTA Committee on Prevention of Torture in Africa CRPD UN Convention on the Rights of Persons with Disabilities CSO civil society organisation CSSDCA Conference on Security, Stability, Development and Cooperation in Africa DPA Department of Political Affairs (of the AU) DRC Democratic Republic of the Congo EAC East African Community ECHR European Convention on Human Rights ECOSOCC Economic, Social and Cultural Council ECOWAS Economic Community of West African States EHRLR European Human Rights Law Review FGM female genital mutilation GIMAC Gender Is My Agenda Campaign HRQ Human Rights Quarterly ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ACERWC ACHPR ACHR ACJ ACRWC AGA AHRLJ AHRLR AIPPA AJICL AMU APCOF APRM APT AU AUC CAL CEDAW

xx ICJ ICLQ ICRC ICTR ICTY IDP IGAD IHRDA ILC IWGIA LEDAP NANHRI NEPAD NGO NHRI NQHR OAU OHADA OHCHR OPCAT OSJI PACE PAHRI PAP PRC PRI PSC REC SADC SERAP UDHR UMA UN UNCAT UNCRC UNESCO UNHCR UNSPT WILDAF

List of Abbreviations International Commission of Jurists International and Comparative Law Quarterly International Committee of the Red Cross International Criminal Tribunal for Rwanda Criminal Tribunal for the former Yugoslavia internally displaced person Intergovernmental Authority on Development Institute for Human Rights and Development in Africa International Law Commission International Working Group on Indigenous Affairs Legal Defence and Assistance Project Network of African National Human Rights Institutions New Partnership for Africa’s Development Non-governmental organisation national human rights institution Netherlands Quarterly on Human Rights Organisation of African Unity Organisation pour l’Harmonisation des Droits d’Affaires en Afrique Office of the High Commissioner for Human Rights UN Optional Protocol to the Convention Against Torture Open Society Justice Initiative Parliamentary Assembly of the Council of Europe Pan-African Human Rights Institute Pan-African Parliament Permanent Representatives’ Committee Penal Reform International Peace and Security Council Regional Economic Community Southern African Development Community Socio-Economic Rights Action Center Universal Declaration of Human Rights Arab Maghreb Union United Nations United Nations Convention Against Torture United Nations Convention on the Rights of the Child United Nations Educational, Scientific and Cultural Organization United Nations High Commissioner for Refugees United Nations Subcommittee on Prevention of Torture Women in Law and Development in Africa

1. Introduction A. Human Rights in the Organisation of African Unity and the African Union 1. The Organisation of African Unity When the Organisation for African Unity (OAU) was created in 1963 among the principal human rights issues, even if they were not necessarily termed such, with which it was occupied was decolonisation for all African peoples, in the context of self-determination, and ending apartheid in South Africa.1 The OAU, which was to become a key actor in the success of the future African human rights system, was established by a Charter whose principles were clearly grounded in ‘freedom, equality dignity and justice’,2 the ‘unity and solidarity of the African States’, and a ‘better life for the peoples of Africa’,3 but could not have foreseen the breadth of what would be considered human and peoples’ rights which would be included in later African instruments. As Dugard wrote not long after the OAU Charter was adopted, this was really a ‘charter of liberation’.4 Having acquired their independence from colonial rule, and with some African peoples still, during the 1970s and 1980s, fighting for this right, it is predictable that the OAU and these new African States would be fiercely protective of their sovereignty and corresponding obligations not to interfere in the internal affairs of others.5 The focus on decolonisation and the anti-apartheid struggle helped to introduce the language of human rights into the discussions at the level of the political organs of the OAU.6 As the years advanced and more States became independent, and with the end of apartheid in South Africa in the 1990s, so the OAU’s attention shifted to other considerations. Globalisation, development and unconstitutional changes of government started to become increasingly important. Its principal human rights body, the African Commission on Human and Peoples’ Rights (‘African Commission’), created under the 1981 African Charter on Human and Peoples’ Rights, began operating in 1987. With its headquarters based in The Gambia on the other side of the continent, its work was often forgotten by the Addis Ababa organs, and the African Commission did not always seem

1 See R. Murray, Human Rights in Africa: From the Organisation of African Unity to the African Union, Cambridge University Press, 2004, chapter 1. See also, OAU documents: Resolution on South Africa, CM/ Res.1427 (LVII); Resolution CIAS/Plen.2/Rev.2, as the first resolution of the OAU. 2 3 Preamble, OAU Charter. OAU Charter, Article II. 4 J. Dugard, ‘The Organisation of African Unity and Colonialism: An inquiry into the plea of self-defence as a justification for the use of force in the eradication of colonialism’, 16 ICLQ (1967) 157–190. 5 K. Mathews, ‘The Organization of African Unity’, in D. Mazzeo, African Regional Organizations, Cambridge University Press, 1984, 49–84. M-C. D. Wembou, ‘The OAU and international law’ in Y. El Ayouty, The Organization of African Unity after Thirty Years, Praeger, Westport Connecticut, 1994, 15–26. A. Clapham, Africa and the International System. The Politics of State Survival, Cambridge University Press, 1996. G. Naldi, The Organisation of African Unity: An Analysis of Its Role, Mansell, 2nd edition, 1999. 6 See e.g. Lusaka Manifesto: A Policy Statement for Decolonisation in Respect of Southern Africa, adopted by the OAU and UN, Resolution GA 2505, UN Doc. A/PV.1815, 20 November 1969; A. Aidoo, ‘Africa: Democracy without human rights’, 15 HRQ (1993) 703–715; R. Murray, Human Rights in Africa: From the Organisation of African Unity to the African Union, Cambridge University Press, 2004, chapter 1.

1. Introduction

2

to have the confidence to alert them to its key position in the human rights architecture of the continent. Consequently, while the OAU cannot necessarily be said to have neglected human and peoples’ rights from its discussions, neither was the key treaty and its institution always integral to its discussions.

2. The Drafting of an African Charter on Human and Peoples’ Rights and the Subsequent Interpretation of Its Provisions Adopted in 1981,7 the primary instrument on human rights for the African continent, the African Charter on Human and Peoples’ Rights (ACHPR), has now received near universal ratification from all African Union (AU) Member States bar Morocco which, having now ratified the AU Constitutive Act in 2017, gives some hope that accession to the ACHPR will follow.8 The decision to adopt a regional human rights instrument is the result of a number of different pressures and initiatives.9 These included regional seminars organised by the UN,10 the sustained commitment by African jurists and organisations such as the International Commission of Jurists,11 as well as the political context of the time.12 A 1967 Dakar Conference of African jurists from Francophone Africa called for consideration of the ‘feasibility of creating a regional system for the protection of human rights in Africa’ with an ‘inter-African Commission on human rights’,13 followed by what Ouguergouz considers ‘pivotal’ seminars in 1978 around economic development.14 A year later in September 1979 in Monrovia in Liberia, after various activities by the UN Economic Commission for Africa, a seminar was held and discussions took place on the basis of several documents including two prepared by the eminent T. O. Elias and Judge

27 June 1981. 21 ILM (1982) 58. Morocco has been encouraged to do so by the AU Executive Council in January 2018, see Decision On The African Commission On Human And Peoples’ Rights, EX.CL/Dec.995(XXXII), January 2018, para 7. 9 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, chapter 1; R. Murray, Human Rights in Africa: From the Organisation of African Unity to the African Union, Cambridge University Press, c hapter 1. See also F. Viljoen, ‘The African Charter on Human and Peoples’ Rights: The travaux préparatoires in the light of subsequent practice’, 25 Human Rights Law Journal (2004) 313–325. 10 Regional Seminar on Human Rights in Developing Countries, 8–22 February 1966, UN Doc.ST/TAO/ HR/25; Seminar on Establishment of Regional Commissions on Human Rights with Special Reference to Africa, 2–15 September 1969, Cairo, Egypt, UN Doc.ST/TAO/HR/38; Seminar on Study of New Ways and Means to Promote Human Rights with Special Reference to the Problems and Needs of Africa, 23 October–5 November 1973, Dar-es-Salaam, Tanzania, UN Doc.ST/TAO/HR/49. 11 African Conference on the Rule of Law, Lagos (Nigeria), 3–7 January 1961: Report on the Proceedings of the Conference, International Commission of Jurists, Geneva, 1961; Conference of French-Speaking African Jurists, Dakar, Senegal, 5–9 January 1967, resulting in the Dakar Declaration, see 29 Bulletin of the International Commission of Jurists, 1967. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 20; F. Viljoen, ‘Human rights in Africa: Normative, institutional and functional complementarity and distinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216, at 199–200. 12 C. A. Odinkalu, ‘International criminal justice, peace and reconciliation in Africa: Re-imagining an agenda beyond the ICC’, XL Africa Development (2015) 257–290, at 267; K. O. Kufuor, The African Human Rights System: Origin and Evolution, Palgrave Macmillan, 2010, at 33–35. 13 Conference of French-Speaking African Jurists, Dakar, Senegal, 5–9 January 1967, resulting in the Dakar Declaration, see 29 Bulletin of the International Commission of Jurists, 1967. 14 Human Rights and Economic Development in Francophone Africa, Institute of International Law and Economic Development and Faculty of Law of the University of Rwanda, H. Hannum, ‘The Butare Colloquium on human rights and economic development in Francophone Africa: A summary and analysis’, 7 8

A. Human Rights in the OAU and the African Union

3

Keba M’Baye.15 A few months after, in Dakar, Senegal, the Heads of State convened a further meeting at which Senegal’s President Leopold Senghor set out the context to the draft African Charter being considered by African experts.16 This draft ‘Dakar’ text developed the substantive content of the Charter,17 and was then presented to a ministerial conference in The Gambia under the invitation of its president.18 After a rather lukewarm reception and little progress, the discussions were galvanised a few weeks later after the assassination of the Liberian President William Tolbert, leading to a commitment to human rights and to finalise the draft.19 Consequently in January 1981 a further ministerial level meeting was held in Banjul, The Gambia, and a text finally adopted which was then submitted to the 37th Session of the OAU’s Committee of Ministers. Although there was some discussion then around the powers of the proposed African Commission perhaps going too far, it was with the encouragement of President Dawda Jawara of The Gambia that on 27 June 1981 the ACHPR was adopted.20 As Viljoen notes, although there were therefore a number of drafts of the ACHPR,21 there is limited information available on the discussions that took place during these various meetings: a ‘cohesive and extensive narrative’ is lacking.22 The drafting process reflects two diverse State perspectives which then become apparent in the text of the ACHPR: ‘some aimed at ensuring a genuine human rights friendly supra-national institutional framework, which would inevitably also see an erosion of state sovereignty; others were at the table only to appease public opinion and amend reputations to deflect international and domestic criticism’.23 How these debates played out in respect of the different provisions in the ACHPR are discussed in each of the relevant chapters of this Commentary. During the crafting of the ACHPR there were also different suggestions raised as to the form that any monitoring body should take, including a plurality of commissions, as well 1 Universal Human Rights (1979) 63–81. Dakar Colloquium on Human Rights, ‘Association Sénégalaise d’Etudes et de Recherches Juridiques and the ICJ’, 22 Revue Sénégalaise de Droit, (1977). F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 23–25. HR/LIBERIA/1979/BP/2; HR/LIBERIA/1979/BP.3. 29 November–8 December 1979, Address delivered by H. E. Leopold Sedar Senghore, President of the Republic of Senegal, OAU Doc.CAB/LEG/67/5. 17 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 42–43. 18 Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Council of Ministers, 37th Ordinary Session, 15–21 June 1981, OAU Doc. CM/1149 (XXXVII). 19 OAU Doc. CM/Res.792 (XXXV). See F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 44–46. 20 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 47–48. 21 The UN proposal, as provided in B. G. Ramcharan, ‘The travaux preparatoires of the African Commission on Human and Peoples’ Rights’, 13 HRLJ (1992) 307–309, Annex II; the Monrovia proposal, the M’Baye Draft, see C. Heyns, Human Rights Law in Africa, 1999, Vol. 4, 2002, at 65–77; the Dakar Draft, CAB/LEG/ 67/3, Rev.1; and the ACHPR itself, see F. Viljoen, ‘The African Charter on Human and Peoples’ Rights: The travaux preparatoires in the light of subsequent practice’, 25 Human Rights Law Journal (2004) 313–325, at 315. 22 F. Viljoen, ‘The African Charter on Human and Peoples’ Rights: The travaux preparatoires in the light of subsequent practice’, 25 Human Rights Law Journal (2004) 313–325, at 324. 23 F. Viljoen, ‘Human rights in Africa: Normative, institutional and functional complementarity and distinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216, at 199. 15 16

1. Introduction

4

as a judicial body, suggested as early on as 1961.24 A commission initially set up within the structures of the OAU failed to operate,25 resulting in a separate commission being the final choice, but not without some discussion over its functions.26 As the third regional system to be established and for some time seen therefore as the baby of the regional treaty bodies, many even in the human rights world still dismiss the African system as having little to add. The African Commission was considered (and perhaps hoped by some) to be a weak institution, ‘a façade, a yoke that African leaders have put around our necks’,27 criticism which followed it, sometimes unfairly, through its early years.28 Concerns towards the apparent unusual content of the ACHPR rights, its ‘claw-back clauses’,29 collective rights30 and sections on individual duties31 meant that the African system was starting on the back foot, with a critical eye being cast over it from the inception. As a result, it could easily be dismissed. This is a huge oversight. As this Commentary illustrates, the African Commission, since its inception, and now the African Court have developed a richness of jurisprudence and detail on the content of the ACHPR and in so doing have also informed the international human rights system and arguably ‘reconstruct the human rights corpus’.32 In the process, the African Commission has gained in confidence and has inspired confidence in others. It is now, for example, more common for senior State officials to be present during its sessions; for States to at least commit to implementing the African Commission’s findings (even if it is somewhat wanting in practice); for statutory or constitutional national human rights institutions to be sufficiently interested to acquire affiliated status and attend the meetings; and for several hundred civil society organisations and non-governmental organisations to put their faith in the African Charter bodies to address violations that they or those they are representing have suffered. Yet the system is not without its many challenges and flaws. There are inconsistencies in its jurisprudence; too much time is taken to adopt decisions on communications and there is a lack of information on the extent of implementation of its findings; and still, after three decades, there is a lack of knowledge or awareness of even the existence of the ACHPR, its Commission and Court, let alone the rich interpretation of the rights within it.33

African Conference on the Rule of Law, Lagos, 3–7 January 1961. See R. Murray, ‘Decisions by the African Commission on individual communications under the African Charter on Human and Peoples’ Rights’, 46 ICLQ (1997) 412–434, at 412. 26 Working Group on the Monrovia Seminar, 1979, UN Doc.ST/HR/SER.A/4 (1979). See further, Chapter 29 (Articles 30–40). 27 M. wa Mutua, ‘The African human rights system in comparative perspective: The need for urgent reformation’, 5 Legal Forum (1993) 31–35; R. Gittleman, ‘The Banjul Charter on Human and Peoples’ Rights: A legal analysis’, 22 Virginia Journal of International Law (1982) 667–692. 28 U. O. Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for more effectiveness’, 13(1) Annual Survey of International and Comparative Law (2007) 179–190, at 180–181. 29 See for further discussion Chapter 2 (Article 1). 30 See for further discussions, Chapters 20–25 (Articles 19–24). 31 See further, Chapter 28 (Articles 27–29); M. wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339. 32 M. wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339, at 344. 33 M. Ssenyonjo, ‘Responding to human rights violations in Africa: Assessing the role of the African Commission and Court on human and peoples’ rights (1987–2018), 7 IHRLR (2018) 1–42. 24 25

A. Human Rights in the OAU and the African Union

5

3. Key Events and the Creation of the AU Key events and resulting declarations at the OAU and AU level and at that of the African Commission and Court reflect different points of their history of human and peoples’ rights on the continent and illustrate shifts in focus over time. Conflicts in a number of African States throughout the decades,34 the genocide in Rwanda35 and other political crises also played a part in the development of the broad spectrum of human and peoples’ rights norms and institutions under the umbrella of the AU. These issues are apparent in several declarations adopted by the OAU and AU. The 1990 Declaration on the Political and Socio-Economic Situation in Africa and the Fundamental Changes taking Place in the World36 marked not only the end of the Cold War and the impact of this on the continent, but also the OAU’s perception of what human rights then meant for Africa. Included in this Declaration was reference to greater attention on ‘self- reliant, human-centred and sustainable development on the basis of social justice and collective self-reliance’, but that these issues were the responsibility of African governments, rather than just external actors. It recognised the importance of a ‘political environment which guarantees human rights and the observance of the rule of law’; the ‘involvement of all including in particular women and youth in the development efforts’; and the resolution of conflicts.37 The 1998 Ouagadougou Declaration, adopted by the 34th Session of the Assembly of Heads of State of the OAU, reiterated many of these issues.38 A series of ministerial and ambassadorial conferences organised at the level of the OAU illustrate the commitment of the Organisation to human rights and their resulting declarations are key indicators of their perspective on not only the ACHPR but also the place of the African Commission, at that time the only ACHPR organ in existence, within the OAU. The Grand Baie (Mauritius) Declaration and Plan of Action emanating from the OAU’s First Ministerial Conference on Human Rights in Africa in April 1999 restated the universality and indivisibility of human rights, noted in particular the need for effective protection of the rights of women and the child, persons with disabilities and those living with HIV/AIDS and committed to adopting a ‘multi-faceted approach’ to eliminating violations on the continent.39 Civil society received attention and, among other matters, the Declaration underscored that the primary responsibility for promotion and protection of rights lies with the State.40 E.g. Resolution on Liberia, CM/Res.1650 (LXIV). Report of the Secretary-General on the Establishment of an International Panel of Eminent Personalities to Investigate the Genocide in Rwanda and Surrounding Events, CM/2048 (LXVII). The creation of the Panel was approved in 1997, Establishment of the Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events, Doc. CM/2063 (LXVIII); International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and Surrounding Events. Special Report, 7 July 2000; R. Murray, ‘The report of the OAU’s international panel of eminent personalities to investigate the 1994 Genocide in Rwanda and the surrounding events’, 45(1) JAL (2001) 123–133. 36 Adopted at the 26th Session of the Assembly of Heads of State of the OAU, AHG/Decl.1 (XXVI) 1990. 37 Adopted at the 26th Session of the Assembly of Heads of State of the OAU, AHG/Decl.1 (XXVI) 1990, paras 8, 10 and 11 respectively. 38 AHG/Decl.1 (XXXIV). 39 Grand Baie (Mauritius) Declaration and Plan of Action, April 1999; Resolution on the Ministerial Conference on Human Rights in Africa, CM/Res.1673 (LXIV). Decision on the Report of the Secretary General on the Ministerial Conference on Human Rights, CM/Dec.475 (LXX). 40 Grand Baie (Mauritius) Declaration and Plan of Action, April 1999; Resolution on the Ministerial Conference on Human Rights in Africa, CM/Res.1673 (LXIV). Decision on the Report of the Secretary General on the Ministerial Conference on Human Rights, CM/Dec.475 (LXX). See also Algiers Declaration, AHG/Decl.1 (XXXV). 34 35

1. Introduction

6

When the OAU was transformed into the African Union in 2001, the drafting of the AU’s founding treaty, the Constitutive Act, provided opportunities to introduce greater reference to human rights issues into the political entity, and reflect how far the continent had come in recognising them. The Constitutive Act does indeed make reference in its principles and objectives 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’; promotion of gender equality; respect for democratic principles, human rights, the rule of law and good governance; promotion of social justice to ensure balanced economic development; respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities; condemnation and rejection of unconstitutional changes of governments’.41 However, its organs echo in part those under the OAU: the Assembly of Heads of State; an Executive Council of Ministers (formerly the OAU Committee of Ministers) and a Permanent Representatives Committee of ambassadors. It also created new organs including a Pan-African Parliament; an Economic, Social and Cultural Council (ECOSOCC) and an African Court of Justice.42 What it did not do was include in this list the African Commission on Human and Peoples’ Rights nor the African Committee on the Rights and Welfare of the Child (ACERWC). Why this did not occur is not entirely clear, and could be put down, in part, to the relative invisibility of the African Commission’s work and to its inability to advocate strongly for its inclusion among those organs in Article 5. More than a mere vanity project, however, the failure to list the African Commission and ACERWC as organs of the AU has implications for their place within the Union, raising challenges on not only how they are perceived but also on how they request and receive funds from the AU political organs.43 Mechanisms such as the OAU’s Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA), which resulted in the New Partnership for Africa’s Development (NEPAD)44 and the monitoring mechanism created in the African Peer Review Mechanism (APRM), include human rights standards within their mandates,45 and with whom the African Commission has now formalised a relationship.46 The Kigali Declaration adopted at the First Ministerial Conference of the AU on human rights that took place in 2003 signals that human rights issues would continue to be relevant to the newly formed AU.47 Reaffirming many of the commitments in the Grand Baie Declaration it further called on States to ensure independent justice systems, reject impunity, address terrorism and racism as well as refugees and internally displaced persons, ensure a free and independent media and human rights education and called on States to develop a protocol on the rights of persons with disabilities and the elderly. The AU policy organs were asked to consider providing further resources to strengthen the African Commission and States were called on to protect civil society 42 Constitutive Act, Articles 3 and 4. Constitutive Act, Article 5. See Chapters 29 and 30 (Articles 30–40, Articles 41–44). See also regarding the ACERWC as an organ of the AU, Chapter 39 (Articles 63–68). 44 AHG/235 (XXXVIII), Annex I. 45 Objectives, Standards, Criteria and Indicators for the African Peer Review Mechanism (APRM), NEPAD/ HSGIC-03-2003/APRM/Guideline/OSCI, 9 March  2003. 46 See Chapter 31 (Articles 45 and 46). 47 Kigali Declaration, First African Union Ministerial Conference on Human Rights, 8 May 2003. 41 43

A. Human Rights in the OAU and the African Union

7

organisations. A Solemn Declaration on Gender Equality adopted by the Assembly of the AU in 200448 set out commitments of States such as ratifying the Protocol on the Rights of Women and ensuring gender equality in all organs of the AU and at the national and local levels. These and other documents result in a complex web of institutions and standards under the auspices of the AU, of which the ACHPR and its Commission and Court are key, but not alone. The degree of coordination between them, consistency in approaches and mutual support does occur but in some instances, has been lacking, as will be noted in this Commentary. In recognition of the diversity of bodies and instruments relevant to human rights, the AU’s Human Rights Strategy for Africa 2012–2016, for example, calls for greater coordination and collaboration between AU and sub-regional organs and institutions, as well as ‘ensure effective implementation of human rights instruments and decisions’.49 Some of this is being done through the African Governance Architecture (AGA).50 One of the consequences of the Shared Values of the AU adopted in 2011 this was intended to be a ‘platform for dialogue between the various stakeholders who are mandated to promote and strengthen democratic governance in Africa’,51 these stakeholders being the relevant AU organs as well as the regional and economic communities, and thereby the African Commission, African Court and ACERWC. Its purpose therefore is to coordinate and harmonise their respective activities. Among the objectives are to increase ratification and implementation of the relevant AU instruments, including the ACHPR; ‘[e]‌nhance the capacity of AU organs, institutions and RECs to support Member States to strengthen governance and consolidate democracy through implementation of shared values agenda’; ‘[c]oordinate evaluation and reporting on implementation and compliance with AU norms on governance and democracy’; and ‘[f ]acilitate joint engagement and deepen synergy with the African Peace and Security Architecture (APSA) in strategic interventions: preventive diplomacy, conflict prevention and post-conflict, reconstruction and development in Africa’. Its ‘Guiding Principles’ are those derived from the Constitutive Act, the African Charter on Elections, Governance and Democracy and other AU instruments, namely: [e]‌ffective participation of the African peoples in strengthening and consolidating democratic governance in Member States and continental affairs; Respect for democratic principles, human rights, the rule of law and good governance; Holding of regular, transparent, free and fair elections; Promotion of the principle of separation of powers; Promotion of gender equality and youth empowerment; Promotion of transparency and fairness in the management of public affairs; Condemnation and rejection of acts of corruption, related offenses and impunity; Condemnation and rejection of unconstitutional changes of governments. Strengthening political pluralism and recognizing the role, rights and responsibilities of legally constituted political parties, including opposition political parties.

48 Solemn Declaration on Gender Equality, adopted by the Assembly of Heads of State and Government of the AU, 8 July 2004. 49 Department of Political Affairs, African Union Commission, Human Rights Strategy for Africa, 2012– 2016, para 24. 50 African Union Commission, African Governance Architecture Framework Document. 51 Assembly/AU/Dec.1 (XVI). Decision on the Report of Member States’ Experts Consultations on the Theme of the Sixteenth Ordinary AU Assembly ‘Towards Greater Unity and Integration through Shared Values’, Doc.EX.CL/619 (XVIII).

1. Introduction

8

The Department of Political Affairs hosts its secretariat. Given that, as will be seen throughout this Commentary, the degree of mutual awareness among each of the different arms of the AU who have some remit over human and peoples’ rights and subsequent coordination and harmonisation is somewhat lacking, this platform is a welcome initiative.52 In order to be effective it will need to ensure that it builds upon mechanisms that are already in existence, such as the APRM53 (and the recent formalisation of the relationship with the African Commission in this regard is therefore encouraging). It will also need to ensure that it does not simply add another layer of bureaucracy, rather to facilitate the engagement so clearly required.

B. An ‘African’ Human Rights System? Early writings on the African Charter often highlight what are seen to be the unusual elements of the ACHPR: the inclusion of both civil and political rights and economic, social and cultural rights in one document; the reference to collective rights in Articles 19–24 and the concept of individual duties, leading to comments that this is very much an ‘African’ instrument which may or may not question the universality of human rights.54 The importance of African ownership and African identity have pervaded the establishment of the OAU and its and that of the AU’s subsequent development in the decades that followed. They are themes which are often equated with the African human rights system, but usually in the context of the universality/cultural relativist debate. Some of these more simplistic discussions mask the great sense of pride the continent has in developing its own institutions, standards and mechanisms and can sometimes result in a too-easy dismissal of the contributions that these institutions have made to progressing international human rights law.55 As will be seen throughout the chapters of this Commentary the ACHPR is the result of a desire to adopt an instrument written by Africans for Africans. Yet its content and the way in which the provisions have been interpreted are a fascinating blend of examples from UN documents and instruments (to which many African States are also party), the European Convention on Human Rights and its Court’s and former Commission’s jurisprudence and those of the inter-American system. While the clarity of the interpretation and application of these international and regional instruments by the African Court and Commission should rightly be criticised, and indeed has tended to result in the former being ‘embraced with open arms in an uncritical fashion’,56 the result, as Viljoen argues, is that any ‘fragmentation [of international norms] is overstated’ and in fact ‘despite its particular characteristics, and some peculiar

G. M. Wachira, ‘Consolidating the African governance architecture’, SAIIA Policy Briefing (2014) 96. N. Tissi and F. Aggad-Clerx, ‘The Road Ahead for the African Governance Architecture: An Overview of Current Challenges and Possible Solutions’, Occasional Paper No. 174, South African Institute of International Affairs, February 2014. Also S. Gruzd, ‘African Governance Architecture: Reflections on the African Peer Review Mechanism’, Policy Brief 54. Johannesburg: Centre for Policy Studies, 2011. 54 See Chapter 28 (Articles 27–29). Also A. An-Na’im, Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press, 1995; A. An-Na’im, Cultural Transformation and Human Rights in Africa, Zed Books, 2002. 55 See e.g. R. Murray, ‘International Human Rights: Neglect of perspectives from African institutions’, 55(1) ICLQ (2006) 193–204. 56 C. Heyns, ‘The African regional human rights system: In need of reform?’, 2 AHRLJ (2001) 155–174, at 168. 52 53

C. The Preamble

9

features, the charter and its interpretation in the main resembles and resonates on the same wavelength as other international human rights standards’.57 One of the consequences of the African Commission looking outside the continent when interpreting the ACHPR is that ironically, although this is improving, it has drawn less on the many other instances of progressive and dynamic case law, constitutions and standards from the very continent that the Charter serves.58 Conversely, when operating externally itself, it has clearly brought its own experiences into the international arena, being willing to push in directions that other bodies may not yet have considered.59

C. The Preamble The preamble to the M’Baye Draft cited a number of key points including international cooperation with reference to the UN and the Universal Declaration of Human Rights (UDHR); that ‘the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a charter or a convention reinforcing or complementing the protection provided by the domestic laws’; and human rights meant civil and political as well as economic, social and cultural rights. Further, ‘the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights’.60 The Dakar Draft did incorporate some of these elements, but is more embracing in referencing significant issues which were clearly a priority to African States at the time: the importance of eradicating all forms of colonialism, as identified in the OAU Charter, Article 2; and the ‘right to development’; the ‘importance traditionally attached in Africa to these rights and freedoms’; individual duties; and liberation of African territories and all forms of foreign exploitation and domination.61 When discussing the final version of the ACHPR it is of note that the term ‘zionism’ was included. The word was, however, as the report of the drafting meeting explains, ‘put in square brackets so that the meeting might decide later on whether the square brackets should be removed or whether the Assembly of Heads of State and Government should be left to take the appropriate decision’.62 These brackets were later removed, although the report did not explain why.63 Subsequent resolutions and decisions adopted by the OAU and AU have consistently reiterated support for the Palestinian people ‘in their struggle against Israeli occupation’ as a self-determination issue.64 57 F. Viljoen, ‘Human rights in Africa: Normative, institutional and functional complementarity and distinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216, at 193 and 194. 58 See further discussion in Chapter 37 (Articles 60 and 61). 59 See e.g. Chapter 20 (Article 19) and the discussion on indigenous peoples. 60 61 M’Baye Draft, preamble. Dakar Draft, preamble. 62 Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia 7–19 January 1981), Annex Ii, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 28. 63 Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia 7–19 January 1981), Annex Ii, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 113. 64 E.g. Declaration on the Situation in Palestine and the Middle East, Assembly/AU/Decl.1 (XXX), January 2018.

10

1. Introduction

The Preamble in the adopted version of the ACHPR is closer to the Dakar Draft in the above matters, thereby referencing individual and collective nature of rights, as well as corresponding duties of the individual, with particular attention to economic, social and cultural rights and the right to development, and the liberation of Africa from colonialism, apartheid and zionism. Also inserted are ‘the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights’. Indeed, much of what is said in the Preamble has stood the test of time and is as important now as it was in the early 1980s. Whilst apartheid and colonialism may have been eradicated by the late 1990s, the legacy of colonialism still holds some sway. The reference to international cooperation with regard to the UN has maintained significance throughout the last thirty years of the Commission’s operation in terms of influencing the creation of parallel standards,65 special mechanisms,66 joint missions67 and promotional activities such as seminars. The adoption of the Addis Ababa Roadmap in 2012, the result of a seminar bringing together the special procedures of the UN and African Commission,68 with some degree of success,69 and a First African Union—United Nations High Level Dialogue on Human Rights in April 2018, building upon a Memorandum of Understanding signed between the AU and Office of the High Commissioner for Human Rights (OHCHR) in 2010,70 are important initiatives.

D. Elaboration of the African Human Rights System through Protocols and Treaties One tactic, which will be seen in the analysis of a number of provisions of the ACHPR, to encourage African States to ratify or implement provisions in UN instruments is to formulate similar standards through the OAU and AU and under the ACHPR. Examples include the Robben Island Guidelines on torture prevention (responding to the need to improve the ratification status of the UN’s Optional Protocol to the Convention Against Torture (OPCAT)71); and the rights of persons with disabilities (with an additional protocol to the ACHPR72). It was also one of the initiatives behind the adoption of separate treaties on human rights issues by the OAU and AU. Thus in 1990 the OAU adopted the African Charter on the Rights and Welfare of the Child, the result, in part, of perceptions that African States were omitted from the drafting of the UN instrument.73

E.g. see around albinism, see Chapter 3 (Article 2) and Chapter 19 (Article 18). E.g. Committee on the Prevention of Torture in Africa, formerly the Follow-Up Committee on the Robben Island Guidelines, see Chapter 6 (Article 5). 67 See Chapter 31 (Articles 45 and 46). 68 Dialogue between Special Procedures Mandate-Holders of the UN Human Rights Council and the African Commission on Human and Peoples’ Rights, Road Map, 17–18 January 2012, Addis Ababa, Ethiopia. 69 70 See Chapter 31 (Articles 45 and 46). Held on 24 April 2018, Addis Ababa, Ethiopia. 71 72 See Chapter 6 (Article 5). See Chapter 39 (Articles 63–68). 73 OAU Doc.CAB/LEG/24.9/49 (1990). See R. Murray, Human Rights in Africa: From the Organisation of African Unity to the African Union, Cambridge University Press, chapter 6. F. Viljoen, ‘The African Charter on the Rights and welfare of the Child’, in C. J. Davel (ed) Introduction to Child Law in South Africa, Juta, 2000, at 214–231. R. Barsh, ‘The Draft Convention on the Rights of the Child: A case of Eurocentrism in standard setting’, 58 Nordic Journal of International Law (1989) 24. 65 66

D. Elaboration of the African Human Rights System

11

Additional instruments add to the standards under the AU, among which are the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa;74 the African Youth Charter;75 a Charter for African Cultural Renaissance;76 the African Charter on Values and Principles of Public Service and Administration, and another on the Values and Principles of Decentralisation, Local Governance and Local Development;77 a Convention for the Protection and Assistance of Internally Displaced Persons adopted in October 2009; a Convention on Preventing and Combating Corruption;78 and the Convention on the Prevention and Combating of Terrorism.79 The African Commission has been involved, as will be seen in Chapter 31 (Article 45), to a greater or lesser extent in drafting the majority of these. The AU’s African Charter on Democracy, Elections and Governance, a now central plank of the AGA, was adopted in 2007 and addresses the range of factors such as participation in governance, the rule of law, free and fair elections, separation of powers, and the prohibition of unconstitutional changes of government. As will be noted in Chapter 39 (Articles 63–68), the first additional protocol to the ACHPR, the Protocol Establishing an African Court on Human and Peoples’ Rights, was adopted in July 1998.80 Operational finally in 2004 it has added a further key institution alongside that of the African Commission which has the capacity to interpret the African Charter and with whom it should also collaborate. This relationship has not been without tensions and whilst the Court has already passed its first decade, it has a relatively small docket with only a handful of judgments having been adopted on the merits. One of the reasons for this is the restrictions imposed by the Protocol’s Articles 5 and 34(6) on NGOs and individuals bringing cases directly to the African Court. A few entrepreneurial lawyers and organisations have attempted to test the boundaries of these provisions but with little success.81 The concerns that the Court would somehow undermine the African Commission, either by diluting its protective mandate, or by questioning or disagreeing with its jurisprudence have so far not materialised. However, it is not at all clear that the African Court is yet particularly well known. This may be due, in part, at least to the discussions that took place after the Protocol came into force but which delayed the appointment of the bench and the operationalisation of the Court. Article 5 of the Constitutive Act provided for an African Court of Justice. At the time when the Protocol establishing the African Court on Human and Peoples’ Rights received the required number of ratifications to come into force, in 2004, this additional judicial body, the African Court of Justice (ACJ), was not in existence. Recognising the financial and other challenges of having two judicial continental bodies the AU decided to discuss the idea of merging the two Courts, and, while these meetings were ongoing, to operationalise the African Court on Human and Peoples’ Rights in the meantime. This Court therefore began functioning in 2007. As is noted in Chapter 39 (Articles 63–68), an additional dimension came with the move to incorporate into this merged court not only an international law and human and peoples’ rights jurisdiction, but also one to try international crimes in light, in part, of indictments 75 76 See Chapter 13 (Article 12). Adopted 2 July 2006. Adopted 24 January 2006. 78 Adopted 31 January 2011 and 27 June 2014 respectively. Adopted 1 July 2003. 79 Adopted 1 July 2004. 80 OAU/LEG/AFCHPR/PROT (III), Assembly of Heads of State and Government of the OAU, 34th Session, 8–10 June 1998. 81 See Chapter 39 (Articles 63–68). 74 77

12

1. Introduction

by the International Criminal Court of senior government officials. The result was an instrument (‘the Malabo Protocol’) adopted in May 2014 which provides for an African Court of Justice and Human and Peoples’ Rights.82 This has yet to come into force. One of the consequences of these developments is that it may have impacted on the ratification of the Protocol establishing the African Court of Human and Peoples’ Rights, despite the valiant attempts by organisations such as the Coalition for an African Court lobbying for its ratification.83 What is clear, however, is that despite the trajectory of this proposed Court, it is important that the current existing African Court on Human and Peoples’ Rights is consolidated and strengthened.84 This is particularly so in light of the possibility that it may be merged into a Court with an extended jurisdiction and one which carries over some of the staff, but will not bring with it any of the judges or the Registrar. The greater the legacy the existing Court can leave the greater the likelihood that this will be integrated and built upon by any new court.

E. Sub-regional Developments and the UN In addition to these instruments, institutions and developments at the regional level, mention must also be made of sub-regional initiatives.85 Organisations such as the Economic Community of West African States (ECOWAS), Economic Community of Central African States (ECCAS), the Southern African Development Community (SADC), the East African Community (EAC), the Common Market for East and Southern Africa (COMESA), the Community of Sahel- Saharan States (CEN- SAD) and the Arab Maghreb Union (AMU) have in many cases human rights principles in their founding treaties and have adopted additional documents elaborating on aspects of human and peoples’ rights.86 Some of these have judicial organs which have the jurisdiction to pronounce on human rights matters and can apply the ACHPR in doing so. Such initiatives are clearly to be welcomed and offer further fora for individuals, civil society organisations and States to explore human rights issues not least because some of the courts have less restrictive admissibility criteria. But they are not without their flaws87 and do raise challenges if these instruments and findings of their bodies do not always correspond with how the African Commission and African Court have interpreted the ACHPR and with other documents adopted under the AU.88 See Chapter 39 (Articles 63–68). See e.g. African Court Coalition Advocacy Mission on the margins of the 22nd AU Summit, Addis Ababa, Ethiopia: 16 to 25 January 2014, 31 January 2014, see www.africancourtcoalition.org. 84 Note the Human Rights Strategy included among one of its indicators ‘four member states make a declaration allowing individuals CSOs direct access to the Court’, Department of Political Affairs, African Union Commission, Human Rights Strategy for Africa, 2012–2016, 3.2. 85 F. Viljoen, ‘Human rights in Africa: Normative, institutional and functional complementarity and distinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216. For detailed discussion on human rights and sub-regional organisations, see F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, 480–526. 86 E.g. SADC Protocol on Gender and Development. 87 See L. Nathan, ‘The disbanding of the SADC Tribunal: A cautionary tale’, 35(4) HRQ (2013) 870–892; F Cowell, ‘The death of the Southern African Development Community Tribunals’ Human Rights Jurisdiction’, 13(1) HRLR (2013) 153–165. 88 It is argued that the SADC Protocol ‘negates or weakens’ some of the provisions in the Maputo Protocol, and that the ‘large majority of provisions of the SADC Gender Protocol are the exact replica of the Women’s 82 83

F. Conclusion and the Future of the ACHPR

13

F. Conclusion and the Future of the ACHPR Celebrations at various points of decades of the existence of the ACHPR and African Commission have enabled the African Commission to take stock.89 As the African human rights system moves beyond its fourth decade there are a number of issues that are likely to impact on its progress. The AU Reform Agenda will introduce opportunities and challenges for the African human rights system although which will dominate is yet to be seen. At least human rights do appear to feature as an important element suggesting that they will not be forgotten in any process of change. The AU Assembly has called on the AU Commission and ‘AU organs with a human rights mandate to strengthen the African system for the promotion and protection of human and peoples’ rights’.90 Human rights are included among the Agenda 2063 aspirations91 and ‘synergy among AU institutions on human rights and RECs’ with a focus on ‘institutional strengthening’ is in the draft 2017– 2027 Human Rights Action and Implementation Plan.92 The creation of a Pan-African Human Rights Institute (PAHRI) is an interesting development, the implications of which for the existing African Commission and African Court are yet to be seen.93 Other aspects to Paul Kagame’s report of 2017 which are of relevance are the desire to reduce dependence on funding coming from outside the AU,94 and the need for identifying priority areas.95 However, the threats from the AU and States that have been directed to the independence of the African Commission appear likely to be repeated, with, for instance, the AU Assembly and Executive Council recently restating its ‘concern on the non- implementation of Decision EX.CL/Dec.887(XXVII) of June 2015 on the withdrawal of the observer status from the Coalition of African Lesbians (CAL) and requests the ACHPR to comply with the Decision’.96 Signs that similar pressure may be placed on the African Court are also apparent with a decision which, at the same Summit, in strong wording ‘directs the Court to develop and submit a policy on dealing with Partners in documented, transparent, accountable and verifiable ways that Member States are

Protocol’ resulting in a ‘duplication with some minor exceptions’, and omission of others’, M. Forere and L. Stone, ‘The SADC Protocol on Gender and Development: Duplication or complementarity of the African Union Protocol on Women’s Rights?’, 9 AHLRJ (2009) 434–458, at 439 and 454. 89 See e.g. Opening Speech by the Chairperson of the African Commission on Human and Peoples’ Rights, Her Excellency Honourable Commissioner Catherine Dupe Atoki Delivered at the Opening Ceremony of the 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire. See also 61st Ordinary Session, Final Communiqué of the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017. 90 Declaration by the Assembly on the Theme of the Year 2016, Assembly/AU/Decl.1 (XXVII) Rev.1, para 11. 91 Agenda 2063. The Vision for 2063. 92 Updates on AU Development of the African Ten-Year Action Plan on Human and Peoples’ Rights: 21 October 2017, AU Commission. M. K. Mbondenyi, ‘Invigorating the African System on Human and Peoples’ Rights through institutional mainstreaming and rationalisation’, 27 NQHR (2009) 451–484. 93 Declaration by the Assembly on the Theme of the Year 2016, Assembly/AU/Decl.1 (XXVII) Rev.1, para 16. 94 H. E. Paul Kagame, The Imperative to Strengthen our Union. Report on the Proposed Recommendations for the Institutional Reform of the African Union, 29 January 2017, pp.6 and 24 respectively. 95 Ibid, pp.6 and 12. 96 Decision On The African Commission On Human And Peoples’ Rights, EX.CL/Dec.995(XXXII), January 2018, para 3. See further Chapter 29 (Articles 30-40).

14

1. Introduction

confident do not interfere with the Court’s independence and impartiality, for consideration and approval by the Policy Organs by the June/July 2018 Summit’.97 In this time of some uncertainty, it is still crucial that the existing African human rights organs, in particular the African Commission and the African Court under the ACHPR consolidate their mandates. Strong institutions are more likely to influence their own future and their place within any changing architecture at the AU level as their ideas are less able to be dismissed out of hand. In order to achieve this, the following should be borne in mind.98 A treaty body such as the African Commission that operates independently and with expertise and integrity will enhance its legitimacy and credibility among not only States but also other treaty bodies, the international and regional community, civil society and others. By drawing on its expertise it will also help counteract criticism particularly where the issues are controversial. As it has faced, and will mostly likely continue to face, pressure to react in certain ways from a range of quarters, with attempts by the political bodies of the AU to interfere in its decision-making, so it is crucial that it have, in the words of a former Chair of the Commission, ‘moral courage’99 to stand firm and apply the provisions of the ACHPR which it was set up to monitor. Furthermore, as this Commentary aims to illustrate, the African Commission and African Court have provided in many cases a deep and powerful analysis of many provisions of the ACHPR. It is imperative this work is not forgotten. It is important that the African Commission and African Court draw upon the rich tapestry of their own efforts, going back the thirty years of the African Commission, when crafting new resolutions, decisions on communications and other documents. Although some of the earlier decisions may have consisted of only a couple of sentences, many of them and the African Commission’s other findings set out important standards which are still relevant today. The African Commission and stakeholders who engage with it should ensure the institutional legacy of the African Commission’s work is upheld by drawing upon its previous resolutions, decisions and documents when considering the development of new standards. There is an excitement in the new. But consolidation is also essential. The African Commission’s jurisprudence and standards that it has painstakingly developed with others over the years need to be remembered and integrated into the present and future work. Attending the African Commission’s sessions, one is struck by their very open nature, the flexibility which they offer those to engage with it whether this is through its sessions or its procedures. This is one of its key strengths. The preparedness of the African Commission to draw upon offers of assistance and support and to be amenable to initiatives has enabled it to develop special mechanisms on particular topics; to hold sessions in different African States thereby enabling local actors and communities to attend; to give a very broad interpretation to locus standi in its communication procedure; and is also reflective in the number of civil society organisations (CSOs) and national human rights institutions (NHRIs) that have observer and affiliate status with it.

97 Decision On The 2017 Activity Report Of The African Court On Human And Peoples’ Rights, EX.CL/ Dec.994(XXXII), Rev.1. 98 R. Murray, Presentation to 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, November 2017, on file with author. 99 U. O. Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for more effectiveness’, 13(1) Annual Survey of International and Comparative Law (2007) 179–19, at 188.

F. Conclusion and the Future of the ACHPR

15

This open and inclusive approach to the diverse range of organisations, individuals, citizens as well as other representatives has in the past, and continues to be, threatened.100 Restricting this space would be a huge loss to the vibrancy of the African Commission’s operations and would deprive it of a great source of not only information on human rights violations, but also initiatives for intelligent solutions to the problems facing the continent. Furthermore, as Navanethem Pillay has noted, what is important is the accuracy, relevance and quality of the treaty body findings.101 A treaty body which is precise and accurate in its approach and in the application of its own rules and procedures is more likely to be considered credible and taken seriously by all actors, States and others. This precision is perhaps nowhere more important than in the communication procedure, which inevitably by its very nature is going to be the area of its work which may be most contested. Therefore, it is crucial that the Rules of Procedure are adhered to by all parties and also the Commission itself. As noted in Chapter 33 (Articles 55 and 57) delays in the processing of communications are common. Further, while the detail and complexity of reasoning provided in its decisions has increased, the richness of the jurisprudence of the Commission is not always brought consistently into decisions on communications, either because previous relevant documents are not mentioned at all or the wording taken from these previous resolutions and other decisions, for example, is not followed precisely. As highlighted in various of these chapters in this Commentary this results in a lack of clarity as to what rules or standards the African Commission may be applying. Lastly, it is indisputable that the African human rights system has come far. However, the depth and breadth of what it has done and continues to do is not often known. Everything the African Commission and African Court do cannot, nor indeed should, be visible or made public. Some private deliberations are necessary for the ‘delicate relationship’ that the African Commission must tread with various stakeholders and the rules the Court must adhere to as a judicial body. However, there are many documents that the African Commission has confirmed should be public which are not dependably or always available. These include Concluding Observations on all Article 62 State reports, the publication of decisions on communications immediately after their adoption by the AU Assembly, and mission reports. Further, not all documents are available in all AU languages and on its website. If these matters can be addressed this will go some way to ensuring that the true extent of what the African human rights system has achieved and could achieve is more visible.

See Chapter 31 (Articles 45 and 46). Strengthening the United Nations human rights treaty body system. A Report by the United Nations High Commissioner for Human Rights Navanethem Pillay, June 2012, at p.8. 100 101

2. Article 1 Obligations of Member States The Member States of the Organisation of African Unity, parties to the present Charter shall recognise the rights, duties and freedoms

enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.

A. Introduction Article 1 has at the same time an impressive breadth of coverage, encompassing State obligations, jurisdiction, provisional measures and remedies, yet is also a provision whose potential is often not fully explored or developed with sufficient depth or consistency. In various resolutions relating to particular States, the African Commission has used Article 1 as a reminder to them of their obligations under the African Charter on Human and Peoples’ Rights (ACHPR) and as a ‘catch-all’ to address human rights violations whether they be a range of violations,1 or against specified individuals.2 For example, noting the ‘harsh’ sentencing by a court in Egypt of 23 individuals to ‘three years’ imprisonment, a further three years’ of police monitoring and a fine of more than 10,000 Egyptian Pounds for participating in a demonstration on 21 June 2014’, the Special Rapporteurs on Human Rights Defenders, Freedom of Expression and the UN Special Rapporteur on the situation of Human Rights Defenders raised their concerns with the ‘failure of the Arab Republic of Egypt to adopt appropriate measures to comply with international standards and regional instruments, as laid down in Article 1’.3 The African Commission also appears to use this provision to then call on States to adopt certain measures to address the violations, including guaranteeing freedom of expression and assembly; ending violence;4 adopting laws on police reform and implementation of the Robben Island Guidelines;5 to free individuals held without trial;6 allow independent monitors to access detainees;7 ensure the investigation of acts by non-State 1 Resolution on the Human Rights Situation in Senegal, ACHPR/Res.208, 1 March 2012; Resolution on the Human Rights Situation in Federal Republic of Nigeria, ACHPR/Res.214, 2 May 2012; Resolution on the Human Rights Situation in the Democratic Republic of Ethiopia, ACHPR/Res.218, 2 May 2012; Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14 March 2014. 2 E.g. in letters of appeal, such as that sent to the President of Senegal on 22 June 2009 by the Special Rapporteur on Freedom of Expression, to bring laws in line with the ACHPR standards and decriminalise press offences, Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the continuous violation of Freedom of Expression in the Republic of Senegal, 15 October 2009. See also Press Release on the Harassment of Mr. Jean-Paul Noël Abdi, 16 March 2007. 3 Joint Press Release on the Verdict against Sanaa Seif, Yara Sallam and 21 Other Co-accused in Egypt, 4 November 2014. 4 Resolution on the Human Rights Situation in Senegal, ACHPR/Res.208, 1 March 2012. 5 Resolution on Police Reform, Accountability and Civilian Police Oversight in Africa, ACHPR/Res.103a, 29 November 2006. 6 Resolution on the Human Rights Situation in Eritrea, ACHPR/Res.91, 5 December 2005. 7 Resolution on the Human Rights Situation in the Democratic Republic of Ethiopia, ACHPR/Res.218, 2 May 2012.

B. Ratification of the ACHPR and Relationship of the Charter

17

entities8 and withdraw charges against a human rights lawyer who had been charged with making statements contrary to the Swaziland Sedition and Subversive Activities Act; and to make amendments to the legislation.9

B. Ratification of the ACHPR and Relationship of the Charter with National Law The presumption is that by ratification of the ACHPR, the State would have already brought tits domestic law into conformity with the Charter:10 ‘when a State ratifies the African Charter it is obligated to uphold the fundamental human rights contained therein’.11 Therefore legislation that existed prior to ratification of the ACHPR that is subsequently found to have been contrary to the provisions of the Charter will result in the State being found in violation of Article 1: the respondent State had an obligation to ensure that the Proclamation conforms to the [African] Charter when it ratified the latter in 1995. By ratifying the [African] Charter without taking appropriate steps to bring its laws in line with the same, the African Commission is of the opinion that the State has not complied with its obligations under Article 1.12

It has based this argument also on the principle of pacta sunt servanda. As was noted in one communication against Mauritania: The entry into force of the Charter in Mauritania created for that country an obligation of consequence, deriving from the customary principle pact sunt servanda. It consequently has the duty to adjust its legislation to harmonise it with its international obligations.13

Ratification is thus the start of a process, according to the African Commission.14 There numerous opportunities for the African Commission to comment on the monist/dualist nature of States’ legal systems and the nature of their obligations under the ACHPR. It has been recognised that ‘the reception of international law is not uniform in all States Parties’,15 but has still called on States, through the Assembly of Heads of States and Government of the then Organisation of African Unity (OAU), to ‘introduce the provisions of Articles 1 to 29 of the African Charter on Human and Peoples’ Rights in their Constitutions, laws, rules and regulations and other acts relating to human and peoples’ rights’.16 In monist States, one may presume that this would be 8 Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14 March 2014. 9 Act No. 46 of 1938, amended, see Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa by Adv. Pansy Tlakula, Presented to the 46th Ordinary Session of the African Commission on Human and Peoples’ Rights, 11–25 November 2009, Banjul, The Gambia, paras 67–69. 10 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, paras 47–48. 11 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 43. 12 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 91. 13 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 84. 14 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 108. 15 Resolution on the Integration of the Provisions of the African Charter on Human and Peoples’ Rights into National Laws of States, ACHPR/Res.3, 14 April 1989. 16 Resolution on the Integration of the Provisions of the African Charter on Human and Peoples’ Rights into National Laws of States, ACHPR/Res.3, 14 April 1989.

18

2. Article 1: Obligations of Member States

automatic. However, as Viljoen notes, ‘the monist tradition promises more than it delivers . . . Almost without fail, African “monist” States have not adopted the required enactments’.17 Even with recognition in the constitution, as is the case with the 2010 Kenyan Constitution,18 what is necessary is that the international instruments are not just recognised at the domestic level but also that they are enforced through their use and interpretation by the courts and lawyers.19 The extent to which this occurs, whether States are ‘monist’ or ‘dualist’, correlates, as Viljoen explains, ‘with the status that the Charter (as part of international law) enjoys in that domestic legal system’.20 There are thus some examples of affirmation of the superior status of instruments such as the ACHPR over national legislation,21 but equally ‘judicial practice stands at odds with the international law-friendly constitutional framework. Direct applicability of international law in domestic courts in civil law countries is in practice avoided by the courts though sometimes invoked by counsel.’22 Further, going beyond the treaty itself, as Killander and Adjolohoun note in 2010, ‘there have been no reported cases of reliance on the findings of the African Commission or human rights treaty bodies in the case law of Anglophone countries’.23 For ‘dualist’ States, the African Commission has made clear that even where the ACHPR has been incorporated into domestic law if the State subsequently revokes the domestic effect of the ACHPR it will not affect its international obligations: The African Commission has to express its approval of Nigeria’s original incorporation of the Charter, an incorporation that should set a standard for all Africa, and its sadness at the subsequent nullification of this incorporation. The Commission must emphasise, however, that the obligation of the Nigerian government to guarantee the right to be heard to its citizens still remains, unaffected by the purported revocation of domestic effect of the Charter. The Charter remains in force in Nigeria, and notwithstanding the Political Parties Dissolution Decree, the Nigerian government has the same obligations under the Charter as if it had never revoked. These obligations include guaranteeing the right to be heard.24

17 F. Viljoen, International Human Rights Law in Africa, p.533. See generally, L. G. Franceschi, The African Human Rights Judicial System. Streamlining Structures and Domestication Mechanisms View from the Foreign Affairs Power Perspective, Cambridge Scholars Publishing, 2014. 18 Article 2(6) of the Kenyan Constitution reads: ‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’. 19 N. W. Orago, ‘The 2010 Kenyan Constitution and the hierarchical place of international law in the Kenyan domestic legal system: A comparative perspective’, 13 AHRLJ (2013) 415–440, at 438; and for discussion of awareness of international law in, for example, Uganda, see B. Kabumba, ‘The application of international law in the Ugandan judicial system: A critical enquiry’, in M. Killander (ed), International Law and Domestic Human Rights Litigation in Africa, Pretoria University Law Press, 2010, 83–107, at 106: ‘while judges in Uganda have not been entirely comfortable dealing with questions of international law that arise before them, there are signs that the courts are increasingly willing to engage with the question of the interaction between international law and the national legal system’. 20 F. Viljoen, ‘Application of the African Charter on human and peoples’ rights by domestic courts in Africa’, 43 JAL (1999) 1–17, at 15. 21 E.g. in Fawehinmi v Abacha (1996) 9 NWLR (Pt.475) 710, before the Nigerian Court of Appeal. 22 M. Killander and H. Adjolohoun, ‘International law and domestic human rights litigation in Africa: An introduction’, in M. Killander (ed), International Law and Domestic Human Rights Litigation in Africa, Pretoria University Law Press, 2010, 3–24, at 6–7. 23 M. Killander and H. Adjolohoun, ‘International law and domestic human rights litigation in Africa: An introduction’, in M. Killander (ed), International Law and Domestic Human Rights Litigation in Africa, Pretoria University Law Press, 2010, 3–24, at 6–7. 24 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, para 20.

C. ‘Adopt Legislative or Other Measures’

19

Further, ‘international treaties which are not part of domestic law and which may not be directly enforceable in the national courts, nonetheless impose obligations on State Parties’.25 In a communication against The Gambia, the Respondent State argued that most of the rights in the ACHPR were protected in the Constitution. When the constitution was suspended, the African Commission noted that the enjoyment of the rights and ‘by implication’ those in the ACHPR had therefore been restricted, but that: the suspension of the Bill of Rights does not ipso facto mean the suspension of the domestic effect of the Charter . . . The suspension of the Bill of Rights and consequently the application of the Charter was not only a violation of Article 1 but also a restriction on the enjoyment of the rights and freedoms enshrined in the Charter.26

Where the Botswanan State claimed that the ACHPR did not have the force of law in the State due to its dualist nature, the African Commission disagreed. It noted that whether a State was monist or dualist ‘cannot be used as an excuse for not complying with its treaty obligations’.27 Further, it cited ‘the current thinking . . . that both international customary law and treaty law can be applied by state Courts where there is no conflict with existing state law, even in the absence of implementing legislation’, in line with the Bangalore Principles on the Domestic Application of International Human Rights Norms, and the rule that State cannot use its domestic law as an excuse not to comply with its international obligations.28 Concluding, it held that while it had ‘no power to rule on the Constitutionality or otherwise of the laws, executive actions or judicial decisions of States Parties and thus is not going to make any pronouncement on the constitutionality of the provisions of the Botswana Immigration Act or any of the actions of the authorities’, it was prepared to hold violations of the ACHPR and to call on Botswana to ensure that its legislative provisions and practices ‘conform to international human rights standards, in particular, the African Charter’.29

C. ‘Adopt Legislative or Other Measures’ 1. Legislative Measures Although the final draft of the ACHPR was criticised for failing to include the terms ‘guarantee’ and ensure’ found in the earlier Dakar and M’Baye Drafts respectively,30 the African Commission has used such terms when clarifying State obligations under Article 1.31 In addition, it envisages that Article 1 requires that the provisions of the ACHPR be protected in the constitution, an approach also adopted by States.32 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 60. Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000. 27 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010. See also Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 59. 28 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, paras 237–238. 29 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, paras 242 and 244 respectively. 30 Article 1 of each of the Drafts. See N. J. Udombana, ‘Between Promise and Performance: Revisiting States’ Obligations Under the African Human Rights Charter’, 40 Stan. J. Int’l L. (2004) 105–142, at 126. 31 E.g. Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 97. 32 E.g. the State report of Uganda sees the implementation of Article 1 as protection in the constitution, see The Republic of Uganda Periodic Report by the Government of Uganda to the African Commission on Human and Peoples’ Rights Presented at the 49th Ordinary Session Banjul, The Gambia, 28 April–12 May 2011. 25 26

20

2. Article 1: Obligations of Member States

More frequently, however, is reference to the requirement that the rights in the ACHPR be provided for in national laws.33 This thus also necessitates the amendments to any legislation which is contrary to the ACHPR. For example, the Special Rapporteur on Freedom of Expression welcomed information in March 2009 that the government of Senegal had announced plans to ‘amend existing media legislation so as to decriminalise press offences’, which ‘if implemented, such amendment would be a laudable step towards the fulfilment of Article 1 of the African Charter’.34 There is thus the presumption that ratification will require States to ensure the ‘harmonization’ of national laws with the ACHPR.35 Reference has also been made to an ‘adequate legislative framework’. Where complainants in one case argued that the legislation in Sudan failed to protect against arbitrary arrest, did not give sufficient safeguards against torture, did not provide for a right of access to a lawyer or to a doctor, nor remedies in the event of violations, the African Commission found that the legislative framework was not adequate.36 Citing Article 1 when adopting the Model Law for African States on Access to Information, the African Commission noted that in so doing it had provided ‘detailed and practical content to the legislative obligations of Member States to the African Charter with respect to the right of access to information, while leaving the specific form in which such laws will be adopted to individual States Parties. Ultimately, each State Party must determine the nature and scope of adjustments that may be required to the content of this Model Law based on the provisions of its Constitution and the structure of its own legal system’.37

2. ‘Other’ Measures While ‘legislative measures’ may be more obvious, ‘other measures’ is less so. The African Commission has taken an expansive approach here, interpreting this as providing States with ‘a wide choice of measures to use to deal with human rights problems’.38 In a particular communication, it noted that this could have entailed a reinstatement of the constitution or amending the offending decree.39 Beyond national laws, Article 1 can include the requirement to ratify international and regional treaties. There have been numerous occasions where the African Commission has called upon States, under Article 1, to adopt as well as implement these instruments.40 In one instance in the context of Article 1 it has referred to ‘legislative and material measures’,41 although the specific requirement that the State ‘provide the required human

33 States have also interpreted this similarly, see Libya: 1st Periodic Report, 1986–1991, 1 January 1992, para 7. See in general N. J. Udombana, ‘Between promise and performance: Revisiting states’ obligations under the African Human Rights Charter’, 40 Stan. J. Int’l L. (2004) 105–142. 34 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Proposed Decriminalisation of Media Offences in Senegal, 16 June 2009. 35 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 142. 36 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92. 37 Model Law for African States on Access to Information, preface. 38 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 50. 39 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 50. 40 E.g. Resolution on the Drafting of Guidelines on Human Rights and the fight against Terrorism, ACHPR/Res.274, 12 May 2014. 41 My italics, Resolution on the General Human Rights Situation in Africa, ACHPR/ Res.207, 5 November 2011.

D. Violation of Other Rights Results in Violation of Article 1

21

resources to put an end, as soon as possible, to the practice of impunity’ does not assist in clarifying what ‘material’ may mean in this context. It is not just legislation that States should adopt to implement the rights in the ACHPR but also ‘administrative, judicial measures’;42 regulations and policies, such as those around torture prevention and policing;43 training of officials;44 and ‘policy and budgetary measures, education and public awareness measures and administrative action as well as ensuring appropriate administrative and judicial remedies for the violation of these rights’.45 Furthermore, ‘other measures’ may also be interpreted to include the establishment of institutions: The practical implementation of these legal instruments through the State Institutions endowed with creditor, material and human resources, is also of considerable importance. It is not enough to make do with taking measures, these measures should also be accompanied with institutions that produce tangible results.46

D. Violation of Other Rights Results in Violation of Article 1 A violation of ‘any provision of the Charter’,47 ‘automatically means a violation of Article 1’48 and the ‘liability’ in Article 1 ‘is automatically invoked as soon as a violation of a right protected by the Charter is deemed to have occurred’.49 By holding that Article 1 obligations ‘can be activated only when a substantive right of the Charter has been violated’50 42 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015, Part 14.A. 43 Resolution on Police Reform, Accountability and Civilian Police Oversight in Africa, ACHPR/Res.103a, 29 November 2006. 44 For example, in principles and guidelines on terrorism, see Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015, Part 14.C. 45 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 2. 46 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 108. 47 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 272. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 91. Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 182. Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 82. 48 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 272. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 91; Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 140. Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 176. The Matter of Thobias Mang’ara Mango and Shukurani Masegenya Mango v The United Republic of Tanzania, App.No.005/2015, Judgment of 11 May 2018, paras 149–150. 49 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 187. Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, paras 169–170. See also Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 46; Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 97. Communication 286/ 2004, Dino Noca v Democratic Republic of the Congo, para 155. 50 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 92. See also Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 227; Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 46.

22

2. Article 1: Obligations of Member States

presumes that the ‘any provision’ referred to is in fact any of the rights in Articles 2–24. In one case the African Commission found that Republic of Botswana by using hanging as a method of execution and not providing the family of the victim with an opportunity to meet with him prior to the sentence being carried out, had not only violated Article 5 of the ACHPR but also Article 1.51 The African Commission has not, on every occasion, cited Article 1 where violations have been found and it is not always apparent why this is the case. Where it found that its previous decision in Communication 242/2001 Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme/Islamic Republic of Mauritania was infra petita as it had failed to pronounce on all the allegations of the complainants, including Article 1, it then held that ‘any finding of violation of those rights constitutes a violation of Article 1’.52 It went further in one communication to conclude that ‘[i]‌t is accordingly unnecessary to consider violation of Article 1 of the Charter independent of the rights or freedoms, if at all, where alleged violation of such rights or freedoms is also due to be considered’.53 Conversely, it can sometimes be difficult to see precisely what adding Article 1 to the list of those rights violated actually achieves. Furthermore, the African Commission has also found a violation of Article 1, among a list of other rights, where the decision does not list it among the provisions of the ACHPR alleged to have been violated, and where the decision does not provide any reasoning for a finding of a violation.54 A similar approach has been adopted by the African Court in some judgments.55 Equally, it is not possible to have a violation of Article 1 without a violation of any of the substantive rights in the ACHPR: ‘any allegation of violation of this Article must be supported with evidence for disregard of another substantive right guaranteed by the Charter’.56 This appears to be pertinent in communications, and is also supported by the practice to cite Article 1 along with other rights when adopting press releases and statements concerning alleged violations of the ACHPR in specific African States. The contexts have varied, but have included, for example, harassment of human rights defenders in Guinea, Sudan and Zimbabwe and other States.57 In all these situations it has Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 97. Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 42. 53 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 127. 54 E.g. in Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, the decision notes that the complainant alleged violations of Articles 6 and 13, but violations were found of these articles as well as Article 1 (and Article 9). See also Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 55 See e.g. Amiri Ramadhani v United Republic of Tanzania, App. No. 010/2015, Judgment, 11 May 2018, paras 75–78; and Alex Thomas v United Republic of Tanzania, App. No. 05/2013, 20 November 2015, para 135: ‘[W]‌hen the Court finds that any of the rights, duties and freedoms set out in the Charter are curtailed, violated or not being achieved, this necessarily means that the obligation set out under Article 1 of the Charter has not been complied with and has been violated’. 56 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, paras 62 and 85. 57 Press Release on the Situation in Guinea, 23 January 2007; Press Release on the Detention of Mr. Benjamin Luanda Mitsindo, 13 March 2007; Press Release on the Situation in Zimbabwe, 18 July 2007; Press Release on the assassination attempt on Mr. Pierre-Claver Mbonimpa, 5 August 2015; Assassination of human rights defender, Floribert Bwana Chuy Bin Kositi, 16 July 2007; Press Release: Assassination of the journalist and human rights defender Serge Maheshe, 22 June 2007. 51 52

F. State Obligations

23

reminded the State of its obligations under the ACHPR, with Article 1 being cited with one or more other rights.

E. Binding Nature of the ACHPR It has been stated on numerous occasions by the African Commission that Article 1 renders the ACHPR with a legally binding character.58 In one communication the government of Botswana claimed that it was not bound by the ACHPR on the basis that those drafting the Charter did not intend for it to be binding, and the Charter had no force of law at the national level, it not having been incorporated by legislation. The African Commission noted clearly that it is the process of ratification which then establishes the binding nature of the ACHPR and imposes the obligations on the State to respect, protect, promote and fulfil its provisions: During ratification, if its intention was not to be bound by the Charter as a whole then it should have refrained from ratifying the Charter or it should have withdrawn following the proper procedures. Or if it wanted not to be bound by certain provisions of the Charter it should have formally made its reservations during ratification. But in the absence of any of these the legal presumption is that it is bound by the Charter and hence is expected to comply with the provisions of the same.59

This approach has been reaffirmed in other decisions.60

F. State Obligations The African Commission has adopted the approach of the UN and other regional and national bodies that States owe obligations under the ACHPR to ‘respect, protect, promote or fulfil’ the rights,61 adding ‘promote’ to the usual format found in other international human rights law obligations, although not on every occasion.62 It has used these terms on a relatively consistent basis, although on occasion also referred to the obligation to ‘ensure’ instead of an obligation to protect, noting that this requires States ‘to take the requisite steps, in accordance with its constitutional process and the provisions of relevant treaty (in this case the African Charter), to adopt such legislative or other measures which are necessary to give effect to these rights’.63 It has also mentioned obligations to 58 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 87. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 272. Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 46. 59 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 231. 60 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 116. 61 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92. Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 141. Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, paras 169–170. See also Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 46. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 150. 62 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 231. 63 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 171.

24

2. Article 1: Obligations of Member States

‘prevent’,64 to investigate and to provide a remedy. A failure to comply with any of these obligations will result in a violation of Article 1.65 These obligations apply equally, there is no hierarchy among them,66 and to all rights in the ACHPR,67 although, as will be noted below, the African Commission has made further comments on economic, social and cultural rights.

1. To Respect At various points, for instance in 2012 where it urged parties in Senegal to ‘put an immediate end to the violence’,68 the African Commission has called on States to stop carrying out certain activities, even if it does not expressly use the term ‘respect’. Where it has referred to an obligation to ‘respect’, its approach follows that of other international bodies, requiring that States ‘refrain from interfering directly or indirectly with the enjoyment’ of rights,69 and noting that this is a ‘negative’ obligation.70 A State therefore ‘complies with the obligation to respect the recognised rights by not violating them’71 and ‘should respect right-holders, their freedoms, autonomy, resources, and liberty of their action’.72 For example, States Parties are required to take measures to ensure that their police force ‘respects the dignity inherent in the individual during the discharge of their duties in the maintenance of law and order’.73 Where individuals in Sudan were denied the right of habeas corpus and not brought before a court until a year after their arrest, in addition to finding a violation of Articles 6 and 7, the African Commission also held that the State, under Article 1, had ‘failed to respect their right to liberty as well as their right to a fair trial’.74 In addition, States are also required to ‘take positive measures to ensure that all branches of government (legislative, executive and judicial) at all levels (national, regional and local), as well as all organs of state, do not violate’ rights.75 64 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 16. Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para 158. Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 89. 65 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92. 66 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 67 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights; Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para 156. 68 Resolution on the Human Rights Situation in Senegal, ACHPR/Res.208, 1 March 2012. 69 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 5. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 152. 70 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 88. 71 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 171. Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 88. 72 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 152. 73 Resolution on Police Reform, Accountability and Civilian Police Oversight in Africa, ACHPR/Res.103a, 29 November 2006. 74 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92. 75 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 6.

F. State Obligations

25

2. To Protect The African Commission has referred, it would seem interchangeably, to the obligation to ‘protect’ as well as to ‘prevent’. In line with international human rights law it has interpreted this obligation as States taking action to protect the rights in the ACHPR ‘even if the State or its agents are not the immediate cause of the violation’.76

a. ‘Non-State Actors’ In a detailed analysis of the concept of ‘non-State actor’ in the context of the activities of the Zimbabwe African National Union-Patriotic Front (ZANU-PF) and the Zimbabwe Liberation War Veterans Association (War Veterans) in Zimbabwe,77 the African Commission decided that ZANU-PF was a political party on the basis that it was ‘distinct from government’ and has ‘an independent identity from government with its own structures and administrative machinery’.78 The ‘mixed membership’, including members of government, some of them cabinet ministers and the President, in the party was not sufficient to render this a State actor, despite recognising that there was a ‘thin line’ between this party and the government.79 Likewise, the War Veterans Association, with the President of the Republic as its Patron and even if he ‘exercises control over the group’,80 was found to be a ‘group of ex-combatants of the Zimbabwe liberation struggle’.81 Reference in the decision to the insufficient ‘documentary evidence to prove this relationship’ provided by the complainant and the fact that it did not pursue the argument during oral submissions,82 perhaps explains the basis for its decision and enabled the African Commission instead to pursue the issue on the basis of State responsibility for non-State actors83 an arguably less politically contentious approach. In general, however, the African Commission has held that a State will be responsible under Article 1 ‘even if the state or its agents are not the immediate cause of the violation’.84 ‘Non-State actors’ have been interpreted as including individuals suspected of terrorist activities, a ‘terrorist group’,85 multi-national corporations, local companies, private persons, armed groups86 and private security contractors,87 as well as private individuals.88 76 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 130. Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 83. 77 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006. 78 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 138. 79 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 139. 80 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 139. 81 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 138. 82 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 139. 83 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, paras 140–141. 84 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 141. 85 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015. 86 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 7. 87 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015. 88 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 88.

26

2. Article 1: Obligations of Member States

For example, the African Commission has condemned attacks on the civilian population by Boko Haram in Nigeria, calling on the government to ‘take effective measures to guarantee the safety, security and protection of persons and their properties in the affected communities and States, and in the entire country at large, and urges it to increase efforts in securing the lives and integrity of the persons of the civilian population in accordance with its regional and international human rights obligations’, as well as ensure its military operations comply with international standards guaranteeing secure access to humanitarian agencies.89 On occasion reference to the failure of the State to ‘protect’ the victims has been used with respect to violations committed by State, not non-State, actors.90

b. The Extent of the Obligation to Protect The extent of this obligation includes taking ‘all necessary’91 and ‘positive measures’, such as ‘regulating and monitoring the commercial and other activities of non-state actors that affect people’s access to and equal enjoyment of economic, social and cultural rights and ensuring the effective implementation of relevant legislation and programmes and to provide remedies for such violations’.92 The provision of a police force, for example, will be required to protect individuals from violations and a ‘normative systems and institutions to maintain a system of justice that provides remedies for violations and imposes sanctions on violators’.93 Outlining what the obligation to protect meant with respect to the actions of private security contractors, the African Commission required States to ensure that these contractors are: adequately vetted and regulated; the identity of private security contractors and their functions, powers, and immunities are publicly known; their personnel are adequately vetted and trained, including in applicable standards of international human rights, humanitarian, and refugee law; appropriate measures are taken to prevent any violations; contractors and their personnel are compelled to promptly report to the competent authorities instances where a human rights violation may have occurred; and those responsible for any violations are held to account through administrative, disciplinary, or judicial sanctions, where required or as appropriate.94

Furthermore, the duty to protect requires States to adopt ‘tangible measures to prevent the imminent risks of perpetration of the said acts’,95 as well as protecting individuals from ‘violence, threats or violence or any other form of intimidation’.96

89 Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14 March 2014. 90 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92. 91 Resolution on the Human Rights Situation in Federal Republic of Nigeria, ACHPR/ Res.214, 2 May 2012. 92 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 7. 93 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 274. 94 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015. 95 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 90. 96 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015, part 10.B.

F. State Obligations

27

The question the African Commission will ask is if the State acted with ‘due diligence’.97 Noting that the Inter-American Court’s judgment in Velásquez Rodríguez v Honduras as an ‘authoritative interpretation of the international standard on State duty’ in this context, it then goes on to apply this ‘by extension, to Article 1’, namely that the State: has failed to comply with [its] duty . . . when the State allows ‘private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention’; Is ‘obliged to investigate every situation involving a violation of the rights protected by [international law]’; and ‘take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation’.98

Consequently, the African Commission has held that States must prevent, investigate and punish acts which impair any of the rights recognised under international human rights law. Moreover, if possible, it must attempt to restore the right violated and provide appropriate compensation for resulting damage.99

More generally the obligation to protect also ‘entails the creation and maintenance of an atmosphere or framework of an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms’.100 The government of Zimbabwe in one communication argued that the police had not been able to investigate all cases of allegations of violence and abuses during riots because of the circumstances at the time, the nature of the violence and that the victims could not identify the perpetrators.101 Whilst State responsibility has to be determined on a case by case basis,102 a number of factors will be considered. The first is the rights alleged to have been violated.103 The African Commission has implied that the extent of the State obligation in this regard will vary according to the right, with ‘non-derogable rights’ requiring that States ‘go further than in other areas’.104 Although it contests that basing the obligation on the ‘means at the disposal of the State’ is a ‘dispute element’, this is an odd conclusion particularly given that the Commission has consistently refused to recognise derogation from any of the rights in the ACHPR. Secondly, the African Commission will also consider the ‘feasibility of effective State action’.105 It will examine whether the State ‘took the necessary measures to prevent violations from happening at all, or having realized violations had taken place, took steps to ensure the protection of the rights of the victims’.106 It will need to be 97 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 91, citing Velásquez Rodríguez. 98 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 144, citing the Inter-American Court: Velásquez Rodríguez v Honduras, Series. C., No.4, 9 HRLJ 212 (1988). 99 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 146. 100 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 152. 101 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 154. 102 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 92. 103 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 155. 104 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 155. 105 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 156. 106 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 157.

28

2. Article 1: Obligations of Member States

shown that the State took its duties ‘seriously’, by examining its action sand those of the private parties. Due diligence also requires that ‘sufficient’ remedies be provided to ‘and enforce[d]‌’ to victims.107 Consequently: the existence of a legal system criminalizing and providing sanctions for assault and violence would not in itself be sufficient; the Government would have to perform its functions to “effectively ensure” that such incidents of violence are actually investigated and punished. For example, actions by State employees, the police, justice, health and welfare departments, or the existence of government programmes to prevent and protect victims of violence are all concrete indications for measuring due diligence. Individual cases of policy failure or sporadic incidents of non-punishment would not meet the standard to warrant international action.108

The responsibility to protect is ‘relative’: the State must ‘condone a pattern of abuse through pervasive non-action’.109 As to whether any actions taken by the State are ‘sufficient’, the African Commission will consider a number of factors: ‘collusion by the State to either aid or abet the non- State actors’; that the State was ‘indifferent’ to the abuses.110 In this communication it could not find evidence that the State had violated Article 1 in this context.111 States will need not only to prevent the violation of the private individual, but also take ‘the necessary steps to provide the victims with reparation’,112 including compensation.113

3. To Promote There is inevitably a relationship with Article 25 of the ACHPR and the specific duty enshrined therein to ‘promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood’.114 Beyond this and in the particular context of Article 1, the African Commission has referred on numerous occasions to an obligation to ‘promote’ the rights in the ACHPR.115 This, it has noted, includes requiring States to ‘adopt measures to enhance people’s awareness of their rights, and to provide accessible information relating to the programmes and institutions adopted to realise them’.116 ‘Values’ of human rights should be promoted in ‘administrative and judicial decision-making’,117 although the wording with respect to the latter could, if taken literally, imply interference by the executive with the judiciary. Promotion also necessitates that the State undertake training in human rights for administrative officials as well as for the judiciary.118 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 159. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 159. 109 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 160. 110 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 163. 111 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 164. 112 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 143. 113 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 89. 114 See Chapter 26 (Article 25). 115 N. J. Udombana, ‘Between promise and performance: Revisiting states’ obligations under the African Human Rights Charter’, 40 Stan. J. Int’l L. (2004) 105–142, 134–135. 116 Guidelines on Economic, Social and Cultural Rights, para 9. 117 Guidelines on Economic, Social and Cultural Rights, para 9. 118 Guidelines on Economic, Social and Cultural Rights, para 9. 107 108

F. State Obligations

29

More generally, it has held that the State should establish an atmosphere which enables human rights to flourish, including the promotion of ‘tolerance, raising awareness, and even building infrastructures’.119

4. To  Fulfil This the African Commission considers to entail a ‘positive’ obligation which requires that the State ‘move its machinery towards the actual realisation of the rights’.120 In the context of economic social and cultural rights, States should, when fulfilling such, adopt measures which are ‘comprehensive, co-ordinated, transparent, and contain clear goals, indicators and benchmarks for measuring progress’.121 To ‘fulfil’ is also an issue of access to rights.122 The duty to fulfil also involves the State providing an ‘effective remedy’ to those whose rights are violated.123 This will be dealt with more fully below.

5. Not to Discriminate In addition to the obligation in Article 2, Article 1 also encompasses a ‘general obligation’ on States ‘to ensure through relevant means that persons under their jurisdiction are not discriminated on any of the grounds in the relevant treaty’124 and to ‘fully and effectively implement these same instruments without any discrimination whatsoever’.125

6. Duty to Investigate Violations and to Punish A duty to investigate violations has been read into the rights in the ACHPR, including in particular Article 4, 5 and 7.126 In addition, under Article 1, States have an obligation not only to investigate violations committed by their own agents127 but also by non-State actors. They have a duty to investigate ‘when violations occurred’128 and investigations need to be ‘thorough’,129 and independent, in order to identify the perpetrators.130

Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 152. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 152. 121 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 10. 122 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 11. 123 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 171. 124 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 171. 125 Resolution on the Human Rights Situation in Eritrea, ACHPR/ Res.91, 5 December 2005; Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 175, whereby the complainants raised this argument and it was upheld by the African Commission as the State did not respond to these allegations. 126 See Chapters 5, 6 and 8 (Articles 4, 5 and 7). See P. Leach, R. Murray and C. Sandoval, ‘The Duty to Investigate Right to Life Violations across Three Regional Systems: Harmonisation or Fragmentation of International Human Rights Law?’, in C. Buckley, A. Donald and P. Leach, Towards Convergence in International Human Rights Law Approaches of Regional and International Systems, Brill, 2016, Chapter 1. 127 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92. 128 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 274. 129 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 274. 130 Resolution on summary Execution and Enforced Disappearance in Mali, ACHPR/ Res.258, 5 November 2013. 119 120

30

2. Article 1: Obligations of Member States

There is an obligation to punish the perpetrators of the violations, whether those be State agents or private individuals.131

7. Conduct or Result In one communication the African Commission addressed in detail the issue of whether obligations under the ACHPR were obligations of conduct (or what it terms ‘diligence’) or obligations of result.132 Noting that the concepts came from national civil law systems in particular, as well as international law and Articles 20 and 21 of the International Law Commission (ILC) Draft Articles on State Responsibility, the African Commission has held that ‘if the obligation of diligence requires that the State adopts specific behaviours or actions to attain specific results, then under obligation of result, the State enjoys the freedom of choice and action to achieve the result required by that obligation’.133 Despite intimating this ‘either/or’ stance, it then, in the same decision, appears to suggest that both apply, holding that there is not only an obligation of due (or ‘necessary’) diligence but also an obligation of result: It follows from the above that Article 1 of the African Charter imposes on the States Parties the obligation of using the necessary diligence to implement the provisions prescribed by the Charter since the said diligence has to evolve in relation to the time, space and circumstances, and has to be followed by practical action on the ground in order to produce concrete results. . . . In fact, in the Commission’s view, it is an obligation of RESULT that Article 1 of the African Charter imposes on the States Parties. In effect, each State has the obligation of guaranteeing the protection of the human rights written in the Charter by adopting not only the means that the Charter itself prescribes, in particular “all the necessary legislative measures for this purpose but in addition measures of their choice that the Charter called for by Article 1 and it therefore defined as one of result.”134

Certainly, when looking across its jurisprudence, it has referred to an obligation of due diligence with respect to the duty to undertake investigations for incommunicado detentions;135 and with respect to obligations to protect acts of private individuals,136 including killings ‘if it approves, supports or acquiesces in those acts or if it fails to exercise due diligence to prevent such killings or to ensure proper investigation and accountability’.137

131 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 89. Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14 March 2014. Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para 158. 132 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 83. 133 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 102. 134 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, paras 110–111. 135 Communication 275/03, Article 19/Eritrea, 30 May 2007, para 72. 136 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum v Zimbabwe, 12 October 2013, para 133. See also Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 148. 137 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2015.

F. State Obligations

31

Yet despite applying the due diligence test, it continues on in this particular communication to criticise the due diligence approach as resulting in human rights being ‘the object of legal insecurity liable to release the State Parties to the human rights protection instruments from any responsibility of effective protection’.138 One explanation may be that while Article 1 itself imposes an obligation of result, the substantive rights in the ACHPR require due diligence. This is implied by its recommendations at the end of the decision against Cameroon that: The provisions of Article 1 of the African Charter impose on States Parties an obligation of Result; The State of Cameroon failed in its general obligation as set forth and sanctioned under Article 1 of the African Charter and consequently the State of Cameroon has an obligation of RESULT; 2. Due to its obvious lack of diligence, the State of Cameroon is held responsible for the violation of Articles 2, 4, and 14 of the African Charter; and therefore, the State of Cameroon is responsible for the acts of violence which took place on its territory which gave rise to human rights violations, whether these acts had been committed by the State of Cameroon itself or by people other than the State.139

An additional point to note is that Cameroon argued that events in 1992 were force majeure, an insurrection that it was unable to prevent. The African Commission disagreed and held that Cameroon should have implemented ‘all the measures required to produce the result of protecting the individuals living on its territory’, but the measures it employed did not produce this result but it could have prevented the violations occurring.140 It based its reasoning on the timing of the events, one day after the presidential election results were announced, and yet the government had only responded to the violence four days later, and that intimidation, disturbances and ‘warning signs’ had occurred prior to this, and that when it did respond it was able to manage the situation.141 The decision also leaves open the possibility to raise force majeure, but this would require ‘unpredictability, irresistibility and imputability’.142

8. Economic Social and Cultural Rights Economic, social and cultural rights are presented in the ACHPR on the same basis as civil and political rights, implying an immediacy and that State obligations will apply equally to both.143 However, despite the ACHPR offering ‘a significantly new and challenging normative framework for the implementation of economic, social, and cultural rights, placing the implementing institutions of the Charter and human rights advocates working in or on 138 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 112. 139 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 137. See also L. Doswald-Beck, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011, at 36–38. 140 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 115. 141 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, paras 116–118. 142 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 117. 143 In contrast, as Chenwi notes, to the ACRWC, Articles 11(3)(b) and 13(3), L. Chenwi, ‘Unpacking “progressive realisation”, its relation to resources, minimum core and reasonableness, and some methodological considerations for assessing compliance’, (2013) De Jure 742–769, at 747. See also D. M. Chirwa and L. Chenwi (eds), The Protection of Economic, Social and Cultural Rights in Africa. International, Regional and National Perspectives, Cambridge University Press, 2016.

32

2. Article 1: Obligations of Member States

Africa in a position to pioneer imaginative approaches to the realization of these rights’,144 it is debateable whether this has been borne out in practice, at least consistently. The African Commission has justified adopting the approach of the International Covenant on Economic, Social and Cultural Rights (ICESCR) on the basis that ‘this concept is widely accepted in the interpretation of economic, social and cultural rights’.145 In so doing, one could argue that it has also become, as Odinkalu so aptly puts it, a ‘prisoner of sorts to the muddled normative framework’ of the ICESCR.146 The African Commission has brought in, through Articles 61 and 62 of the ACHPR, the ‘progressive realisation’ format employed by the ICESCR and other treaty bodies.147 It has noted that the obligations on States with respect to these rights is to ‘progressively and constantly move towards the full realisation of economic, social and cultural rights, within the resources available to a State, including regional and international aid’.148 This duty of progressive realisation is, however, accompanied by a ‘continuing duty to move as expeditiously and effectively as possible towards the full realisation of economic, social and cultural rights’,149 mirroring the wording of the ICESCR’s General Comment No. 3.150 States should hence have a ‘reasonable and measurable plan, including set achievable benchmarks and timeframes, for the enjoyment over time of economic, social and cultural rights within the resources available to the state party’.151 Similarly, as the ICESCR has been interpreted as imposing some immediate obligations on States, so the African Commission has adopted this same formula, that States have ‘immediate’ obligations to ‘take steps . . . towards the realisation’ of these rights.152 Yet the latter terminology is not used consistently153 and exclusively for economic social and cultural rights. For example, in one instance the African Commission in its Robben Island Guidelines required States to ‘take steps’ to improve conditions of detention and ensure treatment of those in detention conformed to international standards,154 suggesting that the term may not always be used in the way in which other treaty bodies refer to it. 144 C. O. Odinkalu, ‘Analysis of paralysis or paralysis by analysis? Implementing economic, social, and cultural rights under the African Charter on Human and Peoples’ Rights’, 23 Hum. Rts. Q. (2001) 327–369, at 335. See also C Odinkalu ‘Implementing economic, social and cultural rights under the African Charter on Human and Peoples’ Rights’ in M. Evans & R. Murray (eds) The African Charter on Human and Peoples’ Rights: The system in practice, 1986–2000 (2002) 178. 145 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 13. 146 C. O. Odinkalu, ‘Analysis of paralysis or paralysis by analysis? Implementing economic, social, and cultural rights under the African Charter on Human and Peoples’ Rights’, 23 Hum. Rts. Q. (2001) 327–369, at 332. 147 L. Chenwi, ‘Unpacking “progressive realisation”, its relation to resources, minimum core and reasonableness, and some methodological considerations for assessing compliance’, (2013) De Jure 742–769, at 747. 148 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 13. 149 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 13. 150 ICESCR Committee, General Comment No. 3 on the nature of States Parties Obligations (Art 2 Para 1), 1 January 1991, para 9. 151 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 152 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 18. 153 See also Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 42 which could be read as implying that immediate obligations apply in respect of all rights in the ACHPR. 154 Robben Island Guidelines, paras 33–37.

F. State Obligations

33

In the context of economic, social and cultural rights such steps should be ‘deliberate, concrete and targeted as clearly as possible towards ensuring enjoyment of the rights’, wording taken from the ICESCR Committee’s General Comment No. 3,155 and include not only legislative measures but also that States ‘allocate sufficient resources within national budgets towards the realisation of each right’.156 Vulnerable and disadvantaged individuals should be prioritised,157 again drawing on the ICESCR Committee’s jurisprudence.158 Just as the ICESCR entails minimum core obligations, so the African Commission has incorporated the same methodology, holding, for example with respect to the right to food, that this requires the government should ‘not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves’.159 Equally it has held that if a State cannot realise even the minimum level then ‘it must be able to show that it has allocated all available resources towards the realisation of these rights, and particularly towards the realisation of the minimum core content’ and ensure that vulnerable and disadvantaged are prioritised, recognising the impact of policies such as structural adjustment in Africa.160 ‘Key elements’ of other rights also include their availability, adequacy, accessibility, both physical and economic, and acceptability,161 adopting again the approach of the ICESCR Committee.

9. Obligation to Implement African Commission Findings While it is quite clear that the provisions of the ACHPR are binding on States, what has been more contested is the extent to which the same applies to the findings of the African Commission. Here, resolutions, concluding observations and other documents adopted by the African Commission in which it finds violations by States parties could be considered to be ‘findings’ and their legal status has been debated.162 However, of more interest and that which has received most attention in legal, political and scholarly debate, are its decisions on communications. It has been pointed out by many, including States, that the African Commission is not a court, unlike its counterpart in Arusha,163 155 Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of States parties’ obligations (Article 2, para 1 of the Covenant), para 2. Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 84. 156 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 14. 157 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 14 and para 16. 158 E.g. General Comment No. 15 (2002) The right to water (Articles. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, para 37; General Comment No. 14 (2000) The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, para 18. 159 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 65. 160 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 161 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 3. 162 R. Murray and D. Long, Implementation of the Findings of the African Commission on Human and Peoples’ Rights, Cambridge University Press, 2015, chapter 4. 163 Article 30 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights.

34

2. Article 1: Obligations of Member States

and so cannot produce decisions which are of a binding nature. However, this is not a position with which the African Commission has agreed and, despite the variability of the language used in its communication (‘requests’,164 ‘invites’,165 to ‘urges’166) it has consistently upheld the binding nature of its decisions. It has done this in a number of ways. Firstly, it has held that ‘Article 1 places the States Parties under the obligation of respecting, protecting, promoting and implementing the rights’,167 in line with, as other argue, the principle of pacta sunt servanda.168 Relatedly, it notes that the aim of compliance with its decisions is to ‘ascertain victims’ rights to effective redress’.169 Thirdly, it has required that States report back on measures taken to implement the recommendations made in decisions on communications, either as part of the recommendations in the decision itself,170 or more generally in the context of Article 62 reports.171 For example, States are required to report to the African Commission on the consistency of their counter- terrorism measures with the African Commission’s own Principles and Guidelines on counter-terrorism.172 Fourthly, it has held that a failure to implement a previous decision of the African Commission will itself violate Article 1. In Communication 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro- Wiwa Jr. and Civil Liberties Organisation v Nigeria, it was alleged that, among other violations, the government of Nigeria had also failed to implement the Commission’s decision in Communication 87/93.173 This earlier decision had found that tribunals established under the Civil Disturbances Act were in violation of Article 7 of the ACHPR. In the later communication where the individuals were being tried before these same tribunals, the African Commission found not only a violation of Article 7 but also Article 1 by the State ‘ignoring this decision’.174 It was thus the failure to comply with the decision which itself violated Article 1.

164 E.g. Communication 143/95-150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 5 November 1999; Communication 389/10, Mbiankeu v Cameroon, 1 August 2015; Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015. 165 E.g. Communication 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999. 166 E.g. Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, 18 November 2015. 167 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 87. 168 G. M. Wachira and A Ayinla, ‘Twenty years of elusive enforcement of the recommendations of the African Commission on Human and Peoples’ Rights: A possible remedy’, 6 Afr. Hum. Rts. L.J. (2006) 465– 492, at 468. 169 Resolution Calling on the Republic of Kenya to Implement the Endorois Decision, Res.257, 2013. 170 E.g. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 206; Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 142; Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87; Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 171 See also Rule 98(4) of the African Commission’s Rules of Procedure with respect to reporting back on implementation of provisional measures. 172 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015, para 14.D. See also ACHPR, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, Guidelines 44–47. 173 Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria, 22 March 1995. 174 Communication 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v Nigeria, 31 October 1998.

F. State Obligations

35

Similarly, a failure to implement the African Commission’s provisional measures will also be in violation of Article 1. So executing Ken Saro-Wiwa and others contrary to provisional measures by the African Commission urging the government not to do so was a violation of Article 1.175 The Commission justified this on the basis that its role was to ‘assist’ States in implementing their obligations in the ACHPR and the then Rule 111 which provided for provisional measures was to prevent ‘irreparable damage being caused to a complainant before the Commission’.176 Additionally, the binding nature of the African Commission’s decisions, and more broadly other findings, is also supported by its view that they are ‘authoritative interpretations of the Charter’.177 Related to this, as noted in its Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States in November 2006, is that ‘by ratifying without any reservation, the African Charter on Human and Peoples’ Rights have thus agreed to accept the authority and the essential role of the Commission in the promotion and protection of Human and Peoples’ Rights throughout Africa’.178 Lastly, the OAU and African Union (AU) organs have also called on a regular basis for States to ‘implement [the African Commission’s] decisions in compliance with the provisions of the African Charter on Human and Peoples’ Rights’.179

10. International Engagement At various points the African Commission has addressed recommendations to international and regional organisations and to other States. This has not just been in the context of economic social and cultural rights, although it is perhaps, in line with other treaty bodies, more predictable that it would do so there. Recommendations in resolutions, for example, not only call on the State in whose jurisdiction the violations are taking place to take action but also other States, as well as regional organisations, the AU and the ‘international community’. In response to violence by armed groups in Nigeria the African Commission called on ‘ECOWAS [Economic Community of West African States], African Union, and the international community to support the Government of the Federal Republic of Nigeria in its efforts to end these acts of violence’180 and in a later resolution it called on the same actors to also ‘closely monitor the human rights situation in the country’.181 175 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 116. 176 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 114. 177 Account of Internal Legislation of Nigeria and the Dispositions of the Charter of African Human and Peoples’ Rights at 6; International Pen, Constitutional Rights Project, Civil Liberties Organisations and Interights on behalf of Ken Saro-Wira v Nigeria, paras 113 and 116. See also Murray, The African Commission on Human and Peoples’ Rights and International Law, at 54–55; Viljoen, International Human Rights Law in Africa at 339. 178 Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States, ACHPR/Res.97, November 2006. 179 M. Killander, ‘Confidentiality versus publicity: Interpreting Article 59 of the African Charter on Human and Peoples’ Rights’, at 575. See also Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States, ACHPR/Res.97, November 2006. 180 Resolution on the Human Rights Situation in Federal Republic of Nigeria, ACHPR/Res.214, 2 May 2012. 181 Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14 March 2014. See also Resolution on summary Execution and Enforced Disappearance in Mali, ACHPR/ Res.258, 5 November 2013.

36

2. Article 1: Obligations of Member States

G. Clemency, Amnesty and Pardons Addressing itself to the clemency introduced by the Zimbabwe government in 2000 for political offences, the African Commission had to consider if such an order violated Article 1.182 Recognising the importance of prohibiting impunity such that individual victims have no compensation nor redress,183 and the emergence of a rule of customary international law prohibiting amnesties leading to impunity for serious human rights violations,184 the Commission held: that by passing the Clemency Order No. 1 of 2000, prohibiting prosecution and setting free perpetrators of “politically motivated crimes”, including alleged offences such as abductions, forced imprisonment, arson, destruction of property, kidnappings and other human rights violations, the State did not only encourage impunity but effectively foreclosed any available avenue for the alleged abuses to be investigated, and prevented victims of crimes and alleged human rights violations from seeking effective remedy and compensation.185

There should be no immunity for prosecution in respect of torture, unless the perpetrator is a foreign national, in which case immunities must be ‘as restrictive as is possible under international law’.186 Clemencies, pardons and amnesties will not necessarily violate Article 1. Firstly, States will need to put in place ‘alternative adequate legislative or institutional mechanisms to ensure that perpetrators of the alleged atrocities were punished, and victims of the violations duly compensated or given other avenues to seek effective remedy’.187 Secondly, those which have ‘the effect of annulling the penal nature of the precise facts and violations of which the plaintiffs are complaining’, or ‘leading to the foreclosure of any judicial actions that may be brought before local jurisdictions by the victims of the alleged violations’, will be in violation of the ACHPR.188 Any procedures dealing with clemencies and pardons should therefore comply with standards of due process.189 Further, ‘[i]‌f there appears to be any possibility of an alleged victim succeeding at a hearing, the applicant should be given the benefit of the doubt and allowed to have their matter heard. Adopting laws that would grant immunity from prosecution of human rights violators and prevent victims from seeking compensation render the victims helpless and deprives them of justice’.190 ‘Total and complete immunity from prosecution’ without these alternative mechanisms or avenues will violate Article 1 of the ACHPR.191 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 194. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 200. 184 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, paras 201– 204. Communication 246/02, Mouvement ivoirien des droits humains (MIDH)/Cote d’Ivoire, 29 July 2008, para 215. 185 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 211. 186 Robben Island Guidelines, para 16. 187 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 215. 188 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 83. 189 Communication 240/01, Interights et al. (on behalf of Mariette Sonjaleen Bosch)/ Botswana, 20 November 2003. 190 Communication 246/02, Mouvement ivoirien des droits humains (MIDH)/Cote d’Ivoire, 29 July 2008, para 97. 191 Communication 246/02, Mouvement ivoirien des droits humains (MIDH)/Cote d’Ivoire, 29 July 2008, para 98. 182 183

I. Jurisdiction

37

Conversely, those who commit a crime should have ‘a right to seek pardon or commutation of sentence’,192 and for those sentenced to death this process should be ‘transparent . . . with due process of law’.193 Where individuals have been arrested in violation of the rights in the ACHPR, the African Commission has called upon States to grant requests for pardon.194 For example, the Special Rapporteur on Freedom of Expression and Access to Information ‘welcomes reports of the 24 April 2009 release, by virtue of a Presidential pardon, of El Malick Seck, Editor of 24 Heures and Chrono, who had served eight months out of a three and a half year sentence for “offending the Head of State” and defaming a Government Minister’;195 and called on the government of The Gambia to ‘pardon all persons sentenced because of demonstrating to oppose election reforms of the Election Amendment Act’.196 Clemency and pardon have also arisen in the context of admissibility197 and Article 7.198

H. Addressing Other Actors Despite the obligations under the ACHPR being State obligations, there are various occasions when the African Commission has addressed its recommendations to non-State actors. For example, examining the human rights situation in Senegal in 2012 it called on ‘all parties’ to end the violence, including ‘political leaders, the presidential candidates and other stakeholders to refrain from all acts that may threaten public law and order’.199 Similarly, it has urged ‘the instigators and perpetrators’ to end attacks on civilians,200 and in a case against Cameroon which also argued for secession for southern Cameroonians, it appealed to ‘the Complainants, and Southern Cameroons National Council (SCNC) and Southern Cameroons People’s Organization (SCAPO) in particular, to transform into political parties, to abandon secessionism and engage in constructive dialogue with the Respondent State on the Constitutional issues and grievances’ and placed its good offices to assist the parties.201

I. Jurisdiction There is no reference in the ACHPR to ‘jurisdiction’ and nothing in Article 1 that refers, for example, to the territorial scope of the ACHPR and State obligations therein.202 Despite this, 192 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, para N.10.d. Resolution on the Situation of Human Rights in Ethiopia, ACHPR/Res.92, 5 December 2005. 193 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2015, para 24. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, para H.c. 194 E.g. Press release on the judicial harassment of Mohamed Smain, Algerian Human Rights Defender, 23 April 2012. 195 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Proposed Decriminalisation of Media Offences in Senegal, 16 June 2009. 196 360: Resolution on the Human Rights Situation in the Islamic Republic of The Gambia—ACHPR/Res. 360(LIX) 2016 The African Commission on Human and Peoples’ Rights (the Commission) meeting at its 59th Ordinary Session from 21 October to 4 November 2016. 197 198 See Chapter 34 (Article 56). See Chapter 8 (Article 7). 199 Resolution on the Human Rights Situation in Senegal, ACHPR/Res.208, 1 March 2012. 200 Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14 March 2014. 201 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 202 T. S. Bulto, ‘Patching the ‘legal black hole’: The extraterritorial reach of states’ human rights duties in the African human rights system’, 27 S. Afr. J. on Hum. Rts. (2011) 249–278, at 257.

38

2. Article 1: Obligations of Member States

the African Commission has reiterated that States must ‘ensure the effective protection of human rights throughout its territory’,203 and ‘over their entire territory’,204 and they are responsible for ‘the security of the people and property living everywhere on its territory’.205 On occasions it has also referred to State responsibility for activities occurring ‘in their territory or jurisdiction’,206 although it reiterated in one communication that while State jurisdiction under the Charter was ‘primarily’ territorial, it was prepared to accept there may be circumstances ‘in which a state assumes obligations beyond its territorial jurisdiction such as when a state assumes effective control of part of a territory of another State (spatial model of jurisdiction) [footnote omitted], or where the state exercises control or authority over an individual (personal model of jurisdiction)’.207 Responsibility for ensuring the rights in the ACHPR will only arise after it has come into force for that particular State.208 Violations that began prior to this will not be within the African Commission’s jurisdiction unless their effects continue beyond this date. Therefore: ‘this principle presupposes the failure by the State party to adopt measures, as required by Article 1 of the Africa Charter to redress the violations and their effects, hence failing to respect, and guarantee the rights’.209 Jurisdiction is dealt with more fully in Chapter 34.

J. Derogation As has been noted many times the ACHPR does not contain a derogation clause210 and the African Commission has consistently upheld the principle adopted in the first communication to examine this, Communication 74/92 Commission Nationale des Droits de l’Homme et des Libertés v Chad,211 that derogations are not permitted at any time for any of the rights in the ACHPR.212 Therefore: ‘even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African 203 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 112. See also Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic Of Djibouti, 4 October 2014, para 133. 204 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 119. 205 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 120. 206 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2015, para 18. 207 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 4 October 2014, para 134. 208 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. 209 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. 210 E.g. F. Viljoen, International Human Rights Law in Africa, Oxford University Press 2007, p.251; F. Ouguergouz, The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague, 2003, p.425; L. Sermet, ‘The absence of a derogation clause from the African Charter on Human and Peoples’ Rights: A critical discussion’, 7 Afr. Hum. Rts. L.J. (2007) 142–161. Cowell, F., Sovereignty and the question of derogation: An analysis of Article 15 of the ECHR and the absence of a derogation clause in the ACHPR, Birkbeck Law Review Vol. 1, Issue 1, (2013), pp.135–162; 211 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995. 212 E.g. Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 60; Appeal: The African Commission on Human and Peoples’ Rights Concerned about the Situation in the Republic of Guinea, 16 February 2007; Activity Report of the Special Rapporteur on Freedom of Expression

J. Derogation

39

Charter’,213 and suspension of the Gambian constitution’s bill of rights thereby ‘restricted the enjoyment of the rights guaranteed therein, and, by implication, the rights enshrined in the Charter’ was therefore a violation of Article 1.214 It is notable that earlier drafts of the ACHPR did include a provision permitting ‘suspension of guarantees’: 1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion, or social origin. 2. The foregoing provision does not authorise any suspension of the following articles: article 16 (Right to Juridical Personality), article 17 (Right to Life), article 18 (Right to Human Treatment), article 19 (Freedom from Slavery), article 22 (Freedom from Ex Post Facto Laws), article 25 (Freedom of Conscience and Religion), article 28 (Right to Nationality) and article 30 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. 3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary-General of the Organization of African Unity of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.215 This did not find its way into the Dakar nor final draft. The dogmatic approach of the African Commission has been justified on the basis that the ACHPR ‘does not allow’ States to derogate,216 one presumes because there is no such provision to permit them to do so, and that the ‘existence of war, international or civil, or other emergency situation within the territory of a State party cannot therefore be used to justify violation of any of the rights set out in the Charter’.217 However, these explanations are rather thin in the face of criticism and the overwhelming contrary approach taken by other international bodies.218 The African Commission’s interpretations have gained support from some on the basis that ‘[i]‌t is also consistent with the international trend of expanding non-derogable rights. The tendency of African States to abuse states of emergencies and their practical failure and Access to Information in Africa Adv. Pansy Tlakula, Presented to the 44th Ordinary Session of the African Commission on Human and Peoples’ Rights, para 42; Communication 54/91-61/91-96/93-98/93-164/97_ 196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 84; Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 165. 213 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995, para 21. 214 Communication 147/95-149/96, Sir Dawda K. Jawara/Gambia (The), 11 May 2000, para 48. 215 M’Baye Draft, Article 33. 216 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995, para 21; 217 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 87. 218 M. A. Tolera, ‘Absence of a derogation clause under the African Charter and the position of the African Commission’, 4 Bahir Dar U.J.L. (2014) 229.

40

2. Article 1: Obligations of Member States

to comply with notification requirements under the International Covenant on Civil and Political Rights (ICCPR) further justify the absence of a derogation clause’.219 However, others believe it sets ‘an unrealistically high standard’220 and the inability of States to derogate under the ACHPR ‘forms a paradox difficult to resolve’ because many African States include derogation provisions in their constitutions and many of them are parties to the ICCPR which permits derogation.221 There have been some inconsistencies, with reference here and there to ‘non-derogable’ rights222 such as the right to life,223 the prohibition against torture,224 right to a fair trial,225 the right to an appeal,226 provisions on equality and non-discrimination,227 the right to ‘human dignity’,228 and minimum core obligations on economic social and cultural rights,229 (although the list these rights is not always the same) and in some contexts appears to have been used as another term for ‘limitations’.230 The argument that that the African Commission is more open to the possibility of derogation when it is examining State reports,231 than it is in communications does not account for these variations. One explanation for this approach could be the need by the African Commission to justify to others its strict stance on derogation. In Communication 275/03, Article 19 v Eritrea, where the Eritrean government argued that the ‘precarious war situation’ in the country meant that there was a delay in trying individuals, the African Commission held that ‘[e]‌ven if it is assumed that the restriction placed by the Charter on the ability to derogate goes against international principles, there are certain rights such as the right to life, the right to a fair trial, and the right to freedom from torture and cruel, inhuman 219 E.g. A. J. Ali, ‘Derogation from constitutional rights and its implication under the African Charter on Human and Peoples’ Rights’, 17 Law Democracy & Dev. (2013) 78–110. 220 F. Viljoen, International Human Rights Law in Africa, Oxford University Press 2007, p.252. See also criticisms by C. Heyns, ‘The African regional human rights system: In need of reform?’ 1 African Human Rights Law Journal (2001) 155–174, at 162; A. K. Allo, ‘Derogation or limitation? Rethinking the African human rights system of derogation in light of the European system’, 2 Ethiopian journal of Legal Education (2009) 50. 221 L. Sermet, ‘The absence of a derogation clause from the African Charter on Human and Peoples’ Rights: A critical discussion’, 7 Afr. Hum. Rts. L.J. (2007) 142–161, pp. 144–145. 222 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 155. 223 E.g. General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2015, Introduction, paras 1 and 7; see also Opening Statement by the Chairperson of the African Commission on Human and Peoples’ Rights, Honourable Kayitesi Zainabo Sylvie, 56th Ordinary Session. 224 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), 11 May 2017, para 62; Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 69. 225 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 175 and 194. Communication 218/98 Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project/Nigeria, 7 May 2001, para 27. 226 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 37. 227 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 49. 228 African Commission Organises Commemorative Seminar on the 10th Anniversary of the Adoption of the Robben Island Guidelines, 27 August 2012. 229 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 17. 230 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, May 2015. 231 M. A. Tolera, ‘Absence of a derogation clause under the African Charter and the position of the African Commission’, 4 Bahir Dar U.J.L. (2014) 229.

K. Duty to Remedy Any Violations/Right to a Remedy

41

and degrading treatment, that cannot be derogated from for any reason, in whatever circumstances’.232

K. Duty to Remedy Any Violations/Right to a Remedy There is no express provision in the ACHPR on the right to a remedy, although Article 27(1) of the Protocol establishing the African Court does enable it to make ‘appropriate orders to remedy the violation including the payment of fair compensation or reparation’. As Musula suggests, it may be that Article 1 was considered sufficient to encompass it233 and this appears to have been the approach adopted by the African Commission, sometimes by inclusion in the obligation to ‘fulfil’, as noted above.234 Article 1 therefore imposes on States a ‘duty . . . to remedy violations’235 and the African Commission has recognised ‘the intangible principle of the right to reparation for the harm suffered as a result of a violation of the provisions of the Charter’236 And that ‘the right to redress encompasses the right to an effective remedy and to adequate, effective and comprehensive reparation’.237 In one communication the African Commission found that the legislation violated Article 1 as it did not ensure compensation for the victims of wrongful death including close family and relatives.238 Reference to an obligation to provide a remedy has also been mentioned in other contexts, including fair trial,239 and for victims of sexual violence,240 and torture.241 As to any criteria that States should employ when providing a remedy for any violations at the national level, one can discern the requirement that the remedy be ‘adequate’.242 As will be seen in relation to each of the substantive rights in the ACHPR, where violations have been found, the African Commission and African Court have both been willing to recommend a range of remedies to the victims. These have varied significantly from compensation,243 although the amount may be left to the national

232 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 98. See also: ‘Therefore, the right to a fair trial is a non-derogable right, especially as the African Charter does not expressly allow for any derogation from the rights it enshrines’, Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 238. 233 G. M. Musila, ‘The right to an effective remedy under the African Charter on Human and Peoples’ Rights’, 6 Afr. Hum. Rts. L.J. (2006) 442–464, at 447–448. 234 At section E.4. 235 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para 158. 236 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 88. 237 General Comment No .4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 8. 238 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 143. 239 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. 240 Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence, ACHPR/Res.111, 28 November 2007. 241 Robben Island Guidelines. 242 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92. 243 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87. Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 145. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan,

42

2. Article 1: Obligations of Member States

authorities to determine;244 release of the individual where detained; unfreeze bank accounts;245 observe a moratorium on the death penalty;246 order retrials or re-open trials;247 ensure that legislation is actually enforced;248 replacing documents;249 reinstatement in employment;250 restitution of property and land;251 as well as amending its legislation;252 or even its constitution;253 and other procedures including, for example, that dealing with the registration of births;254 putting in place procedural safeguards for vulnerable individuals such as those in detention;255 and setting up training programmes.256 Other remedies have included requiring the State to engage with relevant stakeholders;257 that the State investigate and then prosecute perpetrators of the violations;258 establish national forum or institutions to, for example, deal with national

5 November 2013, para 93. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. App. No. 013/2011, Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, Ruling on Reparations, 5 June 2015, para 111. 244 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 142. Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 180. Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 92. Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 99. 245 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 142. 246 Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 99. 247 App. No. 007/2013, Mohamed Abubakari v United Republic of Tanzania, 3 June 2016. 248 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 92. 249 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87. 250 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87. 251 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 206. 252 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 145; Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 92. Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 99; App. No. 001/ 2014, Actions Pour La Protection Des Droits De L’homme (APDH) v Republic of Cote d’Ivoire, Judgment on the Merits, 18 November 2016. 253 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 206. 254 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 206. 255 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87. 256 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 85–87. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 93. 257 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 258 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275.

K. Duty to Remedy Any Violations/Right to a Remedy

43

reconciliation;259 and finalise peace agreements.260 The African Court has also considered its judgments to be a form of reparation.261 A few general observations are pertinent at this juncture. There is no consistent approach to the award of a particular remedy for the violation of a particular right. There is significant variation in the number and type of remedies recommended in each case. There is no obvious rationale as to why these approaches are taken, the most likely explanation being that much may depend on what the complainant requested, although others attribute, certainly in its earlier years, over-deference to States thereby resulting in more declaratory decisions.262 Finally, as noted above and elsewhere, the African Commission has not matched the remedy to the particular right that has been violated. Consequently whilst it may not often be clear how it is addressing each violation, it is also possible that the African Commission may omit to grant a remedy to some violations. In one communication this was precisely what was alleged. In response the African Commission noted that while it was important for it to ‘provide remedies to a victim whenever it finds that the State has infringed the victim’s right, failing to do so does not render the Commission’s decision infra petita, if it can be deduced from the decision that all the allegations mentioned in the communication have been addressed by the Commission’.263 States are required to report to the African Commission often, but not always,264 within 180 days on the measures taken to implement.265 Where violations of Article 1 are found there are not specific remedies associated with this particular provision. It is not a right on its own, rather it underpins and is contingent on a finding of other violations, as noted previously, and thus there have been no cases where only a violation of Article 1 has been found. Consequently, remedies for the victims in a communication depends on a finding of violations of substantive rights.

259 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 260 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. See for an excellent overview, G. Bekker, ‘The African Commission on human and peoples’ rights and remedies for human rights violations’, 13(3) Human Rights Law Review (2013) 499–528. 261 E.g. App. No. 013/2011, Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, Ruling on Reparations, 5 June 2015, para 111(iv). 262 G. Bekker, ‘The African Commission on human and peoples’ rights and remedies for human rights violations’, 13(3) Human Rights Law Review (2013) 499–528. 263 Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 37. 264 E.g. within three months. Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 180. 265 E.g. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 92. Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 99.

3. Article 2 Non-Discrimination Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race,

ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.

A. Introduction Despite the lack of explicit reference to ‘discrimination’,1 Article 2 has been described by the African Commission as the ‘anti-discrimination principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises’.2 The core place of the principle in the African Charter is explained partly by the Introductory Statement which accompanied the Dakar Draft of the Charter: ‘in the enumeration of recognised and protected rights, a place of choice was given to the principle of non-discrimination. This explains why the principle of non-discrimination was the first principle stated in the draft’.3 Article 2 has received considerable and consistent attention by the African Commission since its inception, including, in later years, a focus on issues such as albinism, disability, HIV/AIDS and age. Although it does not always refer to Article 2 expressly, it has commonly made reference in resolutions on States to concerns around discrimination on a variety of different grounds.4 The detail is not consistently provided. For example, in a resolution on the situation of human rights in Africa in general, the African Commission called on the Mauritanian government ‘to strictly observe the provisions of the African Charter in particular, Article 2 on the principles of non-discrimination and take all necessary measures to end all discriminatory practices’.5 Similarly, when examining the situation in Darfur in Sudan, the African Commission stressed the importance of the State implementing its international legal obligations ‘without discrimination on any grounds’.6

1 A. Rudman, ‘The protection against discrimination based on sexual orientation under the African human rights system’, 15 Afr. Hum. Rts. L.J. (2015) 1–27. 2 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 78. See also Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 91. 3 Dakar Draft, Introductory Statement. 4 E.g. Resolution on the Political Situation in Niger, ACHPR/Res.162, 3 March 2010: ‘[R]‌ecalling that the enjoyment of rights and freedoms are fundamental human rights enshrined in international instruments ratified by Niger, and notably Article 2 of the African Charter’. 5 Resolution on the General Human Rights Situation in Africa, ACHPR/Res.207, 5 November 2011, para 8. 6 Resolution on Darfur, ACHPR/Res.68, 4 June 2004.

A. Introduction

45

Conversely, a handful of communications also find violations of Article 2 but without providing any reasoning behind them.7 Discrimination will apply to all rights in the African Charter on Human and Peoples’ Rights (ACHPR), including economic, social and cultural rights. Therefore, States are required to report on ‘non-discrimination in the enjoyment’ of economic, social and cultural rights and provide: information on legislative and practical steps taken to ensure enjoyment of the rights on a non- discriminatory basis by members of vulnerable or marginalised groups as defined in the Principles and Guidelines. Reports should particularly indicate what steps have been taken to ensure gender equality.8

Article 3, with its requirement that individuals are equal before the law and entitled to equal protection of the law, is often cited together with Article 2. This can arise because complainants in the communication raise the two provisions,9 or because the African Commission has made reference to them in the context of equality more generally.10 Although it has attempted on a number of occasions to distinguish the two, they are often conflated. In a case against the Congo, the complainants alleged that the citizens were not treated ‘in the same manner’ and there was no equality before the law for citizens as the Minister of the Economy, Finance and Budget had the power to decide which judgments from the courts it would respect.11 The complainants had taken a case to the High Court in Brazzaville which had ordered compensation to the complainants but this had not been paid and the Minister had said he would refuse to do so. The State did not contest the facts but did contest the application of Article 2 on the basis that the individuals did not come from a particular ethnic group, have the same religion or politics. Considering Articles 2 and 3 the African Commission held that Article 2 contained the ‘principle of non-discrimination’ and Article 3, the principle ‘of equality’.12 Together these principles ‘mean that citizens should be treated in a fair and equitable manner before the law and have the right to enjoy, with no distinction whatsoever, the rights guaranteed by the Charter. The right to equality is all the more important since it determines the possibility for the individual to enjoy many other rights’.13 Noting that Article 2 is not a standalone right, similar to Article 14 of the European Convention on Human Rights (ECHR), the Commission held that it ‘does not stipulate a general banning of discrimination; it only prohibits discrimination where it affects the enjoyment of a right or freedom guaranteed by the Charter’.14 It was not prepared to find a violation of Article 2 as it held that the complainants had not shown how the application of other rights in the ACHPR had been ‘hindered in a discriminatory manner’.15 However, it did

7 E.g. Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 8 State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), para 6. 9 E.g. Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 64. 10 See Chapter 4 on Article 3. 11 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 65. 12 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 68. 13 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 68. 14 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 69. 15 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 69.

46

3. Article 2: Non-Discrimination

find a violation of Article 3 as this provision ‘contains a general guarantee of equality which supplements the ban on discrimination provided for in Article 2’.16 The inclusion of Article 3 therefore means that the ACHPR was different from the ECHR and more akin to the International Covenant on Civil and Political Rights (ICCPR) and the African Commission has resolved that ‘[e]‌quality before the law, protected by Article 3.1 relates to the status of individuals before the law. Equal protection by the law, guaranteed in Article 3.2 relates to the implementation of the law and is applicable where the rights of the Complainant are implemented unequally’.17 This is an interesting conclusion, particularly when one considers the cases below which do not always consistently hold that Article 2 is not a stand-alone right. Whilst similarly holding that the two provisions ‘basically form the anti-discrimination and equal protection provisions of the African Charter’, the wording then differs when distinguishing between the two rights: ‘Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while Article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. These provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for under the African Charter’.18 In addition, the African Commission has noted the ‘intrinsic inter-connection between equality before the law and equal protection of the law, on the one hand, and the right to the enjoyment of rights guaranteed by the Charter, on the other hand’, citing the Inter-American Court’s Opinion in 200319 and reiterating that: the right to « non-discrimination » which is protected by Article 2 of the Charter constitutes a legal guarantee to ensure the enjoyment of the rights to equality before the law and equal protection of the law under Article 3. In other words, where discrimination occurs, equality and equal protection of the law are automatically undermined. It follows that whenever a violation of Article 2 of the Charter is established, the rights under Article 3 have necessarily been violated. The only exception to this logical position is applicable when the discrimination authorized by law is justifiable and proportionate to the targeted goal.20

The same format is adopted in a case against Botswana.21 Arguing that the compulsory imposition of the death penalty for murder without the ability to consider the personal extenuating and mitigating circumstances of the individual violated Articles 2 and 3 as it was both ‘arbitrary and discriminative’.22 Considering both rights together, the African Commission found that it ‘has not been shown how the victim was denied the enjoyment of any of the Charter Rights based on his ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. It

Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 70. Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 70. 18 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 49. 19 Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of 17 September 2003, requested by the United Mexican States Juridical Condition and Rights of Undocumented Migrants, para 101, as cited in Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 154. 20 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 144. 21 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 153. 22 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 154. 16 17

A. Introduction

47

has not also been shown how the victim was accorded differential treatment or how the victim was discriminated against by the Respondent State in anyway. Apart from making general conclusions, the Complainants did not sufficiently present facts and evidence that would convince the African Commission of any violation of Articles 2 and 3 of the African Charter. The African Commission therefore finds that there was no violation of Articles 2 and 3 of the African Charter’.23 Despite this reference to the principle of equality being in Article 3, sometimes only Article 2 is cited in this context. For example, in Communication 54/91-61/91-96/93- 98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, the African Commission emphasized that ‘Article 2 of the African Charter lays down principles that is essential to the spirit of this Convention, one of whose goals is the elimination of all forms of discrimination and to ensure equality among all human beings’.24 Similarly in a case against Zambia, the African Commission noted that Article 2: abjures discrimination on the basis of any of the grounds set out, among them “language . . . national or social origin . . . birth or other status. . . ” The right to equality is very important. It means that citizens should expect to be treated fairly and justly within the legal system and be assured of equal treatment before the law and equal enjoyment of the rights available to all other citizens. The right to equality is important for a second reason. Equality or the lack of it affects the capacity of one to enjoy many other rights. For example, one who bears the burden of disadvantage because of one’s place of birth or social origin suffers indignity as a human being and as an equal and proud citizen. He may vote for others but has limitations when it comes to standing for office. In other words the country may be deprived of the leadership and resourcefulness such a person may bring to national life. Finally, the Commission should take note of the fact that in a growing number of African States, these forms of discrimination have caused violence and social and economic instability, which has benefited no one. It has cast doubt on the legitimacy of national elections and the democratic credentials of states.25

The African Commission held that restricting the right to stand for the post of President to only those who are both born in Côte d’Ivoire and have parents born in Côte d’Ivoire was ‘unreasonable and unjustifiable, and . . . an unnecessary restriction on the right to participate in government guaranteed under Article 13 of the African Charter’ as well as being discriminatory ‘because it applies different standards to the same categories of persons, that is persons born in Côte d’Ivoire are now treated based on the places of origin of their parents, a phenomenon which is contrary to the spirit of Article 2of the African Charter’.26 But it continued in the next paragraph of the decision to link this directly with the right to equality, without citing Article 3 until later and implying this is part of Article 2.27 23 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 154. 24 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association Mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 131. 25 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 63. 26 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 86. 27 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 87.

48

3. Article 2: Non-Discrimination

As will be discussed in more detail in Chapter 4 (Article 3), the African Commission agreed with the complainants in Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, that deporting an American journalist who had been legally resident in Zimbabwe after publishing an article in an independent online paper was in violation of the ACHPR. It found that he had been deported because he was not a national of Zimbabwe, in violation of Article 2.28 Thus, the different treatment accorded him because of his nationality denied him the ability to obtain the protection of the courts and was in violation of Article 3.29

B. Article 2 as a Stand-Alone Right? There is inconsistency in the approach as to whether Article 2 is a stand-alone right or has to be tied to another right.30 On the one hand the wording of Article 2 (‘entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter’) implies that it is integral to other rights in the ACHPR and it is contingent on those other rights. This has been the approach adopted by the African Commission in several cases: for there to be a violation of Article 2 of the African Charter, it must be shown that the victim of the alleged violation has been deprived of the enjoyment of a Charter Right on the basis of his/her race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.31

Thus, the other rights in the ACHPR are to be enjoyed ‘without any of the distinctions mentioned in Article 2’.32 Indeed, many communications refer to Article 2 as an aid to interpretation of a particular right in the ACHPR. In some cases Article 2 is not expressly mentioned. For example, examining the proscription by the government of a particular publication under Article 9 of the ACHPR, the African Commission found that: [a]‌d hominem legislation, that is laws made to apply to specifically one individual or legal entity raise the acute danger of discrimination and lack of equal treatment before the law guaranteed by Article 2. The proscription of The News thus constitutes a violation of Article 9. Equally, the seizure of 50,000 copies of Tempo and The News Magazine justified in the face of Article 9 of the Charter.33

In addition, where individuals were subject to ill-treatment and torture on the basis of their being internally displaced persons and members of particular ethnic and religious 28 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 94. 29 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, paras 98–102. 30 For the latter, see above, section A, Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 69. 31 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 158. 32 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 76. 33 Communication 102/93, Constitutional Rights Project and civil Liberties Organisation v Nigeria, 31 October 1998, para 59.

B. Article 2 as a Stand-Alone Right?

49

groups, the African Commission looked at Article 5 of the ACHPR and, drawing on its previous jurisprudence, held that ‘the elements that constitutes torture, namely, that severe pain or suffering has to have been inflicted; for a specific purpose, such as to obtain information, as punishment or to intimidate, or for any reason based on discrimination; by or at the instigation of or with the consent or acquiescence of state authorities’.34 As the victims were ‘indiscriminately arrested en masse without any measures taken to ascertain the likelihood that they had individually been involved in the commission of an offence. The Commission considers that arresting a large number of individuals as was the case in the present communication, in disregard of domestic legislation and without taking any measures to ascertain the likelihood of individual wrongdoing amounts to arbitrary arrest in contravention of the Charter’.35 In one case a violation of Article 2 is found alongside other rights but the African Commission does not discuss the provision in any detail at all.36 In other cases, Article 2 is expressly raised. In a case alleging a violation of Article 13 of the ACHPR Article 35 of the Ivorian Constitution required that the President of Côte d’Ivoire ‘should be of Ivorian origin, born of a Father and Mother who themselves must be Ivorian by birth’. The African Commission held that the right in Article 13 ‘to participate in government or in the political process of ones country, including the right to vote and to stand for election, is a fundamental civil liberty and human right, and should be enjoyed by citizens without discrimination’.37 As to whether such a provision was discriminatory, the African Commission held that: to state that a citizen born in a country cannot stand for elections because his/her parents were not born in that country would be stretching the limit of objectivity and reasonableness too far. The Commission recognises the fact that the position of President, Speaker and Deputy Speaker, and indeed other similar positions are very crucial to the security of a country, and it would be unwise to put a blank cheque vis-à-vis accessibility to these positions. Placing restrictions on eligibility for these posts is in itself not a violation of human rights. However, where these restrictions are discriminatory, unreasonable and unjustifiable, the purpose they intended to serve will be overshadowed by their unreasonableness. In the present instance, the rights to vote and to stand for elections is an individual right and conditions must be made to ensure that the individual exercises these rights without reference to his/her attachment to other individuals. The Commission thus finds the requirement that an individual can only exercise the right to stand for the post of a President not only if he/she is born in Côte d’lvoire, but also that his parents must be born in Côte d’lvoire unreasonable and unjustifiable, and find this an unnecessary restriction on the right to participate in government guaranteed under Article 13 of the African Charter. Article 35 is also discriminatory because it applies different standards to the same categories of persons, that is persons born in Côte d’Ivoire are now treated based on the places of origin of their parents, a phenomenon which is contrary to the spirit of Article 2 of the African Charter.38

Whilst a violation of Article 2 is also found in the case, the focus of the reasoning in the decision is on Article 13 rather than Article 2, the latter in this case providing the basis Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 79. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014 36 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001 37 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 77. 38 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, paras 85 and 86. 34 35

50

3. Article 2: Non-Discrimination

for a prohibition of discrimination in the context of the application of other rights. As the African Commission itself stressed: it appears to the Commission that in this Communication, the main cause defended by the Complainant is the deprivation of nationality which the population called by the name « Dioula » were subjected to and will always be subjected to as victims in Côte d’Ivoire. As proof, the Complainant himself asserts that his argument aimed at proving that this alleged deprivation is based mainly on a « legitimate claim » by Dioulas to Ivorian nationality. The allegations of violations of the other provisions of the Charter are concurrent or subsequent to the alleged principal violation. In fact, these subsequent allegations are not the consequence of the principal one independently of which they cannot thrive. Consequently, the Commission will consider the « legitimate claim » to nationality prior to the consideration of other arguments on the merits.39

Concluding its analysis in this case it held that the case: deals with the violation of these rights alleged to be the consequence of the denial of nationality. Consequently, the attendant analysis will frequently refer to the grounds and submissions ensuing from the consideration of the major violations, while producing grounds specific to the concerned subsequent violation.40

More tangentially, when considering the violation of Article 14 and the right to property, and where Article 2 was not raised at all by the complainants, nor found to have been violated in the decision, the African Commission appeared to use Article 2 as underpinning Article 14 and as an aid to its interpretation. It noted that Article 14 ‘does not specify who the holder of the right of ownership is. However, its interpretation in the light of Article 2 of the African Charter, and the jurisprudence of the Commission clearly show, beyond reasonable doubt, that every individual has the right to property under the Charter’.41 Consequently, Article 2 can bolster the discriminatory element of other rights, even though it is not always cited expressly. In a case alleging the expulsion of over 500 West Africans from Zambia, the analysis on discrimination was specifically under the examination of Article 12(5) of the ACHPR and its prohibition of ‘mass expulsion of non- nationals’. The African Commission noted that this should be interpreted as that ‘which is aimed at national, racial, ethnic or religious group’, mass expulsion presenting ‘a special threat to human rights’ and noting that Article 2 ‘makes this point clearly’.42 The duty of the State to ‘secure the rights protected in the Charter to all persons within their jurisdiction, nationals or non-nationals’, is therefore interpreted under Article 12(5) rather than Article 2 specifically.43 When considering Article 4 and the right to life, for example, it has noted that as part of the duty of the State to ‘secure the conditions for dignified life, States have a particular responsibility to protect the human rights, including the right to life, of individuals or groups who are frequently targeted or particularly at risk, including on the grounds listed

Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 91. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 158. 41 Communication 286/04, Dino Noca v Democratic Republic of the Congo, 12 October 2013, para 128. 42 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, paras 7–8. 43 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997. 39 40

B. Article 2 as a Stand-Alone Right?

51

in Article 2 of the Charter and those highlighted in resolutions of the Commission.44 Rights in the ACHPR should not be applied in a discriminatory manner: Article 2 of the African Charter prohibits any discrimination in the enjoyment of the protected rights on the following non-exhaustive grounds including race, ethnic group, colour, sex/gender, language, religion, political or any other opinion, national and social origin, economic status and birth. Thus any discrimination against individuals in their access to or enjoyment of economic, social and cultural rights on any of the prohibited grounds is a violation of the African Charter.45

‘Effective and equal access’ to lawyers should be provided without discrimination on grounds listed in Article 2 as well as on gender, property and disability.46 Similarly States should provide access to judicial bodies to all within their territory and jurisdiction without distinction.47 When interpreting Article 16 of the ACHPR, the African Commission requires that ‘States must ensure that everyone has access to medical care’, and that States should ‘guarantee the full scope of access to needed medicines, including: The accessibility of needed medicines to everyone without discrimination’.48 Where non-Muslims were persecuted in an attempt to convert them to Islam and restrictions were imposed on their right to practice their religion, the African Commission held that this ‘should be considered in relation to Article 2 of the Charter, which provides for equal protection under the laws, and Article 8, on religious freedom . . . While fully respecting the religious freedom of Muslims in Sudan, the Commission cannot countenance the application of law in such a way as to cause discrimination and distress to others’.49 In this instance the African Commission did not find a specific violation of Article 2 but did find a violation of Article 8: ‘attacks on individuals on account of their religious persuasion considerably restrict their ability to practice freely the religion to which they subscribe. The government provides no evidence or justifications that would mitigate this conclusion. Accordingly, the Commission holds a violation of Article 8’.50 The decision does not clarify which specific violations were alleged by the complainants and whether Article 2 was among that list. Consequently, it is not clear why in some instances a violation of Article 2 would also be found, whereas in others, such as this case, it would not. It was argued in one case that the Zambian constitution was discriminatory because of its rule that those applying for the office of the President needed both parents to be Zambian. The African Commission found a violation of Articles 2 and 13.51

44 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right To Life (Article 4), para 11. 45 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 19. 46 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, para G. 47 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, para G. 48 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 49 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 72. 50 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 76. 51 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 64.

52

3. Article 2: Non-Discrimination

As there are no cases in which a violation of Article 2 and no other rights are found, it is difficult to confirm whether it always has to be brought in conjunction with another right. However, there are some examples where the African Commission deals with Article 2 in conjunction with another right, but there is an implication that the former is not dependent upon the latter. For example, violations of the right to property were alleged on the basis that Law 98-750 on rural land ownership in Côte d’Ivoire impacted on a small number of Africans. Citing first Article 2 and then Article 14 together, the African Commission held that the fact that it did impact on a small number of individual Africans ‘confirms the violation of Article 2’ on the basis of their origin, and that as there was no argument that limitations were linked to public need or the general interest of the community, a violation of Article 14 was also found.52 In addition in a series of cases against Rwanda, the African Commission found that the massacre of villagers on the basis of their being members of a particular ethnic group was a violation of Article 4.53 What is of interest in this case is that the African Commission besides finding violations of particular rights on this basis, also found a separate violation of Article 2: ‘the denial of numerous rights to individuals on account of their nationality or membership of a particular ethnic group clearly violates Article 2’.54 Similarly, in another case it was alleged that Dergue officials in Ethiopia, namely former members of the previous political regime, were deprived of a right to a fair trial and the complainants raised this together with Article 2.55 The State did not address Article 2 specifically so the African Commission found for the complainant. It therefore found a separate violation of Article 2 that does not seem to be contingent on Article 7 (which it then goes on to discuss).56 In a number of cases before the African Commission separate violations of Article 2 are found, even if the analysis with respect to this particular provision is rather limited. In a decision on one communication which alleged violations of Articles 2, 4, 7 and 14 in relation to violence post-elections, Articles 2 and 7 were dealt with together. The African Commission found a violation of Article 2 separately before going on to discuss Article 7. It held that: It appears that complainants drew the infringement of the enjoyment of their rights and freedoms hence the violation of Article 2 of the Charter, from the fact that the respondent State failed to take adequate measures to prevent the violence which led to the physical harm and material damage suffered by the victims. The African Commission is of the view that there is no doubt in the present case that the victims of the post elections violence suffered from damage which infringed the enjoyment of their rights. Respondent State did not debate the fact of harm being caused to the victims, but rather argued that the post election events are act of God and therefore it is beyond the capability of the State of Cameroon which should not be held liable.

Communication 262/02, Mouvement Ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union Interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 22. 54 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union Interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 24. 55 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 173. 56 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, paras 178–179. 52 53

C. Definition of Discrimination

53

The African Commission is therefore in the position to hold that the provisions of Article 2 of the African Charter have been violated because the victims were enjoying their rights and freedoms when they were attacked. Such attacks which infringed their rights and freedoms were made possible because the State of Cameroon failed to fulfill its obligation to protect which incumbent upon the State.57

Finally, there are other examples where Article 2 is dealt together with another right or rights but there is limited reasoning provided by the African Commission. For example, statements by the Guinean President Lansana Conté inciting violations and discrimination against Sierra Leonean refugees in the country were alleged to be in violation of Article 2. The complainant alleged the discrimination resulted in evictions, extortion, violence, arbitrary arrest and detention as well as rape, among other violations. The African Commission held that ‘the action of a State targeting specific national, racial, ethnic or religious groups is generally qualified as discriminatory in this sense as it has no legal basis’.58 In conclusion, in most cases Article 2 is considered and found in conjunction with another right. There is, however, sufficient ambiguity and a handful of cases to suggest that it is not contingent on other rights.

C. Definition of Discrimination The African Commission has not consistently given one single definition of discrimination. Instead it has referred to the principle of non-discrimination as requiring ‘equal treatment of an individual or group of persons irrespective of their particular characteristics’.59 On other occasions discrimination has been defined as ‘any conduct or omission’60 or ‘any act which aims at distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.61 It should have as its ‘purpose or effect of nullifying or impairing the equal access to and enjoyment of economic, social and cultural rights’,62 or the ‘purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms’.63 It should therefore ensure ‘equal treatment of an individual or group of persons irrespective of their particular characteristics’.64

57 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, paras 124–126. 58 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, para 69. 59 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 119. 60 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 61 Communication 294/04 Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 91. 62 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 63 Communication 294/04 Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 91. 64 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 119.

54

3. Article 2: Non-Discrimination

The African Commission has also held that there is ‘no need to prove an intention to discriminate. Indeed, this definition actually includes situations in which a law or a neutral or an apparently non-discriminatory measure produces the effects of an unjustified distinction’.65 In one case, the applicant alleged that the system of selling a woman as a concubine to a man ‘sadaka’ was a form of discrimination based on sex and the prohibition on her being able to give consent to marry or divorce was discrimination on the basis of social origin.66 The Economic Community of West African States (ECOWAS) Community Court of Justice considered that in order to determine whether she had been discriminated against by the practice of ‘sadaka’ it was necessary ‘to know whether, on one hand, all women have the same rights in respect of marriage, and whether, on the other hand, men and women have the same capacities of enjoying the rights and freedoms proclaimed in the international instruments ratified by the Defendant’.67 The ECOWAS Court found, however, that while the applicant was discriminated against by her former master, the State, Niger, was not responsible as the violation was not attributable to it.68 On occasion Article 2 has been raised in a collective context,69 sometimes in relation to Article 19 of the ACHPR and often in respect of the rights of indigenous peoples. The African Commission has called on Rwanda, for example, to take measures ‘to combat the stigma and discrimination suffered by the Batwa’70 and on the Central African Republic to take ‘all necessary measures, including special measures (positive discrimination), to end all discrimination that Mbororo and Aka indigenous peoples suffer from’.71 In addition, Kenya has been asked to consider its practice of identity cards ‘which discriminates against indigenous peoples’, although Article 2 is not expressly mentioned.72 Similarly, again without referring to Article 2 specifically, the African Commission noted its concern of ‘the marginalization of and discrimination against indigenous children, youth and women in many African States’ and urged States to ‘[a]‌dopt policies, laws and measures to promote and protect the rights of indigenous populations/communities from marginalization, discrimination and poverty’.73 Thus, discrimination is considered with respect to indigenous people as a collective group, and not necessarily always related to the individuals who are members of those groups. So, allegations of violations of Article 2, among others, were raised by the

Communication 318/06 Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 144. ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, para 62. 67 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, para 63. 68 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, paras 70 and 71. 69 See also Attorney General v Dow [1992] BLR 119, Court of Appeal of Botswana: ‘discrimination wholly or mainly attributable to them as a group or as such, would . . . offend as much against Section 15 as discrimination against any group or class’, at 147. See for discussion C. M. Fombad, ‘The constitutional protection against discrimination in Botswana’, 53 Int’l & Comp. L.Q. (2004) 139–170. 70 Rwanda: Mission of Working Group Indigenous Populations/Communities, 2008, recommendation 5. 71 Central African Republic: Research and Information Visit regarding Indigenous Populations/ Communities, 2007, recommendation 11. See also Burundi: Research and Information Visit regarding Indigenous Populations/Communities, 2005, December 2005. 72 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, November 2011. 73 Resolution on Indigenous Populations/ Communities in Africa— ACHPR/ Res. 334 (EXT.OS/ XIX) 2016, 25 February 2016. 65 66

D. Justifications for Differential Treatment

55

complainants in one case relating to the treatment of Southern Cameroonians.74 The African Commission not only found a violation of Article 19 but also Article 2.75 Similarly, in other instances Articles 2 and 19 are considered together. For example, Botswana’s High Court found that Bushmen had been unlawfully removed from a game reserve and the African Commission noted that this ruling was ‘consistent with the provisions of the African Charter, in particular articles 2,4,19 and 24’.76 It is interesting that the Dakar Draft of the African Charter in its Article 2 provided for the guarantee of non- discrimination for ‘every person and every people’.77 The African Commission has referred to Articles 2 and 3 as providing a ‘right to equality’ and Article 19 as ‘protection against domination’ in the context of indigenous peoples implying, again, that the provision against discrimination can apply to groups as well as individuals.78 Indeed, the use of the collective right, Article 19, has on one occasion been considered to be erroneous: The Charter makes it clear that citizens should have the right to participate in the government of their country “directly or through freely chosen representatives . . . ”. The pain in such an instance is caused not just to the citizen who suffers discrimination by reason of place of origin, but the rights of the citizens of Zambia to “freely choose” political representatives of their choice is also violated. The purpose of the expression “in accordance with the provisions of the law” is surely intended to regulate how the right is to be exercised rather than that the law should be used to take away the right. The Commission believes that recourse to Article 19 of the Charter was mistaken. The section dealing with “peoples” cannot apply in this instance. To do so would require evidence that the effect of the measure was to affect adversely an identifiable group of Zambian citizens by reason of their common ancestry, ethnic origin, language or cultural habits. The allegedly offensive provisions in the Zambia Constitution (Amendment) Act, 1996 do not seek to do that.79

D. Justifications for Differential Treatment Article 2 is not absolute.80 The African Commission has taken the definition of discrimination adopted by the UN Human Rights Committee81 as ‘any act which aims at distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms’.82 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 214. 76 Press release on the situation facing the Bushmen of the Central Kalahari Game Reserve in Botswana. 77 Dakar Draft. 78 Resolution on the Rights of Indigenous Peoples’ Communities in Africa, ACHPR/Res.51, 6 November 2000. See also Communique on the UN Declaration on the Rights of Indigenous Peoples, 28 November 2007. 79 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001. 80 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 67. 81 Human Rights Committee, General Comment No. 18, Non-Discrimination, 10 November 1989, HRI/ GEN/1/Rev.9 (Vol. I), para 7. 82 Communication 294/04: Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 91, and cited in Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013. 74 75

56

3. Article 2: Non-Discrimination

It has identified tests to determine if there has been a violation of Article 2 and although the wording is not always consistent, the following elements can be gleaned from its jurisprudence. Firstly, it is necessary to determine ‘the recognition of the right and the fact that such a right has been violated’.83 The second element of the test is to consider ‘that such a violation is justifiable in law’.84 In this context, the African Commission distinguished between a limitation and a justification: Limitations refer to what may be referred to as the statute of limitations, which gives a lower threshold of enjoyment of the right. Such limitations are allowed by law or provided for in the Constitution itself. In the African Charter these would typically be referred to as the ‘claw-back’ clauses. “Justification” however applies in those cases where justification is sought setting perimeters on the enjoyment of a right. In other words, there has to be a two-stage process. First, the recognition of the right and the fact that such a right has been violated. Second, that such a violation is justifiable in law.85

Reiterating that Article 2 contains no limitation or clawback clause, the African Commission considered that any justification ‘cannot be derived solely from popular will, as such cannot be used to limit the responsibilities of State Parties in terms of the Charter. Having arrived at this conclusion, it does not matter whether one person or thirty five percent of Zambians are disenfranchised by the measure. That anyone is disenfranchised is not disputed and this constitutes a violation of the right’.86

1. The Right and Whether it has been Violated In Kenneth Good v Botswana, the African Commission noted that a violation of the principle of non-discrimination arises if ‘equal cases are treated in a different manner’.87 Further, Article 2 ‘does not require all individuals in similar circumstances to be necessarily treated in the same manner, it permits the different treatment of people similarly placed if such treatment is meant to achieve a rational and legitimate purpose that does not impair the fundamental dignity of the affected persons or infringe on their enjoyments of the rights and freedoms guaranteed by the Charter’.88

2. Whether the Different Treatment is Justifiable In order for the difference in treatment to be justifiable, the African Commission will consider a number of issues. Firstly, it is necessary that the difference ‘does not have an objective and reasonable justification’.89 Applying Article 18(3) and Article 2 together in the context of alleged discrimination against women, the African Commission has also used the Inter-American Court’s test90 for determining if discrimination has taken place, Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 67. Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 67. 85 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 67. 86 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 70. 87 Communication, 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 219. Also referred to in Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 145. 88 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 117. 89 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 219. Also referred to in Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 145. 90 Advisory Opinion on the proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, OC-4/84, 19 January 1984. 83 84

D. Justifications for Differential Treatment

57

namely if the difference in treatment had a legitimate purpose and did not result in a situation which was contrary to justice or ‘the nature of things’.91 Drawing upon this and the jurisprudence of the Human Rights Committee, the African Commission has required that the treatment needs to be ‘reasonable and legitimate’ if it is to be justified.92 Secondly, it will not be justifiable ‘if there is no proportionality between the aim sought and the means employed’.93 The difference in treatment also needs to be ‘fair and just [sic]’.94 In addition, the grounds for the different treatment cannot be ‘based on vague and unsubstantiated reasons’.95 The African Commission will also examine the ‘purpose and effect of any limitation’, the result of which ‘cannot be used to subvert rights already enjoyed. Justification, therefore, cannot be derived solely from popular will, as such cannot be used to limit the responsibilities of State Parties in terms of the Charter’.96 Consequently, where only those Zambian citizens whose parents were born in Zambia were entitled to apply for the office of President, the African Commission held that ‘it does not matter whether one person or thirty five percent of Zambians are disenfranchised by the measure. That anyone is disenfranchised is not disputed and this constitutes a violation of the right . . . To suggest that an indigenous Zambian is one who was born and whose parents were born in what came (later) to be known as the sovereign territory of the State of Zambia may be arbitrary and its application of retrospectivity cannot be justifiable according to the Charter’.97 Where the Dioula ethnic group and Muslims in Côte d’Ivoire were denied rights to nationality and subject to other violations, the African Commission held: On the one hand, discrimination implies two groups of Ivorian citizens who are treated differently on bases prohibited by the Charter. On the other hand, successive Governments of the Respondent State produced no objective and reasonable justification, while the Complainant showed evidence of a difference in treatment. With regard to the other victims, the same conclusions are applicable within the limits of the observed established rights with regard to the violation of the provisions of Article 5 of the Charter. The Commission concludes that there is ample evidence that such unjustifiable discrimination so established violates the provisions of Article 2 of the Charter.98

In a case against South Africa it was claimed that legislation differentiated between two categories of civil servants with respect to pension funds.99 The African Commission required that the complainants ‘[substantiate] how the conduct of the Respondent State

91 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 146. 92 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, paras 147–148. 93 Communication, 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 219. Also referred to in Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 145. 94 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 129. 95 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 59. 96 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 70. 97 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, paras 70 and 71. 98 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 151. 99 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013.

58

3. Article 2: Non-Discrimination

restricted or excluded them from enjoying the rights guaranteed in the Charter’ and show ‘that the distinction lacked an objective purpose or that it was disproportionate’.100 In the same case the African Commission also suggested that the complainants needed to show ‘how their dignity as human beings was infringed on by the distinction’ and ‘whether the grounds on which they were purportedly distinguished is one that is prohibited under the Charter’.101 This must be more than simply that ‘the distinction materially affected them’.102 Drawing upon the South African Constitutional Court’s ruling in Priceloo v Van der Linde, it held that with respect to ‘mere differentiation, the constitutional State is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest naked preferences that serve no legitimate Government purpose, for that would be inconsistent with the rule of law and the fundamental premises of a constitutional state’.103 The government justified its different treatment of two categories of civil servants with respect to pension funds on the basis that this was to avoid discrimination between the first and second privatisation schemes and that the government had taken ‘all reasonable measures to mitigate the effects of the events on Venda civil servants’, facts that were not disputed by the complainants.104 No ‘unfair’ discrimination was found by the African Commission: the proclamation was not ‘arbitrary’ and was ‘meant to achieve a legitimate purpose’;105 and was ‘based on objective and rational criteria, aimed at achieving a legitimate objective’.106 Furthermore, as the complainants had chosen whether to privatise their earnings or not, the differentiation was ‘based on a financial decision made by the Complainants and not race, not sex, not religion or any other ground prohibited by Article 2 of the Charter, but the result of the subsequent calculation of pension benefits by an independent contractor’.107

E. State Duties Under Article 2 States have an ‘immediate’ duty to protect the individual from discrimination.108 They should ‘ensure that every individual enjoys the rights and freedoms recognized and guaranteed in the Charter without distinction of any kind’ as defined in Article 2.109 Public 100 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 114. 101 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 115. 102 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 115. 103 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 117. 104 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 118. 105 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 118. 106 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 134. 107 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 119. 108 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 109 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 171.

E. State Duties Under Article 2

59

officials, including for example, prosecutors, should ‘carry out their functions impartially and avoid all political, social, racial, ethnic, religious, cultural, sexual, gender or any other kind of discrimination’.110 With respect to acts of non-State actors, the State must exercise due diligence. For example, Cameroon was held to have been responsible for violations of a number of provisions of the ACHPR including Article 2 as they ‘gave rise to human rights violations, whether these acts had been committed by the State of Cameroon itself or by people other than the State’.111 On a number of occasions, the African Commission has also called for States to take ‘affirmative’ or ‘positive’ action to address incidents of discrimination.112 It has commended, for example, ‘the use of affirmative action which has resulted in significant achievements in promoting gender equality and equal opportunities for persons with disabilities’.113 Article 9 of the Protocol on the Rights of Women in Africa provides that ‘States Parties shall take specific positive action to promote participative governance and the equal participation of women in the political life of their countries through affirmative action, enabling national legislation and other measures’.114 In this regard it has called on States to ‘[t]‌ake positive measures to guarantee a better representation of women in elective positions’.115 Furthermore: In countries where there exist groups, communities or regions whose needs for judicial services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, States shall take special measures to ensure that adequate judicial services are accessible to them.116

Noting on a mission to the Central African Republic that there was legislation which provided a quota of ten per cent for disabled people in recruitment of civil servants, the African Commission’s delegation ‘strongly urged the Minister to consider the possibility of such positive discrimination with regard to indigenous peoples, given their high level of marginalisation’.117 Where discrimination had occurred against the Batwa people of Burundi, the African Commission called on the government ‘for extension to other sectors of public affairs the measures of positive discrimination for their Batwa’s representation in Parliament and Senate’.118 In addition, it recommended that the government of Botswana ‘employ positive discrimination in favour of the Basarwa and adopt policies that would encourage and facilitate the education of the Basarwa’.119 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, para F(h)(1). Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009. 112 See also Protocol on the Rights of Women in Africa, Article 2(d). 113 Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Republic of Uganda, 30 August 2013. 114 Protocol on the Rights of Women in Africa, Article 9(1). 115 Resolution on Elections in Africa, ACHPR/Res.174, 24 November 2010 116 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, para c. 117 Report of the African Commission’s Working Group on Indigenous Populations/Communities Research And Information Visit To The Central African Republic, 15–28 January 2007, adopted at its 43rd Ordinary Session, 7–22 May 2008, para 3.6. 118 Burundi: Research and Information Visit regarding Indigenous Populations/ Communities, 2005, December 2005. 119 Botswana: Mission Working Group Indigenous Populations/Communities, 2005. 110 111

60

3. Article 2: Non-Discrimination

F. Grounds Under Article 2 The grounds listed under Article 2 are not exhaustive, as determined by the phrase ‘or other status’, and by the Commission itself: ‘the list under Article 2 of the Charter is neither absolute nor comprehensive. It is merely indicative’.120 The African Commission has used Article 2 to cover what it has perceived as other ‘vulnerable’ groups.

1. Race The seeds of the former Organisation of African Unity’s own attention to human rights and the subsequent adoption of the ACHPR can be seen from its approach to apartheid and racial discrimination.121 It is perhaps not surprising that there was some early discussion on racial discrimination by the African Commission but it arose principally within the context of the colonial legacy. So in its 1989 Guidelines for National Periodic Reports the African Commission spent considerable space on the information States should include in their Article 62 reports with respect to racial discrimination, drawing on the content of the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD). It noted here that: Although there is no specific or direct prohibition of racial discrimination, as such, in the Charter except as mentioned in articles 2, 19 and generally elsewhere in the Charter, the general tone of the Charter abhors racial discrimination. Further, Africa, for so long the victim of racial discrimination, would expect the Commission and the States Parties to the Charter to work for elimination of all forms of racial discrimination. It was therefore decided that the subject of racial discrimination should be included as a subject for periodic reports in full recognition of the Charter of the Organization of African Unity’s commitment to elimination of racial discrimination.122

It takes, in these Guidelines, the definition of ‘racial discrimination’ as provided for in Article 1 of CERD and asks States to report on, among other issues, whether the UN Convention can be ‘invoked before, and directly enforced by, the courts, other tribunals or administrative authorities or whether they have to be implemented by way of internal laws or administrative regulations in order to be enforced by the authorities concerned’.123 States, as part of their Article 62 reports are also required to report on information in relation to Articles 2–7 of CERD, specifically, ‘[m]‌easures taken to give effect to the undertaking to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; Measures taken to give effect to the undertaking not to sponsor, defend or support racial discrimination by any persons or organisations’.124 The reporting requirements presume therefore that Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 145. Resolutions of the first All African Peoples’ Conference, Accra, 8–13 December 1958, see International Organization 16(2) (1962) 429–434, at 430, International Organization 16(2) (1962) 429–434, at 433; Apartheid in South Africa, CM/Res.13(II); Southern Rhodesia, CM/Res.14(II); Resolution on the Soweto Massacres in South Africa, CM/Res.476(XXVII); Resolution on Sanctions, CM/Res.553(XXIX); Apartheid and Racial Discrimination in the Republic of South Africa, CM/Res.48(IV); Apartheid and Racial Discrimination in the Republic of South Africa, CM/Res.66(V); Resolution on South Africa, CM/Res.554(XXIX). See also R. Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge University Press, 2004, chapter 1. 122 Guidelines for National Periodic Reports, April 1989, para V. 123 Guidelines for National Periodic Reports, April 1989, para V. 124 Guidelines for National Periodic Reports, April 1989, para V. 120 121

F. Grounds Under Article 2

61

States should ‘declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and to recognise participation in such organisations or activities as an offence punishable by law’.125 They should also prohibit public bodies from inciting racial discrimination; and put in place legislation to implement Articles 4 and 5 of CERD. States should undertake measures to ‘combat prejudices which lead to racial discrimination; to promote understanding, tolerance and friendship among nations and ethnic groups’;126 and ‘in the field of education and teaching to combat racial prejudices which lead to racial discrimination’.127 Educational measures also extend to ‘school curricula and in the training of teachers and other professionals, programmes and subjects to help promote human rights issues which would lead to better understanding, tolerance and friendship among nations and racial or ethnic groups’ and the inclusion of international documents such as the UN and OAU Charter, Universal Declaration of Human Rights (UHDR) and UN Convention on the Elimination of All Forms of Racial Discrimination (CERD) into education and teaching.128 States are also required to report on ‘the role of institutions or associations working to develop national culture and traditions, to combat racial prejudices and to promote intra-national and intra-cultural understanding, tolerance and friendship among nations and racial or ethnic groups; . . . the work of solidarity committees or United Nations Associations and the Organization of African Unity activities to combat racism and racial discrimination, and on the observance by States Parties of Human Rights Days or campaigns against racism and apartheid’.129 The role of State media is recognised as a tool to combat racial discrimination.130 In other contexts, the African Commission has called on governments, in the context of discrimination against indigenous peoples, to criminalise ‘acts of racial discrimination’.131 Attention to racial discrimination arose again in 2001 in the context of the UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in South Africa in September 2001. The African Commission was involved in the preparation as well as the Conference, nominating a focal point from among its members and maintaining the item on its agenda in the run-up to the event.132 Beyond this and the early days of the African Commission, in more recent years the African Commission has more often considered race in the context of ethnicity133 and indigenous peoples. For example, the African Commission highlighted the ‘stereotyped public attitude and prejudice against the Basarwa, some of it from high-ranking officials’, in Botswana calling on the government to ‘criminalize acts of racial discrimination but should take steps to ensure that all racial manifestations are dealt with in accordance with internationally

Guidelines for National Periodic Reports, April 1989, para V. Guidelines for National Periodic Reports, April 1989, para V. 127 Guidelines for National Periodic Reports, April 1989, para V. 128 Guidelines for National Periodic Reports, April 1989, para V. 129 Guidelines for National Periodic Reports, April 1989, para V. 130 Guidelines for National Periodic Reports, April 1989, para V. 131 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Botswana 15–23 June 2005, 5 December 2005, paras 2 and 16.3. 132 Resolution on the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, ACHPR/Res.50, 6 November 2000. 133 See following section. 125 126

62

3. Article 2: Non-Discrimination

recognized prescriptions, including Article 2 of the African Charter and Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination’.134 In one decision on a communication, however, where a licence was not granted to Capital Radio Private Limited in Zimbabwe because of its ‘predominately white ownership’ the complainants alleged discrimination on the basis of Article 2 of the ACHPR.135 Although the communication was held to be inadmissible on other grounds, when considering Article 56(2) the African Commission held that ‘the facts described in this Communication reveal a prima facie violation of the Charter’.136

2. Ethnic  Group The relationship with race and national origin is often made and not always distinguished. Where Burundi nationals, for example, were held to have been discriminated against in Rwanda, the African Commission held that ‘[t]‌here is considerable evidence, undisputed by the government, that the violations of the rights of individuals have occurred on the basis of their being Burundian nationals or members of the Tutsi ethnic group. The denial of numerous rights to individuals on account of their nationality or membership of a particular ethnic group clearly violates Article 2’.137

3. ‘Colour’ In a series of cases against Mauritania allegations were made regarding the treatment of ‘Black Mauritanians’, namely those of ‘Black African origin’ when distinguished from individuals of ‘Arabo-Berber origin’.138 Allegations included forcing Black Mauritanians to arbitrary detention, torture and extra-judicial killings. Drawing upon Article 1(1) of the UN Declaration of the Rights of People Belonging to National, Ethnic, Religious or Linguistic Minorities,139 the African Commission held that ‘for a country to subject its own indigenes to discriminatory treatment only because of the colour of their skin is an unacceptable discriminatory attitude and a violation of the very spirit of the African Charter and of the letter of its Article 2’.140

4. Sex a. Sex Considerable attention has been paid to the position of women by the African Commission including with the appointment of a Special Rapporteur on the Rights of Women in Africa141 and the adoption of a Protocol on the Rights of Women in Africa.142 Discussion Botswana: Mission Working Group Indigenous Populations/Communities, 2005. Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 56. 136 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 80. 137 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union Interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 23. See also Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016. 138 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association Mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 72. 139 Adopted by the General Assembly of the United Nations in Resolution 47/135 of 18 December 1992. 140 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association Mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 141. 141 142 See Chapter 19 (Article 18). See Chapter 19 (Article 18) and Chapter 39 (Protocol). 134 135

F. Grounds Under Article 2

63

is often in the context of Article 18(3) either alone or in conjunction with Article 2 and Article 3,143 as the following illustrates: the non-discrimination principle within the context of Article 2 and 18(3) of the African Charter ensures the protection from discrimination against women by States Parties to the African Charter.144

The detail with respect to women’s rights will be dealt with in Chapter 19 (Article 18).145 Although the phrase ‘gender-based’ has been used, this is in connection with women and it is only recently where sexual orientation and ‘sexual minorities’ have been specifically addressed by the African Commission. Discrimination in respect of women has been defined as per Article 1 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and General Recommendation No. 19 of the CEDAW Committee.146 The Protocol on the Rights of Women in Africa provides that it is ‘any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life’.147 In addition its Article 2 requires States Parties to the Protocol to ‘combat all forms of discrimination against women through appropriate legislative, institutional and other measures’. They should achieve this by including provisions on equality in national constitutions and law; ‘enact and effectively implement appropriate legislative or regulatory measures, including those prohibiting and curbing all forms of discrimination particularly those harmful practices which endanger the health and general well-being of women’; and ‘integrate a gender perspective in their policy decisions, legislation, development plans, programmes and activities and in all other spheres of life’. States should also take ‘corrective and positive action in those areas where discrimination against women in law and in fact continues to exist’; and ‘support the local, national, regional and continental initiatives directed at eradicating all forms of discrimination against women’.148 Furthermore, it also requires States to: commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.149

In a communication against Egypt, a number of women journalists were subject to physical assaults during riots. These included threats of being beaten, touching of breasts and having clothes and jewellery torn off, being slapped in the face while taking pictures, and 143 M. Ssenyonjo, ‘Women’s rights to equality and non-discrimination: Discriminatory family legislation in Uganda and the Role of Uganda’s Constitutional Court’, 21 International Journal of Law, Policy and the Family (2007) 341–372. 144 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 119. 145 Chapter 19 (Article 18). 146 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, paras 123-124. 147 Protocol on the Rights of Women in Africa, Article 1(f ). 148 Protocol on the Rights of Women in Africa, Article 2. 149 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

64

3. Article 2: Non-Discrimination

being called names such as ‘slut’ and ‘whore’, and being pulled to the ground.150 The State in response argued that the riots included both men and women and that the assaults were not inflicted on the individuals simply because they were women.151 Asking whether the men and women received equal treatment and whether this treatment was ‘fair and just’, the African Commission came to three conclusions: ‘the Victims were exclusively women; [t]‌he Victims were not protected from the perpetrators and other unidentified actors during the demonstrations; and [t]he violations were perpetrated on the Victims because of their gender’, thereby resulting in a violation of Article 2.152 Furthermore, ‘when looking at the verbal assaults used against the Victims, such as “slut” and “whore,” it is the opinion of the African Commission that these words are not usually used against persons of the male gender, and are generally meant to degrade and rip off the integrity of women who refuse to abide by traditional religious, and even social norms’.153 States have been asked to ‘take the necessary corrective and positive measures wherever discrimination against women exists’.154 They have also been required to ‘erase the discrimination of women especially in the process of rehabilitation. Vocational training facilities should be established for both men and women and where there isn’t enough space to establish separate facilities; both men and women should be trained in shifts’.155 Legislation has been found to have been discriminatory if it leaves widows ‘with no rights to inheritance’.156 States should ensure that they [r]‌epeal laws that discriminate against women and ensure dissemination and sensitization of the general public on legislation prohibiting discriminatory practices against women’.157 Reference has also been made to discriminatory customary laws and practices in the context of women.158 The Special Rapporteur on the Rights of Women has drawn attention to a range of issues including the discrimination faced by rural women in particular, calling on States to ‘devote additional financial resources to local and national programmes aimed at eliminating discrimination against women, in particular at the rural level, mainly in the sphere of education, promoting literacy and reproductive health’.159 States should also ‘repeal discriminatory laws and adopt legislative measures to sanction customary practices 150 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 151 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 126. 152 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, paras 138–139. 153 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 143. 154 Angola: Mission on Rights of Women, 2002, December 2005, para 14. 155 Ethiopia: Mission on Prisons and Conditions of Detention, 2004, May 2005, para 9. 156 Consideration of Reports Submitted by States Parties under Article 62 of the African Charter on Human and Peoples’ Rights Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999–2010), para 45. 157 Consideration of Reports Submitted by States Parties under Article 62 of the African Charter on Human and Peoples’ Rights Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999–2010). 158 Report of Promotion Mission to Nigeria, 2009, May 2010. 159 Statement by the Special Rapporteur on the rights of women in Africa on the occasion of the International Women’s Day, 6 March 2012.

F. Grounds Under Article 2

65

that limit or have a negative impact on women’s access to, use of and control over land and other productive resources’.160

b. ‘Sexual orientation’ and Gender Identity It is only relatively recently that the African Commission has paid any attention to the situation of individuals who are discriminated against on the basis of their sexual or gender identity. Jurisprudence and standards here are limited, in part because of a lack of communications on this issue before the African Commission and African Court and the sensitivity of the issue on the African continent.161 The African Commission has therefore struggled to deal with these matters. One of the earliest instances of sexual identity being raised in the context of Article 2 was Communication 136/94, William Courson v Zimbabwe,162 which highlighted criminalisation of sexual contacts between consenting adults of the same sex in Zimbabwe and alleged violations of Article 2 among others in the ACHPR. As the communication was withdrawn the African Commission did not discuss the admissibility or merits of the case. Since then these issues have arisen with increasing regularity. Although it was on the agenda of the Commission’s private sessions for a number of years,163 in part prompted by the first time the Coalition of African Lesbians (CAL) applied for observer status, no outcome paper from these discussions was made public. Greater attention by European States and others outside Africa, in particular against legislation adopted in a number of African States criminalising activities of individuals on the basis of their sexual orientation and violence perpetrated against individuals, has led to more vehement rhetoric from some African governments and so the issue has become more and more sensitive. In the midst of this the African Commission has been called upon to comment. It has done so by making ad hoc references across Concluding Observations, in various reports and in some communications.164 It has recognised and condemned particular practices adopted Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. R. Murray and F. Viljoen, ‘Towards non-discrimination on the basis of sexual orientation: The normative basis and procedural possibilities before the African Commission on Human and Peoples’ Rights and the African Union’, 29(1) Human Rights Quarterly (2007) 86–111. A. M. Ibrahim ‘LGBT rights in Africa and the discursive role of international human rights law’ (2015) 15 African Human Rights Law Journal 263–281. J. D. Mujuzi, ‘Discrimination against homosexuals in Malawi: Lessons from recent developments’, 11 Int’l J. Discrimination & L. (2011) 150–160. A. Rudman, ‘The protection against discrimination based on sexual orientation under the African human rights system’, 15 Afr. Hum. Rts. L.J. (2015) 1–27. L. Price, ‘The treatment of homosexuality in the Malawian justice system: R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa’, 10 AHRLJ (2010) 524–533. J Oloka-Onyango ‘Debating love, human rights and identity politics in East Africa: The case of Uganda and Kenya’ (2015) 15 African Human Rights Law Journal 28–57. E. K. Quansah, ‘Same-sex relationships in Botswana: Current perspectives and future Prospects’, 4 AHRLJ (2004) 201–217, discussing Utjiwa Kanane v The State, Botswana Court of Appeal, Criminal Appeal No 9 of 2003 (30 July 2003) unreported. See also East African Court of Justice, 20/2014-21/2014, Uhai Eashri Health Development Initiative (Rwanda) v Human Rights Awareness & Promotion Forum (HRAPF) & The Attorney General of the Republic of Uganda, where an organisation campaigning for human and sexual rights in east Africa was found not to be sufficiently neutral to file an amicus curiae brief before the East African Court of Justice. 162 Communication 136/94, William Courson v Zimbabwe, 22 March 1995. 163 ‘Consideration of (Private Session) Draft Paper on Sexual orientation in Africa’, Agenda of the 45th Ordinary Session, 13–27 May 2009, Banjul, The Gambia, para 8. Similarly, Agenda of the 47th Ordinary Session, para 7. 164 E.g. particularly vulnerabilities of gay men and other men who have sex with men to HIV, and transgender persons: HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-based Responses, Report on the Study of the African Commission on Human and Peoples’ Rights, November 2017, para 61. 160 161

66

3. Article 2: Non-Discrimination

in Africa, including ‘corrective’ or ‘curative’ rape for women who identify as lesbian or transgender,165 and restrictions imposed on and harassment of civil society organisations defending the rights of individuals on the basis of their sexual orientation.166 It has acknowledged, in a statement with other treaty bodies, that: [p]‌athologizing and stigmatizing medical classifications relating to gender identity and expression are used to justify subjecting trans people, even at young ages, to forced or coercive sterilization, hormone therapy, surgeries, and psychiatric evaluations, and in other ways abusively conditioning their human rights. These pathologizing classifications also create abusive obstacles to access safe gender affirming procedures for trans people, which leads to preventable and early deaths resulting from unsafe and clandestine procedures. Furthermore, on the basis of pathologizing classifications, LGBT people continue to be subjected to abusive, harmful and unethical forced treatments. These include so-called “conversion” or “reparative” “therapies” based on their sexual orientation or gender identity with particularly harmful effect on children and adolescents.167

The adoption of a significant resolution focusing solely on the issue in 2014 marked a watershed,168 pathing the way for the Commission to reiterate in 2016 that ‘[b]‌eing lesbian, gay, bisexual and trans is part of the rich diversity of human nature’.169 However, despite this progress, the African Commission’s caution has been criticised and the resolution noted for offering no more protection than is already available in domestic and international law.170 There have been attempts to include ‘sexual orientation’ among the list of prohibited grounds in Article 2 and with respect to Article 3. These have been in relation to cases where discrimination on the basis of sexual orientation was not raised. So, for example, in Communication 284/03 Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, the African Commission held that: ‘Article 3 guarantees fair and just treatment of individuals within the legal system of a given country. The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation’.171 Similarly, in Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe: Together with equality before the law and equal protection of the law, the principle of non discrimination provided under Article 2 of the Charter provides the foundation for the enjoyment of all human rights. As Shestack has observed, equality and non-discrimination “are central to the human rights movement.” The aim of this principle is to ensure equality of treatment for

165 Africa Torture Watch, Committee for the Prevention of Torture in Africa (CPTA) Newsletter, Sixth Edition, April 2016. See generally, L. Mwambene & M. Wheal ‘Realisation or oversight of a constitutional mandate? Corrective rape of black African lesbians in South Africa’ (2015) 15 African Human Rights Law Journal  58–88. 166 Report of the Joint Promotion Mission Undertaken to the Republic of Uganda by Commissioner Lucy Asuagbor, Commissioner Faith Pansy Tlakula, Commissioner Med S..K. Kaggwa & Commissioner Pacifique Manirakiza, 25–30 August 2013, para 60 and para 174. 167 Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 168 Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, ACHPR/Res.275, 12 May 2014. 169 Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 170 A.M. Ibrahim, ‘LGBT rights in Africa and the discursive role of international human rights law’ (2015) 15 African Human Rights Law Journal 263–281. 171 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 155.

F. Grounds Under Article 2

67

individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation.172

The African Commission has used the terms ‘sexual orientation’, sexual minorities’, ‘gender identity’, ‘sexuality’, and ‘gender expression’,173 often interchangeably.174 On occasion it has differentiated between ‘sex, sexuality, sexual orientation’ as prohibited grounds of discrimination;175 on others it refers to ‘sex, gender, sexual orientation’,176 or ‘sex/gender, sexual orientation’.177 Despite this inconsistency in the use of the terms this does imply that the African Commission does not necessarily interpret ‘sex’ as having to encompass sexual orientation or gender identity, but that the latter can now be included expressly. Concern has been expressed through resolutions and Concluding Observations, often in general terms, at the treatment of ‘sexual minorities’,178 and there have been occasions where the Commission has commended States for the adoption of legislation which prohibits discrimination on a range of grounds of which sexual orientation is one.179 The African Commission has referred to ‘lesbian, gay, bisexual and transgender (LGBT) people’,180 as well as ‘Lesbians, Gays, Bisexuals, Transgenders and Intersex (LGBTI),’181 highlighting concerns over their vulnerability, intimidation and ability to express themselves and associate freely. These groups are often taken together, but have, on occasion, been dealt with separately.182 An individual’s sexual orientation or gender identity can be ‘real or imputed’,183 or ‘real or perceived’.184 172 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, paras 169–170. 173 Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 174 E.g. Inter-Session Report May 2014–April 2015, presented by Honourable Commissioner Reine Alapini Gansou, para 22. Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. 175 General Comments on Article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, para 4. 176 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, Part I, para 1(a). 177 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59(k). 178 ‘[T]‌he African Commission remains concerned that . . . [t]he situation of vulnerable groups in general and in particular that of . . . human rights defenders remain precarious . . . [and that] [t]here is an upsurge of intolerance against sexual minorities’, Concluding Observations and Recommendations on the 2nd Periodic Report of the Republic of Cameroon, May 2005, paras 13–14, available at http://www.achpr.org/files/sessions/ 39th/conc-obs/1st-2001-2003/achpr39_conc_staterep1_cameroon_2005_eng.pdf. 179 Concluding Observations and Recommendations on the 2nd, 3rd, 4th and 5th Periodic Reports of the Republic of Mauritius, May 2009: para 15. 180 Press release on the Implication of the Same Sex Marriage [Prohibition] Act 2013 on Human Rights Defenders in Nigeria, 6 February 2014. Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 11 March 2014. Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 181 Activities as Special Rapporteur on Freedom of Expression and Access to Information, the Special Rapporteur on Freedom of Expression and Access to Information in Africa, by Adv. Pansy Tlakula, presented to the 48th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 10–24 November 2010. Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, Part I, para 1(e). 182 E.g. trans, see Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 183 Resolution on Protection against Violence and Other Human Rights Violations against Persons on the Basis of their Real or Imputed Sexual Orientation or Gender Identity, ACHPR/Res. 275(LV) 2014. 184 Inter-Session Activity Report (April 2014–April 2015) and Annual Situation of Torture and Ill-treatment in Africa Report, presented to the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, Commissioner Lawrence M. Mute, p. 14.

68

3. Article 2: Non-Discrimination

Among the key obligations of States is the requirement that they should ‘recognise and take steps to combat intersectional discrimination’ on sexuality as one of the grounds;185 ‘protect’186 ‘all persons against discrimination and violence, regardless of their sexual orientation’;187 ‘take measures’ to address violations of other rights of individuals who are lesbian, gay, bisexual, transgender or intersex; and provide them with ‘effective redress’ in the event of such violations.188 One State was called upon to ‘maintain an atmosphere of tolerance towards sexual minorities in the country’.189 States should adopt legal and policy reforms to ‘remove discriminatory laws and protect LGBT persons from violence and discrimination’.190 Medical classifications should be amended ‘to depathologize transgender identities and expressions and same-sex attraction’.191 Furthermore, States should also ‘adopt measures to prevent, investigate and prosecute all forms of forced, coercive and otherwise involuntary treatments and procedures on LGBT persons. They should further ensure the provision of health services based on informed consent and free from stigma, pathologization and discrimination, including gender affirming procedures for trans people’.192 States have an obligation to ‘ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals or criminal prosecution as a result of their human rights protection activities, including the rights of sexual minorities’.193 Further, the Special Rapporteur urged the Ugandan Government to spare no effort to ensure the security and physical integrity of all human rights defenders in Uganda’.194 The African Commission has also called on States to ‘end all acts of violence and abuse, whether committed by State or non-State actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims’.195 States have been ‘encourage[d]‌ . . . to continue dialogue on this sensitive issue of homosexuality in Africa’.196

185 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, Part III, para 38. 186 Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 187 Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. 188 State Periodic Reporting under Article 62 of the African Charter on Human and Peoples’ Rights, Indicative Questions to State Parties in respect of Article 5 of the African Charter, 17 June 2016. 189 Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. 190 Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 191 Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 192 Pathologization: being lesbian, gay, bisexual and/or trans is not an illness, 12 May 2016. 193 Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, ACHPR/Res.275, 12 May 2014. Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. 194 Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. 195 Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, ACHPR/Res.275, 12 May 2014. 196 Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014.

F. Grounds Under Article 2

69

Specific pieces of legislation in African States have also been the subject of concern by the African Commission, in particular its Special Rapporteur on Human Rights Defenders. This has included the Anti-Homosexuality Act 2014 in Uganda.197 With respect to this particular piece of legislation, the Special Rapporteur ‘regrets the promulgation of the law whose consequences seriously undermine the work of human rights defenders and endanger the safety of sexual minorities who are already vulnerable as a result of social prejudice. She strongly condemns any interference in the privacy of these individuals as well as acts of violence and harassment they are subjected to. The Special Rapporteur urges the Ugandan authorities to take the necessary measures to abrogate or amend the law’.198 Section 13 of the Act created an offences relating to the ‘promotion of homosexuality’, including ‘funds or sponsors homosexuality or other related activities; offers premises and other related fixed or movable assets for purposes of homosexuality or promoting homosexuality; who acts as an accomplice or attempts to promote or in any way abets homosexuality and related practices’, liable to a fine or imprisonment between five and seven years. The African Commission’s Special Rapporteur on Human Rights Defenders noted that this provision was: likely to endanger the life and safety of persons alleged to belong to sexual minorities, as well as human rights defenders working on this issue, since it undermines their activities and freedom of expression, association and assembly, all of which are rights guaranteed by the Ugandan Constitution, and the African Charter on Human and Peoples’ Rights, in particular Articles 2, 9, 10 and 11.199

However, such progress on developing rights in this area has been simultaneously undermined with the debate around the application for observer status of CAL.200 Although other organisations who also deal with sexual orientation issues have been granted observer status by the African Commission without any particular difficulties,201 the application from CAL, first applying in 2008, has had a much more troubled path.202 The status was refused in 2010203 but then was eventually granted in 2015204 after a heated debate in 197 Press release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. See also J. D. Mujuzi, ‘The drafting history of the provision on the right to freedom from discrimination in the Ugandan Constitution with a focus on the grounds of sex, disability and sexual orientation’, 12 Int’l J. Discrimination & L. (2012) 52–76. 198 Press release on the implications of the Anti-Homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. 199 Press release on the implications of the Anti-Homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 10 March 2014. See H.B.L. Persad, ‘Homosexuality and death: A legal analysis of Uganda’s proposed Anti-Homosexuality Bill’, 6 Florida. A&M.U.L. Rev. (2010-2011) 135–162. 200 J. Osogo Ambani, ‘The sexual minority rights conundrum in Africa: Contextualising the debate following the Coalition of African Lesbians’ application for observer status before the African Commission’, 2 Strathmore L.J. (2016) 181–188. 201 E.g. in 2009, Alternatives Cameroun, see Viljoen, International Human Rights Law in Africa, at 267. 202 F. Viljoen, ‘Norms, case law and practices of sexual orientation and gender identity in the African human rights system’ in Ending violence: and other human rights violations based on sexual orientation and gender identity: A joint dialogue of the African Commission on Human and Peoples’ Rights, Inter-American Commission on Human Rights and the United Nations, Pretoria University Law Press, 2015. S. Ndashe, ‘Seeking the protection of LGBTI rights at the African Commission on Human and Peoples’ Rights’, Feminist Africa, African Gender Institute. 203 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2012, 266. 204 See F. Viljoen, ‘Norms, case law and practices of sexual orientation and gender identity in the African human rights system’ in Ending violence and other human rights violations based on sexual orientation and gender identity: A joint dialogue of the African Commission on Human and Peoples’ Rights, Inter-American Commission on Human Rights and the United Nations, Pretoria University Law Press, 2015, 41.

70

3. Article 2: Non-Discrimination

public during the Session. When the African Commission reported to the AU organs, the Executive Council then asked it to withdraw the status it had given to CAL in order to ‘take into account the fundamental African values, identity and good traditions, and to withdraw the observer status granted to NGOs who may attempt to impose values contrary to the African values’.205 This prompted the Centre for Human Rights at the University of Pretoria and CAL to approach the African Court requesting it for an advisory opinion regarding the ‘extent to which the AU political organs may direct the Commission to adopt a particular interpretation of the African Charter’.206 Unfortunately, the African Court concluded the matter without considering the substance of the request.207 What this sequence of events illustrates is the highly sensitive nature of the debate on the continent, the lack of consensus among the Commissioners themselves as to their position on the issue, and the willingness of the AU to interfere in the independence of the African Commission. The African Commission’s reference in its 39th activity report that it was undertaking a ‘detailed legal analysis on this matter, including considering issues relating to the Commission’s relationships with its various stakeholders, the notion of African values, the legal basis for the grant of Observer Status by the Commission, and the implications of withdrawing or retaining the observer status of NGOs’,208 could be taken as complying with the Executive Council’s request. In the subsequent Resolution on the Criteria for Granting and Maintaining Observer Status to Non-Governmental Organizations working on Human and Peoples’ Rights in Africa209 it cited the Executive Council decision and that those applying should have ‘objectives and activities in consonance with the fundamental principles and objectives enunciated in the African Union (AU) Constitutive Act, the preamble to the African Charter on Human and Peoples’ Rights, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol)’. Besides updating the language from the OAU Charter and the insertion of the reference to the Maputo Protocol, this new criteria omits the African Charter itself, referring only to its preamble. Then finally, after a further push from the AU organs in July 2018 for the Commission again to withdraw observer status,210 it acceded to their request. Its inability to stand firm in the face of pressure has, in the words of CAL, ‘dealt a significant blow to human rights in Africa, and undermined its credibility, independence and mandate as the premier institution on the continent tasked with defending and upholding the human rights of all’.211

5. Language One communication and subsequent civil society concerns have alleged that Southern Cameroonians were discriminated against because their language was English. Although 205 Decision on the 38th Activity Report of the African Commission on Human and Peoples’ Rights, Doc. EX.CL/921 (XXVII). 206 African Court on Human and Peoples’ Rights, Request for Advisory Opinion by the Centre for Human Rights (CHR) University of Pretoria and the Coalition of African Lesbians, App. No. 002/2015. 207 App. No. 002/2015, Advisory Opinion, 28 September 2017; see Chapter 39 below. 208 39th Activity Report of the African Commission on Human and Peoples’ Rights, 2015, para 50. 209 Resolution on the Criteria for Granting and Maintaining Observer Status to Non-Governmental Organizations working on Human and Peoples’ Rights in Africa, ACHPR/Res.361, 4 November 2016. 210 EX.CL/Dec.1015(XXXIII). 211 ‘Women and Sexual Minorities Denied a Seat at the Table by the African Commission on Human and Peoples’ Rights’, Coalition of African Lesbians, 17 August 2018, https://www.cal.org.za/2018/08/17/women- and-sexual-minorities-denied-a-seat-at-the-table-by-the-african-commission-on-human-and-peoples-rights/.

F. Grounds Under Article 2

71

English is one of the official languages of Cameroon, the system used was the Francophone civil law system. This impacted, among other things, on the ability to register companies. In its decision on the communication the African Commission found that ‘Southern Cameroonians had a legitimate expectation that the English language could be used to conduct official business, including the registration of companies. The Commission makes a finding that the refusal to register companies established by Southern Cameroonians on account of language amounted to a violation of Article 2 of the African Charter’.212 Furthermore, by ratifying the Treaty for the Harmonisation of Business Law in Africa or Organisation pour l’Harmonisation des Droits d’Affaires en Afrique (OHADA), the complainants alleged that this discriminated against the people of Southern Cameroon on the basis of language as OHADA required French to be the language used in the interpretation and settlement of disputes arising under the treaty. The African Commission recognised the measures taken by Cameroon to address the language concerns including translating OHADA laws into English and training magistrates, noting that ‘[h]‌ad such measures not been taken upon the ratification of OHADA in 1996, the Commission would not have hesitated to find a violation’.213 However, it was ‘cognisant of the bilingual nature of the Respondent State and the Western African region, in which the Respondent State finds itself. The Respondent State is from time to time being expected to interact with its neighbours in ECOWAS, or any other sub regional group, where both the French and the English language continue to be lingua franca’.214 Therefore, accession or ratification of OHADA per se was not a violation of Article 2 ‘unless the Respondent State had manifestly failed to take any steps to ameliorate the effects of the linguistic differences’.215 What the OHADA ratification had done in this instance, however, was to discriminate against Anglophone companies who had been unable to open bank accounts unless registered, resulting in the African Commission holding that as no measures were taken by the State on this issue: [n]‌otwithstanding the translation of OHADA into English, it was wrong for institutions, such as banks to force Southern Cameroon based companies to change their basic documents into French. The banks and other institutions could have dealt with the companies without imposing the language conditionality. Banking documents should have been translated into English. The Commission finds that the Respondent State failed to address the concerns of Southern Cameroonian businesses, which were forced to re-register under OHADA, and as such violated Article 2 of the African Charter.216

States have been recommended to recognise language requirements of indigenous peoples. With respect to the Basarwa in Botswana, for example, the African Commission called on the government to ‘take urgent steps to introduce appropriate measures, including mother tongue education for Basarwa for at least the first five years of primary education. As there are several languages, the Government might introduce village schools for Basarwa pupils of each village and train teachers to teach in their languages’.217 Furthermore, ‘[v]‌illage schools should be established in each village, which will provide mother tongue

Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 102. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 107. 214 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 107. 215 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 108. 216 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 108. 217 Botswana: Mission Working Group Indigenous Populations/Communities, 2005. 212 213

3. Article 2: Non-Discrimination

72

education up to grade five. The Government should train teachers, preferably persons from the Basarwa community, to teach the pupils. Free education up to grade 12 should be instituted for Basarwa learners. Those who drop out of school should be trained in appropriate vocational activities such as carpentry, bricklaying and other professions such as nursing and tourist guides’.218 Similarly, in Libya, the Tuareg and Toubou languages were identified by the African Commission has having been sidelined, noting: the relatively small importance officially placed on the language of the indigenous peoples and questions the Libyan authorities’ intention to promote the Tuareg language, which seems to have been postponed indefinitely. In the eyes of many Libyans, this situation represents an injustice and it is indeed one in the context of Article 2 of the African Charter of Human and Peoples’ Rights, which prohibits all segregation on the basis of language, among other things. The language decree, which raises expectations as to the teaching of minority indigenous languages, has not been implemented despite the clear provisions of Articles 2, 3 and 4.219

It has implied that associations could be set up to ‘defend the Tuaregs’ cultural, linguistic and other rights’ although this has not been expressed by the African Commission particularly forcefully.220 Furthermore, the inability of Tuareg to express themselves in political administration in their own language was considered by the African Commission to be ‘a form of discrimination, and places them in a weaker position compared to the Arabs. This is hence a form of domination and of long-term assimilation that runs counter to the African Charter on Human and Peoples’ Rights, in particular Article 2 on the prohibition of discrimination, including discrimination based on language, Article 13 on participation in public life, Article 19 on equality of peoples and Articles 20 and 22 on the right to freely determine their own development’.221

6. Religion Although reference to discrimination the basis of ‘their Muslim religious persuasion’ was noted in a case involving deprivation of the right to nationality of Dioula individuals in Côte d’Ivoire, the focus of the case was principally around their ethnicity: With regard to first generation Dioulas, the Commission notes, among other things, that, access to Ivorian nationality is denied them on the basis of their « Dioula » ethnic origin and their Muslim religious persuasion. As the Commission has concluded above, the vagueness and inaccuracy of the nationality Code and the inappropriate nature of the subsequent laws ensured the adoption of policies and practices which discriminate against the Dioulas. The Complainant has amply proved that persons of the Dioula ethnic group or persons perceived as such have been refused the nationality identity card or the certificate of nationality merely because of the « non-Ivorian » consonance of their names. They received the same treatment because they were from the northern region of Côte d’Ivoire and that they were Muslims. Even persons perceived to be Dioulas who had acquired nationality documents at a certain point, had these documents seized for the same reasons’.222

Botswana: Mission Working Group Indigenous Populations/Communities, 2005. Libya: Research and Information Visit regarding Indigenous Populations/Communities, 2005. 220 Libya: Research and Information Visit regarding Indigenous Populations/Communities, 2005. 221 Libya: Research and Information Visit regarding Indigenous Populations/Communities, 2005. 222 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 146. 218 219

F. Grounds Under Article 2

73

The African Commission therefore concluded that: with regard to discrimination against Dioulas, the Commission notes that it is based on their ethnic origin, consonance of their patronymics and their Muslim religious persuasion.223

In a case against Sudan relating to the use of lashings as a punishment under Shari’a law, the African Commission was only called upon to consider Article 5 of the ACHPR and noted that it was not asked to examine any arguments based on Shari’a law.224

7. Political or Other Opinion The African Commission has referred to Article 2 in the broader context of the human rights situation in Africa, and although not directly linking it, it does urge the Egyptian government to ‘put an end to the harassment, arbitrary arrest, detention and sentencing of journalists, human rights defendants, and individuals who express dissenting views regarding the Government’s actions’.225 A few cases have raised political belief or opinion as a ground for protection against discrimination. In one case against The Gambia it was alleged that suspension of the Bill of Rights in the constitution was in violation of Article 2. The communication had alleged a wide range of violations. The African Commission found that ‘[b]‌y suspending Chapter 3 (the Bill of Rights), the government therefore restricted the enjoyment of the rights guaranteed therein, and, by implication, the rights enshrined in the Charter. . . . The suspension of the Bill of Rights and consequently the application of the Charter was not only a violation of Article 1 but also a restriction on the enjoyment of the rights and freedoms enshrined in the Charter, thus violating Article 2 of the Charter as well’.226 It does not clarify why a violation of Article 2 in particular occurred. One can imply from the facts of the case which included allegations of ‘banning of political parties and of ministers of the former civilian government from taking part in any political activity’, that it may have been referring to these. In other cases the political opinions of alleged victims have not been the sole basis of their discrimination, and the basis on which the African Commission has found the violation of Article 2 is not always clarified. For example, in a communication against Zambia where Willian Steven Banda was deported to Malawi, although the African Commission noted that him being a political opponent of the ruling party ‘cannot be lost sight of ’, it did not appear that this was the basis on which it found a violation of Article 2, stating instead that ‘he was singled out for action because of his ethnic origin’.227 In Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, it was alleged that female journalists were assaulted on account of their sex and their political views contrary to Article 2 among other rights.228 Although the focus of the African Commission’s analysis and finding was in relation to the fact that the journalists were female, it did hold that ‘[a]‌ccordingly, when women are targeted due to their Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 144. Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, and see para 41. 225 Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt—ACHPR/ Res.297 (EXT.OS/XVII) 20, 28 February 2015, para 3. 226 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, paras 48 and 50. 227 Communication 212/98, Amnesty International v Zambia, 5 May 1999, paras 45, 51–52. 228 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, paras 75 and 77. 223 224

74

3. Article 2: Non-Discrimination

political opinion for the mere fact of being women, and are not assured the necessary level of protection by the State in the face of that violence, a range of their fundamental human rights are at stake, including their right to sexual equality’.229 Where a number of former Eritrean government officials were ‘openly critical’ of the current Eritrean government, resulting in their arrest and detention, the African Commission found that they had been ‘detained on account of their political beliefs’ but despite finding a violation of Article 2 did not provide any further analysis of this provision, focusing instead on Articles 6 and 7.230

8. National and Social Origin The African Commission has held that Article 2 imposes on States a duty to ‘ensure that persons living on their territory, are they their nationals or non-nationals enjoy the rights guaranteed in the Charter’.231 As noted in Chapter 6 (Article 5), States have various obligations with respect to the right to nationality. The African Commission has noted that Article 2 of the ACHPR and Articles 6(g) and (h) of the Protocol on the Rights of Women in Africa ‘establish the equal right of men and women to acquire their partner’s nationality’.232 It also implies that that deprivation of nationality ‘as a result of discrimination’ will be arbitrary and calls on States to ‘refrain from taking discriminatory nationality measures and to repeal laws which deny or deprive persons of their nationality on grounds of race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status, especially if such measures and laws render a person stateless’.233 States are further required to ‘take the necessary measures to strengthen civil registration services to ensure the prompt registration of the births of all children on their territory, without discrimination’.234 It has stated the ‘discriminatory provisions pertaining to the right to citizenship in national laws’, such as those ‘where nationality by descent is expressly restricted to members of ethnic groups originating from the State or the continent’.235 It has also noted that ‘[r]‌efugees and internally displaced persons have the right to enjoy the protection of international humanitarian law and human rights without discrimination’.236 Consequently States have been called on to ‘sensitise and advocate for the elimination of xenophobic attitudes in the society and the police forces towards foreigners and immigrants, including the provision of specialised training to the police in the handling of immigrants, asylum seekers, and refugees alike. Police who constantly come into contact with such vulnerable groups should be trained so as to enable them to adopt an appropriate attitude in their relations with those under their custody, and in particular, they 229 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 155. 230 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 50. 231 Communication159/96, Union Interafricaine des droits de l’Homme, Fédération Internationale des Ligues des droits de l’Homme, RADDHO, Organisation Nationale des droits de l’Homme au Sénégal and Association Malienne des droits de l’Homme v Angola, 11 November 1997. 232 Resolution on the Right to Nationality, ACHPR/Res.234, 23 April 2013. 233 Resolution on the Right to Nationality, ACHPR/Res.234, 23 April 2013. 234 Resolution on the Right to Nationality, ACHPR/Res.234, 23 April 2013. 235 African Union African Commission on Human and Peoples’ Rights, the Right to Nationality in Africa, May 2014, p.38. 236 Statement by the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa on the Occasion of World Refugee Day 2015, 19 June 2015.

F. Grounds Under Article 2

75

should be trained to do away with any intimidating behaviour, and encouraged to cultivate their interpersonal communication skills’.237 The mass expulsion of West Africans from Zambia when they formed the majority of those expelled beyond those from immediate neighbouring States, was found to be in violation of Article 2 among other rights. The African Commission noted in particular that, when examining Article 12, ‘[c]‌learly, the drafters of the Charter believed that mass expulsion presented a special threat to human rights. The Charter makes this point clearly in Article 2’.238 Violations of a range of rights in the ACHPR during the conflict in the DRC were also found to be ‘flagrant violations’ of Article 2, ‘such acts being directed against the victims by virtue of their national origin’.239 Where individuals who were non-nationals were deported, the African Commission held the right of States ‘to regulate entry, exit and stay of foreign nationals in their territories’ and ‘although the African Charter does not bar deportations per se, the African Commission reaffirms its position that “a state’s right to expel individuals is not absolute and it is subject to certain restraints,” one of those restraints being a bar against discrimination based on national origin’. Even if ‘the victims belonged to a larger group which did not consist of only Gambian nationals, but nationals of several foreign countries . . . the simultaneous expulsion of nationals of many countries does not negate the charge of discrimination’.240 Thus, the violations had ‘as their target, foreigners or non-nationals’ which was a ‘clear violation of the provisions of the African Charter under Article 2, which encapsulates crucial human rights holding at bay such practices as that of the Respondent State. Rights under the African Charter are to be enjoyed by all, without discrimination, by citizens and non-national residents alike’.241 Andrew Barclay Meldrum was deported from Zimbabwe, the African Commission finding no clear rationale as to why this occurred resulting in its conclusion that ‘it can only be concluded that he was deported because he was a non-national who had published what the Respondent State considered to be falsehoods, which are not protected by the Constitution’. Although this would appear to have been a violation on the basis of not only his national origin but also his political opinion, the African Commission chose to focus on the former in this case: It would be interesting to know what the government would have done if Mr Meldrum was a Zimbabwean. Surely, the Respondent State would not have deported its own national to another country. The only logical reason the State deported him under then prevailing circumstances was because he was a non-national. In the opinion of the Commission therefore, it appears that the

South Africa: Promotion Mission, 2001, May 2003, recommendation 3. Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, paras 20–21. 239 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 80. 240 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 79. See also Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 93. 241 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008. 237 238

76

3. Article 2: Non-Discrimination

victim was targeted because he is not a national of the Respondent State, and this according to the Commission constitutes a violation of Article 2 of the Charter.242

A handful of cases have involved challenging the requirement that those running for president of the country should have both parents born there. This was the position, for example, with respect to Articles 35 and 65 of the 2000 Constitution of the Republic of Côte d’Ivoire.243 The African Commission’s reasoning is based not only on the national origin but also birth.244 It will not be discriminatory if only nationals of the State are eligible for appointment to the judiciary.245

9. Fortune There have been very few occasions where fortune specifically has been dealt with as a ground for discrimination. It has been implied, for example, in relation to discrimination against the youth, the African Commission commenting that this may be also be on account of ‘inequality in income and wealth’.246 In addition, it has also been recognised that, for instance, prices for medicines may impact disproportionately on the poor.247 Article 2 of the M’Baye draft referred to ‘economic status’ rather than ‘fortune’.

10. Birth A case against Zambia alleged violations of Articles 2, 3 and 19 of the ACHPR on the basis that Zambian legislation required those standing for president to have both parents to be Zambians by birth or descent thus resulting in the former president from standing as well as thirty-five per cent of the electorate.248 The African Commission held ‘[t]‌o suggest that an indigenous Zambian is one who was born and whose parents were born in what came (later) to be known as the sovereign territory of the State of Zambia may be arbitrary and its application of retrospectivity cannot be justifiable according to the Charter’.249 Similar provisions in the constitution of Côte d’Ivoire were also the subject of a later communication to the African Commission.250 Considering Article 2 as well as Article 13, the African Commission held that the right to vote and to stand for election were individual rights ‘which must not be tied to the status of some other individual or group of individuals. The right must be exercised by the individual simply because he/she is an individual, and not tied to the status of another individual. Distinctions must thus 242 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 94. 243 Communication 246/02, Mouvement Ivoirien des droits Humains (MIDH) v Côte d’Ivoire, 29 July 2008, paras  54–57. 244 See section F.10 (on birth) below. 245 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003 246 Resolution on the Human Rights issues affecting the African Youth—ACHPR/Res. 347(LVIII) 2016, 20 April 2015. See further below under ‘Age’. 247 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008, para 2. 248 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001. 249 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 71. 250 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, paras  54–57.

F. Grounds Under Article 2

77

be made between the rights an individual can exercise on his own and the fights he/she can exercise as a member of a group or community’.251 Consequently, if citizens who are born in the State are prohibited from standing for elections because of where their parents were born, this would, according to the African Commission, ‘be stretching the limit of objectivity and reasonableness too far’.252 Even though positions such as President, Speaker and Deputy Speaker are ‘very crucial to the security of the country and it would be unwise to put a blank cheque vis-à-vis accessibility to these positions’ and restrictions themselves were not a violation of the African Charter, they should not be ‘discriminatory, unreasonable and unjustifiable’.253 Treating individuals whose parents were born outside of Côte d’Ivoire differently from those whose parents were born in Côte d’Ivoire was therefore discriminatory.254

11. Any Other Status The list of grounds in Article 2 are not considered to be exhaustive. The inclusion of the phrase ‘any other status’ has enabled the African Commission to apply the non- discrimination provision to other categories. Although the M’Baye Draft referred to ‘any other social condition’, this was amended to the broader ‘any other status’ in the final instrument and better reflects the expansive approach that has been adopted by the African Commission. For example, it has called upon States to provide clean drinking water and in so doing to ‘comply with the principle of non-discrimination within and among riparian populations, and take into account the needs of vulnerable persons, in particular women and children, persons with disabilities, elderly persons, rural populations living in geographically inaccessible areas, displaced persons, refugees and persons deprived of their liberty’.255 In addition, it has noted that ‘indigenous peoples have suffered historical injustices in different countries, including the CAR. This injustice has included a lack of recognition and protection of their way of life, and this has in turn led to the particular discrimination which affects them today’.256 It has paid particular attention to the rights of persons with disabilities, including albinism,257 and to age. These are often discussed in the context of Article 18(4) and will therefore be dealt with in detail in Chapter 19. However, a number of comments have been made by the African Commission on these issues in the context of discrimination specifically. 251 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 84. 252 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 85. 253 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 85. 254 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 85. 255 Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII) 20, 28 February 2015, para 8. 256 Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information, Visit to the Central African Republic, 15–28 January 2007, adopted at its 43rd Ordinary Session, 7–22 May 2008, p.32. 257 Resolution on the Attacks on Persons with Albinism in Malawi, ACHPR/Res. 337 (EXT.OS/XX) 2016, 18 June 2016.

78

3. Article 2: Non-Discrimination

a. Disability and Albinism Article 2 does not contain reference to disability but Article 18(4) does.258 The African Commission has stated that ‘human dignity is an inherent right which all human beings are entitled to without discrimination on the basis of disability’,259 but recognised ‘the continuous discrimination of persons with disabilities in accessing education where educational policies and services exclude them from learning institutions. Persons with disabilities also are often marginalized in participating in the conduct of public affairs, including the right to vote and be elected, as well as accessing public services’.260 The African Commission has called for ‘special measures of protection’ for those persons with disabilities.261 A Continental Plan of Action for the African Decade of Persons with Disabilities (2010–2019) which was adopted by the 36th Session of the Assembly of Heads of State and Government in Lomé, Togo in July 2000, requires States to ‘[a]‌mend, through their parliaments and national assemblies, constitutional bills of rights to include a non-discriminatory clause on the basis of disability’.262 A Working Group on Rights of Older Persons and People with Disabilities was developed from a focal point on older persons originally established in 2007.263 The Working Group was mandated, in part, to draft a concept paper as a basis for adoption of a Draft Protocol on Ageing and People with Disabilities.264 A Draft Protocol on the Rights of Persons with Disabilities was adopted in February 2016 and open for consultation. Its Article 1(d) defines ‘discrimination on the basis of disability’ as: any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Discrimination on the basis of disability shall include denial of reasonable accommodation.265

258 N. C. Umeh, ‘Reading “disability” into the non-discrimination clause of the Nigerian constitution’, 4 Afr. Disability Rts. Y.B. (2016) 53–76. 259 Resolution on the Right to Dignity and Freedom from Torture or Ill-Treatment of Persons with Psychosocial Disabilities in Africa, ACHPR/Res. 343(LVIII) 2016, 20 April 2016. 260 Statement by the African Commission on the International Day of Persons with Disabilities—Theme “Break Barriers, Open Doors: for an inclusive society and development for all”, 3 December 2013. 261 Resolution on accessibility for persons with disabilities, ACHPR/Res.305 (EXT.OS/XVIII) 2015, 7 August 2015. 262 Continental Plan of Action for the African Decade of Persons with Disabilities (2010–2019), 36th Session of the Assembly of Heads of State and Government in Lomé, Togo in July 2000, para 20(c). 263 Resolution on the Appointment of a Focal Point on the Rights of Older Persons in Africa, ACHPR/ Res.118, 28 November 2007. 264 Transformation of the Focal Point on the Rights of Older Persons in Africa, into a Working Group on the Rights of Older Persons and People with Disabilities in Africa (the Working Group), ACHPR/Res.143, 27 May 2009. See F. Viljoen and J. Biegon, ‘The feasibility and desirability of an African disability rights treaty: Further norm-elaboration or firmer norm-implementation’, 30(2) South African Journal on Human Rights, Vol. 30, Issue 2 (2014), 345–365; S.A.D. Kamga, ‘A call for a protocol to the African Charter on Human And Peoples’ Rights on the rights of persons with disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. (2013) 219–249. 265 Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, Adopted at the 19th Extra-Ordinary Session of the African Commission on Human and Peoples’ Rights, held between 16–25 February 2016, in the Islamic Republic of The Gambia.

F. Grounds Under Article 2

79

Article 3 of the Draft Protocol requires: 1. States Parties shall prohibit discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 2. States Parties shall ensure that persons with disabilities are not discriminated, on one or more grounds, including denial of reasonable accommodation, on the basis of birth, age, gender, sex, race or ethnicity, language, religion, colour, nationality, economic, social or political status, health or other status. 3. States Parties shall take steps to ensure that specific measures, as appropriate, are provided to persons with disabilities in order to promote equality and eliminate discrimination, and such measures shall not be considered discrimination. 4. States Parties shall take effective and appropriate measures to protect the parents, children, caregivers or intermediaries of persons with disabilities from discrimination on the basis of their association with persons with disabilities’. Where Gambian legislation enabled the detention of persons described as ‘lunatics’, complainants in one case alleged violations of various provisions of the ACHPR including Article 2. These individuals did not have the right to challenge their detention but could ask for a review of their assessment or bring tort actions for false imprisonment or negligence. They would not be entitled to legal aid or assistance. The African Commission found that: [t]‌he category of persons that would be detained as voluntary or involuntary patients under the LDA are likely to be people picked up from the streets or people from poor backgrounds. In cases such as this, the African Commission believes that the general provisions in law that would permit anybody injured by another person’s act can only be available to the wealthy and those that can afford the services of private counsel. Clearly the situation presented above fails to meet the standards of anti-discrimination and equal protection of the law as laid down under the provisions of Articles 2 and 3 of the African Charter and Principle 1(4) of the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Illnesses and the Improvement of Mental Health Care.266

Specific attention has been paid to albinism. For example, the African has called upon States to ‘take effective measures to eliminate all forms of violence and discrimination against persons with albinism, and to increase education and public awareness-raising activities’.267

b. Persons with HIV/AIDS Although there is no express reference to HIV/AIDS within Article 2 it has been argued that it is protected under ‘other status’.268 The African Commission itself has recognised the discrimination against those living with HIV/AIDS across the continent:

Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, paras 55 and 56. Resolution on the Attacks on Persons with Albinism in Malawi—ACHPR/Res. 337 (EXT.OS/XX) 2016, 18 June 2016, para (iv); Statement by the Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa on the murder of Munghu Lugata, a forty-year-old woman with albinism in north-western Tanzania on 12 May 2014, 26 May 2014. 268 M. Abate, ‘HIV testing from an African human rights system perspective: An analysis of the legal and policy framework of Ethiopia’, 1 Mekelle U. L.J. (2010) 70–96, at 75; S. Gumedze, ‘HIV/AIDS and human rights: The role of the African Commission on Human and Peoples’ Rights’, 4 Afr. Hum. Rts. L.J. (2004) 181–200, at 189; A. Nienaber, ‘The African regional human rights system and HIV-related human experimentation: Implications of Zimbabwe Human Rights NGO Forum v Zimbabwe’, 9 Afr. Hum. Rts. L.J. (2009) 524–545. 266 267

80

3. Article 2: Non-Discrimination

despite sensitisation campaigns, stigma, discrimination, marginalisation of persons living with HIV and gender inequality persist on the continent, and are causes of the spread of the pandemic, as they slow down HIV prevention and treatment efforts since infected persons are forced to hide their status.269

The AU similarly has recognised discrimination against those living with HIV/AIDS in the context of its Abuja Declaration in 2001.270 Criminalisation and mandatory testing of persons living with HIV has been recognised as leading to increased discrimination and stigmatisation.271 In relation to women specifically, the African Commission has also recognised that ‘access by women living with HIV to the enjoyment of sexual and reproductive health rights is generally and severely limited or denied, as a result of HIV-related discrimination, stigma, prejudices and harmful customary practices’.272 It thus ‘condemns all forms of discrimination and human rights violations relating to access to adequate health services’,273 and has called on States to [e]‌nsure regular training of medical personnel on the protection of human rights in the context of health care, including the principles of informed consent and non-discrimination’.274 States should also adopt legislation ‘to ensure that people with HIV/AIDS are not stigmatized or discriminated against, especially in places of work’275 and on a mission to Uganda, the African Commission recommended that the government ‘amend the HIV/ AIDS Prevention and Control Bill, so as to address the provisions that may attract stigma and discrimination by targeting already marginalized and vulnerable groups in society such as sex workers, pregnant women, and drug users’.276 It also urged the government to ‘strengthen its legal protection framework for PLHIV to discourage HIV-related human rights violations’.277 269 Press release on World AIDS Day. See also Mauritius: Promotion Mission, 2006, August 2006; Lesotho: Promotion Mission, 2006, April 2006, recommendation 1. African Commission on Human and Peoples’ Rights Resolution on the Establishment of a Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV (2010). See also HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-based Responses, Report on the Study of the African Commission on Human and Peoples’ Rights, November 2017, paras 40–42. M. Pieterse, ‘Disentangling illness, crime and morality: Towards a rights-based approach to HIV prevention in Africa’, 11 Afr. Hum. Rts. L.J. (2011) 57–74. 270 Abuja Declaration on HIV/ AIDS, Tuberculosis and Other Related Infectious Diseases (Abuja Declaration), 36 and the Abuja Framework for Action for the Fight against HIV/AIDS, Tuberculosis and Other Related Infectious Diseases (Abuja Framework), OAU/SPS/ABUJA/3. 271 Resolution on the Appointment of the Chairperson and Members of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.195, 5 November 2011. HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-based Responses, Report on the Study of the African Commission on Human and Peoples’ Rights, November 2017, paras 43, 46. See also E. Durojaye, ‘The impact of routine HIV-testing on HIV-related stigma and discrimination in Africa’, 11 Int’l J. Discrimination & L. (2011) 187–200. 272 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 273 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 274 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013, para 5. 275 Ghana: Promotion Mission, 2008, September 2008, para 15. See also Resolution on the HIV/AIDS Pandemic—Threat Against Human Rights and Humanity, ACHPR/Res.53, 7 May 2001, para 2. 276 Uganda: Promotion Mission, 2013, July 2013 277 Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Republic of Uganda, 30 August 2013.

F. Grounds Under Article 2

81

c. Age As with disability, age has also been the focus of the African Commission’s attention, again not only in relation to Article 2 but also Article 18(4). Similarly, the AU has recognised that ‘[a]‌ge based discrimination is pervasive and prevents older people from accessing basic rights such as adequate health care and legal protection’.278 Age has been considered from the perspective of youth as well as older persons. For the former, the African Commission has recognised that ‘many of whom are marginalised as a result of inequality in income and wealth and lack of access to decision-making institutions, as well as the high illiteracy rate, unemployment and underemployment’.279 For the latter, the African Union Policy Framework and Plan of Action on Ageing calls on States to recognise ‘the fundamental rights of older persons and commit themselves to abolishing all forms of discrimination based on age’280 and sets out recommendations for States including ensuring that they eliminate discrimination against older people in employment and training; security of tenure and land rights; and revise corporate policies that discriminate against older people.281 The African Commission has established a focal point on the rights of older persons,282 part of whose mandate was to consider the development of an additional protocol to the ACHPR,283 achieved when the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa was adopted on 31 January 2016. Its Article 3 specifically deals with the ‘elimination of discrimination against older persons’. States Parties to the Protocol are required to ‘prohibit all forms of discrimination against Older persons and encourage the elimination of social and cultural stereotypes which marginalise Older Persons; [t]‌ake corrective measures in those areas where discrimination and all forms of stigmatisation against Older Persons continue to exist in law and in fact; and [s]upport and enforce local, national, regional, continental and international customs, traditions and initiatives directed at eradicating all forms of discrimination against Older Persons’.284 Article 6 has additional provisions on protection against discrimination in employment, obliging States to ‘[t] ake measures to eliminate work place discrimination against Older Persons with regard to access to employment taking into consideration occupational requirements; and [e] nsure appropriate work opportunities for Older persons taking into account to their medical and physical abilities, skills and experience’.285 States are also required to ‘ensure 278 AU Policy Framework and Plan of Action on Ageing, HelpAge International and the African Union, July 2002, para 4.1. 279 Resolution on the Human Rights issues affecting the African Youth—ACHPR/Res. 347(LVIII) 2016, 20 April 2015. 280 As referred to in Resolution on the Rights of Older Persons in Africa, ACHPR/Res.106, 30 May 2007. See AU Policy Framework and Plan of Action on Ageing, HelpAge International and the African Union, July 2002, para 4.1. See also UN Economic Commission for Africa, African Centre for Gender and Social Development, Report on Ageing—Africa Region. 281 AU Policy Framework and Plan of Action on Ageing, HelpAge International and the African Union, July 2002. 282 Resolution on the Rights of Older Persons in Africa, ACHPR/Res.106, 30 May 2007. See section I below. 283 Resolution on the Establishment and Appointment of a Focal Point on the Rights of Older Persons in Africa, ACHPR/Res.118, 28 November 2007. 284 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa was adopted on 31 January 2016. 285 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa was adopted on 31 January 2016.

82

3. Article 2: Non-Discrimination

the protection of the rights of Older Women from violence, sexual abuse and discrimination based on gender’.286 The Principles and Guidelines on the Right to a Fair Trial prohibit discrimination on the grounds listed in Article 2 as well as gender, creed, and disability, for appointments to judicial office. States are, however, permitted to set a minimum age or experience, a maximum retirement age or duration of service and that the age can differ with the level of seniority of the judiciary.287

G. Evidence Despite the implication on various occasions that Article 2 is not a stand-alone right, the African Commission has adopted the same approach as with other rights in the ACHPR, requiring evidence from the complainants to prove violations of Article 2 specifically. In one communication, for example, which alleged distinctions between beneficiaries of different pension schemes it noted that: there are no conflicting accounts of the facts of the present Communication at the heart of which is whether the distinction that arose from the payment of pension benefits to the beneficiaries of the first and second privatisation schemes of the Venda Pension Fund, who respectively received 91% and 75% of their actuarial interests in the fund can be said to amount to a violation of Article 2 of the African Charter, taking into consideration all the circumstances of the case.288

Complainants in a case alleging discrimination, among other violations, of Sierra Leonean refugees in Guinea, included affidavits in their submission which according to the African Commission’s decision ‘indicate that their refugee camps were direct targets and taken together with accounts of numerous other abuses, constitute tangible evidence that the Sierra Leonean refugees in this situation had been targeted on the basis of their nationality and had been forced to return to Sierra Leone where their lives and liberty were under threat from the on-going war’.289 The African Commission held that whilst it had not been given ‘a transcript of the speech of the President, submissions before the Commission led it to believe that the evidence and testimonies of eye witnesses reveal that these events took place immediately after the speech of the President of the Republic of Guinea on 9th September 2000. The African Commission finds that the situation prevailing in Guinea during the period under consideration led to certain human rights violations’, going on to find violations of several provisions of the ACHPR including Article 2.290 Similarly, as with other cases, the African Commission will find on the basis of the facts as submitted by the complainants, including a violation of Article 2, in the absence

286 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa was adopted on 31 January 2016, Article 9(1). 287 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003. 288 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 107. 289 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, para 43. 290 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, para 74.

H. Remedies

83

of a response by the State.291 This also includes cases where the State does not address the allegation of Article 2 specifically.292 Where the State does contest the allegations, the African Commission will ‘analyze the arguments of both parties arid establish whether the assaults endured by the Victims as alleged, is discriminatory based on sex and political view in violation of Article 2 of the African Charter’.293 Once the complainant has submitted evidence that the violations were perpetrated on the victims who, in one case were exclusively women, and these violations were because of their gender, then the African Commission has said that the burden of proof will shift to the State ‘to prove that the Victims were in effect protected by the law and that there was no differential treatment given to both male and female protesters on the scene’.294 In this particular case against Egypt, however, the African Commission was unable to find any evidence in the Respondent State’s submissions that ‘male protesters in the scene were also stripped naked and sexually harassed as the women were’.295 Reasoning in one decision suggests that the burden will then move back to the complainant to show that the differentiation between two categories of individuals ‘lacked a rational purpose nor that such differentiation led to a fundamental impairment of their dignity as human beings or that the distinction affected their enjoyment of the rights and freedoms guaranteed in the African Charter’.296

H. Remedies As with other cases, it is difficult in some instances to distinguish between the remedies ordered in relation to specific rights. This is compounded further in the context of Article 2 as it is not always clear if it is interpreted as a stand-alone right, despite the fact that a separate violation of Article 2 may be found. However, in one case against Côte d’Ivoire the African Commission does cite the specific articles of the ACHPR that have been violated and the remedies that are ordered to address these, including Article 2.297 In some instances where a violation of Article 2 has been found, among others, the State has simply been asked to end the violations,298 ‘draw all the legal consequences arising from the present decision’299 and bring its laws in line or comply with its international Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, paras 177–179. 293 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 128. 294 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 138. 295 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 138. 296 Communication 335/06 Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 120. 297 Communication 318/06 Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 207. 298 Communication 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999. 299 Communication 159/96, Union Interafricaine des Droits de l’Homme, Fédération Internationale des Ligues des Droits de l’Homme, RADDHO, Organisation Nationale des droits de l’Homme au Sénégal and Association Malienne des Droits de l’Homme v Angola, 11 November 1997. 291 292

84

3. Article 2: Non-Discrimination

obligations.300 On other occasions, often the earlier cases, no remedy has been specifically required.301

1. Compensation Compensation has been ordered in a range of cases involving Article 2 violations,302 including, for example, for Sierra Leonean refugees who were discriminated against and subject to other violations by the government of Guinea;303 and for assaults against female journalists in Egypt.304 The amount of compensation has sometimes been identified in the recommendations by the African Commission.305 In other cases, the African Commission has ordered the State to pay ‘fair and equitable compensation’ without indicating an amount;306 ‘adequate reparations’307 or simply that ‘the amount of compensation for the damages and interest be fixed in accordance with applicable laws’,308 or ‘according to the appropriate ways to the Complainant State’.309 In another case it was left to the government ‘within the framework of the current drive to achieve national reconciliation, to evaluate, if this has not already been done, the damages that the victims may have suffered’.310 In one case it is implied that the amount requested by the complainant influences the amount ruled by the African Commission.311 Compensation has been awarded for ‘the physical and emotional damages/traumas [the victims] suffered’;312 ‘for prejudices suffered’.313 Compensation has been awarded to the victims and to their beneficiaries.314 Compensation was awarded to companies in 300 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999; Communication 211/98 Legal Resources Foundation v Zambia, 7 May 2001; Communication 47/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000; Communication 27/89-46/91-49/91- 99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union Interafricaine des droits de l’Homme v Rwanda, 31 October 1996. 301 Communication 212/98, Amnesty International v Zambia, 5 May 1999. 302 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003. 303 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004. 304 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 275(iv). 305 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 306 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 138. Communication 262/02, Mouvement Ivoirien de Droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 307 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 308 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 138. 309 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 310 Communication 262/02, Mouvement Ivoirien de Droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 311 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 312 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 313 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 138. 314 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 138.

H. Remedies

85

Northwest and Southwest Cameroon ‘which suffered as a result of discriminatory treatment by banks’.315

2. Restitution In one case an alternative remedy was given to an individual deported that he be granted accreditation so he could return to being a journalist.316 Landowners who were deprived of their land were ordered to have their rights restored in Côte d’Ivoire.317 In a case brought by the DRC against Burundi, Rwanda and Uganda, the Respondent States were urged to withdraw their troops from the DRC.318 In a number of decisions the African Commission has called on States to respect and implement their national court decisions,319 or that the national court’s decision is finalised,320 or for example, deportation orders, which were considered to be in violation of the ACHPR, be rescinded to enable ‘the status quo ante to be restored’.321 Where individuals were arbitrarily detained a violation of Article 2 was found among other rights but no reasoning was provided as to the basis for the discrimination. The African Commission ordered for their ‘immediate release’.322 The requirement that States ‘institute safeguards’ to respect the principle of non- refoulement is also recommended on one occasion.323

3. Satisfaction A joint commission between the governments of Sierra Leone and Guinea was recommended to be established by the African Commission in response to violations, including Article 2, against Sierra Leonean refugees in Guinea.324 Similarly, the African Commission also required States to set up a commission of inquiry to investigate the expulsion of individuals as well as ensure the payment of compensation to the victims.325 The African Commission also required the Gambian government to set up an ‘expert body’ to consider the cases of those detained under mental health legislation which was found to be in violation of the ACHPR including Article 2.326

Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 121. 317 Communication 262/02, Mouvement Ivoirien de Droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 318 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 319 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 121. 320 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 121. 321 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 121. 322 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003. 323 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 324 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004. 325 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 326 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 315 316

86

3. Article 2: Non-Discrimination

The establishment of ‘effective complaint procedures’ for detainees has also been requested;327 as has ensuring the supervision and monitoring of places of detention by appropriately qualitied individuals or institutions.328 A state has also been asked to permit representatives of relevant international and non-governmental organisations including the African Commission to be able to access places of detention.329 More generally, the African Commission has also asked States to ‘take the appropriate measures to remedy the situation’.330

4. Rehabilitation ‘[A]‌dequate medical and material care for persons suffering from mental health problems in the territory of The Gambia’ was ordered by the African Commission after finding violations of Article 2 among others with respect to the treatment of those detained in psychiatric institutions.331 In a case against Angola the State was requested to take ‘measures to ensure that all persons in detention are provided with proper medical examination and medical treatment and care’.332

5. Guarantees of Non-repetition Where individuals detained on the basis of their mental health were found to have suffered violations including discrimination, the African Commission called on the government to amend the legislation.333 Similarly, where female journalists were assaulted, it was recommended that the government of Egypt amend its legislation.334 The African Commission on another occasion recommended that Côte d’Ivoire amend its constitution to bring its nationality laws in line with the ACHPR.335 On many occasions where Article 2 violations have been found with other rights, the African Commission has called for laws to be amended to bring them in line with the ACHPR,336 the ‘effective application’ of amended laws,337 or to ensure the ‘effective protection of human rights’.338 Similarly, Angola was required to ‘ensure that its immigration policies, measures and legislations do not have the effect of discriminating against persons on the basis of race, colour, descent, national, ethnic origin, or any other status, 327 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 328 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 329 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 330 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 331 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 332 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 333 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 334 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 275(iii). 335 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 207(i) and (ii). 336 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 337 Communication 262/02, Mouvement Ivoirien de Droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 338 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 138. Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87.

H. Remedies

87

and particularly take into account the vulnerability of women, children and asylum seekers’.339 In one instance the African Commission asked to be kept informed of what was happening with review of the discriminatory provisions of the constitution;340 in another, to abolish ‘all discriminatory practices against people of Northwest and Southwest Cameroon, including equal usage of the English language in business transactions’.341 Calls have also been made to reform national bodies. For example, Cameroon was asked to reform the Higher Judicial Council to ensure that it was ‘composed of personalities other than the President of the Republic, the Minister for Justice and other members of the Executive Branch’.342 States have also been asked to provide training on non-discrimination, among other matters, for those law enforcement officials and in the civil service who deal with non-nationals.343 In addition, in a list of extensive recommendations addressed to Cameroon regarding discrimination against the Anglophone region, the African Commission called on the State to ‘stop the transfer of accused persons from the Anglophone provinces for trial in the Francophone provinces’;344 ‘[e]‌nsure that every person facing criminal charges be tried under the language he/she understands. In the alternative, the Respondent State must ensure that interpreters are employed in Courts to avoid jeopardising the rights of accused persons’;345 and [locate] national projects, equitably throughout the country, including Northwest and Southwest Cameroon, in accordance with economic viability as well as regional balance’.346

6. Obligation to Investigate, Prosecute and Punish The Egyptian authorities were required to undertake an investigation into assaults on female journalists and to bring the perpetrators to justice.347 It has also been recommended that discriminatory treatment which is unjustified should result in sanctions for State authorities in the context of the right to nationality.348 States have been asked to investigate violations of Article 2 rights among others and to ‘bring the perpetrators to justice’.349 They have also been called upon to ratify a number of international instruments in response to violations of Article 2 found against them.350

7. Enter Constructive Dialogue or Pursue Amicable Settlement On a few occasions involving Article 2 violations the State authorities have been asked by the African Commission to enter into a dialogue or settlement with the complainants 339 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 340 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 341 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 342 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 343 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 344 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 345 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 346 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 347 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 275(v). 348 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 207. 349 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 350 E.g. the Protocol on the Rights of Women in Africa, Communication 323/06 Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 275(vi).

88

3. Article 2: Non-Discrimination

to the communication. For example, Cameroon was requested to do so with two of the complainant organisations in particular in order to ‘resolve the constitutional issues, as well as grievances which could threaten national unity’.351 Sometimes this has been within the context of a reconciliation process already taking place at the national level.352 The purpose can be to pursue a ‘constructive dialogue’353 or, for example, an ‘amicable settlement of all the disputes arising out of the application of the former discriminatory laws and to scrupulously ascertain that the principle of equality before the law, as stipulated in the African Charter, notably in its Article 2, is respected under all circumstances’.354

8. Report to the African Commission Although, as with other rights, Article 2 is not separated out, the African Commission has called upon States to report on the measures taken to implement its recommendations in its communications where it has found, among other rights, a violation of Article 2. The timeframe required has varied and included, for discrimination against individuals on account of their mental health, during its next periodic report;355 within 180 days for discrimination against Southern Cameroonians,356 female journalists in Egypt,357 and others in the context of a right to nationality;358 and within six months with respect to an individual who was to be deported on account of his political views and nationality.359 On one occasion where the mass deportation of Gambians from Angola was found to have been in violation of a number of provisions of the ACHPR including Article 2 the State was asked to report back to the African Commission ‘at a later stage’ on the measures it had taken to implement the list of recommendations made in the decision.360 More generally, the African Commission has also asked both parties to the communication to inform it on any ‘progress made in reviewing the discriminatory provisions in the Constitution’.361

9. Recommendations Directed at Complainants On few occasions the African Commission has directed recommendations not just at the State but also at the complainants. For example, in a case involving a range of violations including Article 2 discrimination against Anglophones in Cameroon, it called on the Southern Cameroons National Council and Southern Cameroons Peoples’ Organisation, who formed some of the complainants to the case, to ‘transform into political parties’ and

Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. Communication 262/02, Mouvement Ivoirien de Droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008 353 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 354 Communication 262/02 Mouvement Ivoirien de Droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 355 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. See also Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001. 356 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, recommendation 4. 357 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 275(vii). 358 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 207(vi). 359 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 360 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 361 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 351 352

I. Special Mechanisms

89

to ‘abandon secessionism and engage in constructive dialogue with the Respondent State on the Constitutional issues and grievances’.362 In another instance it simply called on not just the State but also the complainant to inform it on changes to the constitution.363 It was not clear if this was intended as a way of verifying if the government was amending the constitution to bring it in line with the ACHPR.

10. Good Offices of the African Commission/Amicable Resolution The African Commission has offered its good offices to the parties to the case on several occasions. The purpose of this has been ‘to mediate an amicable solution and to ensure the effective implementation of the above recommendations’364 or ‘in case it is needed to assist’.365 In both these instances recommendations were also directed at the complainants as well as the State. In one communication the African Commission resolved to ‘continue efforts to pursue an amicable resolution in this case’.366 It is not clear what the difference is between good offices and amicable resolution.

I. Special Mechanisms As will be noted in Chapter 19 (Article 18) special mechanisms have been created by the African Commission to deal with women, older persons and disabilities.367 The work of the Committee on the Protection of the Rights of People Living With HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV will be dealt with in Chapter 17 (Article 16).

Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 364 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 365 Communication 246/02, Mouvement Ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 366 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997. 367 Resolution on the Appointment of a Focal Point on the Rights of Older Persons in Africa adopted at its 42nd Ordinary Session held from 15–28 November 2007 in Brazzaville, Republic of Congo, ACHPR/ Res.118 (XXXXII) 07; Resolution on transforming the Focal Point on the Rights of Older Persons in Africa into a Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.143 (XXXXV) 09. Resolution on the Renewal of the Mandate and Reconstitution of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.312, 18 November 2015. 362 363

4. Article 3 Equality Before the Law and Equal Protection of the Law 1. Every individual shall be equal before the law

2. Every individual shall be entitled to equal protection of the law

A. Introduction 1. Relationship Between Articles 2 and 3 and a Right to Equality The ACHPR differs from some international treaties in that it contains a non- discrimination principle in Article 2 as well as reference to rights to equality and equal protection before the law in Article 3. It therefore does not, on paper at least, appear to conflate the two principles which has been an approach criticised in the context of other international instruments and which was found in earlier drafts of the ACHPR.1 Although Articles 2 and 3 are often cited together, the African Commission has made it clear that a finding of an Article 3 violation will not necessarily require a finding of a violation of Article 2.2 However, the way in which Article 3 has been used has been rather limiting. This may be explained by the reference to the term ‘of the law’ in both sections of the Article which has led to a focus, as will be seen below, away from a ‘right to equality’ per se and towards equality within the context of legal proceedings. Therefore, for example, in one decision, despite noting that ‘[e]‌quality and non-discrimination are core principles in international human rights law’, the African Commission then incorporates non-discrimination within Article 3 and does not adopt the positive right that one might deem a right to equality (if one considers Article 3 to provide this) to offer: Consequently, the premise under Article 3 of the African Charter is that the law shall prohibit any form of discrimination and guarantee to all individuals equal and effective protection against discrimination on any ground, regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In this respect, the State has an affirmative duty to prohibit discrimination and ensure that all persons are protected by the law and are equal before the law.3

In a communication against The Gambia alleging that legislation condemning those classed as ‘lunatics’, namely what this law classed as ‘an idiot or person of unsound mind’, to indefinite institutionalisation was discriminatory, it was considered whether these individuals were able to challenge their detention. The African Commission noted that those who were most likely to be so detained were those who lived on the streets or who were 1 Article 31 of the M’Baye draft was entitled ‘Right to Equal Protection’, and read: ‘All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law’. 2 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, where the Republic of Congo was found in violation of Articles 3, 7 and 14 of the ACHPR but not of Articles 2 and 21(2). 3 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 175.

A. Introduction

91

poor, and that in reality only those who were wealthy enough to afford a lawyer would be able to contest any detention. As a result, this situation ‘fails to meet the standards of anti-discrimination and equal protection of the law as laid down under the provisions of Articles 2 and 3 of the African Charter and Principle 1(4)6 of the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Illnesses and the Improvement of Mental Health Care’.4 The African Commission has referred on a number of occasions to the ‘principle of equality’ as underpinning the combination of both Articles 3(1) and (2)5 as well as Articles 2 and 3 together.6 So, it has held that ‘Article 3 of the African Charter contains a general guarantee of equality which supplements the ban on discrimination provided for in Article 2’,7 and has referred to a ‘right to equality’ when considering Articles 2 and 3 together.8 Similarly, the Protocol on the Rights of Women in Africa refers, in its article on non-discrimination, to the requirement that States ‘include in their national constitutions and other legislative instruments, if not already done, the principle of equality between women and men and ensure its effective application’.9 In several of the provisions States are required to ensure ‘equal rights’ to women.10 However, the extent to which Article 3 has been interpreted as providing a right to equality per se has not been consistent. On some occasions, the African Commission has held that the ‘requirement of equality before the law is of fundamental importance to human rights, especially as it is a necessary condition for the enjoyment of a number of other related rights’.11 Yet in other instances: Inequality based on grounds of sex is an analogous ground for discrimination . . . freedom from discrimination is also an aspect of the principles of equality before the law and equal protection of the law under Article 3 of the African Charter because both present a legal and material status of equality and non-discrimination.12

A consideration of Article 2 and whether treatment was discriminatory may impact on whether equal treatment by the law and equal protection of the law can be found: The principle of ‘equal protection’ therefore places all men and women on an equal footing before the law. Furthermore, it indicates that all men and women are entitled to equal protection against any discrimination and against any incitement to such discrimination. The African Commission notes that, parties can only establish that they have not been treated equally by the law, if it is proved that the treatment received was discriminatory, or selective. If a party claims selective Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 54. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 171. 6 Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, ACHPR/Res.275, 12 May 2014; Resolution on the Situation of Women and Children in Armed Conflict, ACHPR/Res.283, 12 May 2014. 7 Communication 253/02 Antonie Bissangou v Congo, 29 November 2006, para 70. 8 E.g. Resolution on the Rights of Indigenous Peoples’ Communities in Africa, ACHPR/Res.51, 6 November 2000; ‘the right to equality and non-discrimination’, Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 9 Article 2(1)(a). 10 E.g. with respect to access to procedures determining refugee status, Article 4(2)(k); marriage, Article 6; nationality of their children, Article 6(h). 11 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 71; Communication 253/02, Antoine Bissangou v Congo, 29 November 2006, para 68. 12 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 179. 4 5

92

4. Article 3: Equality Before and Equal Protection of the Law

protection of the law, then the burden is on the party to show that the laws had discriminatory effects and purposes.13

As with Article 2,14 the concept of equality has been interpreted as having an individual and a collective dimension. In its report on a mission to Senegal in 1996, for example, the African Commission noted violations in Casamance in the context of the conflict and claims by separatists, and decided ‘as for the principle of equality of citizens and communities, it is clear that this means not a mathematical equality, but above all an equality of participation in the administration of public affairs’.15

2. ‘Before the Law’/‘Of the Law’ The inclusion of these terms in Article 3(1) and (2) has resulted in a focus on access to the courts or legal procedures when considering the principle of equality16 and arguably diluted Article 3 providing a right to equality per se. For example, the deportation of an individual contrary to court orders was alleged to violate Article 3 as it: guarantees fair and just treatment of individuals within the legal system of a given country, whereby every individual is equal before the law and guaranteed equal protection of the law. Given the treatment Mr Meldrum was exposed to, would it be argued as the Respondent State does, that he was able to access the courts and therefore was given equal protection of the law?17

This perhaps also explains why Article 3 and the principle of equality of arms in Article 7(1)(c) have often been referred together.18 In one case where the State relied, unsuccessfully, on the arguments it advanced in relation to Article 3 with respect to Article 7, the African Commission found not only a violation of Article 3 but also Article 7(1)(c).19 The complainants in another case alleged that they had not had an opportunity to prepare their defence case, and that Article 3 had been violated as only the other party’s case was taken into account.20 The African Commission held under Article 7(1)(c) that ‘basic procedural safeguards’ were not met ‘when both sides have not been heard with due respect for the principle of equality of arms’.21 Citing Brown v Board of Education of Topeka that ‘equal protection by law refers to the right of everyone to have equal access to courts of justice and to be treated the same way by the courts, both for procedures and for the essence of the law. It is akin to the right to due process of law, but applies in particular 13 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 176. 14 See Chapter 3. 15 Report on the Mission of Good Offices to Senegal of the African Commission on Human and Peoples’ Rights, 1–7 June 1996, Tenth Activity Report of the African Commission on Human and Peoples’ Rights, Annex VIII, para 11. 16 E.g. Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96; Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 173. 17 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 95. 18 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 71. 19 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 105. 20 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, paras 79–81. 21 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 201.

A. Introduction

93

to equal treatment as an element of fundamental equity’, the African Commission found that the right to defence and principle of right to equality before the law were violated. This was because the complainant was unable to present its defence and also because ‘the principle of equality of litigants was not respected’ since only the defence of the opposing party, in this case Mr Kafwa, was taken into account.22 Similarly, in an earlier communication against Burundi the African Commission was asked to consider if the refusal to provide legal assistance to an individual in domestic legal proceedings was ‘inequitable’ in violation of Article 7 of the ACHPR, even though Article 3 was not mentioned. The African Commission held: The right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial. Simply put, they should argue their cases before the jurisdiction on an equal footing. Secondly it entails the equal treatment of all accused persons by jurisdictions charged with trying them. This does not mean that identical treatment should be meted to all accused. The idea here is the principle that when objective facts are alike, the response of the judiciary should also be similar. There is a breach of the principle of equality if judicial or administrative decisions are applied in a discriminatory manner. In the case under consideration, it is expected of the Commission to attend to the first aspect, that is, observation of the rule of equality of the means utilised by the defence and the prosecution.23

In Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, the African Commission was unable to find a violation of Article 3 as the complainants ‘have not shown that the courts failed to give them the same treatment accorded to others’.24 It is not clear whether a violation of Article 7(1)(c) would always therefore equally be a violation of Article 3. The African Commission has held that the inequality ‘should follow from the ‘law’, but ‘law’ in this context should not be limited to legislation.25 Rather Article 3 can be violated if a State was to ‘exercise a power or judgment conferred by a law in a discriminatory manner’.26 In one communication, where a court ruling in favour of the complainant was not honoured by the Minister of Economy, Finance and the Budget in the Republic of Congo, whereas he had honoured those in relation to other individuals, the African Commission held that ‘the decision of the Minister arbitrarily deprived the Complainant of the protection of the law accorded to other citizens in accordance with the provisions of Article 3 of the Charter’.27 Similarly, Article 3 was cited and found to have been violated when an amnesty aimed at restoring individuals to their previous positions was not applied to two magistrates. The African Commission could see ‘no reasons why the rehabilitation measure was applied in a selective manner’.28

Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, paras 202–3. Communication 231/99, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi, 8 November 2000, para 27. 24 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 124. 25 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 71. 26 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 71. 27 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 72. 28 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 39. 22 23

94

4. Article 3: Equality Before and Equal Protection of the Law

B. Equality Before the Law: Article 3(1) Although the ACHPR has these two separate paragraphs, an approach found in other African instruments,29 just as Articles 2 and 3 have often taken together so Articles 3(1) and (2) are sometimes not clearly differentiated.30 Thus, when considering sexual violence committed against female journalists in the context of demonstrations, the African Commission considered whether the ‘necessary level of protection’ provided to the female victims by the government was the same level of protection given to men also present: ‘[i]‌t is not sufficient to say that necessary measures were taken when the results of those measures are not palpable’.31 It concluded that there was ‘no logical explanation’ to the fact that the victims were subject to assaults against which the government claimed to have protected them.32

1. The Right to Equality Before the Law The African Commission has held that Article 3(1) entails ‘the right by all to equal treatment under similar conditions’33 and those ‘in a similar situation in some respects should be treated similarly’.34 Exactly what are ‘similar’ conditions or situations is not further clarified. However, the African Commission has referred to comparability with others in the jurisdiction or citizens. So ‘individuals legally within the jurisdiction of a State should expect to be treated fairly and justly within the legal system’;35 and non-nationals should have ‘equal enjoyment of the rights available to all other citizens’.36 On other occasions the African Commission has not referred to ‘similar’ but to ‘same’: there is, for example, ‘the right to have the same procedures and principles applied under the same conditions’.37 Consequently, ‘existing laws must be applied in the same manner to those subject to them’.38 In one case an American national legally 29 E.g. the African Charter on Democracy, Elections and Governance provides in its Article 10(3) that ‘State Parties shall protect the right to equality before the law and equal protection by the law as a fundamental precondition for a just and democratic society’. 30 See for examples in African domestic courts re the differentiation between equality before the law and equal protection of the law, L. Juma, ‘Chieftainship succession and gender equality in Lesotho: Negotiating the right to equality in a jungle of pluralism’, 22 Texas Journal of Women and the Law (2012–2013) 157–217. 31 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 178. 32 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 179. 33 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96. 34 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 98. 35 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96; Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 173. 36 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96; Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 173. 37 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96; Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 173. 38 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96.

B. Equality Before the Law: Article 3(1)

95

resident in Zimbabwe was deported after publishing an article in an independent newspaper that had been shut down by the State. As he had not been treated as a national of Zimbabwe would have been treated, a violation of Article 3(1) was found.39 The African Commission clarified: ‘factual patterns that are objectively equal must be treated equally’.40 Consequently, ‘if the law requires that all those who publish offensive articles against the government be brought before a judge for questioning, and if found guilty, sentenced or pay a fine, this law should apply to all those subjected to it, including nationals and non nationals alike’.41 Within the context of legal proceedings, the State must also ensure that any parties to a dispute are ‘placed on equal footing not only in the manner in which the law is formulated, but also, as in this case, the manner in which the implementation of that law is conducted’,42 so it is ‘goes beyond formal equality to substantive or achieved equality’.43 Judges and administration officials should ‘not act arbitrarily in enforcing laws’.44 There should consequently be no ‘position of imbalance’45 and the individual should have ‘the same opportunity as his opponent to present his arguments by enjoying equal consideration in accordance with the procedural requirements and standards provided for by the law and which were applied by the same domestic court in respect of ’ the other party.46 So where the Supreme Court in the DRC did not prolong proceedings relating to an individual claiming non-payment of fees because of a war in the country, even though it was not clear when the situation would end, the African Commission found that ‘such reasoning is inconsistent with the spirit of the principle of equality before the law as guaranteed by international human rights instruments’.47 In addition, the complainants alleged that enforcement of judgments was left to the discretion of the Minister of the Economy, Finance and the Budget and this was found to be in violation of the principle of equality of citizens before the law.48 Equality before the law also requires ‘equality in the administration of justice’, namely that ‘all individuals should be subject to the same criminal and investigative procedures in the same manner by law enforcement and the courts’.49 Where there was a dispute over non-payment of fees to the complainant by a client company, the Supreme Court of 39 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 98. 40 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 97. 41 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 97. 42 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96. 43 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 99. 44 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 96. 45 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 100. 46 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 101. 47 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 102. 48 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 65. 49 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 177.

96

4. Article 3: Equality Before and Equal Protection of the Law

the DRC had held in favour of the latter.50 The complainant alleged before the African Commission that there had been a violation of Article 3 and equality before the law as he had not been able to present his case before the Supreme Court on the same basis as the company. Similarly, equality before the law requires, according to the African Court, that ‘all persons shall be equal before the courts and tribunals’.51

2. Permissible Limitations On the one hand the African Commission has held that Articles 2 and 3 are non-derogable and ‘therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for under the African Charter’.52 On the other hand, it has also been held that any divergence from equal treatment under Article 3(1) should ‘always be justified’ and ‘adequate reasons’ should be given.53 The justification should furthermore be ‘by any necessity so compelling as to warrant the undermining of the complainant’s rights’.54 Given that the deferral of the case by the national court, a case which had been pending for a number of years, would only have entailed an additional four-month delay to enable the Complainant to produce additional material, the African Commission found a violation of Article 3.55

C. Equal Protection of the Law: Article 3(2) Equal protection of the law has been interpreted as meaning that ‘no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or class of persons in like circumstances in their lives, liberty, property and in their pursuit of happiness’.56 Thus, ‘similarly situated persons must receive similar treatment under the law’.57 In order for this to be achieved, ‘the dignity of every individual, whether male or female should be fair, equally safeguarded by the law’.58 This is not only in ‘applying’ but also ‘enforcing’ the law,59 as well as in its ‘implementation’.60 50 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013. 51 The matter of George Maili Kemboge v The United Republic of Tanzania, App. No.002/2016, Judgment, 11 May 2018, para 49; Kijiji Isiagi v United Republic of Tanzania, App.No.032/2015, Judgment, 31 March 2018, para 85; Anaclet Paulo v United Republic of Tanzania, App.No.020/2016, Judgment, 21 September 2018, para 71. 52 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 53 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 99. 54 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, para 105. 55 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013, paras 103–6. 56 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 174; Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 99. 57 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 99. 58 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 177. 59 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 177. 60 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006.

D. Remedies

97

The African Commission has held that a violation of Article 3(2) needs to show that ‘the Respondent State had not given the Complainant the same treatment it accorded to the others. Or that, the Respondent State had accorded favourable treatment to others in the same position as the Complainant’.61 So where an individual who was not a national of Zimbabwe was unable to seek protection from the courts to challenge his deportation after he published an article, the African Commission stated that the State would not have deported one of its own nationals in a similar position and therefore found that the State’s actions were ‘arbitrary’ and resulted in a violation of Article 3(2).62 The Protocol on the Rights of Women in Africa provides in Article 8 for ‘access to justice and equal protection before the law’: Women and men are equal before the law and shall have the right to equal protection and benefit of the law. States Parties shall take all appropriate measures to ensure:

a) effective access by women to judicial and legal services, including legal aid; b) support to local, national, regional and continental initiatives directed at providing women access to legal services, including legal aid; c) the establishment of adequate educational and other appropriate structures with particular attention to women and to sensitise everyone to the rights of women; d) that law enforcement organs at all levels are equipped to effectively interpret and enforce gender equality rights; e) that women are represented equally in the judiciary and law enforcement organs; f ) reform of existing discriminatory laws and practices in order to promote and protect the rights of women.

D. Remedies 1. Compensation and Costs Compensation has been ordered after a finding of a violation of Article 3 among other rights. Sometimes no further indication is given by the Commission as to the amount of that compensation or how it should be determined.63 In other cases more guidance is provided. In two cases where national court decisions granting compensation had not been respected the African Commission required the States to pay the amount ordered by the national court.64 Compensation has been ordered ‘for the loss suffered’ by the complainant, and for the ‘physical and emotional damages/traumas they suffered’ where there were sexual assaults.65 In another instance it was to cover ‘harm arising from the prolonged nonenforcement’ of a court decision granting the individual payment of fees owed to him for work done for a 61 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 101. 62 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 102. 63 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001. 64 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006; Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013. 65 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011.

98

4. Article 3: Equality Before and Equal Protection of the Law

company.66 The compensation should be ‘fair’,67 but the African Commission has left the amount to be determined by national law.68 Although the complainant in one communication prayed for the African Commission to grant compensation of at least USD 400,000 for damages suffered including fees paid to lawyers, the African Commission noted that ‘while acknowledging that the Complainant has certainly suffered damages relating to his right of ownership of the disputed building for several years (28 years) . . . notes that it is not in possession of sufficient facts to quantify the damages suffered’.69 It therefore left it to the national law to determine the amount ‘in the name of fairness’.70 Compensation can also be awarded for costs to conduct legal proceedings. In a case where the African Commission ordered compliance with a national court decision providing compensation for an individual who had not been paid fees for work done for a company, the complainant was also granted costs which were to be determined in accordance with national law.71 Where the complainants requested a specific amount of 57,000 Egyptian pounds to be paid to each victim, the African Commission agreed but without further explanation.72

2. Satisfaction The judicial processes before the courts, where magistrates were dismissed from their posts and two in particular were not reinstated or compensated, was required to be ‘accelerated’ when a violation of Article 3, among others, was found.73 Similarly, where a non-national was acquitted before the domestic courts for ‘falsehoods’ he published but then subsequently deported, Zimbabwe was urged to ‘take urgent steps to ensure court decisions are respected and implemented’.74 Legislation concerning the treatment of those with mental illness was found in violation of Article 3 among other rights and the government of The Gambia was urged to ‘create an expert body to review the cases of all persons detained under the [LDA] and make appropriate recommendations for their treatment or release’.75 In a communication where the equality of arms principle had been violated in a national court and was thereby contrary to Articles 3 and 7(1)(c), the African Commission declared the national judgment to be in violation of the ACHPR.76 66 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013. 67 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013. 68 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006; Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013. 69 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 206. 70 Communication 286 /2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 207. 71 Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013. 72 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011. 73 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001. 74 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 75 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 76 Communication 286/04, Dino Noca v Democratic Republic of the Congo, 22 October 2012.

D. Remedies

99

3. Restitution Where an individual was to be deported because of an article he wrote in Zimbabwe, the government was called on to ‘[r]‌escind the deportation orders against Mr Andrew Meldrum, so that he can return to Zimbabwe, if he so wishes, being a person who had permanent residence status prior to his deportation. The status quo ante to be restored’.77 The government was also required to ensure that the Supreme Court ‘finalises the determination of the application by Mr Meldrum, on the denial of accreditation’ to practice as a journalist,78 or, ‘in the alternative, taking into account that the AIPPA has undergone considerable amendments, grant accreditation to Mr Andrew Meldrum, so that he can resume his right to practice journalism’.79

4. Rehabilitation The government of The Gambia, after a finding of violations of numerous articles of the ACHPR including Article 3 for the treatment of those with mental health issues, was required to ‘provide adequate medical and material care for persons suffering from mental health problems in the territory’.80

5. Guarantees of Non-repetition On numerous occasions the African Commission has called on a State found in violation of Article 3 to ‘harmonise its legislation with that of the African Charter’.81 In a communication against The Gambia which found its legislation and treatment of individuals detained on the basis of their mental health to be in violation of a number of rights including Article 3, the government was called upon to repeal the legislation and ‘replace it with a new legislative regime for mental health in The Gambia compatible with the African Charter and international standards and norms for the protection of mentally ill or disabled persons as soon as possible’.82 States have also been urged to ratify international human rights instruments. In a case involving sexual assault against women Egypt was called on to ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.83

6. Obligation to Investigate, Prosecute and Punish Finding violations of numerous rights in the ACHPR including Article 3, Burkina Faso was ordered to ‘identif[y]‌and [take] to court those responsible for the human rights violations’.84 Similarly, where violations of sexual assault were found against female journalists 77 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 78 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 79 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 80 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 81 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006; see also Communication 323/ 06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011. 82 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 83 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011. 84 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001.

100

4. Article 3: Equality Before and Equal Protection of the Law

in Egypt, the government was urged to ‘investigate the violations, and bring the perpetrators to justice’.85

7. Obligation to Report States have been required to report back to the African Commission on the measures they have taken to implement the Commission’s recommendations. The deadline is when it submits its next Article 62 periodic report, without dictating the timeframe beyond this,86 or within six months or 180 days, where a non-national was deported for publishing an article.87

85 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011. 86 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 87 Communication 294/04 Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. See also on different issues, Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011; Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the Congo, 23 April 2013; Communication 286/04, Dino Noca v Democratic Republic of the Congo, 22 October 2012.

5. Article 4 The Right to Life and Integrity of the Person Human beings are inviolable. Every human being shall be entitled to respect for his life

and the integrity of his person. No one may be arbitrarily deprived of this right.

A. Introduction This is relatively brief and in contrast to Article 2 of the European Convention on Human Rights (ECHR) and Article 4 of the American Convention on Human Rights (ACHR) which both set out grounds where deprivation of life may be permitted, such as through use of force, and where express mention is also made of the death penalty. Earlier drafts of the Charter in fact were more detailed and did include reference to capital punishment. For example, Article 17 of the M’Baye Draft read: Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of his birth. No one shall arbitrarily be deprived of his life. In no case shall capital punishment be inflicted for political offences or related common crimes. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending for decision by the competent authority.

This provision does not outright prohibit the death penalty but sets out circumstances in which it will not be permitted and rights for those who are subject to this sentence. As will be seen below and in the discussion around fair trial1 these elements have now found their way into the jurisprudence and interpretation of the African Commission, even if they are not expressly mentioned in Article 4 of the African Charter on Human and Peoples’ Rights (ACHPR). The Protocol on the Rights of Women in Africa, as does Article 4 of the ACHPR, links integrity with the right to life, but also with security of the person,2 the latter being found in Article 5 of the ACHPR. The Protocol provides more detail than is in the ACHPR, requiring States to take measures prohibiting and preventing violence against women, as well as ensuring the death penalty is not carried out on pregnant or nursing women.3 The ACRWC adopts a slightly different tack linking life with survival and development.4 This provides that: 1 . Every child has an inherent right to life. This right shall be protected by law. 2. States Parties to the present Charter shall ensure, to the maximum extent possible, the survival, protection and development of the child. 3. Death sentence shall not be pronounced for crimes committed by children.

2 See Chapter 8. Article 4(1) Protocol on the Rights of Women in Africa. Article 4(2) Protocol on the Rights of Women in Africa. 4 Article 5 ACRWC is entitled ‘Survival and development’. 1 3

102

5. Article 4: The Right to Life and Integrity of the Person

B. The Importance of the Right to Life and the Concept of ‘Life’ The right to life has been upheld by the African Commission as ‘the fulcrum of all other rights’;5 ‘the supreme right of the human being’6 and ‘therefore the foundational, or bedrock human right’.7 It is ‘the fountain through which other rights flow’;8 ‘basic to all human rights and without it all other rights are without meaning’.9 The African Commission has equally held that Article 4 should be ‘interpreted broadly’.10

1. The Start of Life Although the final provision does not mention from when ‘life’ may begin, there have been various references throughout the African Commission’s jurisprudence to the right to an abortion, even if not in absolute terms. The Protocol on the Rights of Women provides: ‘States Parties shall take all appropriate measures to . . . c) protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’.11 As Zampas and Gher note ‘[t]‌his permissive, unqualified language represents a significant expansion of women’s right to access abortion in Africa’.12 It is notable that there are reservations to this provision by States party to the Protocol.13 Earlier versions of the General Comment on the Right to Life Communication 223/98, Forum of Conscience v Sierra Leone, 6 November 2000, para 20. Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 146. 7 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 138. Communication 288/ 04, Gabriel Shumba v Zimbabwe, 30 June 2017, para 130. 8 Communication 223/98, Forum of Conscience v Sierra Leone, 6 November 2000, para 20. 9 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 146. 10 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, paras 6 and 41. 11 Article 14(2)(c). 12 C. Zampas and J. M. Gher, ‘Abortion as a human right: International and regional standards’, 8(2) Human Rights Law Review (2008) 249–294, at p.262. See also Journal of African Law, ‘Liberalizing the abortion law in South Africa’, 41(2) JAL (1997) 248–249; C. G. Ngwena, ‘Conscientious objection to abortion and accommodating women’s reproductive health rights: Reflections on a decision of the Constitutional Court of Colombia from an African regional human rights perspective’, 58(2) Journal of African Law (2014) 183–209. C G Ngwena, ‘Taking women’s rights seriously: Using human rights to require state implementation of domestic abortion laws in African Countries with reference to Uganda’, 60(1) JAL (2016) 110–140; C. G. Ngwena et al, ‘Human rights advances in women’s reproductive health in Africa’, 129 International Journal of Gynecology and Obstetrics (2015) 184. 13 Republic of Uganda “Instrument of ratification: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa” (2010): ‘ “Article 14(2)(c): interpreted in a way conferring an individual right to abortion or mandating a State Party to provide access thereto. The State is not bound by this clause unless permitted by domestic legislation expressly providing for abortion’; Cameroon, ‘The acceptance of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in African should in no way be construed as endorsement, encouragement or promotion of homosexuality, abortion (except therapeutic abortion)’, See Status of Implementation of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa by Justice Lucy Asuagbor Commissioner, Special Rapporteur on the Rights of Women in Africa (African Commission on Human and Peoples’ Rights) 60th Meeting, Commission on the Status of Women 18 March 2016 New York; C. G. Ngwena, ‘Taking women’s rights seriously: Using human rights to require state implementation of domestic abortion laws in African countries with reference to Uganda’, 60(1) JAL (2016) 110–140. 5 6

B. The Importance of Right to Life and the Concept of ‘Life’

103

referred to ‘securing the continuation of biological life’.14 Concerns were raised by, for example, Amnesty International,15 and this is not found in the final version.

2. The Concept of Life Recognising that ‘life’ has been given ‘a relatively broad interpretation by courts internationally, to include the right to dignity and the right to livelihood’,16 the African Commission similarly in its interpretation of Article 4 has noted that it should not adopt a narrow approach: ‘In order to secure a dignified life for all, the right to life requires the realization of all human rights recognized in the Charter, . . . particularly the right to peace’.17 The relationship with dignity is one that arises on numerous occasions and the African Commission has also interpreted this to apply in a range of contexts. For example, a ‘dignified life’ may be one which is the collective enjoyment of a range of rights.18 There may be some situations when the right to life will then not only have an immediate obligation but also the ‘progressive realisation of various economic, social and cultural rights will contribute to securing a full and dignified life. Violations of such rights may in certain circumstances therefore also entail violations of the right to life’.19 ‘Arbitrary executions’;20 ‘shootings by police officers’;21 and the ‘killing of innocent civilians in grenade attacks in Nairobi’;22 and ‘massacres’ ‘for reasons of their membership of a particular ethnic group’ in the context of the Rwanda genocide23 have all been found to violate Article 4, capturing many of the examples of deprivations of the right to life that take place in Africa.24 Similarly, the killing of persons with albinism in east Africa has been expressly identified as an arbitrary deprivation of the right to life and the integrity 14 DRAFT General Comment No. 3 on Article 4 of the African Charter on Human and Peoples’ Rights (the right to life): http://www.achpr.org/files/news/2015/08/d189/eng_post_kigali_meeting.pdf, para 1. 15 Amnesty International, Amnesty International’s Observations on the Draft General Comment on Article 4 of the African Charter on Human and Peoples’ Rights (Right to Life), 2 September 2015, Index number: AFR 01/2341/2015, para 7. 16 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 146. 17 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 6. 18 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 43. 19 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 43. 20 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98 Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 120. 21 Communications 64/92-68/92-78/92_8AR Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa v Malawi, 22 March 1995, para 6. 22 Press Release on the Killing of Innocent Kenyan Citizens by Suspected Al Shabab Militia and Sheikh Abubakr Shariff, Ibrahim “Rogo” Omar and Aboud Rogo Mohammed, Banjul, The Gambia, 10 April 2014. 23 Communications 27/89-46/91-49/91-99/93 Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 25. 24 See e.g. Centre of Governance and Human Rights, Unlawful Killings in Africa a study prepared for the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Centre of Governance, Cambridge, 2011, http://www.cghr.polis.cam.ac.uk/research-themes/right_to_life/unlawful_killings_in_africa/unlawful_ killings_report/pdf.

104

5. Article 4: The Right to Life and Integrity of the Person

of persons.25 Many of the circumstances with which the African Commission is faced and on which it has had to pronounce relate to extrajudicial executions.26 In addition, it has noted that organised crime and terrorism ‘can pose significant threats to the enjoyment of the right to life’.27 In this respect the State response to this should be ‘robust’ but in compliance with international human rights law.28 More broadly, the African Commission has also recognized that an embargo imposed by States of the Great Lakes region against Burundi did not violate a number of rights in the ACHPR including the right to life due to this being endorsed by the then OAU and the UN: ‘The embargo was not a mere unilateral action or a naked act of hostility but a carefully considered act of intervention which is sanctioned by international law’.29 The African Commission did hold that it needs to be considered whether an embargo ‘is excessive and disproportionate, is indiscriminate and seeks to achieve ends beyond the legitimate purpose. Sanctions therefore cannot be open-ended, the effects thereof must be carefully monitored, measures must be adopted to meet the basic needs of the most vulnerable populations or they must be targeted at the main perpetrators or authors of the nuisance complained of ’.30 This was not thought to be the case here and no violation of the ACHPR was found.

C. The Absolute Nature of the Right and Deprivation of Life The right to life is protected in customary international law31 and considered absolute: ‘Derogation from the right to life is not permissible in a time of emergency, including a situation of armed conflict, or in response to threats such as terrorism’.32 Indeed, a derogation provision included in earlier drafts of the ACHPR included the right to life as one of those from which no derogation was permitted, in line with other international treaties.33 The African Commission’s case law in some, but not all circumstances,34 implies that there does not need to be a death for a violation of Article 4 to be found. In a number 25 Joint Press Release by Chairpersons of the Working Group on Death Penalty, Extra-Judicial, Summary and Arbitrary Killings in Africa and the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa regarding the attacks and killings of Persons with Albinism in East Africa, 11 March 2015. 26 Communications 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996, para 43. Resolution on the expansion of the mandate of the Working group on Death Penalty in Africa, ACHPR/ Res.227. 27 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 2. 28 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 2. 29 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 72. 30 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 75. 31 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 137. 32 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 7. Resolution on the expansion of the mandate of the Working Group on Death Penalty in Africa, ACHPR/ Res.227. 33 Article 33(2) of the M’Baye Draft. 34 See Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 1 March 2011, para 232 where individuals were subject to the death penalty but it was not carried out, no violation of Article 4 was found.

D. Responsibility of the State

105

of cases against Mauritania, for example, it referred to ‘respect for life’, finding that ‘[d]‌enying people food and medical attention, burning them in sand and subjecting them to torture to the point of death point to a shocking lack of respect for life, and constitutes a violation of Article 4’.35 Similarly, where an individual was forced to go into hiding, the African Commission found a violation of Article 4, holding that he ‘is still alive but in hiding for fear of his life. It would be a narrow interpretation to this right to think that it can only be violated when one is deprived of it. It cannot be said that the right to respect for one’s life and the dignity of his person, which this article guarantees would be protected in a state of constant fear and/or threats’.36 In addition, ‘[w]‌here a State or its agent has attempted unlawfully to kill a person, but that person survives, where it has unlawfully threatened the life of a person, or where it has forcibly caused a person to disappear and that person’s fate remains unknown, in addition to the violation of other rights, a violation of the right to life has occurred’.37 Actions which impact on the individual fearing for their life may have implications for his or her ability to pursue domestic remedies. In Communication 351/2007 Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, an individual was subject to threats resulting, the complainant argued, in him leaving the country and so being unable to return to pursue domestic remedies in the local courts.38 The African Commission found that there was insufficient evidence to substantiate these claims and that the complainant, or indeed ‘any other person’, could have represented the alleged victim in the domestic courts of Zimbabwe even if the latter was not in the country.39 There are a number of decisions on communications adopted by the African Commission which find violations of Article 4 where allegations of killings have been made, but where there is no further detail provided.40 For example, in an early case against Chad where there were accounts of fifteen individuals having been killed as a result of a civil war, as well as the assassination of a member of a human rights organization, the African Commission, in the absence of anything other than a blanket denial from the government, found a violation of Article 4.41

D. Responsibility of the State The State has a responsibility to ‘prevent and punish extra-judicial executions’.42 The African Commission has also referred to the obligation of the State to ‘respect and preserve human 35 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 120. 36 Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000, para 18. 37 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 8. 38 Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 1 March 2012. 39 Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 1 March 2012, paras 69–70. See also Communication 307/07, Mr. Obert Chinhamo v Zimbabwe. 40 See e.g. 227/99 Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 41 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995. 42 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 51.

106

5. Article 4: The Right to Life and Integrity of the Person

right’. Hence, where violence was used against demonstrators, whether or not authorized by the authorities, ‘the public authorities possess adequate means to disperse crowds, and that those responsible for public order must make an effort in these types of operations to cause only the barest minimum of damage and violation of physical integrity, to respect and preserve human life’.43 On other occasions the African Commission has referred to duties to ‘respect, protect, promote and fulfil the right to life’,44 or simply just to ‘respect and ensure’ the right to life, and ‘respect the life of persons within its jurisdiction’.45 This duty to respect and ensure was found to have been violated when a number of individuals died as a result of ‘excessive and wrongful force by the law enforcement agents’.46 The establishment of ‘truth’ for victims of violations has not been a particular focus of the African Commission, unlike for its Inter-American counterparts. However, its General Comment No. 3 does note in the context of accountability that ‘independent, impartial and properly constituted commissions of inquiry or truth commissions can play a role, as long as they do not grant or result in impunity for international crimes’.47

1. Duty to Protect There are various elements that have been identified as part of the duty to protect against arbitrary deprivation of life. Firstly, ‘[t]‌he duty of the State to protect the right to life has been interpreted broadly to include prohibition of arbitrary killing by agents of the State and to strictly control and limit the circumstances in which a person may be deprived of life by State authorities’.48 This duty also entails an obligation to conduct an investigation;49 to adopt provisions in criminal law to ‘deter the commission of offences against the person’;50 to set up law enforcement machinery for investigation and punishment of breaches of such law and ensure the system has appropriate equipment and training;51 to adopt and regularly update legislation protecting the right to life to bring it in line with international standards.52 In addition, there should be a judiciary and legal profession that is independent and impartial.53 43 Communications 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 43. 44 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 7. 45 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 139. 46 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 139. 47 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 17. 48 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 147. 49 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 147. 50 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 147. 51 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 147; General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 10. 52 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 10. 53 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 10.

D. Responsibility of the State

107

In line with other international treaties, the responsibility of the State towards protecting individuals in custody is heightened. Such an obligation includes ‘a positive obligation to protect all detained persons from violence or from emergencies that threaten their lives, as well as to provide the necessary conditions of a dignified life, including food, water, adequate ventilation, an environment free from disease, and the provision of adequate healthcare (including maternal healthcare and the provision of antiretroviral drugs). The State should provide necessary information on places of detention, the identity and age of those detained, as well as the authorities responsible’.54 The duty is also broader than this. As the General Comment on the Right to Life notes: the Charter envisages the protection not only of life in a narrow sense, but of dignified life. This requires a broad interpretation of States’ responsibilities to protect life. Such actions extend to preventive steps to preserve and protect the natural environment and humanitarian responses to natural disasters, famines, outbreaks of infectious diseases, or other emergencies. The State also have a responsibility to address more chronic yet pervasive threats to life, for example, with respect to preventable maternal mortality, by establishing functional health systems. Such an approach reflects the Charter’s ambition to ensure a better life for all the people and peoples of Africa through its recognition of a wide range of rights, including the right to dignity, economic, social and cultural rights and peoples’ rights such as the right to existence and the right to peace. It is also rooted in widely shared communal values of the continent according to which the value of one’s person’s life is tied to the value of the lives of others.55

There is also a recognition that the duty to protect may apply in other contexts too. ‘The State has a positive duty to protect individuals and groups from real and immediate risks to their lives caused either by actions or inactions of third parties. In cases where the risk has not arisen from malicious or other intent then the State’s actions may not always be related to criminal justice. Such actions include, inter alia, preventive steps to preserve and protect the natural environment and humanitarian responses to natural disasters, famines, outbreaks of infectious diseases, or other emergencies’.56 In addition, ‘Attention is also required to address more chronic yet pervasive threats to life, for example with respect to preventable maternal mortality, by establishing functioning health systems and eliminating discriminatory laws and practices which impact on individuals’ and groups’ ability to seek healthcare’.57 The African Commission has not been faced with many instances in which it has had to deal with the extra-territorial application of the ACHPR.58 However, in its General Comment No. 3 it does note the obligation on States to ‘respect the right to life of individuals outside its territory’.59 The extent of that obligation seems to take into account 54 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 36. 55 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 3. 56 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 41. 57 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 42. 58 See, however, Communication 227/99, DRC v Burundi, Rwanda and Uganda, 2006. 59 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 14.

108

5. Article 4: The Right to Life and Integrity of the Person

a variety of different approaches from international law,60 noting that it depends on ‘the extent that the State has jurisdiction or otherwise exercises effective authority, power or control over either the perpetrator or the victim (or the victim’s rights), or exercises effective control over the territory on which the victim’s rights are affected, or whether the State engages in conduct which could reasonably be foreseen to result in an unlawful deprivation of life. In any event, customary international law prohibits, without territorial limitation, arbitrary deprivation of life’.61

2. Duty to Investigate As part not only of the duty to prevent but also to protect the right to life, is the obligation to investigate.62 This obligation arises ‘when individuals have been killed as a result of the use of force by agents of the State’.63 Drawing upon European Court of Human Rights jurisprudence,64 investigations must be carried out promptly and with ‘reasonable expedition’, ‘for the purpose of securing effective implementation of domestic laws, which protect the right to life’. There will be a presumption of State responsibility for deaths in custody, and the burden of proof will therefore rest with the State65 and the ‘heightened responsibility extends to persons detained in prisons, in other places of detention (official and otherwise), and to persons in other facilities where the State exercises heightened control over their lives’.66 As has been seen in relation to other rights in the ACHPR, the African Commission has held that ‘it is not enough to investigate’67 but that such investigations must satisfy certain criteria. The list of this criteria is not always consistently presented, but it has referred in general to the requirement that investigations be ‘prompt, impartial, thorough and transparent’.68 They should be ‘in accordance with international standards: did they meet the test of effective official investigations under international human rights law?’69 That an investigation should be ‘carried out by entirely independent individuals’,70 has been interpreted as meaning ‘for the person responsible for the carrying out of the 60 Amnesty International, Amnesty International’s Observations on the Draft General Comment on Article 4 of the African Charter on Human and Peoples’ Rights (Right to Life), 2 September 2015, Index number: AFR 01/2341/2015, para 18. 61 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 14. 62 Resolution on the Right to Life in Africa—ACHPR/Res. 375 (LX) 2017, 22 May 2017. 63 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 147. 64 E.g. Jordan v UK, European Court of Human Rights, Judgment, 4 August 2001. 65 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 37. 66 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 37. 67 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 150. 68 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 7. 69 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 150. 70 Communications 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 51.

D. Responsibility of the State

109

investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence’.71 Therefore, while the establishment of a commission of enquiry may satisfy these criteria in principle, a commission composed, for example, of the District Prosecutor and police and security officials, which was charged with investigating these agencies will not ‘provide the required guarantees of impartiality and independence’.72 An investigation should be ‘provided with the necessary resources’;73 and its ‘findings should be made public’.74 The result of the investigation should lead to prosecutions as appropriate.75 With respect to individuals who are State officials but who violated the right to life while not acting on behalf of the State, the African Commission has recognised the principles of State responsibility under international law and the concept of due diligence as outlined in the Inter-American Court’s judgment in Velásquez Rodríguez.76 In a case against Zimbabwe it was not disputed that one individual, Lameck Chemvura, died as a result of actions of members of the national army. He had been kicked, strangled and pressed against the floor of a train until he died.77 The army official suspected to have been responsible was arrested but the State claimed it was not responsible for the death as the official had acted without authorization.78 The African Commission agreed and found that Zimbabwe was not responsible for the acts of members of the army when carried out in their private capacity and such acts were therefore ‘not directly imputable’ to the State.79 The State did, however, have an obligation to investigate, prosecute the perpetrators and compensate the victims in respect of those acts.80 This must be undertaken with due diligence and a failure to do so will result in a violation of Article 4. So in this case, it was prepared to hold that as Zimbabwe had neither ‘properly responded to the death of Lameck Chemvura’ and did not ‘satisfactorily compensate’ his close relatives’, it was found to have violated Article 4.81 No further detail is provided by the African Commission on what 71 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 150. 72 Communications 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 51. 73 Communications 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 51. 74 Communications 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 51. 75 Communications 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 51. 76 Inter-American Court of Human Rights, Velásquez Rodríguez, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), as cited in Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 133. 77 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 9. 78 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 125. 79 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 134. 80 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 133. 81 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 134.

110

5. Article 4: The Right to Life and Integrity of the Person

elements of the response of the State were specifically found wanting. The Complainants had, however, argued that there was no ability to make a claim for wrongful death, even though the soldier was being prosecuted.82

3. Duty to Prevent There is an obligation to prevent violations of the right to life,83 in particular ‘arbitrary deprivations of life’.84 These are where such deprivations are caused not only by State agents including the executive, legislative and judicial branches at national, regional or local levels,85 but also by non-State actors.86 The obligation to prevent violations also includes an obligation to investigate.87 Holding perpetrators accountable is a further element of the obligation to prevent violations of the right to life.88 There should be effective remedies and reparation for victims89 and for the victims’ ‘immediate family and dependents . . . where appropriate’.90 The obligation to prevent arises in relation to individuals whose lives are at threat by non-State actors. In such instances the State must ‘take preventive operational measures to protect an individual’.91 In Communication 74/92 Commission Nationale des Droits de l’Homme et des Libertés v Chad, the African Commission held that because the Minister was ‘warned of the danger’ to an individual who had been assassinated but that he ‘refused to issue protection’, a violation of Article 4 was found.92 The African Commission held that ‘[t]‌he national armed forces are participants in the civil war and there have been several instances in which the Government has failed to intervene to prevent the assassination and killing of specific individuals. Even where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders’.93 Where individuals were killed during a civil war, the African Commission noted that the 82 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 67. 83 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 139. 84 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 2. 85 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 7. 86 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 2. 87 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 2. See further below. 88 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 2. 89 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 7. 90 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 7. 91 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 147. 92 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, para 5. 93 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, para 22.

D. Responsibility of the State

111

government of Sudan had a ‘responsibility to protect all people residing under its jurisdiction’, even if these ‘are not all the work of forces of the government’.94 Hence if the State ‘approves, supports or acquiesces in those acts or if it fails to exercise due diligence to prevent such killings or to ensure proper investigation and accountability’, it will be held liable for acts of non-State actors.95 The obligations to protect individuals against the actions of non-State actors run alongside the State’s obligations for its own agents.96 ‘In Zimbabwe Human Rights NGO Forum/Zimbabwe [footnote removed], the Commission noted that an act by a private individual or [non-State actor] and therefore not directly imputable to a State, can generate responsibility of the State, not because of the act itself, but because of the lack of due diligence on the part of the State to prevent the violation or for not taking the necessary steps to provide the victims with reparation’.97 Where responsibility of the government is established for violations conducted by private actors, then the victims will be entitled to compensation, payable by the government. So Cameroon, ‘[d]‌ue to its obvious lack of diligence’, was held ‘responsible for the acts of violence which took place on its territory which gave rise to human rights violations, whether these acts had been committed by the State of Cameroon itself or by people other than the State’.98 Non-State actors has been defined in this context as encompassing ‘private individuals and corporations, including private military and security companies’ as well as ‘businesses domiciled in their territory or jurisdiction’.99 The insertion of ‘causing and contributing’ to arbitrary deprivation of life by corporations in particular in the African Commission’s General Comment No. 3, was a recommendation by Amnesty International highlighting the common standards in the UN on business and human rights.100

4. Deaths in Custody Protection of the right to life ‘also includes a duty for the state not to purposefully let a person die while in its custody’.101 In the context of this case, ‘at least one 94 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 50. 95 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 9. 96 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 148. 97 Communications 279/03-296/05, Sudan Human Rights Organisation and Centre for Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 148. 98 Communication 272/03, Association of Victims of Post Electoral Violence and Interights v Cameroon, 25 November 2009, paras 135–137. 99 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 18. 100 Amnesty International, Amnesty International’s Observations on the Draft General Comment on Article 4 of the African Charter on Human and Peoples’ Rights (Right to Life), 2 September 2015, Index number: AFR 01/2341/2015, para 24. Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transitional corporations and other business enterprises, UN Doc. A/HRC/17/31. 101 Communications 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 104.

112

5. Article 4: The Right to Life and Integrity of the Person

of the victims’ lives was seriously endangered by the denial of medication during detention’.102

E. Right to a Remedy As provided for in relation to violation of other rights in the ACHPR, the African Commission has also held a right to a remedy and reparation for a violation of the right to life. As part of the accountability of the State are included ‘measures such as reparation, ensuring non-repetition, disciplinary action, making the truth known, institutional review and, where applicable, reform. States must ensure that victims have access to effective remedies for such violations’.103 Reparations should be ‘full and effective’ and ‘proportional to the gravity of the violations and harm suffered’.104 They should ‘address the harm suffered by victims, including by their family and dependents’ and include guarantees of non-repetition.105

F. Single and Multiple Violations of the Right to Life The African Commission has implied that the right to life, interpreted in its different forms, can be violated numerous times with respect to the same victims. In the case relating to Ken Saro-Wiwa, for example, the African Commission held that not only had there been a violation with respect to the execution of the individuals, but also the failure to provide medication during detention. It concluded that ‘there are multiple violations of Article 4’.106 Similarly, imposition of the death penalty after an unfair trial, failure to ‘respect life’, and arbitrary executions in Mauritania together were ‘repeated violations’ of Article 4.107

G. Death Penalty 1. Abolition/Moratorium There is no reference to the death penalty in the ACHPR, unlike in other instruments.108 The UN Secretary General has stated that the ‘death penalty has no place in the 21st 102 Communications 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 104. 103 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 17. 104 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 19. 105 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 19. 106 Communications 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 104. 107 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 120. 108 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 22. Amnesty International, Amnesty International’s Observations on the Draft General Comment on Article 4 of the African Charter on Human and Peoples’ Rights (Right to Life), 2 September 2015, Index number: AFR 01/2341/2015, para  28.

G. Death Penalty

113

century’,109 and there is a trend in international law towards abolition.110 Information collated by the African Commission suggests that as at 2016 forty-two States have abolished the death penalty ‘in law or in practice’ but only eleven AU States are party to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).111 One area where the African Commission has been consistent is in calling for a moratorium on the death penalty,112 as illustrated in its 1999 Resolution Urging the State to Envisage a Moratorium on Death Penalty:113 1. URGES all States parties to the African Charter on Human and Peoples’ Rights that still maintain the death penalty to comply fully with their obligations under the treaty and to ensure that persons accused of crimes for which the death penalty is a competent sentence are afforded all the guarantees in the African Charter; 2. CALLS upon all States parties that still maintain the death penalty to: a) limit the imposition of the death penalty only to the most serious crimes; b) consider establishing a moratorium on executions of death penalty; c) reflect on the possibility of abolishing death penalty.114

109 http://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx. See also L.M.Chenwi, Towards the Abolition of the Death Penalty in Africa: A Human Rights Perspective, Submitted in fulfilment of the requirements for the degree Doctor of Laws (LLD), In the Faculty of Law, University of Pretoria, May 2005, http:// repository.up.ac.za/bitstream/handle/2263/28468/Complete.pdf?sequence=10. See national courts cited in Kealagbosi, 4 AHRLJ, 2004. See also L. Chenwi, ‘Initiating constructive debate: a critical reflection on the death penalty in Africa’, 38 Comp. & Int’l L.J. S. Afr. (2005) 474–491. K. N. Bojosi, ‘The death row phenomenon and the prohibition against torture and cruel, inhuman or degrading treatment’, 4 African Human Rights Law Journal (2004) 303–333. D. v. Z. Smit, ‘The death penalty in Africa’, 4 African Human Rights Law Journal (2004) 1–16. 110 General Comment No. 20: Replaces General Comment No.7 concerning prohibition of torture and cruel treatment or punishment (Article 7): 10/03/1992, para 6: ‘The Committee notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7. As the Committee has stated in its general comment No. 6 (16), article 6 of the Covenant refers generally to abolition of the death penalty in terms that strongly suggest that abolition is desirable. Moreover, when the death penalty is applied by a State party for the most serious crimes, it must not only be strictly limited in accordance with article 6 but it must be carried out in such a way as to cause the least possible physical and mental suffering’. UN Commission on Human Rights’ resolutions 1998/8 and 1999/61, UN Sub-Commission on the Promotion and Protection of Human Rights’ resolution 1999/4. 2nd Protocol to the International Covenant on Civil and Political Rights, the Statute on the International Criminal Court and the Resolution of the UN Commission on Human Rights, 2005/59, on the Question of the Death Penalty. C. Anyangwe, ‘Emerging African jurisprudence suggesting the desirability of the abolition of capital punishment’, 23(1) AJICL (2015) 1–28. 111 59th Ordinary Session of the African Commission on Human and Peoples’ Rights Intersession Activity Report (May–October 2016), presented by Commissioner Kayitesi Zainabo Sylvie, Banjul, The Gambia, 21 October–4 November 2016, para 12. See also, previously, African Commission, Study on the Question of the Death Penalty in Africa, Submitted by the Working Group on the Death Penalty in Africa in accordance with Resolution ACHPR/Res.79 (XXXVIII) 05, Adopted by The African Commission on Human and Peoples’ Rights at its 50th Ordinary Session (24 October–07 November 2011) Banjul, The Gambia, pp.20–21. See also J. D. Mujuzi, ‘High crime rate forces liberia to reintroduce the death penalty and put international treaty obligations aside: What the critics missed’, 17(2) AJICL (2009) 342–354. A. Novak, ‘The decline of the mandatory death penalty in common law Africa: Constitutional challenges and comparative jurisprudence in Malawi and Uganda’, 11(1) Loyola Journal of Public Interest Law (2009) 19–86. 112 Resolutions ACHPR/Res.42(XXVI)99 and ACHPR/Res.136(XXXXIIII)08. Resolution on Human Rights Abuses in Egypt, ACHPR/RES.287, 29 July 2014, para 5. 113 ACHPR/Res.42(XXVI)99, adopted in November 1999 at its 26th Ordinary Session. 114 See also Resolution on the expansion of the mandate of the Working group on Death Penalty in Africa, ACHPR/ Res.227; Concluding Observations and Recommendations on the 5th Periodic Report of the Federal Republic of Nigeria on the Implementation of the African Charter on Human and Peoples’ Rights

114

5. Article 4: The Right to Life and Integrity of the Person

Similarly, States should ‘impose a moratorium on the execution of prisoners on death row by commuting their death sentences to life in prison’ and to ratify instruments prohibiting the death penalty.115 Although the African Commission, through Articles 60 and 61 of the ACHPR, could read into Article 4 the jurisprudence of the UN Human Rights Committee and national courts such as the South African Constitutional Court,116 which support abolition of the death penalty, it has failed to be consistent in whether it considers the death penalty per se to be contrary to the ACHPR.117 On the one hand there have been instances where it has noted ‘its opposition to the imposition of the death penalty as it constitutes a violation of Article 4’.118 It has also acknowledged a moratorium does not go far enough: A moratorium appears to be something of a halfway house between abolition and retention. The adoption of a moratorium on executions ought normally to be a step towards the ultimate decision proscribing the death penalty. In other words, one would have assumed that after a number of years of moratorium it would be difficult for a state to resume executions and that a moratorium is a move that paves the way for abolition of the death penalty.119

In a 2011 decision against the DRC, it noted that ‘that even though the respect for the rights to a fair trial is guaranteed in the procedure leading to the imposition of the death penalty, nobody can in contemporary times overlook the purely abolitionist trend of the States towards this punishment’.120 Similarly in Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, it commented that it ‘considers it increasingly difficult to envisage a case in which the death penalty can be found to have been applied in a way that is not in some way arbitrary. As a result, it is difficult to conceive that, if called upon in future to do so, that the Commission will find that the death penalty, however, it is executed, is any longer compatible with the African Charter.’121 (2011–2014), 18 November 2005, para 103, ‘Adopt an official moratorium on the death penalty, as a step towards the definitive abolition of the death penalty’. See also Concluding Observations and Recommendations on the Initial and Combined Periodic Report of the Republic of Malawi on the Implementation of the African Charter on Human and Peoples’ Rights (1995–2013), 18 November 2015. 115 Statement by the African Commission on Human and Peoples’ Rights on World Day against the Death Penalty, 10 October 2013. 116 S v Magwanyane and Another, 1995 3 SA 391 (CC). See J. Hatchard, ‘Constitutionality of the death penalty and penal policy’, 39(2) JAL (1995) 192–197. ‘The death sentence in Zambia and international human rights’, 41(1) JAL (2009) 147–148; B. Sander, ‘Capital punishment jurisprudence: A critical assessment of the Supreme Court of Uganda’s judgment in Attorney General v Susan Kigula and 417 Others’, 55(2) JAL (2011) 261–279. X. B. L. Persad, ‘6. Homosexuality and Death: A Legal Analysis of Uganda’s Proposed Anti- Homosexuality Bill’, 6(1) Florida A & M University Law Review (2010) 135–162. 117 A. G. a. B. Kuschnik, ‘Tanzania’s death penalty debate: An epilogue on Republic v Mbushuu’, 9 African Human Rights Law Journal (2009) 459–481. Conversely, see also domestic courts reference to the lack of prohibition of the death penalty in the ACHPR, J. D. Mujuzi, ‘International human rights law and foreign case law in interpreting constitutional rights: The Supreme Court of Uganda and the Death Penalty Question’, 9(2) AHRLJ (2009) 576–589. D. v. Z. Smit, ‘The death penalty in Africa’, 4 African Human Rights Law Journal (2004) 1–16. 118 Press release on the execution of Mahmoud Hassan Abdel-Naby, Banjul, 10 March 2015. See J. Biegon and M. Killander, ‘Human rights developments in Africa during 2009’, 10(1) AHRLJ (2010) 212–232. 119 African Commission, Study on the Question of the Death Penalty in Africa, Submitted by the Working Group on the Death Penalty in Africa in accordance with Resolution ACHPR/Res.79 (XXXVIII) 05, Adopted by The African Commission on Human and Peoples’ Rights at its 50th Ordinary Session (24 October–07 November 2011) Banjul, The Gambia, p.47. 120 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 69. 121 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 18 November 2015, para 66.

G. Death Penalty

115

On the other hand, however, while the African Commission may be prepared to state that the death penalty is not a practice it condones, its approach has been relatively weak as regards outright abolition. It has, for instance, only been ‘in favour of the abolition of the death penalty in Africa’122 and agreed with an acknowledgement by the complainants in one case that ‘the imposition of the death penalty is not per se unlawful under the Charter or broader international human rights law’.123 It is through persuasion and encouragement124 that it has called on ‘Member States of the African Union that have abolished the death penalty de jure to encourage other Member States which still carry out the death penalty about the necessity of abolishing the death penalty’.125 It continues to issue press releases and statements urging States not to implement the death penalty,126 condemning recent executions,127 and outlining the consequences of it,128 and calling on States to ratify the Second Optional Protocol to the ICCPR.129 It has said the death penalty is a ‘barbaric and ineffective form of criminal justice’.130 In the renowned case of Ken Saro-Wiwa where activists, including Ken Saro-Wiwa, were detained, tried, sentenced to the death penalty and subsequently executed, the African Commission held that the violation of Article 4 had been ‘compounded by the fact that there were pending communications before the African Commission at the time of the executions, and the Commission had requested the government to avoid causing any “irreparable prejudice” to the subjects of the communications before the Commission had concluded it consideration’.131 The issuance of provisional measures has been used in a small number of cases to attempt to prevent executions.132 In this particularly high-profile case, not only had the African Commission issued provisional measures but there had been international media attention and calls from many sources including at the UN133 urging the Nigerian government not to execute these individuals. Press release on the execution of Mahmoud Hassan Abdel-Naby, Banjul, 10 March 2015, italics added. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, at para 225, see also para 142. 124 Press Statement on the Death Penalty in The Gambia, Banjul, The Gambia, 24 August 2012. Resolution on the expansion of the mandate of the Working group on Death Penalty in Africa, ACHPR/Res.227. Resolution on the Re-appointment of the Chairperson and Members of the Working Group on the Death Penalty in Africa, ACHPR/Res.201, November 2011. 125 Intersession Report of Commissioner Zainabo Sylvie Kayitesi, 45th Ordinary Session of the African Commission on Human and People’s Rights, held in Banjul, the Gambia from 13–27 May 2009, at para 14. Statement by the African Commission on Human and Peoples’ Rights on World Day against the Death Penalty, 10 October 2013 126 Press Statement on the Death Penalty in The Gambia, Banjul, The Gambia, 24 August 2012. 127 Press release on the execution of Mahmoud Hassan Abdel-Naby, Banjul, 10 March 2015. 128 Statement by the African Commission on Human and Peoples’ Rights on World Day against the Death Penalty, 10 October 2013. 129 Resolution on Human Rights Abuses in Egypt, ACHPR/RES.287, 29 July 2014, para 5. 130 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia. 131 Communications 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 103. 132 E.g. Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 18 November 2015; Communications 137/94, 156/96, 161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and INTERIGHTS v Nigeria, 31 October 1998; Communication 240/01, Interights et al (on behalf of Mariette Sonjaleen Bosch) v Botswana, 20 November 2003; Communication 269/03, Interights (on behalf of Safia Yakubu Husaini et al.) v Nigeria, 11 May 2005. 133 See e.g. UN Special Rapporteurs on extrajudicial, summary or arbitrary executions and on the independence of judges and lawyers, press release HR/4209 8 November 1995. 122 123

116

5. Article 4: The Right to Life and Integrity of the Person

One cannot consider that the government’s refusal to do so was simply contrary to calls by the African Commission but also against considerable international, regional and national pressure.134 In a later case where Egypt had not yet executed a number of convicted persons and appeal procedures were continuing, the African Commission found that the State had complied with its order for provisional measures to suspend the death penalty while the matter was pending before the African Commission.135 In September 2009 a conference, ‘Question of the Death Penalty in Africa’, was held by the African Commission in Rwanda. The resulting Kigali Framework Document on the Abolition of the Death Penalty in Africa included recommendations that the African Commission ‘continue its campaign to abolish the death penalty’, through awareness raising and proposing alternative solutions; African State constitutions should include a clause prohibiting the death penalty and the African Commission should urge States to ratify the Second Optional Protocol to the ICCPR.136 This conference also gave support to the proposal137 for a protocol to the ACHPR on abolition of the death penalty. At a Second Regional Conference on the Question of the Death Penalty in Africa in Cotonou in April 2010, despite the reluctance of several States,138 it was suggested that there should be a roadmap towards the adoption of a protocol. The subsequent Study on the Death Penalty similarly set out various strategies that the African Commission committed to adopt: engagement with States to encourage abolition; awareness raising and education around the need for abolition; engagement with other actors and with the UN; encouragement of States to ratify the second Optional Protocol to the ICCPR. It also confirmed the need for the African Commission to work on the adoption of a Protocol to the ACHPR on abolition of the death penalty.139 While it is to be welcomed that at its 56th Session the African Commission adopted a draft Protocol on the Abolition of the Death Penalty,140 its progress appears to have been stalled at the AU’s

134 See D. Juma, ‘Provisional measures under the African human rights system: The African Court’s order against Libya’, 30(2) Wisconsin International Law Journal (2012) 344–373. 135 Communication 467/14, Ahmed Israel and 528 Others v the Arab Republic of Egypt, 8 August 2015, para 176. 136 Kigali Framework Document on the Abolition of the Death Penalty in Africa, Kigali, Rwanda, 25 September 2009. 137 Kigali Framework Document on the Abolition of the Death Penalty in Africa, Kigali, Rwanda, 25 September 2009, para 10(b). Resolution on the Renewal of the Mandate of the Chairperson and Members of the Working Group on the Death Penalty, Extrajudicial, Summary and Arbitrary Killings in Africa, ACHPR/Res.251, November 2013. Zainabo Sylvie Kayitesi, Activities as Commissioner, Activities Undertaken As A Member of the African Commission on Human and People’s Rights, Intersession Activity Report, 45th Session, 13 May 2009, para 11. See also L. M. Chenwi, Towards the Abolition of the Death Penalty in Africa: A Human Rights Perspective, Submitted in fulfilment of the requirements for the degree Doctor of Laws (LLD), In the Faculty of Law, University of Pretoria, May 2005, http://repository.up.ac.za/bitstream/handle/2263/28468/Complete. pdf?sequence=10. 138 The Cotonou Framework Documents towards the Abolition of the Death Penalty in Africa. Adopted by the Second Regional Conference for North and West Africa on the Question of the Death Penalty in Africa, Cotonou, Benin, 12–15 April 2010, para 9(b). The States who did not support this at that time included Algeria, Egypt, Libya and Tunisia. 139 African Commission, Study on the Question of the Death Penalty in Africa, Submitted by the Working Group on the Death Penalty in Africa in accordance with Resolution ACHPR/Res.79 (XXXVIII) 05, Adopted by The African Commission on Human and Peoples’ Rights at its 50th Ordinary Session (24 October–07 November 2011) Banjul, The Gambia, pp.52–53. 140 Final Communiqué of the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, The Gambia 21st April–7 May 2015, para 33(i).

G. Death Penalty

117

Specialized Technical Committee on Legal Affairs who have raised concerns with the legal drafting.141 The hesitancy towards outright abolition is still there, as illustrated by the response of the African Commission in February 2015 to mass death sentences imposed by Egypt on over a thousand persons in 2014 and 2015. Despite condemning Egypt for its ‘disregard to regional and international fair trial standards, the unlawful imposition of mass death sentences, and the persecution of journalists and human rights defenders’, it urged the government to ‘observe an immediate moratorium on the death sentences’, but only to ‘reflect on the possibility of abolishing capital punishment’.142 The General Comment No. 3 on the right to life similarly also calls on States which have abolished it to ‘not reintroduce it, nor facilitate executions in retentionist states through refoulement, extradition, deportation or other means’; for those who have a moratorium to ‘take steps to formalize abolition in law’; and for those which have yet to abolish it ‘that it is used for only the most serious crimes—understood to be crimes involving intentional killing’.143 Clarification of what amounts to ‘the most serious crimes’ is provided in Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana.144 Affirming that the death penalty for such crimes would not violate Article 4, the African Commission noted that this phrase should be interpreted ‘in the most restrictive and exceptional manner possible and that the death penalty should only be considered in cases where the crime is intentional, and results in lethal or extremely grave consequences’.145 Drawing upon the Rome Statute, the African Commission found that murder would fall into this category, as would intentional crimes which involved ‘the use of firearms resulting in the death of another’,146 but ‘economic, nonviolent or victimless offences such as economic crimes and drug related offences would amount to a disproportionate imposition of the death penalty and thus a violation of the right to life under Article 4 of the African Charter’.147 Despite not finding a violation of Article 4 in this case, it did find a violation of Article 5 and still called on the State to ‘take urgent measures with a view to abolish the death penalty’.148 The only situations where it has consistently called for abolition is in relation to crimes committed by children, pregnant or nursing women149 and has added to this list, ‘elderly

141 Oral Statement by Amnesty International Index: AFR/3808/2016 58th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, Gambia. 142 ACHPR/Res.297, Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, 28 February 2015, italics added. 143 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, paras  23–24. 144 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013. 145 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 203. 146 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 205. 147 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 204. 148 Communication 277/2003-Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013. 149 See above, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted 11 July 2003, and came into force on 25 November 2005.

118

5. Article 4: The Right to Life and Integrity of the Person

persons or persons with psycho-social or intellectual disabilities’.150 In Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, the African Commission was asked to consider the imposition of death sentences on seven children. Responding to the argument by the Democratic Republic of Congo that the sentences had been commuted by presidential pardon and therefore no violation had occurred, the African Commission held that ‘as the death penalties imposed unjustly on the victims as a measure of last resort had been commuted to various terms of imprisonment, it does not in any way settle the violation perpetrated against the child soldiers, even though it reduces the effects. In this instance, the principle governing the effectiveness of human rights remedies is that the violations must be remedied, and the Respondent State cannot be absolved from this obligation by adopting mitigating measures or alternative measures’.151 Drawing upon international law standards including Article 6(5) of the ICCPR and Article 37 of the UN CRC, the African Commission consequently found that imposition of the death sentence on juveniles was in violation of Article 4 of the ACHPR.152 Returning an individual to their home where his life would be under threat from a civil war was found to be a violation of Article 4.153 Thus, while the African Commission has been prepared to hold that the death penalty carried out in violation of Article 7 will be arbitrary, it has not yet been willing, as for example Ackermann J did in Magwanyane,154 to hold that the death penalty itself is arbitrary.155 Its references, such as in 2011, that ‘[w]‌hatever one may say, the legality of the violation of the right to life through the imposition of the death penalty cannot be considered as an absolute restriction’.156 Nevertheless there is clear value in the African Commission taking a stronger stance in terms of setting regional standards.157

2. Must be Article 7 Compliant Trial What the African Commission has held consistently is that if ‘the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of Article 4’.158 So where ‘prisoners were executed after summary and arbitrary trials’, the right to life was found to have been violated.159 Conversely, it could also be presumed, and implied, by Communication 150 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, paras  24–25. 151 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 46. 152 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, paras 70 and 72. 153 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, para 47. 154 S v Magwanyane and Another, 1995 3 SA 391 (CC), at para 166. 155 D. v. Z. Smit, ‘The death penalty in Africa’, 4 African Human Rights Law Journal (2004) 1–16, at 7. 156 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 70 and 72. 157 D. v. Z. Smit, ‘The death penalty in Africa’, 4 African Human Rights Law Journal (2004) 1–16, at 12. 158 Communications 137/94-139/94-154/96-161/97 International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 103. See L. Chenwi, ‘Fair trial rights and their relation to the death penalty in Africa’, 55(3) ICLQ (2006) 609–634. 159 E.g. Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 48. See also, 54/91-61/91-96/93-98/93-164/97_196/97-210/98 Malawi African Association, Amnesty

G. Death Penalty

119

223/98, Forum of Conscience v Sierra Leone,160 that if the trial ordering the execution is considered to be fair, then the imposition of the death penalty will not violate the right to life. In some early cases the African Commission focused on the nature of the trial, for example, finding that trials resulting in the death penalty which themselves did not comply with Article 7 of the ACHPR would subsequently render the execution contrary to Article 4 of the Charter.161 When faced in particular with high profile cases such as that of Ken Saro-Wiwa in Nigeria, and Mariette Bosch in Botswana, the African Commission shied away from calling for an outright abolition and declaring the death penalty per se to be in violation of the African Charter. Instead, in Communication 240/2001, Interights et al (on behalf of Mariette Sonjaleen Bosch) v Botswana, for example, the African Commission noted that: While it is accepted that the death penalty should be imposed after full consideration of not only the circumstances of the individual offence but also the circumstances of the individual offender . . . there is no rule of international law which prescribes the circumstances under which the death penalty may be imposed.162

Instead it chose to focus on the claim that the courts did not consider the full circumstances and whether the sentence was disproportionate to the gravity of the crime. The Commission looked at extenuating circumstances but found that: Thus while the African Commission acknowledges that the seriousness or gruesome nature of an offence does not necessarily exclude the possibility of extenuation, it cannot be disputed that the nature of the offence cannot be disregarded when determining the extenuating circumstances. As such, the African Commission finds no basis for faulting the findings of both the trial court and Court of Appeal as it relates to this issue.163

It hence based its findings on whether the national courts had given adequate consideration to the facts and issues in the case. Neither did it accept that there was sufficient evidence to indicate there was failure to give reasonable notice of the date and time of the execution, although it was prepared to say that a failure to do so would have amounted to cruel, inhuman and degrading punishment and treatment. The African Commission concluded that ‘[i]‌n the circumstances it would be fundamentally unfair to the Respondent State to deal with the substance of this issue save to observe that a justice system must have a human face in matters of execution of death sentences by affording a condemned person an opportunity to “arrange his affairs, to be visited by members of his intimate family before he dies, and to receive spiritual advice and comfort to enable him to compose himself as best he can, to face his ultimate ordeal” ’.164 It could be argued International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 120. 160 ‘[A]‌ny violation of this right without due process amounts to arbitrary deprivation of life’, Communication 223/98, Forum of Conscience v Sierra Leone, 6 November 2000, para 20. 161 In respect of a series of cases against Mauritania, Communications 54/91, 61/91, 98/93, 164/97-196/ 97 and 210/98, Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit v Mauritania Association Mauritanienne des Droits de l’Homme v Mauritania, 2000, ‘Following the November 1987 trial, which already violated the provisions of article 7, three army lieutenants were sentenced to death and executed, para 10. The trial itself constituted a violation of the African Charter. Furthermore, the Commission is of the view that the executions that followed the said trial constitute a violation of article 4’. 162 163 164 Para 31. Para 37. Para 41.

120

5. Article 4: The Right to Life and Integrity of the Person

that this is a weak statement by a Commission trying to set down some more general guidance but constrained by political pressures. There was also evidence that the request placed before the African Commission for provisional measures to ask the government to postpone the execution was not dealt with properly by the Commission and it failed to act until it was too late.165 On another occasion the African Commission noted that a law in Egypt ‘imposes a penalty on a particular crime in specified circumstances but did not provide an avenue for a competent judiciary to evaluate the appropriate penalty, in light of all of the circumstances of the case. The penalty is effectively mandated by law for certain categories of offences, with the President empowered to decide not to apply that sentence if he so decides. This is at odds with the requirements of right to life, as reflected in international legal practice’.166 Thus, ‘[h]‌aving held that the trial of the applicants offended Article 7 of the African Charter, it follows that any implementation of the death sentence imposed on the applicants by the Supreme State Security Emergency courts will therefore amount to an arbitrary deprivation of life’.167 This approach of questioning the mandatory nature of the death penalty and not permitting judicial discretion is one which has been adopted by other international bodies.168 What is interesting, in the case against Egypt where the individuals had not yet been executed, was that the African Commission did not find a violation of Article 4: [t]‌he victims are still under the custody of the Respondent State, through a process that denied them due process and are not yet executed’.169 So while there may be a violation of Article 7 and the right to a fair trial in such circumstances, Article 4 may not be violated until the execution has taken place.170 The African Commission disagreed with the argument in one case against Botswana that the legal representation provided by the State was inadequate as it relied on junior and inexperienced lawyers. Instead it held that this had been proven and had not been raised as an issue on appeal; the defence team should, however, be ‘competent, capacitated and committed’.171 Where clemency was provided but not subject to judicial review, the African Commission similarly did not find a violation of Article 4 holding that clemency was a prerogative power.172

165 See comments by Commissioner Pityana, R. Murray, ‘Developments in the African human rights system 2003–04’, 6(1) Human Rights Law Review 160–175, at fn.53. 166 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v. Egypt, 3 March 2011, at para 230. 167 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v. Egypt, 3 March 2011, at para 230. 168 See e.g. Communication 806/1998, UN Human Rights Committee, Thompson v St Vincent, UN Doc. CCPR/C/70/D/806/1998 (2000); Communication 1077/2002, Carpo v Philippines, UN Doc.CCPR/C/77/ D/1077/2002 (2002); Inter-American Commission on Human Rights, Edwards v Bahamas, Case 12.067, Report 48.01, OEA/Ser.L/V/II.111, Doc.20 (2000). A. Novak, ‘Capital sentencing discretion in Southern Africa: A human rights perspective on the doctrine of extenuating circumstances in death penalty cases’, 14 African Human Rights Law Journal (2014) 24–42. 169 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, at para 232. 170 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011. 171 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 18 November 2015, paras 71 and 69 and 72 respectively. 172 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 18 November 2015, para 81.

H. Reading Other Rights into Article 4

121

3. Rules on the Conduct of Executions If the death penalty must be carried out, the African Commission has held that it should be ‘used in a completely transparent manner, with States giving reasonable advance notice of the timing, manner, and number of executions to those involved, including those under sentence of death, their families and lawyers, and to the public at large’.173 The sentence should not be conducted in public or by methods which ‘cause unnecessary physical or mental suffering’.174 The body should be ‘treated with respect’ and returned to the family.175

H. Reading Other Rights into Article 4 In Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria,176 the African Commission implied a right to food in the ACHPR as ‘inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of such other rights as health, education, work and political participation’.177 This right, derived from the ACHPR ‘and international law’: require and bind Nigeria to protect and improve existing food sources and to ensure access to adequate food for all citizens. Without touching on the duty to improve food production and to guarantee access, the minimum core of the right to food requires that the Nigerian Government should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves.178

The destruction of food sources by the government and private oil companies as well as impingements of the Ogoni in Nigeria to feed themselves were in violation of the right to food.179 In addition, a right and access to water has also been referred to by the African Commission on a number of occasions, as derived from Article 4 of the ACHPR. It has noted that ‘[t]‌he right and access to water are essential to the full enjoyment of the right to life and all the rights contained in the African Charter. A denial of such right is a denial of the basic right and the denial of the right to life as enshrined in the article 4 of the African Charter’.180 Furthermore, this has been linked to housing. Where Botswana 173 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 26. 174 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 26. 175 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 26. 176 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 177 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, para 65. 178 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria Para 65. See H. Elver, ‘The challenges and developments of the right to food in the 21st century: Reflections of the United Nations Special Rapporteur on the right to food’, 20(1) UCLA Journal of International Law and Foreign Affairs (2016) 1–44, at 24. 179 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, para 66. 180 Press release on the situation facing the Bushmen of the Central Kalahari Game Reserve in Botswana.

122

5. Article 4: The Right to Life and Integrity of the Person

deprived the Bushmen of the Central Kalahari Game Reserve from access water through an existing borehole the African Commission condemned this as ‘a clear sign that the Government of Botswana is determined to continue what is perceived as a policy of keeping the Bushmen from returning home’.181 The Pretoria Declaration on Economic, Social and Cultural Rights in Africa, 2004 notes in addition, that: The social, economic and cultural rights explicitly provided for under the African Charter, read together with other rights in the Charter, such as the right to life and respect for inherent human dignity, imply the recognition of other economic and social rights, including the right to shelter, the right to basic nutrition and the right to social security.182

I. Violation of the Right to Life During Conflict As noted above, the right to life is absolute in the ACHPR. The African Commission’s General Comment on Article 4 provides that ‘[i]‌nternational humanitarian law on the conduct of hostilities must only be applied during an armed conflict and where the use of force is part of the armed conflict. In all other situations of violence, including internal disturbances, tensions or riots, international human rights rules governing law enforcement operations apply’.183 In addition, ‘[d]uring the conduct of hostilities, the right to life needs to be interpreted with reference to the rules of international humanitarian law [IHL]’.184 This has been seen as a ‘remarkable statement’ as ‘for the first time, a human rights treaty body made it explicit that, when human rights law norms are placed in the background to favour the application of IHL norms, a breach of the latter entails a violation of the former’.185 International humanitarian law should govern what amounts to an arbitrary deprivation of liberty during times of armed conflict,186 although the African Commission does not define armed conflict in these contexts.187 A violation of international humanitarian law which ended in death will be an arbitrary deprivation of the right to life.188 As Todeschini notes this ‘consolidated an established interpretive trend, according to which IHL provides the yardstick to evaluate when use of force in the conduct of hostilities amounts to arbitrary deprivation of life in violation of relevant human rights norms’.189 Press release on the situation facing the Bushmen of the Central Kalahari Game Reserve in Botswana. Pretoria Declaration on Economic, Social and Cultural Rights in Africa, 2004, para 10. 183 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 33. 184 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 13. 185 V. Todeschini, ‘The Relationship between International Humanitarian Law and Human Rights Law in the African Commission’s General Comment on the Right to Life’, EJIL: Talk!, 7 June 2016. 186 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 32. 187 Amnesty International, Amnesty International’s Observations on the Draft General Comment on Article 4 of the African Charter on Human and Peoples’ Rights (Right to Life), 2 September 2015, Index number: AFR 01/2341/2015, para 41. 188 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 32. 189 V. Todeschini, ‘The Relationship between International Humanitarian Law and Human Rights Law in the African Commission’s General Comment on the Right to Life’, EJIL: Talk!, 7 June 2016. 181 182

K. Use of Force by Law Enforcement Officials

123

J. Enforced Disappearances In Communication 204/97 Movement Burkinabé des droits de l’Homme et des Peuples v Burkina Faso the African Commission, citing the violation of the right to life as contained in the Declaration on the Protection of all Persons against Forced Disappearances,190 and that disappearances also violated Articles 5 and 6 of the ACHPR, found violations of Article 4.191 The African Commission’s General Comment on Article 4 further requires that ‘States shall take appropriate measures to investigate cases of enforced disappearances committed by persons or groups acting without the authorisation, support or acquiescence of the State, and to bring those responsible to justice’.192 However, it is not clear why the African Commission did not follow Amnesty International’s recommendation on the draft General Comment to include a more detailed paragraph on enforced disappearances.193

K. Use of Force by Law Enforcement Officials Drawing upon the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions reports,194 and the Code of Conduct for Law Enforcement Officials an Basic Principles on the Use of Force and Firearms by law Enforcement Officials,195 the African Commission has recognised the impact of the use of force by law enforcement officials on the right to life but that ‘in some cases of urgency, law enforcement officials are given the power by law to use coercive measures and even in exceptional cases to take life-and- death decisions on the spot’.196 Such powers are necessary to protect the public and the law enforcement officials themselves: a ‘system that is seen as too protective of the rights of suspects is unlikely to be effective in practice. The challenge clearly is to find the right balance between overly permissive and overly restrictive. The starting point is that life should not be taken by the State, and any action that seeks to fall in the narrow confines of exceptions to this rule requires strong motivation’.197 In line with other international law standards, any force used must be reasonably necessary, proportionate and only employed in ‘exceptional circumstances’.198 190 Declaration on the Protection of all Persons against Forced Disappearances, General Assembly of the United Nations in Resolution 47/133 of 18th December 1992, Article 1(2). 191 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 44. 192 General Comment No. 3 on the Right to Life, Adopted During the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia, para 38. 193 Amnesty International, Amnesty International’s Observations on the Draft General Comment on Article 4 of the African Charter on Human and Peoples’ Rights (Right to Life), 2 September 2015, Index number: AFR 01/2341/2015, para 48. 194 UN Doc. A/66/330; see Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 107. 195 UNGA Res. 34/169, annex 14; Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990: report prepared by the Secretariat as cited in Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 110. 196 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 109. 197 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 109. 198 UNGA Res. 34/169, annex 14; Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August-7 September 1990: report prepared by the Secretariat As cited in

124

5. Article 4: The Right to Life and Integrity of the Person

Proportionality has been interpreted as requiring that ‘the rights of the person threatened are measured against those of the deceased persons . . . in an objective way, in the light of the prevailing circumstances at the time when the final decision on the use of lethal force is made’.199 Furthermore, ‘life should not be taken by the State, and any action that seeks to fall in the narrow confines of exceptions to this rule requires strong motivation. Furthermore, the Respondent fails to prove that the deceased persons were suspected criminals’.200 The principle of ‘protection of life’ requires that ‘while life may not be sacrificed to protect other values, under closely defined circumstances one life may be taken as a last resort in order to protect another life or lives’.201 In a case against Zimbabwe where the police shot at an individual’s car leading to the death of another, and where the police were not at the time under threat, the African Commission held that ‘it is not the fact that someone suspected of having committed a crime stands to be arrested as such that justifies the use of firearms but rather the immediate danger that this person poses to life’.202 Where, in the same case, another individual fled the police and when arrested but then subsequently escaped, he was shot in the head at point-blank range. He was not armed and the African Commission noted that as he posed no ‘immediate threat to the safety of the police officers or any other member of the public. Thus a lower level of force would have been sufficient to restrain or apprehend’ him.203 In relation to both these individuals, the African Commission found that the situation was not one of ‘last resort to protect lives’ and therefore the use of force was not justified.204 Similarly, deaths as the result of assaults by police officers when carrying out their duties will also violate Article 4.205

L. Special Mechanisms 1. Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions The genocide in Rwanda in 1994, to which the African Commission had until its occurrence paid little attention to the escalating situation in the country,206 prompted in Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 111. 199 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 116. 200 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 121. 201 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 122. 202 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 117. 203 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 119. 204 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 122. 205 Communication 295/04 Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, paras 124. 206 Resolution on the Situation in Rwanda, Seventh Activity Report 1993–1994, Annex XII: ‘deeply concerned about the alarming human rights situation in Rwanda characterised by serious and massive human

L. Special Mechanisms

125

part the decision of the African Commission to appoint at its session in April that year a Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions.207 The mandate provided to the Special Rapporteur at this stage was simply ‘mainly to focus on the situation in Rwanda’.208 It was not until October 1995 where more detailed terms of reference which had been drafted by the Special Rapporteur, were approved by the African Commission.209 In the early years, little work was done, consisting of a handful of reports and statements to the sessions.210 The 1996 terms of reference provide as follows: 1. To propose the implementation of a reporting system on cases of extrajudicial, summary and arbitrary executions in African States, especially by keeping a register of the identity of the victims. 2. To follow up, in collaboration with government officials, or failing that, with international, national or African NGOs, all enquiries which could lead to discovering the identity and extent of responsibility of authors and initiators of extrajudicial, summary or arbitrary executions. 3. To suggest ways and means of informing the African Commission in good time of the possibility of extrajudicial, summary or arbitrary executions, with the goal of intervening before the OAU Summit. 4. To intervene with States for trial and punishment of perpetrators of extrajudicial summary or arbitrary executions, and rehabilitation of the victims of these executions. 5. To examine the modalities of creation of a mechanism of compensation for the families of victims of extrajudicial, summary or arbitrary executions, which might be doing [sic] through national legal procedures, or through an African compensation fund.211 The methodology that the Special Rapporteur would adopt included verifying allegations but which should not ‘in any way, substitute for the police and judicial organs of the concerned country, nor play the role of detective, it nevertheless remains that he must evaluate the adequacy of the means of inquiry made by national organs and the

rights violations’, condemning the violence and the massacre, and calling on all parties to resolve the conflict and to respect humanitarian law; Press Release, Seventh Activity Report 1993–1994, Annex XIII. Resolution on Rwanda, Eighth Activity Report 1994–1995, Annex VI, November 1994. 207 J. Harrington, ‘Special Rapporteurs of the African Commission on Human and Peoples’ Rights’ (paper submitted to the Conference on Reform of the African Human Rights System, Centre for Human Rights, University of Pretoria, 26–28 March 2001). 208 Seventh Activity Report of the African Commission on Human and Peoples’ Rights 1993–4, ACHPR/ RPT/7th (Documents of the African Commission, p.317), para 26. See also ‘Resolution on the Situation in Rwanda’, adopted at the same session, paragraph 4 of which ‘[i]‌nvites the Special Rapporteur . . . to pay special attention to Rwanda and report back to the 16th Session’. 209 Final Communiqué of the Seventeenth Ordinary Session, Lomé, Togo, 12–22 March 1995, ACHPR/ COM.FIN/XVII/Rev.3 (Documents of the African Commission, p.418), para 25. Report on Extrajudicial, Summary or Arbitrary Executions, Tenth Activity Report 1996–1997, Annex VI, Section III (Documents of the African Commission, p.508). 210 M. Evans and R. Murray, ‘The Special Rapporteurs in the African System’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2000, Cambridge University Press, 1st edition, 2002, 280–305, at 282. 211 Report on Extra-judicial, Summary or Arbitrary Executions, Tenth Activity report of the African Commission on Human and Peoples’ Rights, Annex VI.

126

5. Article 4: The Right to Life and Integrity of the Person

credibility of the conclusions adopted by national investigative organs’.212 In carrying out his mandate, he should also have ‘recourse to all methods of investigation, specifically by requesting the assistance of States and national, international and African NGOs’,213 and ‘can be assisted in his mission by any person whom he judges competent to perform this task well’.214 What the balance should be between the focus on Rwanda (which had been the main incentive to appoint the Special Rapporteur) and to a certain extent Burundi,215 and a broader agenda with the inclusion of other countries, was never entirely clear.216 This and a failure to conduct on-site visits, even as part of a general delegation of the African Commission,217 explains in part why this particular special mechanism faced criticisms.218 The Special Rapporteur was engaged in responding to urgent calls, for example, to prevent individuals being executed,219 but his work was limited. It was perhaps of little surprise when criticisms came from the Rwandan government, NGOs and members of the Commission itself, resulting in Commissioner Ben Salem resigning from the position in 2000.220

2. Working Group on the Death Penalty At its 37th Session the African Commission appointed two Commissioners to work with the Special Rapporteur on Prisons to consider the death penalty. At the subsequent session the Working Group was broadened to include two experts and mandated to:

212 Report on Extra-judicial, Summary or Arbitrary Executions, Tenth Activity report of the African Commission on Human and Peoples’ Rights, Annex VI, section III.B. 213 Report on Extra-judicial, Summary or Arbitrary Executions, Tenth Activity report of the African Commission on Human and Peoples’ Rights, Annex VI, Section II, D. 214 Report on Extra-judicial, Summary or Arbitrary Executions, Tenth Activity report of the African Commission on Human and Peoples’ Rights, Annex VI, Section II.D. 215 Progress Report on Extrajudicial, Summary or Arbitrary Executions, Tenth Activity Report 1996–1997, Annex VI. 216 E.g. by April 1998, Chad, Comoros and the DRC as well as Rwanda and Burundi, Eleventh Activity Report of the African Commission on Human and Peoples’ Rights 1997–8, ACHPR/RPT/11th, para 29; by October that same year it was also Angola and Sierra Leone, Twelfth Activity Report of the African Commission on Human and Peoples’ Rights 1998–9, ACHPR/RPT/12th, para 24; and a few months later, at the 25th Session, reduced to only Rwanda, Burundi and Chad, Twelfth Activity Report of the African Commission on Human and Peoples’ Rights 1998–9, ACHPR/RPT/12th (Documents of the African Commission, p.685), para 25. 217 Thirteenth Activity Report of the African Commission on Human and Peoples’ Rights 1999–2000, AHG/222 (XXXVI), para 24. M. Evans and R. Murray, ‘The Special Rapporteurs in the African System’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2000, Cambridge University Press, 1st edition, 2002, 280–305. Ninth Activity Report of the African Commission on Human and Peoples’ Rights 1995–6, ACHPR/RPT/9th, para 20; Resolution on Burundi, Ninth Activity Report 1995–1996, Annex VII which does not specifically mention the Special Rapporteur. 218 M. Evans and R. Murray, ‘The Special Rapporteurs in the African System’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2000, Cambridge University Press, 1st edition, 2002, 280–305, at 282–289. 219 E.g. in relation to executions in Rwanda, Final Communiqué of the 23rd Ordinary Session of the African Commission on Human and Peoples’ Rights, DOC/OS/45(XXIII), para 9. 220 R. Murray, ‘Report of the 1999 Sessions of the African Commission on Human and Peoples’ Rights’, 22 Human Rights Law Journal (2001) 172–198. M. Evans and R. Murray, ‘The Special Rapporteurs in the African System’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2000, Cambridge University Press, 1st edition, 2002, 280–305.

L. Special Mechanisms

127

• Elaborate further a Concept Paper on the Death Penalty in Africa; • Develop a Strategic Plan(s), including a practical and legal framework on the abolition of the Death Penalty; • Collect information and continue to monitor the situation of the application of the Death Penalty in African States; • Develop a funding proposal with a view to raising funds to meet the costs of the work of the Working Group; • Submit a progress report at each Ordinary Session of the African Commission; • Collaborate with other partners, including International, National, Governmental and Non-Governmental Institutions for the successful fulfilment of its mandate.221 Although its membership has changed over the years,222 the Working Group has met a number of times; organised sub-regional conferences on the death penalty;223 examined laws relating to the death penalty in a number of States; and recently finalised the Study on the Question of the Death Penalty in Africa which was adopted at the 50th Session of the Commission.224 Given that the Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings had not been operational since the Commissioner’s resignation in the early 2000s, the mandate of the Working Group on the Death Penalty was expanded to include this issue in October 2012.225 Its title was accordingly amended to the ‘Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary Killings in Africa’.226 The Working Group consequently has an additional mandate to ‘Monitor situations relating to extra-judicial, summary or arbitrary killings in all its ramifications; Collect information and keep a database of reported instances of situations concerning extra-judicial, summary or arbitrary killings in Africa; Undertake studies on issues of relevance to extra-judicial, summary or arbitrary killings; Advise the Commission on urgent measures to be taken to address situations of extra-judicial, summary or arbitrary

221 Resolution on the Composition and the Operationalisation of the Working Group on the Death Penalty, November 2005, adopted at the 38th Session of the African Commission. 222 Resolution Appointing Expert Members of the Working Group on Death Penalty and Extrajudicial, Summary or Arbitrary killings in Africa, ACHPR/Res.270, May 2014; Resolution on the Renewal of the Mandate of the Chairperson and Members of the Working Group on the Death Penalty, Extrajudicial, Summary and Arbitrary Killings in Africa, ACHPR/Res.251, November 2013; Resolution on the Re-appointment of the Chairperson and Members of the Working Group on the Death Penalty in Africa, ACHPR/Res.201, November 2011; Resolution ACHPR/Res.113 (XXXXII) 07 on the renewal of the mandate and the appointment of Commissioner Kayitesi Zainabo Sylvie as the Chairperson of the Working Group on the Death Penalty, adopted at the 42nd Ordinary Session, held from 15 to 28 November 2007, in Brazzaville, Republic of Congo; Resolution ACHPR/Res.79(XXXVIII) 05 on the composition and work of the Working Group on the Death Penalty, adopted at its 38th Ordinary Session to expand the composition of the Working Group. Resolution on the Renewal of the Mandate and Reconstitution of the Working Group on Death Penalty, Extrajudicial, Summary or Arbitrary Killings in Africa—ACHPR/Res. 384(LXI) 2017, 15 November 2017. 223 E.g. Sub-Regional Conference on the Death Penalty, September 2009, leading to the adoption of a Framework Document on the Abolition of the Death Penalty in Africa, see Intersession Report, May-November 2009, by Commissioner Zainabo Sylvie Kayitesi, 46th Ordinary Session of the African Commission on Human and People’s Rights. 224 Final Communiqué of the 50th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 24th October–5 November 2011, para 39. 225 Resolution ACHPR/Res.227 (LII) 2012 on the expansion of the mandate of the Working Group to questions on extrajudicial, summary or arbitrary killings, adopted at its 52nd Ordinary Session, held from 9 to 23 October in Yamoussoukro, Côte d’Ivoire. 226 Resolution on the expansion of the mandate of the Working group on Death Penalty in Africa, ACHPR/ Res.227.

128

5. Article 4: The Right to Life and Integrity of the Person

killings that require immediate attention; Respond effectively to information that comes before it, in particular when an extra-judicial, summary or arbitrary killing is imminent or when such a killing has occurred; Submit its findings, conclusions and recommendations on the situation of extra-judicial, summary or arbitrary killings to each session of the Commission’.227

M. Evidence In Communication 266/03 Kevin Mgwanga Gunme et al v Cameroon,228 noting the government’s claim that the allegations were not substantiated by evidence such as death certificates, forensic evidence or investigation reports, the African Commission held: the parties do not have equal access to official evidence such as police reports, death certificates and forensic medical certificates. The Complainants endeavoured to inquire into the alleged violations and gave names of the alleged victims. The Respondent State restricted itself to questioning the reliability of the evidence presented by the Complainants. It did not deny the alleged violations. The Respondent State had the opportunity to inquire into the alleged violations. The Respondent State did not conduct such investigation and redress the victims, it thus failed to protect the rights of the alleged victims. The Commission finds that it violated Article 4 of the African Charter.229

The African Commission itself has also drawn upon reports of UN Special Rapporteurs with respect to the human rights situation in particular States to assist it in coming to its conclusions.230

N. Burden of Proof and Rules of Evidence The African Commission has a ‘long-standing practice’231 of holding that the burden of proof rests with the government ‘in cases of human rights violations’. It has held this to mean that ‘[i]‌f the government provides no evidence to contradict an allegation of human rights violation made against it, the Commission will take it as proven, or at the least probable or plausible’.232 227 Resolution on the expansion of the mandate of the Working group on Death Penalty in Africa, ACHPR/ Res.227. 228 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. 229 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 111. 230 ‘UN and Reports of International Human Rights Organisations attest to the fact that the Respondent State has fallen short of its responsibility. For instance, in her 2006 Report, the UN Special Rapporteur on the Human Rights Situation in The Sudan noted that ‘the human rights situation worsened from July 2005 . . . and a comprehensive strategy responding to transitional justice has yet to be developed in the Sudan’. She added that the cases prosecuted before the Special Criminal Court on the events in Darfur ‘did not reflect the major crimes committed during the height of the crisis in Darfur . . . only one of the cases involved charges brought against a high-ranking official, and he was acquitted’. Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 152. 231 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 52. See also ACHPR/59/91, ACHPR/60/91, ACHPR/64/92, 68/92, 78/92, ACHPR/ 87/93, ACHPR/101/93. 232 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 5 November 1999, para 52.

O. Remedies

129

O. Remedies Beyond some generalized requirement that the State, for example, take ‘all the necessary measures for guaranteeing the effective protection of human rights at all times, and everywhere both in times of peace and in times of war’233 a range of remedies have been recommended for violations of the right to life.

1. Investigations As a remedy to a violation of the right to life, distinct from the obligation to investigate alleged violations, the African Commission has also recommended that the State carry out investigations. For example, in respect of extensive human rights violations in Darfur committed by the military, armed groups and Janjaweed militia, the African Commission called for the State to conduct ‘effective official investigations into the abuses’.234

2. Legislative  Reform Recommendations have been made in the event of a finding of a violation of Article 4 that the State should amend legislation. This has varied from the broader and more vague ‘undertake major reforms of its legislative and judicial framework in order to handle cases of serious and massive human rights violations’;235 to the State being required to ‘harmonize the State Security Emergency Laws with a view to bringing it in conformity with the Charter and other international legislations and regional norms and standards’.236 Similarly, where Zimbabwean law did not permit the parents and heirs of the deceased persons from taking court action to claim damages for the loss of their children, Zimbabwe was recommended to ‘[u]‌ndertake law reform to bring domestic laws on compensation in case of wrongful killings into conformity with the African Charter and other international standards, especially in respect to effective and satisfactory compensation as outlined above’.237

3. Prosecute Those Responsible The African Commission has urged the State, in the event of violations of the right to life by non-State actors, to prosecute those responsible.238

233 Communications 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 1. 234 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229(a). 235 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229(b). 236 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 233. 237 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 145(a). 238 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229(c).

130

5. Article 4: The Right to Life and Integrity of the Person

4. Provision of Compensation In a few cases compensation has been awarded for a violation of the right to life. In Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon where individuals were attacked during post-election violence, the African Commission ordered the State to ‘give fair and equitable compensation to the victims and without delay, to pay fair and equitable compensation for the prejudices suffered by the victims or their beneficiaries’.239 The amount was to be fixed in accordance with national laws.240 Persons subject to the death penalty but which were not carried out, resulted in the African Commission not finding a violation of Article 4 but, rather, violations of other provisions of the ACHPR. It called not only for the victims to be released but also for the State ‘to adequately compensate the victims in line with international standard’.241 Conversely, where a violation of Article 4 was found even though death sentences against minors were commuted, the African Commission called on the State to pay compensation to the individuals, of an amount to be determined by national law, and ‘by taking into consideration the injury suffered, the duration of the procedure and the expenses incurred’.242 ‘Effective and satisfactory compensation’ to ‘the legal heirs and next of kin of the four deceased persons’ was ordered in one case.243 This compensation was to cover ‘any financially assessable damage and the satisfaction shall consist in an acknowledgment of the breach and a formal apology’.244 A particular payment of ZWD$97,000.00 to the parents of Beaven Tatenda Kazingachire for the cost of the funeral was not considered to be satisfactory by the African Commission and ‘does not effectively remedy the violations suffered (wrongful killing as a result of police assault)’.245

5. Obligation to Refrain With respect to the death penalty, recommendations from the Commission have included the obligation not to carry out the death penalty.246

239 Communications 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, paras 2 and 3. 240 Communications 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, paras 2 and 3. 241 Communication 334/06, Egyptian Initiative for Presonal Rights and Interights v Egypt, 3 March 2011, para 233. 242 Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 92. 243 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 145(b). 244 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 136. 245 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012. 246 Communication 334/06, Egyptian Initiative for Presonal Rights and Interights v Egypt, 3 March 2011, para 233.

O. Remedies

131

6. Reform the Courts With respect to a lack of fair trial and the imposition of the death penalty, the Commission called on the State to: ‘Reform the composition of the State Security Emergency Courts and ensure their independence’.247

7. Release the Individuals The Commission has called on the State to release individuals held after an unfair trial which led to the imposition of the death penalty.248

247 Communication 334/06, Egyptian Initiative for Presonal Rights and Interights v Egypt, 3 March 2011, para 233. 248 Communication 334/06, Egyptian Initiative for Presonal Rights and Interights v Egypt, 3 March 2011, para 233.

6. Article 5 Respect of Dignity; Prohibition of Slavery and Torture and Other Forms of Ill-Treatment Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and

degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

A. Introduction Many of the earlier and subsequent cases, matters brought to its attention and questions during State reporting, have involved Article 5 issues and it has been a constant on the African Commission’s agenda since its inception. This has led to the adoption of several resolutions,1 in particular the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment In Africa (‘Robben Island Guidelines’),2 as well as the establishment of a Special Rapporteur on Prisons and Conditions of Detention and then a Robben Island Guidelines Follow-Up Committee (later the ‘Committee on the Prevention of Torture in Africa’). It has regularly called on States to detail specifically in their Article 62 reports on measures they have taken to implement these Guidelines,3 although guidance on precisely what they should include in this context has been criticised for being limited.4 Article 5 has arisen in a range of contexts including treatment in and conditions of detention, whether arbitrary detention itself amounts to torture,5 lashings as a sentence,6 and the manner in which the death penalty is imposed,7 among others. The broader 1 ACHPR/Res.64, Resolution on the Adoption of the ‘Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa’, 20 November 2003. 2 See also J-B Niyizurugero and P. Lessène, Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa Practical Guide for Implementation, African Commission on Human and Peoples’ Rights, APT, Regional Office of the OHCHR, Addis Ababa, 2008. D. Long and R. Murray, ‘Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?’, 12 AHRLJ (2012) 311–347; L. Muntingh, ‘Guidelines and principles on imprisonment and the prevention of torture under the African Charter on Human and Peoples’ Rights –how relevant are they for South Africa?’, CSPRI, 2013. 3 ACHPR/Res.105: Resolution on the Prevention and Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 30 May 2007. 4 See L. Muntingh, ‘Improved monitoring and reporting to promote and protect the rights of prisoners under the African human rights system’, CSPRI Newsletter December 2009, Issue No. 33, Community Law Centre, South Africa. 5 E.g. Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 40. Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh and 13 Others) v Angola, 22 May 2008. 6 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003. 7 Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr, and Civil Liberties Organisation v Nigeria, 31 October 1998.

A. Introduction

133

elements of Article 5, such as slavery8 and legal status,9 have also received some, albeit less, attention. The African Commission has consistently and repeatedly called on States to ratify the United Nations Convention Against Torture (UNCAT) and the UN Optional Protocol to the UN Convention Against Torture (OPCAT).10 The Protocol on the Rights of Women in Africa contains various provisions relating to the prohibition of torture and ill-treatment, such as requiring States to take measures to prohibit: a) all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public; b) adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women; c) identify the causes and consequences of violence against women and take appropriate measures to prevent and eliminate such violence; d) actively promote peace education through curricula and social communication in order to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women; e) punish the perpetrators of violence against women and implement programmes for the rehabilitation of women victims; f ) establish mechanisms and accessible services for effective information, rehabilitation and reparation for victims of violence against women; g) prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk; • prohibit all medical or scientific experiments on women without their informed consent; • provide adequate budgetary and other resources for the implementation and monitoring of actions aimed at preventing and eradicating violence against women; • ensure that, in those countries where the death penalty still exists, not to carry out death sentences on pregnant or nursing women. • ensure that women and men enjoy equal rights in terms of access to refugee status, determination procedures and that women refugees are accorded the full protection and benefits guaranteed under international refugee law, including their own identity and other documents.11 There are also provisions relating to the elimination of harmful practices12 and the right to dignity.13

E.g. Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004. E.g. Communication 318/06, Open Society Justice Initiative v Cote d’Ivoire, 27 May 2016. 10 ACHPR/Res.105, Resolution on the Prevention and Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 30 May 2007. See L. Fernandez, ‘Optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment as adopted in 2002 by the UN General Assembly 57/1999: Implications for South Africa’, 9 Law Democracy & Dev. (2005) 113–136. 11 12 13 Protocol on the Rights of Women in Africa, Article 4. Article 5. Article 3. 8 9

134

6. Article 5: Respect of Dignity; Prohibition of Slavery

Similarly, earlier drafts of the African Charter on Human and Peoples’ Rights (ACHPR) were significantly more detailed than the final Article 5.14 For example, Article 18 of the M’Baye Draft provided as follows:15 1 . Every person has the right to have his physical, mental and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialised tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.

1. Absolute Prohibition and Non-derogation The African Commission has consistently upheld the absolute prohibition of torture, reiterating that ‘[t]‌orture is considered as one of the most egregious and morally reprehensible human rights abuses and its prohibition is one of the most fundamental values of democratic societies’.16 Explaining its stance further: With the risk of oversimplification the reasons are clear why the African Commission takes an uncompromising stand against torture: torture not only degrades and corrupts the society that allows it, it is also highly unreliable. But more importantly where should the line be drawn? If hanging in an upside down position or sodomizing an inmate do not work, should we as a society progress to removing toe nails with pliers or branding with red-hot irons and beating to a pulp? It is not a mistake that along with genocide, torture is the only crime that every state must punish, no matter who commits it or where.17

The prohibition is absolute and ‘non-derogable and applies even in the most difficult of circumstances including public emergencies’18 and ‘at all times including in times of armed conflict’, citing the lack of derogation clause in the ACHPR.19 As a result, where alleged acts took place during military rule ‘this does not in any way diminish its obligations under the Charter, nor the violations committed prior to its coming into office’.20 In the context of terrorism, similarly, ‘[t]‌he Commission holds the view that even if the State 14 The provision in the Dakar Draft was more akin to that in the final ACHPR, see Preliminary Draft of the African Charter prepared during the Dakar Meeting of Experts, CAB/LEG/67/3/Rev.1, reprinted in C. Heyns, Human Rights Law in Africa 1999, Volume 4, Kluwer Law International, 2002, p.81. 15 [Mbaye] Draft African Charter On Human And Peoples’ Rights, prepared for the Meeting of Experts in Dakar, Senegal from 28 November to 8 December 1979, by Kéba Mbaye. CAB/LEG/67/1. 16 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 69. 17 Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012, para 142. 18 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 69. 19 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 165. 20 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 73.

A. Introduction

135

was fighting alleged terrorist activities, it was not justified to subject victims to torture, cruel, inhuman and degrading punishment and treatment’.21 Torture in the context of a State’s response to political opposition22 and the treatment of protestors23 will therefore violate Article 5. However, its reference to the ‘minimum level of severity’, in line with ECtHR jurisprudence,24 to define what is prohibited treatment and other instances could imply some forms of ill-treatment may be justified. So in Communication 279/03, the Commission stated that the ‘forced eviction of the civilian population cannot be considered permissible under Article 27(2) of the African Charter’25 and that ‘used as a tool, such as forced evictions and housing will amount to violation of Article 5’. However, in the same case it also held: Could the Respondent State legitimately argue that it forcefully evicted the Darfur civilian population from their homes, villages and other places of habitual residence, on grounds of collective security, or any other such grounds or justification, if any? For such reasons to be justifiable, the Darfurian population should have benefited from the collective security envisage under Article 27(2). To the contrary, the complaint has demonstrated that after eviction, the security of the IDP camps was not guaranteed. The deployment of peacekeeping forces from outside the country is proof that the Respondent State failed in its obligation to guarantee security to the IDPs and the civilian population in Darfur.26

This could imply that forced evictions may not always violate Article 5 if certain guarantees are put in place. The focus appears to be more on the fact that forced evictions per se may not necessarily always violate Article 5, rather than a dilution of the absolute nature of the prohibition on torture and other forms of ill treatment. Further clarity on the relationship between Article 27 and Article 5 as well as a compilation of its rather extensive jurisprudence and recommendations on Article 5 would be useful in this regard.27 The African Commission seems to suggest that the actions of the victims (such as if the individual were violent or may escape) may justify holding them in a ‘degrading and inhuman manner’: The fact that the victims were subjected to repeated electric shocks, beatings, prolonged hanging, binding and blindfolding and denied access to medical care violates their physical and psychological integrity. There was also no evidence whatsoever pointing to violent action from the victims themselves nor has there been any reported escape attempt by the victims to warrant holding them in such degrading and inhuman manner.28 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, paras 113–114. E.g. Communication 225/98, Huri-Laws v Nigeria. 23 Communication 204/97, Mouvement Burkinabé des Droits de l’Homme et des Peuples v Burkina Faso, 29th Ordinary Session, 2001, ‘the Commission deplores the abusive use of means of State violence against demonstrators even when the demonstrations are not authorised by the competent administrative authorities. It believes that the public authorities possess adequate means to disperse crowds, and that those responsible for public order must make an effort in these types of operations to cause only the barest minimum of damage and violation of physical integrity, to respect and preserve human life’, para 43. 24 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 41. 25 Communication 279/03, Sudan Human Rights Organisation, Centre on Housing Rights and Evictions v Sudan, 27 May 2009, para 166. 26 Communication 279/03, Sudan Human Rights Organisation, Centre on Housing Rights and Evictions v Sudan, 27 May 2009, para 166. 27 See in this regard the very useful compilation of torture jurisprudence by the APT, Torture in International Law: A Guide to Jurisprudence, APT, CEJIL, 2008. 28 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, paras 188–189. 21 22

136

6. Article 5: Respect of Dignity; Prohibition of Slavery

This repeated the finding with respect to Ken Saro-Wiwa who was kept in leg irons and handcuffs, detained in a dirty and airless cell and denied medical treatment. There, the African Commission noted that ‘there was no evidence of any violent action on his part or escape attempts that would justify holding him in irons’.29

2. Concept of Dignity Article 5 expressly refers to ‘dignity’ and not only is this a concept around which the prohibition of torture and ill-treatment hangs, but it also has enabled the African Commission to broaden the scope of Article 5 to cover a range of situations. Detailing the concept further in Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, the African Commission noted that: Dignity is, therefore, the soul of the African human rights system and which it shares with both the other systems and all civilized human societies. Dignity is consubstantial, intrinsic and inherent to the human person. In other words, when the individual loses his dignity, it is his human nature itself which is called into question, to the extent that it is likely to interrogate the validity of continuing to belong to human society . . . When dignity is lost, everything is lost. In short, when dignity is violated, it is not worth the while to guarantee most of the other rights.30

Human dignity is ‘an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities as the case may be, are entitled to without discrimination’.31 It is also a right and a duty.32 The Protocol on the Rights of Women in Africa, linking this concept with gender equality,33 interprets the right to dignity as including the right of every woman for ‘respect as a person and to the free development of her personality’, and requires States to adopt ‘appropriate measures to prohibit any exploitation or degradation of women’ as well as ‘appropriate measures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence’.34 Thus, ‘exposing victims to ‘personal suffering and indignity’ violates the right to human dignity, and ‘[p]‌ersonal suffering and indignity can take many forms, and will depend on the particular circumstances of each communication brought before the African Commission’.35 In addition, the Economic Community of West African States (ECOWAS) Court of Justice, being able to apply the ACHPR,36 has held that the unlawful detention of an individual for twenty-two days violated the right to personal 29 Communications 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 Oct 1998, para 80. 30 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 139. 31 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, paras 57–58. Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 163. 32 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, paras 57–58. Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 163. General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 18. 33 H. Botha, ‘Human dignity in comparative perspective’, 20 Stellenbosch L. Rev. (2009) 171–220, at 175. 34 Protocol on the Rights of Women in Africa, Article 3. 35 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 58. See also Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000; Communications 279/03–296/ 05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 154–158. Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 190. 36 ECOWAS Revised Treaty, Article 4(g).

A. Introduction

137

dignity,37 although negative press in the run up to the trial of accused individuals in Nigeria did not.38 Sexual molestation will amount to indignity,39 as will not granting an individual citizenship and resulting in constant deportation and forcing him to live in ‘no-man’s land’,40 and ‘denial of medical attention under health threatening conditions and access with the outside world’.41 In Purohit and Moore v The Gambia, the African Commission noted that use of the terms ‘lunatic’ and ‘idiots’ under domestic law dealing with individuals with mental illness ‘without any doubt dehumanise and deny them any form of dignity in contravention of Article 5 of the African Charter’.42 Furthermore, drawing on the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Care, it held: ‘[l]‌ike any other human being, mentally disabled persons or persons suffering from mental illnesses have a right to enjoy a decent life, as normal and full as possible, a right which lies at the heart of the right to human dignity. This right should be zealously guarded and forcefully protected by all States party to the African Charter in accordance with the well established principle that all human beings are born free and equal in dignity and rights’.43 If an individual dies in custody, the body should be returned to the family ‘in a manner which is fully respectful of the dignity of the deceased, so that funeral rites or other customary procedures can be conducted with the least possible delay’.44 The needs of particularly vulnerable detainees should be considered. For women, they should be provided with ‘facilities and materials to meet their hygiene needs’, and ‘care which accords with the rights to dignity and privacy’, with a prohibition on physical restraints before, during and after childbirth.45

3. Legal  Status The inclusion of reference to ‘legal status’ in Article 5 broadens the application of the concept of dignity and includes ‘one’s capacity to be the holder of rights and obligations’, the recognition of which is an ‘indispensable requirement’ for enjoyment of all rights in the African Charter.46 The right to nationality is considered to be a ‘fundamental human right’.47 Indeed the African Commission has noted the principle of ‘legal status’, referring to the French version of the ACHPR’s reference to ‘personalité juridique’, should ECW/CCJ/JUD/08/10, Musa Saidykhan v The Gambia, 16 December 2010, para 146. Djot Bayi & 14 Others v Nigeria & 4 Others, ECOWAS Community Court, App. No. ECW/CCJ/APP/ 10/06 (2009). 39 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 199. 40 Communication 97/93, John K Modise v Botswana, 6 November 2000, para 92. 41 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 41. 42 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 59. 43 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 61. 44 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 21. 45 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 32. 46 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 138. 47 Resolution on the Right to Nationality, ACHPR/Res.234, 23 April 2013. See also African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014. For further discussion on nationality, see Chapter 13. 37 38

138

6. Article 5: Respect of Dignity; Prohibition of Slavery

also be ‘juridical personality’, using the two terms interchangeably.48 This part of Article 5 has arisen in citizenship and nationality claims. As the African Commission has noted ‘[n]‌ationality is the legal and political bond that connects a person to a specific State and allows the person to acquire and exercise specific rights and obligations by virtue of his/ her membership in a political community. Nationality or citizenship establishes a formal connection between an individual and the State and brings the individual within the realm of the State’s protection’.49 While States have a ‘wide discretion’ in determining who is entitled to nationality, they have corresponding obligations to prevent and prohibit statelessness and discrimination.50 Referring to international customary law on statelessness as defined in the Convention Relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness, the African Commission cites the obligation that the State should not deprive an individual of their nationality if this would result in them becoming stateless.51 In John K. Modise v Botswana, the complainant was claiming citizenship by descent but because of his political activities was then deported to South Africa. As he did not have South African citizenship he had to remain in Bophutatswana and then in the ‘no- man’s land’ between Bophutatswana and Botswana for a number of years. It was argued that this was not only cruel, inhuman or degrading treatment, but also that it deprived him of his legal status.52 The African Commission found that the denial of the right to citizenship of Botswana was in violation of the right to legal status and that these acts ‘exposed him to personal suffering and indignity in violation of the right to freedom from cruel, inhuman or degrading treatment guaranteed under Article 5 of the Charter’.53 In Communication 318/06 Open Society Justice Initiative v Côte d’Ivoire54 the African Commission explicitly linked the right to legal status and the concept of dignity, drawing upon case law of the European Court of Human Rights55 and Inter-American Court of Human Rights.56 It agreed with their analysis that ‘failure to recognize legal status is a violation of human dignity because it absolutely denies the condition of an individual to be a subject of law and makes him vulnerable to the infringement of his rights by the State and other individuals’.57 Hence, where Côte d’Ivoire changed is nationality laws so that only those who had both parents of Côte d’Ivoirian nationality could themselves be nationals, the failure to grant nationality was considered ‘an injurious infringement of human dignity’ and ‘the highest form’ of the violation.58 Similarly, in Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya,59 it was argued that 48 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 138, and footnote 47. 49 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 139. 50 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 145. 51 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 147. 52 Communication 97/93, John K Modise v Botswana, 6 November 2000, para 92. 53 Communication 97/93, John K Modise v Botswana, 6 November 2000, paras 89 and 92 respectively. 54 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016. 55 Kuric and Other v Slovenia European Human Rights Court, Petition 26828/06, Order of 26 June 2012. 56 Yean and Bosico v The Dominican Republic Inter-American Human Rights Court, Order of 8 September  2005. 57 Inter-American Human Rights Court, Order of 8 September 2005, para 178, Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, paras 140–141. 58 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 141. 59 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015.

B. Definition

139

Kenyan Nubians were deprived of their right to nationality and recognition of their legal status due to arbitrary and discriminatory procedural challenges for them in obtaining ID cards necessary for citizenship. Because nationality and juridical personality are ‘intricately linked’ then denial of identity documents violated the right to juridical personality and placed them outside the State’s juridical system rendering them stateless.60 In order to recognise the right to nationality States should also, in line with Article 6 of the African Charter on the Rights and Welfare of the Child, ensure that children have a right to the nationality of the State of their birth; the deprivation of nationality should be prohibited; and there should be equal rights of men, women and on the basis of race and ethnicity in determining nationality.61

B. Definition As Viljoen and Odinkalu note, although dignity and prohibition of exploitation and degradation are distinct concepts, they are not clearly differentiated in Article 5.62 The African Commission has held that torture, cruel, inhuman or degrading treatment or punishment is to be interpreted ‘so as to extend to the widest possible protection against abuses, whether physical or mental’.63 Article 5 includes ‘not only actions which cause serious physical or psychological suffering, but which humiliate or force the individual against his will or conscience’.64 Reference has been made, but not on every occasion, to Article 1 of UNCAT as the ‘principal elements that constitute torture’ under the African Charter,65 although the African Commission has required States to treat this as a minimum and to consider ‘broadening this definition to accommodate their local context which may include extending the definition to include non-state actors’.66 Where acts such as beatings, threats and sleep deprivation were considered to have been ‘intentionally inflicted’ by National Security and Intelligence Service officials in Sudan, a violation of Article 5 was found.67 Yet there is inconsistency in the approach of the African Commission as to whether it distinguishes between torture and cruel, inhuman or degrading as distinct concepts. In 60 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, paras 140 and 148. 61 Resolution on the Right to Nationality, ACHPR/Res.234, 23 April 2013. 62 F. Viljoen and C. Odinkalu, The Prohibition of Torture and Ill-treatment in the African Human Rights System: A Handbook For Victims And Their Advocates, 2nd edition, OMCT Handbook Series Vol. 3, OMCT, Geneva, 2014, pp.48–49. 63 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 71. Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 52. See also Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 37. Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 64 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 36. 65 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 98; RIG, Article 4. See also D. Long and R. Murray, ‘Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?’, 12 AHRLJ (2012) 311–347, para 4.5, there was discussion during the drafting of the Robben Island Guidelines as to whether it should include a definition of torture. 66 Johannesburg Declaration and Plan of Action on the Prevention and Criminalization of Torture in Africa, Johannesburg, 21–23 August 2012. 67 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 99.

140

6. Article 5: Respect of Dignity; Prohibition of Slavery

some instances it has identified differences between them, but in others any distinction is more difficult to discern. Broadly, as noted above, the African Commission has noted that ‘the prohibition of torture, cruel, inhuman or degrading treatment includes “actions which cause serious physical or psychological suffering (or) humiliate the individual or force him or her to act against his or her will or conscience”.’68 Article 5 is seen as protecting ‘both the dignity of the human person, and the physical and mental integrity of the individual’.69 The decision of the African Commission in one case listed: various incidences of armed attacks by the military forces of the Respondent State, using military helicopters and the Janjawid militia, on the civilian population, forced eviction of the population from their homes and villages, destruction of their properties, houses, water wells, food crops and livestock, and social infrastructure, the rape of women and girls and displacement internally and outside national borders of the Respondent State.70

The Commission, without distinguishing between torture and other forms of ill treatment, found that these acts ‘constitute violation[s]‌of the various cited articles of the African Charter, one of which is Article 5. The totality of the aforesaid violations amount to both psychological and physical torture, degrading and inhuman treatment, involving intimidation, coercion and violence’.71 On other occasions, various facts are provided and the conclusion omits the reference to ‘torture’, although it is not clear if this necessarily implies that it has not reached a particular level of severity or if any hierarchy is implied: In further corroborating the failure of the Respondent State, the complaint alleges that guards frequently beat the Gambians and extorted money from them. Food was not regularly provided and medical attention was not readily available, despite repeated requests. Complainants were transported between detention centres in overcrowded cargo planes and lorries. The detention centre in Saurimo had no roof or walls and Complainants were exposed to the elements of weather for five consecutive days. At the Cafunfu detention centre, bathroom facilities consisted solely of two buckets for over 500 detainees, and these were located in the same one room where all detainees were compelled to eat and sleep. This, for the African Commission, is clearly a violation of Article 5 of the African Charter since such a treatment cannot be called anything but degrading and inhuman’72

1. ‘Torture’ Where it has focused on torture specifically, the African Commission has ‘adopted’ the definition of torture contained in Article 1 of the Convention Against Torture.73 68 Communication 277/03, Spilg and Mack and DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 163. 69 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 154–158. 70 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 154–158. 71 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 154–158. 72 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 51. 73 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 71; Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 154–158.

B. Definition

141

Despite this reference, it does not always cite Article 1 explicitly, instead paraphrasing and embellishing the article. For example: [torture] thus constitutes the intentional and systematic infliction of physical or psychological pain and suffering in order to punish, intimidate or gather information. It is a tool for discriminatory treatment of persons or groups of person who are subjected to the torture by the State or non-state actors at the time of exercising control over such person or persons. The purpose of torture is to control populations by destroying individuals, their leaders and frightening entire communities.74

Many cases, particularly earlier cases, did not clarify what specific acts had amounted to torture, for example, stating simply the ‘torture of 15 persons by a military unity at Kinsuka, near the Zaire River’.75 On some occasions the African Commission has implied that torture is of a severity beyond inhuman and degrading.76 So where individuals were subject to ‘severe beating with whips and sticks, doing the Arannabb Nut (rabbit jump), heavy beating with water hoses on all parts of their bodies, death threats, forcing them to kneel with their feet facing backwards in order to be beaten on their feet and asked to jump up immediately after, as well as other forms of ill-treatment’, the African Commission held that ‘this treatment and the surrounding circumstances were of such a serious and cruel nature that it attained the threshold of severity as to amount to torture’.77 The same approach has been adopted to differentiate between ‘inhuman’ and ‘degrading’ in terms of a sliding scale of severity. In Communication 225/98, Huri-Laws v Nigeria, referring to the test in Ireland v UK, the African Commission took note of the treatment of an individual in detention such that he was ‘detained in a sordid and dirty cell under inhuman and degrading conditions. Also, that being detained arbitrarily, not knowing the reason or duration of detention, is itself a mental trauma. Moreover, added to this, deprivation of contact with the outside world and health threatening conditions, it amounts to cruel, inhuman and degrading treatment’.78 The African Commission has drawn on this same European Court judgment that ill- treatment requires that the act must ‘attain a minimum level of severity’, based on the duration, physical and mental effects of the treatment and sex, age and health of the victim;79 and the Greek case where ‘the notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical which in the particular situation, is unjustifiable’.80 This has enabled it to conclude that ‘[a]‌cts of inhuman and degrading treatment “[n]ot only cause serious physical or psychological suffering, but also humiliate the individual” . . . and “[c]an be interpreted to extend to the widest possible protection against abuses, whether physical or mental” ’.81 74 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 154–158. 75 Communications 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996, para 41. 76 CEJIL and APT, Torture in International Law: A Guide to Jurisprudence, APT and CEJIL, Geneva, 2008, p.127. 77 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013. 78 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, paras 40–41. 79 Ireland v UK [1978] ECHR 1, cited in Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 193. Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 41. 80 Denmark, Norway, Sweden, the Netherlands v Greece (1969) 12 YB 1. 81 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 196.

142

6. Article 5: Respect of Dignity; Prohibition of Slavery

2. ‘Inhuman’ It is only on a few occasions that the African Commission has referred to acts which amount to inhuman treatment or punishment, specifically, rather than ‘inhuman, cruel or degrading treatment or punishment’. For example, ‘[w]‌hile being held in a military detention camp is not necessarily inhuman, there is the obvious danger that normal safeguards on the treatment of prisoners will be lacking’.82 In addition, in the same case, ‘[b]eing deprived of the right to see one’s family is a psychological trauma difficult to justify, and may constitute inhuman treatment. Deprivation of light, insufficient food and lack of access to medicine or medical care also constitute violations of Article 5’.83 However, in one decision against Egypt where the treatment included ‘sexual assaults and physical beatings’, the African Commission focused on whether such amounted to ‘inhuman and degrading treatment, and whether there was pain and suffering’.84 Defining ‘inhuman and degrading’ it stated it depended on ‘the circumstances of each case’,85 and referred to the concept of dignity.86 Applying ‘the spirit of ’ the UNCAT and its Article 16 in particular as well as the four criteria identified in the case law of the European Court, as cited above, the African Commission held that sexual molestation indicated ‘an aspect of indignity’,87 and the treatment to which the victims were subject: amount to physical and emotional trauma. The treatment also has physical and mental consequences obvious from the injuries sustained. Furthermore, the level of suffering occasioned by the acts perpetrated on the Victims which amount to inhuman and degrading treatment cannot be overlooked. It is the Commission’s view that the acts were debasing and humiliating. . . . It is also the Commission’s view that the Respondent State has conceded that the Victims were subject to inhuman and degrading treatment by admitting sexual molestation.88

In yet other instances the African Commission has not included ‘torture’, but has referred to ‘cruel, inhuman and degrading’ together. For example: Regarding the incommunicado detention, death threats, denial of access to medical care and adequate toilet facilities, the Commission observes that holding a person in detention under conditions that are not in keeping with his dignity and pose a threat to his health amounts to cruel, inhuman and degrading treatment or punishment.89

In other cases it has listed only ‘inhuman and degrading’ and not ‘cruel’ but again it is not clear if it intended to make a clear distinction between these terms: The African Commission’s jurisprudence has established the scope of inhuman and degrading treatment, which does not only include physical and psychological suffering. In International Pen Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, paras 26 and 27. Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, paras 26 and 27. 84 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 186. 85 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 187. 86 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, paras 189–190. 87 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 199. 88 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, paras 211–212. 89 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 74. 82 83

B. Definition

143

and Others v. Nigeria, for instance, the African Commission held that: Article 5 of the African Charter prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience.90

Overall, one could conclude that attempts by the African Commission and Court to distinguish between treatment or punishment which is torture, cruel, inhuman or degrading, are ad hoc and do not necessarily always reflect an overall desire to treat them separately.91

3. ‘Degrading’ There have been a few occasions where the African Commission has referred specifically to treatment or punishment that is ‘degrading’.92 Singling out the phrase in Article 5 that ‘[a]‌ll forms of exploitation and degradation of man particularly slavery . . . shall be prohibited’, the African Commission in a series of communications against Mauritania held that there were practices ‘analogous to slavery’ and that ‘the conditions to which the descendants of slaves are subjected clearly constitute exploitation and degradation of man’.93 In another case it referred to ECtHR case law in Campbell and Cosans v UK that ‘ “treatment” itself will not be “degrading” unless the person concerned has undergone – either in the eyes of others or in his own eyes –humiliation or debasement attaining a minimum level of severity. That level has to be assessed with regard to the circumstances of the case’.94 In Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, the complainant had argued that treatment of the Dioulas by denying them identity documents was degrading.95 The African Commission held that ‘[i]‌n the collective modern conscience, to be an « undocumented immigrant » is perceived as the most degrading form of legal, political and social identification’.96 A violation of Article 5 was found.

4. ‘Humiliation’ ‘Humiliation’ is not mentioned in the African Charter but the African Commission has referred to it on various occasions as being implied within Article 5 and ‘cruel, inhuman and degrading treatment’:

90 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 37, and further ‘the Commission deplores the abusive use of means of State violence against demonstrators even when the demonstrations are not authorised by the competent administrative authorities’. Cited in Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, paras 186–187. 91 See also F. Viljoen and C. Odinkalu, The Prohibition of Torture and Ill-treatment in the African Human Rights System: A Handbook For Victims And Their Advocates 2nd edition OMCT Handbook Series Vol. 3, OMCT, Geneva, 2014, pp.48–51. 92 Article 5 links the concept of dignity and degrading, see A. Addis, ‘Human dignity in comparative constitutional context: In search of an overlapping consensus’, 2 J. Int’l & Comp. L. (2015) 1–28, at 18. 93 Communication 54/91-61/91-96/93-98/93-164/97_196/97210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 135. 94 Campbell and Cosans v UK (1982), 4 EHRR 293 [1982] ECHR 1, as cited in Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 200. 95 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 69. 96 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 141.

144

6. Article 5: Respect of Dignity; Prohibition of Slavery

Article 5 prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience.97

In Communication 236/00, Curtis Francis Doebbler v Sudan, the complainant alleged that punishing individuals by lashings was disproportionate and humiliating, being administered against a girl in public ‘to submit to baring her back in public and to the infliction of physical harm which is contrary to the high degree of respect accorded to females in Sudanese society’.98 The punishment was held to be incompatible with human rights law.99

5. Punishment/Treatment Article 5 refers to both ‘treatment’ and ‘punishment’ but in many instances there is no distinction made between them.100

a. ‘Punishment’ and Corporal Punishment Corporal punishment may violate Article 5 of the ACHPR,101 a stance also adopted by some domestic courts.102 In earlier drafts of the Robben Island Guidelines, corporal punishment was prohibited. However, discussions during the drafting meetings led to its removal, with some concession in a reference to ‘acts that fall within the definition of torture, based on article 1 of the UN Convention against Torture, are offences within their national legal systems’.103 In a case against Sudan where students had been sentenced to lashes in public after convictions for public order offences, the African Commission was not prepared to make a general statement regarding the compatibility of Shari’a law with the ACHPR.104 Citing its rule that Article 5 should be given the widest possible interpretation, and the European Court’s ruling in Tyrer v United Kingdom, the African Commission held that ‘[t]‌here is no right for individuals, and particularly the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State sponsored torture under the [African] Charter and contrary to the very nature of this human rights treaty’.105 Similarly, its Committee on Prevention of Torture in Africa 97 Communications 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 Oct 1998, para 79. Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012, para 163. Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 190. 98 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 32. 99 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 44. 100 APT, CEJIL, Torture in International Law. A Guide to Jurisprudence, Geneva, Washington, 2008, p.127. 101 N. O’Neil, ‘Corporal punishment in public schools: A call for legal reform’, 8 AHRLJ (2008) 60–78, at 70. 102 In ex parte Attorney-General of Namibia, Supreme Court of Namibia held corporal punishment violated the constitution in terms of dignity and the prohibition of inhuman and degrading treatment or punishment [1992] LRC (Const) 515, as cited in O’Neil, ‘Corporal punishment in public schools: A call for legal reform’, 8 AHRLJ (2008) 60–78, at 72. See also South African Constitutional Court in Christian Education South Africa v Minister of Education [1999] 2 SA 83 (CC). See also O. Jonas, ‘Corporal punishment in Botswana schools: A human rights perspective’, 17 Int’l J. L. & Educ. (2012) 75; M. D. A. Freeman, ‘Upholding the dignity and best interests of children: International law and the corporal punishment of children’, 73 Law & Contemp. Probs. (2010) 211–251. 103 D. Long and R. Murray, ‘Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?’, 12 AHRLJ (2012) 311–347, para 4.2. 104 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 41. 105 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003.

B. Definition

145

(CPTA) also noted concerns when visiting prisons in Mauritania that corporal punishment was still lawful in the country, although not used in practice, and some women were detained in prison indefinitely because the punishment had not been carried out.106 In the Concluding Observations to Tanzania’s 2nd to 10th Periodic Report, the African Commission recommended the ‘immediate abolition of corporal punishment’ in violation of Article 5.107 Similarly the Concluding Observations to Sudan’s 4th and 5th Periodic Reports state that its laws ‘provide for several forms of corporal punishment, including stoning, amputation, cross-amputation and whipping and that such punishment is routinely meted out, particularly against women from a marginalised background, following summary trials. The African Commission regards such forms of punishment as cruel, inhuman and degrading’.108 It consequently recommended the government to take ‘urgent and concrete measures to abolish laws that allow corporal punishment including stoning, amputation, cross-amputation and whipping’.109 Listed in its Indicative Questions to States with respect to Article 5 during the examination of Article 62 reports, is the requirement that States: ‘Explain the measures the State is taking to ensure the abolition of judicial and other corporal punishment in the country’.110 The Special Rapporteur on Prisons and Conditions of Detention has also made recommendations in her reports to the need to end corporal punishment in prisons.111 The Principles and Guidelines on the Right to a Fair Trial likewise prohibit corporal punishment of children.112

b. ‘Treatment’ Although the African Commission has been criticized for failing to focus specifically on prisoners’ rights,113 it and its special mechanisms have spent some considerable time addressing conditions of detention, drawing upon other international instruments and documents including the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. The 1996 Kampala 106 Report of the Promotion Mission of the Committee for the Prevention of Torture in Africa to the Islamic Republic of Mauritania, 26 March–01 April 2012, para 112. 107 Concluding Observations and Recommendations on the Consolidated 2nd to 10th Periodic Report of the United Republic of Tanzania, 43rd Ordinary Session of the African Commission on Human and Peoples’ Rights, 7–22 May 2008, in Ezulwini, Kingdom of Swaziland. 108 Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, Adopted at 12th Extraordinary Session, 30 July–4 August 2012, Algiers, Algeria, para 40. 109 Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, Adopted at 12th Extraordinary Session, 30 July–4 August 2012, Algiers, Algeria, para 62. 110 State Periodic Reporting under Article 62 of the African Charter on Human and Peoples’ Rights, Indicative Questions to State Parties in respect of Article 5 of the African Charter, http://www.achpr.org/news/ 2016/06/d221/, para 15. 111 ‘The behaviour of staff towards inmates should change: Inmates complained of ill-treatments and corporal punishment should be ended in all places were [sic] it is still used by staff and leaders amongst prisoners’, Report on the Mission of the Special Rapporteur On Prison & Conditions of Detentions in Africa to Uganda, 33rd Ordinary Session Distribution: Restricted 15–29 May 2003 DOC/OS (XXX110/324c/11 Niamey, Niger, p.38. 112 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. See also Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human And Peoples’ Rights, para 71(q): ‘In adopting and implementing a prohibition on the use of corporal punishment, States should ensure that a child who is subjected to school 37 or parental discipline shall be treated with humanity and with respect for their inherent dignity’. 113 E.g. The African Commission on Human and Peoples’ Rights and the Promotion and Protection of Prisoners’ Rights: An Analysis Submitted in Partial Fulfilment of the Requirements for the Degree Llm (Human Rights and Democratisation in Africa) By Rhoda Nkirote Igweta, 3 November 2008, at p.29.

146

6. Article 5: Respect of Dignity; Prohibition of Slavery

Declaration on Prisons Conditions in Africa114 reiterated that the rights of prisoners should be respected despite them being deprived of their liberty. Conditions of detention should ‘be compatible with human dignity’ and ‘not aggravate the suffering already caused by the loss of liberty’.115 There should be education and training provided during detention,116 providing social and psychological support, enabling family and civil society groups to have contact with prisoners, putting in place a privilege system, and developing half-way houses,117 in order to promote their reintegration into society.118 In addition, recognising that detention conditions are contingent on appropriate staffing, the Kampala Declaration also calls on States to provide proper career structures, clear line of commands and linkage to one government ministry, sufficient material and financial resources and training to carry out their work.119 An African Charter on Prisoners’ Rights120 was adopted in 2001,121 but does not appear to have been taken further. Particular attention should be paid to vulnerable prisoners, defined as those ‘with special needs, such as children, women (especially pregnant and breastfeeding women), persons with albinism, the elderly, persons with HIV/AIDS, refugees, sex workers, on the basis of gender identity, refugees and asylum seekers, non-citizens, stateless persons, racial or religious minorities, or other categories of persons with special needs’.122 Children who are with their parents in detention should have their ‘physical, emotional, social and psychological development’ considered and detention should be consistent with their best interests.123 Persons with disabilities should be treated with respect, taking into account their needs and the provision of reasonable accommodation.124 There should be informed consent to their treatment.125

114 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007. 115 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, paras 3 and 4. 116 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007. 117 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, Plan of Action, para 3. 118 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, para 3; Plan of Action, para 3. 119 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, ‘prison staff’, paras 1–6. 120 As noted by the Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, para 6. 121 Adopted at 5th conference of central, eastern and southern heads of correctional services (CESCA) 2–7 September 2001, Windhoek, Namibia, discussed at 11th Session of UN commission on crime prevention and criminal justice, 16–25 April, 2002, Vienna Austria, cited in S. Casey-Maslen, Weapons under International Human Rights Law (ed), Cambridge University Press, p.101. 122 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 30. 123 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 32. 124 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 33. 125 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 33.

B. Definition

147

Use of restraint should be limited. Such use as well as disciplinary measures should be consistent with presumption of innocence and the dignity of the person,126 with recognition of a person’s disability also being taken into account.127 Conditions of detention are considered to be part of the treatment received by individuals. Consequently, inadequate conditions will result in a violation of Article 5. Exactly what conditions will individually amount to a violation is not always clear, although the African Commission has required States to ensure appropriate levels of staffing, and ‘adequate standards of accommodation, nutrition, hygiene, clothing, bedding, exercise, physical and mental healthcare, contact with the community, religious observance, reading and other educational facilities, support services, and reasonable accommodation, in accordance with international law and standards’.128 For example: The conditions of overcrowding and acts of beating and torture that took place in prisons in Malawi contravened this article. Aspects of the treatment of Vera and Orton Chirwa such as excessive solitary confinement, shackling within a cell, extremely poor quality food and denial of access to adequate medical care, were also in contravention of this article.129

It is not clear whether the aspects individually or only collectively violate Article 5. Similarly, where allegations related to facilities that were ‘overcrowded and unsanitary’, namely that the place of detention previously housed animals, where animal waste was still present and where around 300 individuals were still held, there were allegations of beatings by guards, lack of food and medical attention, no roof or walls in the detention centres and poor sanitary facilities, the African Commission found a ‘clear’ violation of Article 5, noting that such treatment ‘cannot be called anything but degrading and inhuman’.130 Prisoners in Mauritania were subject to a range of abuses including being denied food, kept in chains and in overcrowded cells or in the dark and cold, as well as subject to burning, being buried in sand, electric shocks, having their heads held in water and eyes smeared with pepper, and rape. The African Commission found that these amounted to ‘widespread utilisation of torture and of cruel, inhuman and degrading forms of treatment’.131 Deprivation of ‘light, insufficient food and lack of access to medicine or medical care’ was held to violate Article 5,132 as was constant light during a ten-month period of detention and denial of bathroom facilities.133

126 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 25. 127 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 33. 128 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 25. 129 Communications 64/92-68/92-78/92_7AR, Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, 27 April 1994, para 7. 130 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 50. 131 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 118. 132 Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, paras 26 and 27. 133 Communication 232/99, John D. Ouko v Kenya, 6 November 2000, para 22.

148

6. Article 5: Respect of Dignity; Prohibition of Slavery

There is some implication that there is a distinction between ‘physical and psychological integrity’ in the context of Article 5 and conditions of detention,134 although this is not a differentiation that the African Commission has made on every occasion. In Nigeria the government did not deny that the individual was constantly chained to the floor by his hands and legs for a period of 147 days and not permitted to wash, provided with food only twice a day, kept in solitary confinement, and, despite being on remand, detained in cells for convicted prisoners. The African Commission held ‘various forms of treatments meted to Mr Malaolu while in detention, a violation of the right to respect and dignity and right to freedom from inhuman or degrading treatment’.135 More generally, States have been called upon to reduce overcrowding in prisons.136 Treatment in detention may not only be found to have violated Article 5 but also the right to the best attainable standard of health under Article 16.137

C. Duty of the State The obligation under Article 5 includes prohibitive, punitive, preventive and protective measures.

1. Obligations to Prohibit and to Punish The Robben Island Guidelines have set out various aspects of the obligation to prohibit torture and other forms of ill treatment.138 These include: ratifying relevant instruments;139 promoting and supporting cooperation with international mechanisms;140 combating impunity;141 and establishing complaints and investigation mechanisms.142 It also includes the principle of non-refoulement,143 in line with Article 2(3) of the AU’s Refugee Convention.144 The prohibition on the production and trade of equipment used for torture and ill treatment is also expressly included in the Robben Island Guidelines.145 States should ‘punish all acts of torture’146 and ensure that those who commit torture are ‘brought to justice’.147 The extent of the punishment would appear to be relative. In one case against Sudan the government had taken measures to punish the individuals 134 Communications 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 27. 135 Communication 224/98 Media Rights Agenda v Nigeria, 6 November 2000, para 70. 136 Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa, 20 September 2002, para 1. 137 See further Chapter 17; Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, paras 132–137. 138 Robben Island Guidelines, see also Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 207. 139 140 141 RIG, Part IA, 1, (a)–(d). RIG, Part IB, 2–3. RIG, Part IE, 16 (a)–(e). 142 143 RIG, Part IF, 17–19. RIG, Part ID, 15. 144 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted on 10 September 1969 by the Assembly of Heads of State and Government of the OAU, CAB/LEG/24.3. It entered into force on 20 June 1974. 145 RIG, para 14. 146 ACHPR/Res.105: Resolution on the Prevention and Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, para 3. 147 ACHPR/Res.303: Resolution on the Right to Rehabilitation for Victims of Torture, 7 May 2015, para 3.

C. Duty of the State

149

accused of torture and ill-treatment of detainees. The Criminal Code criminalised torture with a custodial sentence of three months or a fine.148 The African Commission held that the ‘scope of the measures taken by the government’ needs to be ‘proportional to the magnitude of the abuses’ in terms of taking legal action against those who committed the abuses.149 The African Commission on numerous occasions has held that States have an obligation to criminalise torture and other forms of ill-treatment.150 The Robben Island Guidelines have detailed this obligation further as including the requirements that formal prohibition of torture will not be sufficient, but that there must be specific legislation that ‘sets out all the elements of the crime, the punishment for perpetrators as well as measures to cater for the needs of victims’.151 In defining torture and ill treatment offences it recommends that States adopt Article 1 of UNCAT; there should be a particular focus on ‘gender-related forms of torture and ill-treatment and the torture and ill-treatment of young persons’; and national courts should have jurisdiction to hear allegations in line with Article 5(2) of UNCAT.152 Torture should also be an extraditable offence; trials of suspected perpetrators should be in accordance with international standards; and the orders of superiors should not provide a justification for acts of torture or other ill treatment.153 Sanctions imposed of those guilty of torture should ‘reflect the gravity of the offence, applied in accordance with relevant international standards’, and States should also ‘prohibit and prevent the use, production and trade of equipment or substances designed to inflict torture or ill-treatment and the abuse of any other equipment or substance to these ends’.154

2. Obligation to Prevent The obligation to prevent includes a number of elements.155 The African Commission has provided generally that ‘States Parties are under an obligation to put in place certain procedural safeguards in order to prevent detainees from being subjected to abuse’.156 States have been called upon to ensure training for law enforcement officials and development of codes of conduct and ethics for those who have contact with individuals deprived of their liberty.157 Preventive measures are also broader, including ‘halting of incommunicado

Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, para 45. Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, paras 46–47. 150 ACHPR/Res.105, Resolution on the Prevention and Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, paras 2 and 3. RIG, Part IC, 4-14. See also Press Release: International Day in Support of Victims of Torture, 26 June 2010. Johannesburg Declaration and Plan of Action on the Prevention and Criminalization of Torture in Africa, Johannesburg, 21–23 August 2012. See also L. Fernandez and L. Muntingh, ‘The criminalization of torture in South Africa’, 60(1) JAL (2016) 83–109. CPTA, Africa Torture Watch, A Newsletter of the African Commission on Human and Peoples’ Rights, Issue 2, April 2011, p.4. 151 Report of the Promotion Mission of the Committee for the Prevention of Torture in Africa to the Islamic Republic of Mauritania, 26 March–01 April 2012, para 112. 152 153 154 RIG, section 1.C.4-6. RIG, section 1.C. RIG, section 1.C. 155 J. D. Mujuzi, ‘An analysis of the approach to the right to freedom from torture adopted by the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 423–441, at 440. See also L. Muntingh and L. Fernandez, ‘A review of measures in place to effect the prevention and combating of torture with specific reference to places of detention in South Africa’, 24 SAJHR (2008) 123–143. 156 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 75. 157 RIG, para 46. CEJIL, A. a. (2008). Torture in International Law. A Guide to Jurisprudence. Geneva, APT and CEJIL, p.136. 148 149

150

6. Article 5: Respect of Dignity; Prohibition of Slavery

detention, effective remedies under a transparent, independent and efficient legal system, and ongoing investigations into allegations of torture’.158 The African Commission has linked various aspects of the right to a fair trial, including access to a lawyer, to the concept of prevention, noting Resolution 61/153 of 2007 and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.159 Drawing on CAT’s General Comment No. 2 and jurisprudence of the Inter-American Court among others,160 in one case it was ‘convinced that the Victims were not given access during the critical early stage of detention, including interrogation sessions, when there is the greatest risk of torture and ill-treatment. The African Commission’s view is that right of a detainee to have prompt recourse to a court is established as a matter of international law. It constitutes a vital aspect of the prevention and deterrence of torture and other ill-treatment’.161

3. Obligation to Protect The State has an obligation to protect individuals from actions of non-State actors and this is also the case in the context of Article 5. In Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, the African Commission set out some general rules with respect to the obligations of the State for the actions of non-State actors and noted in particular: it must be made clear who is responsible and to what degree, where that responsibility arises from, towards whom such responsibility exists, and how such responsibility is asserted. Thus, in this context, the task is not only to identify the responsibilities, but also to reflect on whether and under what conditions the State can be responsible for violations by private actors. The underlying aspect is that it is up to States, and States alone, to carry out obligations established by international human rights treaties.162

However, in this case as the complainants had not provided any evidence that State organs had been responsible for acts of torture or that they had ‘connived with Zimbabwe African National Union-Patriotic Front (ZANU-PF) supporters and War Veterans to inflict pain on others’, no violation of Article 5 was found.163 The African Commission 158 Communications 48/90–50/91–52/91–89/93 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 56. Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, paras 46–47. 159 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 180. 160 General Comment No. 2, the Committee Against Torture expressed the view that the obligation to take measures to ensure the effective prevention of torture implied a requirement that States should ensure ‘the availability to detainees and persons at risk of torture and ill-treatment of judicial and other remedies that will allow them to have their complaint promptly and impartially examined, to defend their rights, and to challenge the legality of their detention or treatment.’. See also Habeas Corpus in Emergency Situations (Arts 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, Inter-American Court of Human Rights, Series A, No. 8 (1987); Principles 9 and 11 (1) of the UN Body of Principles and GA Res. 61/ 153, 14 February 2007, para 11. 161 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011. See also Robben Island Guidelines, para 27. 162 Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, 39th Session, 2006, para 149. 163 Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, 39th Session, 2006, para 183.

C. Duty of the State

151

did note that although in this case there was no responsibility on the part of the State because it had investigated the allegations, ‘[u]‌nder international law, responsibility can lie directly to the individuals and non-state actors for their acts’.164 It has drawn upon the concept of due diligence,165 holding that a State ‘did not act diligently to protect the civilian population in Darfur against the violations perpetrated by its forces, or by third parties. It failed in its duty to provide immediate remedies to victims. The Commission therefore finds that the Respondent State violated Articles 4 and 5 of the African Charter’.166 In Communication 279/03, drawing on jurisprudence from the UNCAT and the European Court of Human Rights,167 the African Commission, examining the acts of the Janjawid militia in Sudan as ‘agents’ of the State had ‘actively participat[ed]’ in evicting the population from their villages and homes and failed to protect them resulting in ‘this kind of treatment was cruel and inhuman and threatened the very essence of human dignity.’168 Indeed, the African Commission did not exactly specify what the obligation to protect involves, but has said more generally, ‘[a]‌t a secondary level, the State is required to ensure others also respect their rights. This is what is called the State’s obligation to protect right-holders against other subjects by legislation and provision of effective remedies’.169 Further clarity on the content of this obligation includes that ‘the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences’.170 In addition, the duty to protect ‘generally entails the creation and maintenance of an atmosphere or framework of an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms’.171 This may also require that the State ‘amend some of its laws’.172 Thus, the duty to protect will be violated if the State targets civilians as part of its counter-insurgency strategy.173 It should also provide undertaking of an effective investigation where there have been allegations of violations174

164 Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, 39th Session, 2006, para 183. 165 Article 19 RIG. See Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 206: ‘no diligent attempts have been made to hold anyone accountable’. 166 Communications 279/03–296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 168. 167 CAT: Hijrizi v Yugoslavia, Communication no 161/ 2000, UN Doc CAT/ C/ 29/ D/ 161/ 2000 (2 December 2002); Selçuk and Asker v Turkey, European Court of Human Rights (1998) 26 EHRR 477. 168 Communication 279/03-96/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 164. 169 Communication 155/96, The Social and Economic Rights Action Center v Nigeria, 2001, para 47. 170 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 164. 171 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 164. 172 Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, para 210. 173 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 164. 174 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 181; ‘The State can also not be held responsible because it has demonstrated that it investigated’. Further, ‘The fact that all the allegations could not be investigated does not make the State liable for the human rights violations alleged to have been committed by non-State actors. It suffices for the State to demonstrate that the measures taken were proportionate to deal with the situation, which in the present communication, the State seemed to have shown’, para 210.

152

6. Article 5: Respect of Dignity; Prohibition of Slavery

and consequently provide ‘immediate remedies to victims175 in the event of violations and pay them compensation.176 The Commission has held that ‘the extent of a State’s responsibility must not be determined in the abstract. Each case must be treated on its own merits depending on the specific circumstances of the case and the rights violated. This follows therefore that, in choosing how to provide effective protection of human rights, there are different means at a State’s disposal’.177 However, on a few occasions it has implied that obligations may ‘lie directly to’ the non-State actors in line with international law.178 The African Commission has failed to clarify exactly how this is interpreted in the context of the ACHPR,179 although its General Comment No. 4 does provide that ‘non-State actors through their behaviour, actions or policies can impact the enjoyment of human rights and can therefore occasion a violation of Article 5’, mentioning options for private prosecutions under Article 7 in the event of ill-treatment by non-State entities.180 In a few resolutions it has done little more than note torture against detainees was committed not only by States but also by rebel groups (in the case of Sudan, the SPLA and SSIA), requiring them to comply not with the ACHPR but the Geneva Conventions.181

4. Obligation to Investigate As noted elsewhere, there is a general obligation to investigate under the ACHPR182 which is also an obligation to investigate if an individual dies in police custody or pre- trial detention or whilst being transferred.183 As to what prompts an investigation, in some instances the African Commission has said that this should be in the case of ‘all allegations of torture or ill-treatment’,184 however, on others, only ‘if there are reasonable grounds to believe that an act of torture and other cruel, inhuman or degrading treatment or punishment, or another serious human rights violation has taken place’,185 175 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 168; Communication 245/2002: para 147, ‘to prevent or remedy violation, or failure to apprehend the individuals committing human rights violations gives rise to State responsibility even if committed by private individuals’. This standard developed in regard to the protection of aliens has subsequently been applied in regard to acts against nationals of the State. 176 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 210. 177 Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, para 155. 178 Ibid, para 183. 179 See, for extensive discussion on non-State actors and State responsibility, ibid. 180 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 72 and para 75. 181 Resolution on Sudan, Eighth Annual Activity Report of the African Commission on Human and Peoples’ Rights, ACHPR/Res.15(XVII)95, March 1995. 182 See Chapter 2 (Article 1). See also P. Leach, R. Murray and C. Sandoval, ‘The duty to investigate right to life violations across three regional systems: Harmonisation or fragmentation of international human rights law?’, in C. Buckley, A. Donald and P. Leach, Towards Convergence in International Human Rights Law Approaches of Regional and International Systems, Brill, 2016, chapter 1. 183 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 21. 184 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 203, and 208–209. 185 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 22. General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 25.

C. Duty of the State

153

or ‘whenever persons who claimed to have been or who appear to have been tortured or ill-treated are brought before competent authorities’.186 The investigation should be ‘conducted promptly, impartially and effectively, guided by the UN Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol)” ’.187 The obligation appears to arise ‘where the abuse does occur’,188 or ‘[w]‌here torture is allegedly inflicted’.189 The purpose of the investigation should be to ‘determine the veracity of the allegations’,190 to ‘bring the perpetrators to justice as well as to afford redress to the victims.’191 The obligation to investigate is triggered not only if there are allegations of State agents’ involvement, but also in relation to non-State actions, drawing upon Velásquez Rodríguez v Honduras before the Inter-American Court, and its specific finding that: An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention (...). What is decisive is... whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible’.

The Association of the Prevention of Torture (APT) and the Center for Justice and International Law (CEJIL) consider that the duty to investigate has been ‘interpreted more restrictively by the African Commission than by other regional bodies’.192 For example, in Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, the African Commission held: ‘just one investigation with an ineffective result does not establish a lack of due diligence by a State. Rather, the test is whether the State undertakes its duties seriously. Such seriousness can be evaluated through the actions of both State agencies and private actors on a case-by-case basis’.193 If the State fails to investigate allegations of torture this could also be a separate violation of Article 5, distinct from the acts of torture or ill treatment themselves. For instance, in a case against Egypt the African Commission noted that ‘the Victims in the present Communication were not only subjected to ill-treatment, but intimidated to withdraw their Complaints. The Respondent State therefore owed an obligation to the Victims to effectively investigate the acts of ill-treatment that impacted on their dignity and punish the perpetrators accordingly. Failing to do so only amounted to an infringement of the rights of the Victims under Article 5 of the ‘Africa [sic] Charter’ and other international

RIG, para 18. RIG, para 19. See Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 203. 188 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 76. 189 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 100. 190 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 100. 191 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 76; Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 100. 192 CEJIL, A. A. (2008). Torture in International Law: A Guide to Jurisprudence. Geneva, APT and CEJIL, at p.132. 193 Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, 39th Session, 2006, para 158. 186 187

154

6. Article 5: Respect of Dignity; Prohibition of Slavery

instruments that the Respondent State is a party to.194 It concluded overall that it found a violation of Article 5 ‘because the acts committed amounted to inhuman treatment and investigations were not conducted’.195

5. Obligation to Remedy The obligation to provide a remedy for a violation of a right is not only part of Article 1 but has been specifically raised with respect to Article 5,196 and articulated in a General Comment on the right to redress for victims of torture.197 The right to an effective remedy is part of the right to redress.198 Thus, victims of torture ‘must obtain redress including effective remedy and reparation’199 and the right to redress is for all victims without discrimination and redress should be obtained ‘promptly’.200 Victims should be at the ‘centre of the redress process’.201 The Robben Island Guidelines state that the obligation to provide a remedy for a violation of Article 5 is separate from other obligations held by the State. It is an obligation also owed to the victims and their dependents: The obligation upon the State to offer reparation to victims exists irrespective of whether a successful criminal prosecution can or has been brought. Thus all States should ensure that all victims of torture and their dependents are: a) Offered appropriate medical care; b) Have access to appropriate social and medical rehabilitation; c) Provided with appropriate levels of compensation and support;. In addition there should also be a recognition that families and communities which have also been affected by the torture and ill-treatment received by one of its members can also be considered as victims.202

States are required to adopt national legislation which includes an obligation for rehabilitation for victims of torture203 as well as restitution, satisfaction and guarantees of non- repetition.204 States should create ‘judicial, quasi-judicial, administrative, traditional and other processes to enable victims to access and obtain redress’.205 Victims of torture and 194 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 208. 195 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 209. 196 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 38. 197 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017. 198 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 23. 199 International Day in Support of Victims of Torture Statement—26 June 2015. 200 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 16 and para 26. 201 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 18. 202 RIG, para 50 and 51. 203 Resolution on the Right to Rehabilitation for Victims of Torture—ACHPR/Res.303 (LVI) 2015, 7 May 2015, para 1. 204 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 38. 205 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 21.

D. Complaints Mechanisms and Independent Monitoring

155

their dependants should be offered ‘appropriate medical care, have access to appropriate social rehabilitation and are provided with adequate compensation’.206 Compensation should cover ‘any physical or mental harm (such as physical or mental harm, pain, suffering and emotional distress, lost opportunities including education, material damage and loss of actual or potential earnings, harm to reputation or dignity, and costs required for legal services or expert assistance, medicines, medical services, and psychological and social services)’.207 Specifically focusing on the right to rehabilitation, the African Commission has called on States to, in national laws, enact provisions on the ‘obligation to provide rehabilitation for victims of torture’; ensure that victims and their dependants are ‘offered appropriate medical care; have access to appropriate social rehabilitation and are provided with adequate compensation’; and for transitional justice processes to include express provisions on rehabilitation.208

D. Complaints Mechanisms and Independent Monitoring In the past couple of decades, mirroring the process towards the adoption of OPCAT,209 the use of independent monitoring mechanisms at the international, regional and national levels to visit places of detention in order to prevent torture has been developed in the African system. This idea was embodied in the mandate of the Special Rapporteur on Prisons in Africa ‘as a prison monitoring mechanism’210 who visited a number of places of detention in the early years of the mechanism’s existence. The NGO, the Association of the Prevention of Torture (APT), as part of its broader strategy and now in the context of its role within the CPTA, has made ratification of OPCAT by African States a priority.211 The African Commission requires that States should establish national preventive mechanisms if they are party to OPCAT.212 In general, States should ‘ensure regular supervision or monitoring of places of detention by qualified and/or experienced persons or organisations’;213 these persons should be ‘appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place

206 Resolution on the Right to Rehabilitation for Victims of Torture—ACHPR/Res.303 (LVI) 2015, 7 May 2015, para 2. 207 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 38. 208 Resolution on the Right to Rehabilitation for Victims of Torture, ACHPR/Res.303 (LVI) 2015, 7 May 2015. 209 Adopted in December 2002 and came into force in June 2006, UNTS 2375, p.237; GA Resolution A/ RES/57/199 of 9 January 2003. 210 Resolution on the Appointment of a Special Rapporteur on Prisons and Conditions of Detention in Africa, ACHPR/RES.82, 5 December 2005. The Special Rapporteur’s mandate included that he or she ‘is empowered to examine the situation of persons deprived of their liberty within the territories of States Parties to the African Charter on Human and Peoples’ Rights’, and ‘examine the State of the prisons and conditions of detention in Africa and make recommendations with a view to improving them’, Terms of Reference for the Special Rapporteur on Prisons and Conditions of Detention in Africa, Tenth Activity Report of the African Commission on Human and peoples’ Rights, Annex VII, paras 2 and 3.1. 211 See website of CPTA, http://www.achpr.org/mechanisms/cpta/ 212 Johannesburg Declaration and Plan of Action on the Prevention and Criminalization of Torture in Africa, Johannesburg, 21–23 August 2012. 213 Communication 292/2004, Institute for Human Rights and Development in Africa v Republic of Angola, 43rd ordinary Session, May 2008.

156

6. Article 5: Respect of Dignity; Prohibition of Slavery

of detention’.214 These ‘competent national authorities’ should have access to ‘all places where persons deprived of their liberty are being held and to each part of those places, as well as to any place in which there are grounds to believe that such persons may be found’.215 The reference to ‘in such proceedings’ suggests that this may be limited to or at least include those situations not only where individuals are deprived of their liberty but also where there are concerns about an individual being so deprived. Individuals in detention should be able to communicate with these monitoring bodies ‘freely and in full confidentiality’, although this is subject to ‘reasonable conditions to ensure security and good order’.216 In addition, States should permit representatives of ‘the African Commission, relevant international organisations, ICRC, NGOs, concerned consulates and others access to detainees and places of detention, including to those where non-nationals are held’.217 The Robben Island Guidelines acknowledge the importance of national bodies visiting all places of detention, recognising the applicability of the Paris Principles on national human rights institutions (NHRIs) and in line with the approach in OPCAT.218 Detainees should have the right to ‘communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment in accordance with the above principle, subject to reasonable conditions to ensure security and good order in such places’.219 A related requirement is that the State should establish oversight mechanisms, inquiries,220 and ‘readily accessible and fully independent mechanisms’ to examine complaints of ill-treatment.221 Such complaints mechanisms should also be for those detained in police custody and pre-trial and be confidential and without fear of reprisals.222

E. Relationship with Articles 6 and 7 There is a greater risk of torture and ill treatment if Articles 6 and 7 violated, as these are considered to be safeguards against possible ill-treatment. Consequently, specific protections are required to prevent inhuman treatment in the context of the right to a fair trial. These include holding pre-trial detainees separately from convicted prisoners,223

214 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M8. 215 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M 5(c). 216 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 42. 217 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M 5(d). 218 RIG, para 41. 219 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M8. 220 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 43. 221 RIG, para 17. Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 41. 222 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 37. 223 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 26.

F. Specific Contexts in which Article 5 has Arisen

157

and children from adults;224 and female detainees should only be questioned by female police or judicial officials and be detained ‘separately from men’,225 although the African Commission does not state explicitly whether this is simply in separate buildings or sites. Female detainees should be provided with ‘care, protection and all necessary individual assistance –psychological, medical and physical –that they may require in view of their sex and gender’.226 The obligation against self-incrimination is specifically linked with the right to humane treatment, as is the prohibition of interrogation which includes violence, threats or ‘methods of interrogation which impair his or her capacity of decision or his or her judgement’.227 Medical or scientific experimentation ‘which could be detrimental to his or her health’ is prohibited,228 although whether this is meant to imply that it may be permissible if there are health benefits is not clear. The right to complain about treatment in detention and the availability of appropriate and effective mechanisms, of which the detainee should be informed, is also required.229 As is noted in relation to Article 6 and 7230 those who torture or carry out ill treatment should be punished and victims provided with compensation.231

F. Specific Contexts in which Article 5 has Arisen 1. Solitary Confinement and Incommunicado Detention Any ‘unofficial’ or ‘secret’ places of detention will raise concerns.232 In addition, the African Commission has stated that solitary confinement will violate Article 5,233 although not on every occasion has it been so definitive,234 and incommunicado detention should be prohibited.235 Indeed, it has not always made a clear distinction between solitary confinement and incommunicado detention. Hence, although it was willing to determine that incommunicado detention was a ‘gross human rights violation that can lead to other violations such as torture or ill-treatment or interrogation without due process safeguards’, it went on further to state that:

224 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 31. 225 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M7. 226 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M7. 227 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M7. 228 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M7. 229 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M7. 230 See Chapters 7 and 8. 231 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M7. 232 Report of the Promotion Mission of the Committee for the Prevention of Torture in Africa to the Islamic Republic of Mauritania, 26 March–01 April 2012, para 112. 233 ‘States shall prohibit practices that violate human dignity such as solitary confinement’, Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, D(iv). 234 ‘Ensure the use of solitary confinement is restricted’, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 25 (my italics). 235 RIG, para 24.

158

6. Article 5: Respect of Dignity; Prohibition of Slavery

Of itself, prolonged incommunicado detention and/or solitary confinement could be held to be a form of cruel, inhuman or degrading punishment and treatment. The African Commission is of the view that all detentions must be subject to basic human rights standards. There should be no secret detentions and States must disclose the fact that someone is being detained as well as the place of detention. Furthermore, every detained person must have prompt access to a lawyer and to their families and their rights with regards to physical and mental health must be protected as well as entitlement to proper conditions of detention.236

Special Rapporteurs have condemned the use of incommunicado detention.237 The Special Rapporteur on Prisons and Conditions of Detention has highlighted concerns on visits to States. For example: The Special Rapporteur has great concerns regarding the situation of some inmates held in solitary cells for administrative reasons (section D of Oluno prison, individual cells of Hardap prison). These concerns refer not only to the duration of isolation (from 3:00 pm to 08:00 am) but also to the very restrictive regime to which these prisoners are subjected. The juveniles held in Walvis Bay prison complained about being totally isolated from 3:00 pm to 8:00 am. The delegation noted that at Oluno prison a person who was on remand was kept in total isolation and did not participate in any of the prison’s activities, either individually or collectively. This person only leaves his cell on the days that he is seen by the judge. In the Hardap prison, a person asked to be separated from the others because he was being harassed. The total absence of structured or communal activities is not favourable for the rehabilitation of a prisoner, nor for his/her mental and physical health as the living space is too confined.238

Solitary confinement has arisen in the context of other forms of treatment which the African Commission found collectively to have violated Article 5.239 In one case the African Commission referred to ‘excessive solitary confinement’, leaving open the possibility that not all solitary confinement would be impermissible.240 Depriving an individual of ‘contact with the outside world’,241 and the right to see their family is a ‘psychological trauma difficult to justify, and may constitute inhuman treatment’.242 However, the African Commission’s decision in this case reads that such deprivation ‘may

Communication 250/02, Liesbeth Zegveld and Mussie Ephram v Eritrea, 20 November 2003, para 55. E.g. Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Adv. Pansy Tlakula Presented to the 44th Ordinary Session of the African Commission on Human and Peoples’ Rights, paras 9, 11 and 44 in relation to the Gambia and Eritrea. 238 Prisons in Namibia Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, The African Commission On Human And Peoples’ Rights Report to the Government of Namibia on the visit of the Special Rapporteur on Prisons and Conditions of Detention in Africa from 17 to 28 September 2001, p.19. 239 Communications 64/92-68/92-78/92_7AR, Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, 27 April 1994, para 7. Communication 224/98 Media Rights Agenda v Nigeria, 6 November 2000, para 70. See also: ‘Holding people in solitary confinement both before and during the trial, and during such detention, which is, on top of it all, arbitrary (paras 5, 8, 10, 11 and 12) and depriving them of their right to a family life constitutes a violation of Article 18(1)’, Communications 54/91-61/91-96/93-98/93-164/97_196/ 97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 124. 240 Communications 64/92-68/92-78/92_7AR, Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, 27 April 1994, para 7. 241 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 40. 242 Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, paras 26 and 27. 236 237

F. Specific Contexts in which Article 5 has Arisen

159

constitute inhuman treatment’, suggesting that there might be circumstances in which refusal of access will not violate Article 5.243 Furthermore, ‘refusing to inform the family whether the individual is being held and his whereabouts is inhuman treatment’.244 The victims in such instances will be not only the detainee but also their family.245

2. Denial of Medical Treatment in Detention Denial of medical treatment in detention or ‘under health threatening conditions’ can violate an individual’s dignity and Article 5.246 Such medical services should be provided ‘promptly’, the African Commission here drawing upon the jurisprudence of the Human Rights Committee and its General Comment No. 20.247 The Robben Island Guidelines, similarly provide in section 20, that ‘all persons who are deprived of their liberty by public order or authority should have that detention controlled by properly and legally constituted regulations. Such regulations should provide a number of basic safeguard, all of which shall apply from the moment when they are first deprived of their liberty. These include: . . . [t]‌he right to an independent medical examination’.248 This is ‘more critical’ where there are allegations or ‘possible indications’ of abuse.249 The African Commission has on several occasions referred to the need to abide by the Istanbul Protocol,250 specifically, ‘[t]‌he investigator should arrange for a medical examination of the alleged victim. The timeliness of such medical examination is particularly important. A medical examination should be undertaken regardless of the length of time since the torture, but if it is alleged to have happened within the past six weeks, such an examination should be arranged urgently before acute signs fade’.251 In one case, where the victims received no medical examination prior to reporting ill-treatment and where once ordered, the examination was only conducted six months afterwards, the African

243 (Italics added) Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, para 27. 244 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 54. Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, para 44. See also Kampala Declaration on Prison Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, para 6. 245 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 54. Communication 222/98-229/99 Law Office of Ghazi Suleiman v Sudan, 3 May 2003, para 44. 246 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 41. 247 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 172. 248 Robben Island Guidelines, section 20(b). 249 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 173. 250 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 251 Istanbul Protocol. Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Office of the High Commissioner for Human Rights, New York and Geneva, 2004, para 104. Cited in e.g. Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 173.

160

6. Article 5: Respect of Dignity; Prohibition of Slavery

Commission held a violation of ‘the victims’ rights to prompt medical services whiles under custody’.252

3. Pre-trial Detention There is acknowledgement of the particular challenges of pre-trial detention in Africa. The heightened risk of abuse, poor conditions and disproportionate impact on the vulnerable and marginalised have been noted by the African Commission.253 Similarly, a poorly paid police service, lack of appropriate record-keeping and an independent judiciary as well as corruption exist in many African States.254 In light of this, the African Commission adopted Guidelines on Conditions of Arrest, Police Custody and Pre-trial Detention in Africa in April 2015. These provide for a range of protections including procedural rights for those arrested and safeguards in police custody, many of which reflect provisions and standards adopted in other documents and jurisprudence.255 For instance, on arrest, information should be collated256 including on the detainee’s mental and physical health and whether he or she requested or needed medical assistance.257 Pre-trial detainees should have access to ‘adequate recreational, vocational, rehabilitation and treatment services’,258 and persons with disabilities to facilities and physical conditions which should be adapted to take account of their needs.259

4. Police Accountability There has been some recognition by the African Commission of the lack of independent oversight of the police forces in many African States. It has for that reason urged States to establish ‘independent civilian policing oversight mechanism, where they do not exist, which shall include civilian participation.’260

252 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011. 253 ACHPR/Res.228: Resolution on the need to develop guidelines on conditions of police custody and pre-trial detention in Africa, 22 October 2012. 254 OSJI, Ludwig Boltzmann Institute, University of Bristol, Pretrial Detention and Torture: Why Pretrial Detainees Face the Greatest Risk, OSJI, 2011. OSISA, Pre-trial detention in Zambia: Understanding caseflow management and conditions of incarceration, Community Law Centre, Zambian Human Rights Commission and the Open Society Initiative for Southern Africa (OSISA), 2011. OSISA, Pre-trial detention in Zimbabwe. Analysis of the Criminal Justice system and conditions of pre-trial detention, Law Society of Zimbabwe, 2013. J. Sarkin, Prisons in Africa: An evaluation from a human rights perspective, 5(9) SUR (2008); Redress, Legal Frameworks to Prevent Torture in Africa: Best Practices, Shortcomings and Options Going Forward, 2016. 255 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015. ACHPR/Res.228: Resolution on the need to develop guidelines on conditions of police custody and pre-trial detention in Africa, 22 October 2012. 256 See Chapter 7. 257 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 16. 258 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 28. 259 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 33. 260 Resolution on Police Reform, Accountability and Civilian Police Oversight in Africa, ACHPR/Res.103, 29 November 2006, para 3. There are various examples of civilian engagement in policing, for example in the Police Service Commission in Nigeria, see J. N. Auerbach, ‘Police accountability in Kenya’, 3 African Human Rights Law Journal (2003) 275–313.

F. Specific Contexts in which Article 5 has Arisen

161

5. Disappearances The African Commission has drawn upon the Declaration on the Protection of all Persons Against Forced Disappearances to ‘underscore the guarantee of physical integrity and security of the person in the context of forced disappearances’.261 The disappearance of an individual from a prison in Maputo involved alleged violations of Article 5 among others.262 Declaring the communication inadmissible, the African Commission did nevertheless hold that ‘every enforced disappearance violates a range of human rights including, the right to security and dignity of person, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, the right to humane conditions of detention, the right to a legal personality, the right to a fair trial, the right to a family life and when the disappeared person is killed, the right to life’.263 Furthermore, an enforced disappearance in this case was a ‘continuing’ act for the purposes of determining the jurisdiction of the African Commission: Another issue that must be taken into account is the doctrine of instantaneous act, which should be distinguished from continuous violations. In case of a continuing act, the violation occurs and continues over a period of time until the violation ceases. In case of an instantaneous act, the violation itself does not continue over time, although the completion of such an act might take some time. This definition of continuous violations can be applied to acts of disappearances, which can be qualified as a violation that occurs and continues over time, until it ceases, that is, until the missing person is no longer disappeared. Nigel g, the United Nations Special Rapporteur on Torture at the time until 2001, pointed out that: . . . ‘the idea of “disappearances” constituting a continuing offence is logical, since non-acknowledgement of the detention and nondisclosure of the fate or whereabouts of detained persons are key elements in the offence itself. [footnotes omitted]’ In the present Communication, the Respondent State has not proved the whereabouts of first victim and neither has it demonstrated efforts made to investigate his whereabouts. The African Commission is of the view that the forced disappearance of the first victim constitutes a continuing violation of his human rights and for these reasons holds that it is competent ratione temporis to examine the matter.264

6. Life Imprisonment As to whether life imprisonment is considered to be inhuman or contrary to human dignity,265 there is little that the African Commission has said here, bar its Special Rapporteur on Prisons in a report noting that ‘measures such as parole, judicial control, reductions

261 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 44. 262 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Professor Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011. 263 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Professor Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 81. 264 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Professor Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, paras 93–94. 265 E. g, ‘The penalty of life imprisonment under international criminal law’, 11 AHRLJ (2011) 75–92; see also D van Zyl Smit, ‘Life imprisonment as the ultimate penalty in international law: A human rights perspective’, 9 Criminal Law Forum (1999) 26–45. J. D. Mujuzi, ‘Making sense of the Rwandan law relating to serving life imprisonment with special provisions’, 11 AHRLJ (2011) 296–308. J. D. Mujuzi, ‘Why the Supreme Court of Uganda should reject the Constitutional Court’s understanding of imprisonment for life’, 8 AHRLJ (2008) 163–186.

162

6. Article 5: Respect of Dignity; Prohibition of Slavery

of sentences, community service, diversion, mediation and permission to go out should also be developed’.266

7. Extraordinary Rendition Although this issue has received considerable international attention, the African Commission has made few statements on its legality and been faced with only one communication so far relating to allegations of extraordinary rendition. In a communication against Djibouti it was asked to rule on allegations that an individual had been rendered from Tanzania to Djibouti where he was subsequently interrogated and held in poor conditions.267 Djibouti argued that there was insufficient proof to show that the alleged victim was actually in Djibouti. The African Commission’s 2014 decision found the communication to be inadmissible, in part, on the ground that the evidence before it left open the possibility that the individual could have been flown to other neighbouring countries rather than Djibouti. It noted the challenges of evidence in cases of rendition, ‘given the clandestine nature of the rendition program characterised by concealment to the victim of his whereabouts, the Commission has difficulty believing that the Complainant could have been told the truth about his whereabouts’.268 Whether its findings still stand, however, is questionable given that in an unusual twist the decision was subsequently reviewed and the case later found admissible. It is currently pending before the African Commission on the merits.

8. Arbitrary Detention as Torture Arbitrary detention, namely that in violation of Article 6, may itself amount to a violation of Article 5: ‘not knowing the reason or duration of detention, is itself a mental trauma’.269 So where Gambians being deported from Angola were not given reasons for their detention the African Commission considered this to be a ‘mental trauma’ in violation of Article 5.270

9. The Death Penalty and Article 5 The death penalty raises several issues with respect to Article 5. As was discussed in the context of Article 4,271 although the African Commission has shied away from consistently stating the death penalty per se violates the ACHPR, there is a relationship between Articles 4 and 5. For example, in a Press Statement on the Death Penalty in The Gambia it noted concerns about: recent comments allegedly made by the President of the Republic of The Gambia, His Excellency Dr. Yahya A.J.J. Jammeh, that people sentenced to death in the Gambia will be executed in

266 Special Rapporteur on Prisons and Conditions of Detention in Africa, Prisons in Cameroon: Visit of the Special Rapporteur on Prisons and Conditions of Detention in Africa from 2–15 September 2002, ACHPR/ 37/OS/11/437. 267 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v the Republic of Djibouti, 12 May 2014. 268 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v the Republic of Djibouti, 12 May 2014, para 159. 269 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 40. 270 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 50. 271 See Chapter 5 (Article 4).

F. Specific Contexts in which Article 5 has Arisen

163

September 2012. The Commission is particularly concerned that, if this information is accurate, these executions will constitute a violation of the provisions of the African Charter on Human and Peoples’ Rights (the African Charter), specifically Article 4 which states that human beings are inviolable, with every human being entitled to respect for his life and the integrity of his person, and Article 5 which guarantees the right to respect of the dignity inherent in a human being. . . .while the Commissions notes with satisfaction that The Gambia has observed moratorium since 1981, the Commission nevertheless calls on The Government of the Gambia to ensure that it complies with its obligation under the African Charter by refraining from the use of death penalty and to continue to observe a moratorium pending the eventual abolition of death penalty’.272

In Communications 137/ 94, 139/ 94, 154/ 96 and 161/ 97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v Nigeria, the African Commission found a violation not only of Article 5 but also Article 7 in the imposition of a death penalty against Ken Saro-Wiwa and others by the Nigerian authorities.273 In addition, the RIG make no mention of the death penalty. In fact, this was a controversial issue during the drafting of the Guidelines and earlier drafts which contained provisions on abolition were removed.274 What the African Commission has done is to draw up a number of conditions under which any such sentence should be imposed. It has stated that the method by which the death penalty is imposed may violate Article 5. In Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, the complainants alleged death by hanging was a violation of Article 5. Drawing upon the jurisprudence of the Human Rights Committee, the African Commission held that ‘where a death sentence has been imposed, it must be carried out in such a way as to cause the least possible physical and mental suffering. . . . The African Commission, therefore, believes that, the carrying out of a death sentence using a particular method of execution may amount to cruel inhuman or degrading treatment or punishment if the suffering caused in execution of the sentence is excessive and goes beyond that is strictly necessary’.275 Noting that States have an obligation to prevent ill treatment, the African Commission held that death by hanging ‘may not be compatible with respect for the inherent dignity of the individual and the duty to minimize unnecessary suffering, because it is a notoriously slow and painful means of execution. If carried out without appropriate attention to the weight of the person condemned because hanging can result either in slow and painful strangulation, because the neck is not immediately broken by the drop, or, at the other extreme, in the separation of the head from the body’.276 The use of the term ‘may’ is crucial, however, as the African Commission stops short of holding death by hanging as itself a form of torture or ill-treatment, rather it would seem to depend on the circumstances of the case and the particular individual subject to the sentence. Thus, in this case, as the complainants ‘have not demonstrated that the execution would be, or Press Statement on the Death Penalty in The Gambia, 24 August 2012. ‘Given that the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of Article 4’, para 103. 274 See D. Long and R. Murray, ‘Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?’, 12 AHRLJ (2012) 311–347, at 4.1. 275 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, paras 166 and 167, citing Ng v Canada. 276 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 169. 272 273

164

6. Article 5: Respect of Dignity; Prohibition of Slavery

was, carried out without due attention to the weight of the condemned’, the submissions were held to be ‘speculative’ and therefore not a violation of Article 5.277 However, five years later it takes a different approach. The same issue arose in Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, and here the African Commission noted that ‘no method of execution has been found to be acceptable under international law’.278 Drawing upon the description by the Tanzanian High Court in Republic v Mbushuu,279 about what happens to the person and their body during hanging, the African Commission concluded that this ‘to say the least, is inhuman and degrading’ and agreed with the Tanzanian High Court that hanging ‘causes excessive suffering and is not strictly necessary’ and was a violation of Article 5.280 With respect to the prolonged detention of an individual under the threat of the death penalty, and whether this is contrary to Article 5 ‘for the reason that he lived for an unconscionable amount of time awaiting the potential imposition of a death sentence’, the African Commission has drawn upon Human Rights Committee decisions,281 European Court and national court judgments on the issue.282 It held, given that ‘an element of delay between the lawful imposition of a sentence of death and the exhaustion of available remedies is inherent in the review of the sentence; thus, even prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies’.283 This is an approach that has also been recognised by African national courts.284 In a case against the DRC where the individuals were held on death row for two years the African Commission noted they ‘remained in the corridors of death for more than two years. Such a situation, to say the least, is likely to bring about agony and a psychological pain which, in the opinion of the Commission, is torture. Hence, the Commission concludes that Article 5 of the African Charter has been violated’.285 277 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 170. 278 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, para 85. 279 (1994) LRC 349; Mbushuu v Republic [1995] 1 LRC 2016. See A. Gaetan and B. Kuschnik, ‘Tanzania’s death penalty debate: An epilogue on Republic v Mbushuu’, 9 African Human Rights Law Journal (2009) 459–481. 280 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, paras  86–87. 281 Randolph Barrett and Clyde [sic] v Jamaica. 282 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, paras 88–90, citing Soering v UK, App. No. 14038/88; Al-Saadoon and Mufdhi v UK, App. No. 61498/08; and Supreme Court of Uganda, in Attorney General v Susan Kigula and 417 Others, Constitutional Appeal No. 3 of 2006 [2009] UGSC 6, 21 January 2009. 283 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 172. See K. N. Bojosi, ‘The death row phenomenon and the prohibition against torture and cruel, inhuman or degrading treatment’, 4 African Human Rights Law Journal (2004) 303–333. 284 Supreme Court of Zimbabwe, Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and Others [1993] 4 SA 239. See e.g. Botswana case, State v Ntesang [1995] 4 BCLR 426; [1995] 2 LRC 338: ‘the inhumane treatment resulting from special conditions on death row and often prolonged wait for executions, or where the execution itself is carried out in a way that inflicts gratuitous suffering’. See also South African Constitutional Court, S v Makwanyane and Another, held the death penalty was per se cruel, inhuman or degrading punishment, and: ‘the mental agony of the criminal, in its alternation of fear, hope and despair must be present even when the time between sentence and execution is measured in months or weeks rather than years’, 1995 3 SA 39 (CC), at para 195. 285 Communication 274/03, and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 63.

F. Specific Contexts in which Article 5 has Arisen

165

In determining whether there has been a violation because of the duration detained on death row, the time will run from when the court passed the sentence, not from when the individual is arrested.286 It will also take into account of whether the delay was the responsibility of the individual, yet, surprisingly, the African Commission may be willing to find no violation even if the delay was the result of the individual exercising their right of appeal.287 However, in a 2016 decision against Botswana, the African Commission noted that the individual was sentenced to the death penalty in 2002, the appeal process was concluded in January 2006 and the clemency process some two months later, one day after which he was executed. It considered that the complainants had not provided facts to indicate whether the individual had been detained on death row for a ‘prolonged period’ and ‘there was no indication or evidence from the complainants that Mr Ping was liable for execution before the process had been concluded and especially the appeal process’.288 No violation of Article 5 was found. In one case the complainants alleged that the failure of the government to publish the outcome of the clemency appeal and to give notice of the date and time of execution violated Article 5 as the State did not respond to challenge these particular issues. The African Commission, on the basis of its rule to find in favour of the complainants if the allegations go uncontested, held a violation of Article 5.289 However, in this case and in Communication 240/01, Interights et al. (on behalf of Bosch) v Botswana,290 the Commission noted that ‘a justice system must have a human face in matters of execution of death sentences by affording a condemned person an opportunity to arrange his affairs, to be visited by members of his intimate family before he dies, and to receive spiritual advice and comfort to enable him to compose himself, as best as he can, to face his ultimate ordeal’.291 The failure to give notice of the date and time of execution deprived the victim and the family ‘to have closure with the dignity of their last farewells’ thus amounting to inhuman treatment.292 This appears to be a violation of the victim’s rights as well as those of his family. Similarly, an execution was carried out in secret and the body was not handed over to the family, and this had been after petitions of mercy, serving the execution warrant and denial of access to lawyers and family. The African Commission noted this ‘constitutes a potential violation of Article 5’, reaffirming the importance of being ‘promptly informed and be given adequate notice of their execution’, a procedure which should be ‘fair, just

286 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 173. 287 ‘The victim was partly responsible for these delays and was exercising his rights to appeal. For this reasons the African Commission finds that there is no violation of Article 5 in this regard’, Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 173. 288 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, para 91. 289 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, paras 174–175. 290 Communication 240/01, Interights et al. (on behalf of Bosch) v Botswana, 20 November 2003. 291 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 176. 292 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 16 December 2011, para 177, although the Commission then goes on to find that this amounts to ‘cruel, inhuman and degrading treatment or punishment’. See also Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, para 96.

166

6. Article 5: Respect of Dignity; Prohibition of Slavery

and reasonable’.293 Failure to provide the ‘exact place of burial’ of the body after an execution will not only violate respect for the human dignity of the prisoner but also that of his family.294

10. Lack of Access to Abortion as Violation of Article 5 As noted in Chapter 5, the right to an abortion is recognised, although not absolutely, by the African Commission as reflected in the Protocol on the Rights of Women in Africa. Its Article 14 provides that States should take measures to ‘protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’.295 In the context of Article 5 the African Commission has held that States should ensure that ‘women are not treated in an inhumane, cruel or degrading manner when they seek to benefit from reproductive health services such as contraception/family planning services or safe abortion care, where provided for by national law and the Protocol’.296 It has stopped short of arguing that there is a right to an abortion in every circumstance, noting that: Safe abortions may be required by women whose pregnancies pose risks to the life of the mother or the foetus. That is the case, for example, where it is demonstrated that the foetus which is developing suffers from deformities that are incompatible with survival, so being forced to carry the pregnancy to term would constitute cruel and inhuman treatment. This can also occur in women who need special medical treatment for heart disease, cancer or other diseases which may endanger the survival of the foetus.297

11. Mental  Health Some reference has been made to the need to bear in mind those with mental health issues as vulnerable or in need of special attention in the context of Article 5.298 In one communication against the Gambia, which raised the compatibility of the detention of individuals in a psychiatric unit of a hospital in the Gambia, the African Commission found various violations of Article 5 on the basis of violation of their human dignity and the prohibition of cruel, inhuman or degrading treatment.299 Under the domestic 293 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, paras 92 and 93. 294 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, para 96. 295 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 14(2)(c). 296 General Comment No. 2 on Article 14.1 (a), (b), (c) and (f ) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa para 36. 297 General Comment No. 2 on Article 14.1 (a), (b), (c) and (f ) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. 298 Intersession Activity Report Compiled by Commissioner Med S.K. Kaggwa as the Special Rapporteur on Prisons and Conditions of Detention in Africa, Member of the Working Group on the Death Penalty in Africa and Member of the African Commission on Human and Peoples’ Rights, presented during The 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, 22 October–5 November 2013, Banjul, The Gambia, para 15. Prisons in Namibia Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa the African Commission on Human and Peoples’ Rights Report to the Government of Namibia on the visit of the Special Rapporteur on Prisons and Conditions of Detention in Africa from 17 to 28 September 2001. 299 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 55.

F. Specific Contexts in which Article 5 has Arisen

167

law, persons with mental illness were labelled ‘lunatics’ and ‘idiots’, which the African Commission found in themselves were terms which ‘without any doubt dehumanise and deny them any form of dignity in contravention of Article 5 of the African Charter’.300 It reiterated that: mentally disabled persons would like to share the same hopes, dreams and goals and have the same rights to pursue those hopes, dreams and goals just like any other human being. Like any other human being, mentally disabled persons or persons suffering from mental illnesses have a right to enjoy a decent life, as normal and full as possible, a right which lies at the heart of the right to human dignity. This right should be zealously guarded and forcefully protected by all States party to the African Charter in accordance with the well-established principle that all human beings are born free and equal in dignity and rights.301

12. Deportation Living on ‘no-man’s land’, a border between two States, having been deported from one and rejected by the other, will expose the individual to ‘personal suffering and indignity in violation of the right to freedom from cruel, inhuman or degrading treatment’.302 Further, deportation or expulsion will impact on other rights of the individual as well as those of their relatives.303

13. Reprisals The obligation in international law to ensure victims of torture do not face reprisals in response to engaging with international and regional bodies has also been reiterated by the African Commission: ‘the right to protection against intimidation, retaliation and reprisals is an integral component of victims’ right to redress’304 The Robben Island Guidelines, for example, provide that States should ensure protection for victims of torture and ill treatment, witnesses, human rights defenders, investigators and relatives from ‘violence, threats of violence or any other form of intimidation or reprisal that may arise pursuant to the report or investigation’.305

14. Slavery Although most of the attention on Article 5 has been around the concept of torture and other forms of ill-treatment, the provision also refers to prohibition of slavery.306 There have been few, albeit important, incidents where the African Commission and other bodies have interpreted Article 5 in this context. There has been brief reference to slavery 300 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, paras 59–61. See Section A.2. on the concept of dignity, above. 301 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, paras 59–61. 302 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 92. 303 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 91. 304 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, section V. Victims of torture must not face reprisals for seeking redress through the United Nations and Regional Mechanisms Joint Statement to mark the United Nations International Day in Support of Victims of Torture, Tuesday, 26 June 2012. 305 RIG, para 49. 306 W. L. Saunders Jr. and Y. G. Mantilla, ‘Human dignity denied: Slavery, genocide, and crimes against humanity in Sudan’, 51 Cath. U. L. Rev. (2001–2002) 715–739.

168

6. Article 5: Respect of Dignity; Prohibition of Slavery

in the context of colonial era Africa,307 but more often it has been in relation to ‘contemporary’ forms of slavery, trafficking, domestic service,308 ‘exploitation of children and child labour’, ‘forced and early servile marriage’309 and forced labour. The African Commission has not defined slavery but it has referred to Article 1 of the Slavery Convention 1926 and the Global Slavery Index 2014,310 and in its Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, when setting out the minimum core obligations of the right to work, it has noted that slavery and forced labour includes ‘all forms of work or service exacted from any person under the menace of any penalty and/or for which the said person has not offered himself/ herself voluntarily. It includes also all forms of economic exploitation of children and other members of vulnerable and disadvantaged groups’.311 In addition, questions asked of States in the context of their Article 62 reports include requesting information on the ‘measures which the State has taken to address instances of contemporary slavery in the country’312 and there is a recognition of ‘the right to be protected from trafficking’.313 The African Commission has condemned States for failing to protect against ‘[forcing] the young girls into sexual slavery’,314 and called on them to ratify relevant international instruments as well as to adopt legislation prohibiting ‘all forms of slavery’.315 States have, in addition, been urged to adopt legislation which prohibits ‘slavery-like practices’316 and to protect ‘indigenous populations from all forms of violence, servitude and practices bordering on slavery’.317 They have also been asked to set up commissions or bodies to investigate such practices and to prosecute and punish the perpetrators.318

307 Statement from the Special Rapporteur on the Rights of Women in Africa on the Occasion of Pan African Women’s Day, 31 July 2013, noting a declaration from a conference on Women Stakeholders on Pan Africanism, Renaissance and Agenda 2063, held from 11 to 12 May 2013 in Addis Ababa, Ethiopia which noted the ‘critical role played by women in the evolution of Pan Africanism, through their contributions to the anti-slavery, ant colonial and liberation struggles was recognised. The Declaration also underscored the absence of peace and prosperity without the participation and emancipation of African women. In that regard, the Declaration expressed a commitment to promote gender equality, as well as promote, protect and advance women’s human rights, amongst others’. See also Statement by the Chairman of the African Commission on Human and Peoples’ Rights on the Occasion of the Celebration of the 40th Anniversary of the Universal Declaration of Human Rights, Second Activity Report of the African Commission on Human and Peoples’ Rights, Annex VI. 308 CPTA, Africa Torture Watch A Newsletter of the African Commission on Human & Peoples’ Rights, 5th edition, p.8. 309 Resolution on Contemporary Forms of Slavery, 3 November 1994. 310 CPTA, Africa Torture Watch A Newsletter of the African Commission on Human & Peoples’ Rights, 5th edition, p.8. 311 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 312 State Periodic Reporting under Article 62 of the African Charter on Human and Peoples’ Rights Indicative Questions to State Parties in respect of Article 5 of the African Charter, para 14. 313 ACHPR/Res.165, Resolution on the Prevention of Women and Child Trafficking in South Africa during the 2010 World Cup Tournament, 26 May 2010. 314 ACHPR/Res. 94: Resolution on the Human Rights Situation in Uganda, 5 December 2005. 315 Resolution on Contemporary Forms of Slavery, 3 November 1994, paras 2 and 3. 316 Central African Republic: Research and Information Visit regarding Indigenous Populations/ Communities, 2007, 28 May 2008. 317 Congo: Mission Working Group Indigenous Populations/Communities, 2010, 5 November 2011, para 18. 318 Central African Republic: Research and Information Visit regarding Indigenous Populations/ Communities, 2007, 28 May 2008. Congo: Mission Working Group Indigenous Populations/Communities, 2010, 5 November 2011, para 18.

F. Specific Contexts in which Article 5 has Arisen

169

States should also provide measures to ‘prevent the economic exploitation of members of vulnerable and disadvantaged groups’.319 One country which has received significant attention from the African Commission in the context of slavery is Mauritania,320 with the African Commission’s concerns resulting in a mission to the State in June 1996.321 Whilst it was not prepared to agree with civil society organisations that ‘slavery remains a living reality which touches 60% of the population’, it did find ‘vestiges of slavery’.322 In a 2012 visit by the CPTA, it was more forceful, noting slavery and the legacy of slavery in Mauritania,323 reiterating that those found guilty of such a practice should be held accountable; the need for greater awareness raising and provision for compensation to victims; as well as ‘positive discrimination in favour of slaves’. It also recommended that marriage among different communities be encouraged; psychological support to victims should be improved; and legislation amended accordingly, among other activities.324 In a 2004 decision against Mauritania, Communication 197/97 Bah Ould Rabah v Mauritania, the complainant argued that he was expelled by Mr Bah from his ancestral home four years after the death of his mother as the complainant’s mother had been Mr Bah’s slave. As a result, on her death the house then became the property of Mr Bah, the ‘owner’ of the deceased, a situation upheld by the Supreme Court in Mauritania.325 Despite alleged violations of Articles 2, 3, 4, 5, 6, 7, 9 and 11, the African Commission focused its attention on Article 14. It noted the lack of documents in the file to support the complainant’s claim and found that he had enjoyed a right to fair trial in the domestic courts. Illogically, however, it then went on to hold that the ‘fact that he had lost the case after exhausting the procedures he had initiated was due to a weak judicial system and not on the basis of the practice of slavery or slave like practices’, noting that slavery had been abolished by the Constitution and domestic legislation.326 It was also prepared to note that the documents before it indicated that ‘the consequences of slavery still persist in Mauritania and that, for people to act as Mohamed Moustapha Ould Bah has done has become common practice in the country’.327 Thus, ‘in the African Commission’s view, to accept that someone, and a mother for that matter, can deprive her own children of their inheritance for the benefit of a third party, with no specific reason as in this case, is not in conformity with the protection of the right to property’, and it called on ‘all the public institutions in the Islamic Republic of Mauritania to persevere in their efforts so as to control and eliminate all the offshoots of slavery’.328 Sudanese Commissioner Yasir Sid Ahmad El Hassan dissented, stating that many of the files relating to the case had been in 319 State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines). 320 See also Communication 198/97, SOS Esclaves v Mauritania, 5 May 1999, held inadmissible. 321 Report of the Mission to Mauritania, Nouakchott, 19–27 June 1996, Tenth Activity Report of the African Commission on Human and Peoples’ Rights, Annex IX. 322 Report of the Mission to Mauritania, Nouakchott, 19–27 June 1996, Tenth Activity Report of the African Commission on Human and Peoples’ Rights, Annex IX, section C. 323 Report of the Promotion Mission of the Committee for the Prevention of Torture in Africa to the Islamic Republic of Mauritania, 26 March–01 April 2012, para 112. 324 Report of the Promotion Mission of the Committee for the Prevention of Torture in Africa to the Islamic Republic of Mauritania, 26 March–01 April 2012, para 115. 325 Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004, paras 1 and 2. 326 Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004, para 28. 327 Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004, para 29. 328 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004, paras 30 and 31.

170

6. Article 5: Respect of Dignity; Prohibition of Slavery

Arabic and were not translated for the benefit of the entire Commission, and contested the finding of a violation of Article 14. Neither was there evidence in the file that the donation of the land had been because the complainant’s mother was a slave, these issues not being raised before the national courts. The fact that the events took place prior to the coming into force of the ACHPR for Mauritania he also identified as a concern.329 The ECOWAS Court of Justice, applying Article 5 of the ACHPR, in Hadijatou Mani Koraou v Niger was asked to consider the situation of Hadijatou Mani Koraou who had been sold to her husband at the age of twelve. The Court noted that ‘[s]‌he was led to the home of her buyer, went through almost a decade of numerous psychological pressures characterised by subjugation, sexual exploitation, forced labour in the home and on the farm, physical violence, insults, and a permanent constraint on her movements exercised by her buyer, who, on 18 August 2005, issued her with a document entitled “certificate of emancipation (from slavery)”, stating that from the date of signature of the said deed, “she (the Applicant) was free and was nobody’s slave.” ’.330 Drawing upon Article 1 of the Geneva Convention 1926, and other international and regional instruments and case law of the Criminal Tribunal for the former Yugoslavia (ICTY)331 the Court found that ‘[t] he foregoing do portray the Applicant’s condition of servitude and they bring out all the indicators of the definition of slavery’.332 The Court also distinguished between slavery and torture, holding that one could exist without the other: Even with the provision of square meals, adequate clothing and comfortable shelter, a slave still remains a slave if he is illegally deprived of his freedom through force or constraint. All evidence of ill treatment may be erased, hunger may be forgotten, as well as beatings and other acts of cruelty, but the acknowledged fact about slavery remains, that is to say, forced labour without compensation. There is nothing like goodwill slavery. Even when tampered with humane treatment, involuntary servitude is still slavery.333

In determining the relationship between the accused and victim, the Court considered the intention of her husband ‘to exercise the attributes of the right of ownership over the Applicant, even so, after the document of emancipation had been made’.334 Finding for the applicant, the Court also went on to criticise the domestic court for acknowledging that Hadijatou Mani was a slave but then not denouncing it was in effect tolerating the crime.335 The State was responsible, domestically and internationally, and the judge had therefore failed in his mandate of protecting her rights.336 As to whether this was also a crime against humanity, the ECOWAS Court did not consider it had the competence to examine this issue, it being a matter for the international criminal courts.337 In light of the importance of the issue, the CPTA has suggested contemporary forms of slavery may be a relevant topic for a General Comment.338 329 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004, Dissenting Opinion by Commissioner, Vice-Chairperson of the African Commission. 330 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, para 76. 331 Public Ministry v Dragoljub Kunarac, Radomir Kovac and Vukovic Zoran, Judgment of 12 June 2002, IT-96-23 & 23/1, para 119. 332 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, para 77. 333 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, para 79. 334 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, para 80. 335 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, paras 83–84. 336 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, para 86. 337 ECW/CCJ/JUD/06/08, Hadijatou Mani Koraou v Niger, 27 October 2008, paras 88–89. 338 CPTA, Africa Torture Watch A Newsletter of the African Commission on Human & Peoples’ Rights, 5th edition, p.10.

G. Evidence

171

G. Evidence Evidence obtained through torture and other ill treatment should not be admissible in the courts.339

1. Burden of Proof The African Commission has held that it is a ‘well established principle of international human rights law, that when a person is injured in detention or while under the control of security forces, there is a strong presumption that the person was subjected to torture or ill-treatment’.340 Therefore, the burden of proof ‘now shifts to the Respondent State to convince this Commission that the allegations of torture raised by the Complainants is unfounded’.341 Where there is serious injury or a death in custody, then ‘States shall provide a satisfactory explanation and make available information on the circumstances surrounding custody or detention’.342 However, it would appear that the victims needed to have alerted the authorities to the allegations, although not necessarily to have lodged a formal complaint.343 Similarly, where complainants brought ‘independent testimonies of similar ill- treatment’, and the context in which the individuals were held (incommunicado detention ‘is such that available evidence is necessarily limited’;344 and denied access to medical treatment), such circumstances may lead to a finding of violation.345 In this case, as the State did not give ‘a satisfactory explanation of how the injuries were sustained’, the African Commission held that ‘the marks on the victims evidencing the use of torture could only have been inflicted by the Respondent State.’346 Medical certificates and sworn testimonies of ill-treatment received in detention were found to be sufficient in one case to prove the facts.347 In a case of alleged extraordinary rendition, the African Commission noted the difficulties of the complainant providing evidence of his whereabouts. Distinguishing this case from the ‘overwhelming evidence’ in El-Masri v The Former Yugoslav Republic of Macedonia before the European Court,348 the African Commission noted:

339 See Chapters 7 and 8. See also J. D. Mujuzi, ‘Evidence obtained through violating the right to freedom from torture and other cruel, inhuman or degrading treatment in South Africa’, 15 African Human Rights Law Journal (2015) 89–109. 340 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 168. 341 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 169. Communication 339/2007: Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, para 97. 342 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 20. 343 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, paras 98–101. 344 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, para 169. 345 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, paras 169–171. 346 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, paras 169–171. 347 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 100. 348 (2012) ECHR (App. No. 39630/09).

172

6. Article 5: Respect of Dignity; Prohibition of Slavery

that the clandestine nature of the extraordinary rendition program entails that direct evidence may be hard to come by, and a victim can only resort to circumstantial evidence for purposes of establishing a sufficient connection between the alleged violations and the Respondent State by way of establishing compatibility ratione loci and ratione personae. The Commission is well prepared to draw inferences of fact from such evidence. However, the Commission holds the view that where circumstantial evidence is sought to be relied on, as is the case in the present Communication, such evidence must not be open to multiple inconsistent inferences creating considerable doubt about a given inference preferred by a Party.349

2. Blanket Denial of Responsibility As with other rights, a blanket denial of responsibility by the State will result in the Commission finding in favour of the complainant.350 Although in some cases this would appear to be automatic, in general the complainant does appear to have to do more than simply raise the allegation. The African Commission has required that the complainant ‘substantiated this claim’, or provide ‘substantial evidence’ without which no violation would be found.351 Substantiation would seem to require ‘specific information on the nature of the acts complained of ’.352 The State needs to respond ‘fully to the specific allegations’, and not omit addressing certain issues, for example.353 In one case where the State claimed the victims were allowed to see their families but did not address the issue specifically of access to medical care, nor the allegations of torture or ill-treatment, the Commission found a violation of Article 5.354 Furthermore, the State will need to ‘explain’355 or ‘counter’356 the acts alleged to have been committed and provide ‘any information to contradict the allegations of inhuman and degrading treatment’.357 In one case alleging torture in custody, it was alleged that the victim was forced to drink his own blood. The State contested this on the basis that it was not clear what, inevitably serious, injury led to the loss of blood and where it came from; neither had the national court been informed of any injuries when the victim first appeared before it, nor had there been 349 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v the Republic of Djibouti, 12 May 2014, paras  172–3. 350 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995. 351 Communication 232/99, John D. Ouko v Kenya, 6 November 2000, para 26. Communications 48/90– 50/91–52/91–89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 54. 352 Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000, para 16. 353 Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012; Communications 137/94-139/ 94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 Oct 1998, para 81; Communications 140/94-141/94-145/ 95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999, paras 47–48; Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 72; Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 43; Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, paras 188–189. 354 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 3 March 2011, paras 188–189. 355 Communications 48/90–50/91–52/91–89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 57. 356 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 53. 357 Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, para 25.

H. Special Mechanisms

173

any medical reports.358 The African Commission noted the State had received information on these allegations through the documents it was sent by the Commission’s secretariat once the communication had been submitted.359 The State also asked the African Commission not to take into account the statement by the victim that they were receiving counselling for the trauma through an NGO in South Africa as evidence of ill treatment; rather that it could have been a response to his arrest. The African Commission responded that it was ‘at a loss with that statement’, noting medical statements and reports and affidavits had been provided with the communication submitted to it, reports which had been delivered and signed for by the State.360 This evidence, together with medical and psychological reports carried out by a Professor at the University of Copenhagen and a medical director of the International Rehabilitation Council for Victims of Torture in Denmark; a psychological report from an expert at the University of Witswatersrand in South Africa and a Consultant Psychologist at the Trauma Clinic at the Center for Studies for Violence and Reconciliation in South Africa; and an affidavit by a Psychologist and Director of the Research and Advocacy Unit in Harare, were considered to be ‘more than adequate evidence to support the Victim’s allegations of torture and ill-treatment . . . it is not sufficient for the Respondent State to simply argue that they are unsubstantiated when they are supported by range of documentation. Rather, the Respondent State must provide evidence to the contrary’.361

H. Special Mechanisms 1. Special Rapporteur on Prisons and Conditions of Detention The decision to establish a Special Rapporteur on Prisons and Conditions of Detention was prompted by the initiative of the NGO, Penal Reform International (PRI), who initially wished for prisons to be a standing item on the Commission’s agenda, leading to the adoption of a resolution on prisons in 1995.362 Agreed upon in theory in October 1995,363 a Special Rapporteur on Prisons and Conditions of Detention was subsequently established in Grand Bay Mauritius at the African Commission’s 20th Session after the adoption of the Kampala Declaration at a conference in September 1996.364 Despite attempts by PRI to propose external candidates,365 the African Commission followed its previous approach to special rapporteurs and one month later appointed one of its members, Victor Dankwa, as the special rapporteur.366 With a two-year renewable mandate,367 the terms of reference were set out in the 10th Activity Report of the African Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012, para 155. Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012, para 156. 360 Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012, para 157. 361 Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012, paras 157–158. 362 ACHPR/Res.24, Resolution on Prisons in Africa, 22 March 1995. See F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities’, 27 HRQ (2005) 125–171, at 128–129. 363 Final Communique of the 18th Ordinary Session of the African Commission on Human and Peoples’ Rights, Praia, Cape Verde, October 1995. 364 Kampala Declaration on Prison Conditions in Africa, September 1996. 365 F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities’, 27 HRQ (2005) 125–171, at 129. 366 African Commission, Tenth Activity Report, para 20. 367 Terms of Reference for the Special Rapporteur on Prisons and Conditions of Detention in Africa, para 7. See extension of mandate: ACHPR/Res.37, 5 May 1999; ACHPR/Res.156, November 1999. 358 359

174

6. Article 5: Respect of Dignity; Prohibition of Slavery

Commission368 and provided that he/she should be ‘empowered to examine the situation of persons deprived of their liberty within the territories of States Parties to the African Charter on Human and Peoples’ Rights’.369 In this context the Special Rapporteur was mandated to: examine the State of the prisons and conditions of detention in Africa and make recommendations with a view to improving them; advocate adherence to the Charter and international human rights norms and standards concerning the rights and conditions of persons deprived of their liberty, examine the relevant national law and regulations in the respective States Parties as well as their implementation and make appropriate recommendations on their conformity with the Charter and with international law and standards; At the request of the Commission, make recommendations to it as regards communications filed by individuals who have been deprived of their liberty, their families, representatives, by NGOs or other concerned persons or institutions; propose appropriate urgent action.370

The Special Rapporteur was also given the mandate to conduct studies and coordinate with other special procedure mandate holders at the regional and international level.371 In order to do so he or she is able to ‘seek and receive information from States Parties to the Charter, individuals, national and international organisations and institutions as well as other relevant bodies on cases or situations which fall within the scope of the mandate’. States should provide the Special Rapporteur with the ‘necessary assistance and co-operation to carry out on-site visits and receive information from individuals who have been deprived of their liberty, their families or representatives, form governmental or non-governmental organisations and individuals’.372 The priorities for the first two years included gender, evaluating conditions of detention in Africa; and reflecting on early warning mechanisms ‘to avoid disasters and epidemics in places of detention’.373 This broad mandate enabled the Special Rapporteur to also make urgent appeals on the detention of specific individuals;374 conduct awareness raising activities; and engage in communications, although the extent to which the specific expertise of the Commissioners was taken into account is not clear.375 The mandate holder, who has always been a Commissioner,376 with considerable financial and logistical support from PRI, focused on undertaking visits to States across the Tenth Activity Report of the African Commission on Human and Peoples’ Rights, 1996/97, Annex VII. Terms of Reference for the Special Rapporteur on Prisons and Conditions of Detention in Africa, para 2. 370 Terms of Reference for the Special Rapporteur on Prisons and Conditions of Detention in Africa, para 3. 371 Terms of Reference for the Special Rapporteur on Prisons and Conditions of Detention in Africa, para 4. 372 Terms of Reference For the Special Rapporteur on Prisons and Conditions of Detention in Africa, para 8. 373 Terms of Reference for the Special Rapporteur on Prisons and Conditions of Detention in Africa, para 11. 374 See F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities’, 27 HRQ (2005) 125–171, at 145. 375 F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities’, 27 HRQ (2005) 125–171, at 147. 376 Professor Victor Dankwa, Vera Chirwa, Mumba Malila, Dupe Atoki and then Med Kaggwa, see Resolution on the Appointment of the Special Rapporteur on Prisons and Conditions of Detention in Africa,, ACHPR/Res.206, 5 November 2011; Resolution on the Renewal of the Mandate of the Special Rapporteur on Prisons and Conditions of Detention in Africa, ACHPR/Res.244, 5 November 2013; Resolution on the Appointment of a Special Rapporteur on Prisons and Conditions of Detention in Africa, ACHPR/Res.82, 5 December 2005; Resolution on the Extension of the Mandate of the Special Rapporteur on Prison and Condition of Detention in Africa, ACHPR/Res.37, 5 May 1999. Resolution on the Appointment of the Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa—ACHPR/Res. 378 (LXI)2017, 15 November 2017. 368 369

H. Special Mechanisms

175

continent and visiting places of detention including prisons and police cells.377 Several criteria were considered in determining which country to visit, including coverage of the geographical breadth of Africa; languages and the language abilities of the Commissioner; the size of the State; whether it was mainland or island; cooperation from the government (which is not always forthcoming); and travel logistics.378 The composition of the visiting team varied, with the first visit being simply by the Commissioner Rapporteur,379 and later ones involving PRI and other NGO representatives, a medic and member of the Commission’s secretariat.380 The missions involved interviews with government representatives, visits to places of detention and interviews with NGOs and others in the country, with, on the odd occasion, visits being unannounced.381 Reports were produced of each mission, with the assistance of PRI, and which provided detailed, tailored recommendations for the specific institutions.382 For example, among the recommendations in his report to the Central African Republic in 2000, were that ‘[d]‌etainees should no longer wear chains’ and ‘[a]n interdepartmental task force whose members would come from bodies responsible for the administration of justice, policing, prisons and other related sectors should conduct a detailed study of solutions that can be made to the problems of prisons. The National Commission on Human Rights could take the lead in this work’.383 On a few occasions the Special Rapporteur conducted follow-up visits to verify the extent to which his or her recommendations had been taken on board.384 Consequently, this special mechanism was considered to be one of the successes of the African Commission.385 Although the focus tended to be on prisons rather than other places of detention,386 there was evidence that visits by the Special Rapporteur did have

377 R. Murray, ‘The African Commission’s approach to prisons’, in J. Sarkin, Human Rights in African Prisons, HRSC Press, Cape Town, 2008, 204–223, at 204. 378 Report of the Special Rapporteur on Prisons and Conditions of Detention to the 21st Session of the African Commission on Human and Peoples’ Rights, Tenth Annual Activity Report, Annex VII; F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities’, 27 HRQ (2005) 125–171, at 136. 379 Prisons In Zimbabwe: Report On A Visit, 23 February–3 March 1997, Prof. E.V.O. Dankwa; F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities’, 27 HRQ (2005) 125–171, at 137. 380 F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities’, 27 HRQ (2005) 125–171, at 139. 381 Prisons in Cameroon: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, the African Commission on Human and Peoples’ Rights, Report to the Government of the Republic of Cameroon on the visit of the Special Rapporteur on Prisons and Conditions of Detention in Africa from 2–15 September 2002. 382 See, e.g. Prisons in Mali: Report of the Special Rapporteur on Prisons and Conditions of Detention, Report on a Visit 20–30 August 1997, by Professor E. V. O. Dankwa, Series IV, No. 2; Prisons in Benin: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, Report on a Visit 23–31 August 1999, Series IV, No. 6. 383 Central African Republic: Mission on Prisons and Conditions of Detention, 2000, Report of the Special Rapporteur on Prisons in Africa, 19 to 29 June 2000, paras 6 and 1 respectively. 384 See, e.g. Mali Prisons Revisited: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, Report of a Visit 27 November to 8 December 1998, Series IV, No. 4. 385 R. Murray, ‘The Special Rapporteurs in the African System’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System at Work, 1986–2006, Cambridge University Press, 2008, chapter 10. 386 D. Long and L. Muntingh, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 7 SUR (2010) 99–117, at 101.

176

6. Article 5: Respect of Dignity; Prohibition of Slavery

some impact on conditions in places of detention in some States387 with some countries having follow-up visits,388 and those particular Commissioners who undertook the role were held in generally high regard. Unfortunately after several years, PRI was no longer able to finance the work of the Special Rapporteur and its ability to visit States systematically then diminished significantly.389 This in part explains why, in 2009, the Chair of the CPTA was simultaneously appointed the Special Rapporteur on Prisons.390 In 2015 the mandate of the Special Rapporteur was expanded to include policing.391 Later activities include the issuing of regular newsletters. By reproducing some of the Commission’s documentation around ill-treatment these newsletters enable greater dissemination of its standards.392

2. CPTA In parallel to the Special Rapporteur on Prisons being established and operating in the late 1990s and early 2000s, the NGO, the Association for the Prevention of Torture, was working with the African Commission on the creation of standards relating to torture. This was in light of APT’s work towards the adoption of a new instrument at the UN, OPCAT, which would allow visits by international and national independent monitors to places of detention. In 2002 the efforts by the APT to ensure recognition in Africa of these UN developments culminated with the adoption of the Robben Island Guidelines by the African Commission at its 32nd Ordinary Session in October 2002. In this same resolution it also established a Follow-Up Committee composed of Commissioners, the APT and other African experts whose very broad, more preventive, mandate393 was to: • Organise, with the support of interested partners, seminars to disseminate the Robben Island Guidelines to national and regional stakeholders. • Develop and propose to the African Commission strategies to promote and implement the Robben Island Guidelines at the national and regional levels. • Promote and facilitate the implementation of the Robben Island Guidelines within Member States.

387 F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities’, 27 HRQ (2005) 125–171, at 144, and 163–167. 388 E.g. Prisons in Mali: Report on a Visit 20–30 August 1997, by Professor E.V.O. Dankwa Special Rapporteur on Prisons and Conditions of Detention in Africa; Prisons in Mozambique Report on a Visit 14– 24 December 1997, by Professor E.V.O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa; Prisons in Benin Report on a Visit, 23–31 August 1999, by Professor E.V.O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa. 389 F. Viljoen, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities’, 27 HRQ (2005) 125–171. 390 Resolution on the Change of Name of the ‘Robben Island Guidelines Follow-Up Committee’ to the ‘Committee for the Prevention of Torture in Africa’, and the Reappointment of the Chairperson and Members of the Committee, ACHPR Res.158 (XLVI) 09; Resolution on the Appointment of the Special Rapporteur on Prisons and Conditions of Detention in Africa, ACHPR/Res.156 (XLVI)09. See D. Long and L. Muntingh, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 7 SUR (2010) 99–117. 391 Resolution on the Expansion of the Mandate of the Special Rapporteur on Prisons and Conditions of Detention in Africa, ACHPR/Res. 306 (EXT.OS/XVIII) 2015. 392 Newsletter: Police and Human Rights in Africa, No. 001, October 2012. 393 D. Long and L. Muntingh, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 7 SUR (2010) 99–117, at 102.

H. Special Mechanisms

177

• Make a progress report to the African Commission at each ordinary session.394 The Follow-Up Committee held a number of meetings and its mandate was renewed regularly, with changes in the chair and membership.395 It was not seen as particularly active which it attributed to a lack of resources until the AU provided funding to the special procedures.396 This led to a number of visits being undertaken to and meetings held in States including Nigeria, Liberia, Benin and Uganda.397 At its 46th Session, the African Commission decided to change the name of the mechanism to the Committee for the Prevention of Torture in Africa (CPTA).398 The reasons for doing so were, it is said, to be ‘[d]‌ue to the difficulty national, regional and international stakeholders and partners had in associating the name Robben Island Guidelines Committee with its torture prevention mandate’.399 Indeed, the CPTA retained the same mandate as the Follow-Up Committee.400 The CPTA is funded by the African Commission, although it can seek external funding, and it reports annually to the Commission, including ‘an analytical progress report on the implementation of the Robben Island Guidelines highlighting new developments in torture prevention and/or providing authoritative and guiding views on specific issues for the effective prohibition and prevention of torture in Africa’.401 As noted above, when the decision was made to appoint the same Commissioner as Chair of the CPTA and as Special Rapporteur this implied a merging of the two mandates. Long and Muntingh question whether this was more than pragmatic and there is a need for more transparent working practices of the two procedures and to avoid confusion between the two mandates.402 The CPTA’s mandate has subsequently been extended403 and membership amended or renewed.404 394 ACHPR/Res.61(XXXII)02: Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (2002), para 3. 395 ACHPR/Res.120 (XXXXII) 07 on the Appointment of the Chairperson and Members of the Committee for the Prevention of Torture in Africa adopted at its 42nd Ordinary Session held from 15 to 28 November 2007, in Brazzaville, Republic of Congo. 396 D. Long and L. Muntingh, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 7 SUR (2010) 99–117, 102–103. 397 In July 2008, September 2008, October 2009, October 2009 respectively, see Report of Activities By Commissioner Dupe Atoki, Chairperson of the Follow-Up Committee of the Robben Island Guidelines During the Intersession Period, November 2007–May 2008; The Activity Report of the Chairperson of the Follow-Up Committee of the Robben Island Guidelines, May–November 2009. 398 ACHPR/Res158(XLVI)09, Resolution on the Change of Name of the Robben Island Guidelines Follow-Up Committee to the Committee for the Prevention of Torture in Africa and the Reappointment of the Chairperson and Members of the Committee. The African Commission on Human and Peoples’ Rights (‘The African Commission’), meeting at its 46th Ordinary Session, held in Banjul, The Gambia, from 11–25 November 2009. 399 http://www.achpr.org/mechanisms/cpta/. 400 D. Long and L. Muntingh, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 7 SUR (2010) 99–117, at 103. 401 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, paras 11 and 12. 402 D. Long and L. Muntingh, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 7 SUR (2010) 99–117. 403 Resolution ACHPR/Res.192 (L) 2011, adopted during the 50th Ordinary Session of the Commission held in Banjul, The Gambia, 24 October–5 November 2011. 404 254: Resolution on the Appointment of the Chairperson and Renewal of the Mandate of the Members of the Committee for the Prevention of Torture in Africa, 5 November 2013.

178

6. Article 5: Respect of Dignity; Prohibition of Slavery

One of the reasons for the development of the RIG and the establishment of a Special Mechanism on torture prevention was to enable the African Commission to develop a more strategic approach to issues relating to torture and other ill-treatment.405 The CPTA has been called upon to develop authoritative statements on the Robben Island Guidelines provisions as well as undertake ‘regular monitoring and promotion visits’ to States, alone or jointly with other bodies such as the UN Subcommittee on Prevention of Torture (SPT) or national human rights institutions and NPMs.406 The CPTA has adopted Rules of Procedure which set out its membership, meetings and division of tasks among members.407 The Rules also note that country missions can be undertaken ‘on the invitation of government or at its own initiative’,408 although the CPTA, unlike the SPT, cannot enter the State without approval of the government. The purpose of these country visits is for ‘promoting and facilitating the implementation of the Robben Guidelines, monitoring and evaluation of the situation of torture or providing advice or technical support to national actors for the effective prohibition and prevention of torture and cruel, inhuman or degrading treatment or punishment’.409 The terms of reference and relevant documentation should be provided by the secretariat, the former being shared with the government in advance of the mission along with a list of those with whom the delegation would like to speak.410 The mission should be conducted as follows: 1. On the first day of the mission the Committee shall hold a meeting with the authorities of the host country to finalize its program. 2. A meeting with the civil society is necessary and if possible should be held at the beginning of the mission. 3. The Committee shall meet, at the highest level possible, relevant authorities in regard to the objectives of the mission. 4. A one day seminar shall be organized where possible during the mission bringing together all the stakeholders concerned with the issue of torture. 5. Places of detention shall be visited including among others, places of remand, prisons and psychiatric hospitals. 6. Private interviews with persons deprived of liberty shall be conducted during visits to places of detention.411 At the end of the visit a consultation should be held to identify points on which there is agreement, there should be a meeting with the government and a press conference.412 405 See Preamble to the Robben Island Guidelines and Position Paper of the APT submitted to the 27th Ordinary Session of the African Commission (2000). Copy filed with the Human Rights Implementation Centre, University of Bristol. 406 Johannesburg Declaration and Plan of Action on the Prevention and Criminalization of Torture in Africa, Johannesburg, 21–23 August 2012. 407 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012. 408 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 6(a). 409 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 6. 410 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 6. 411 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 6. 412 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 6.

I. Remedies Ordered

179

A report should be drafted, shared with the government for its views, and then, together with the comments of the government, made public.413 A follow-up report to examine the implementation of recommendations in the first report should also be produced, although the Rules of Procedure do not say whether these are made public or not.414 The CPTA can respond to urgent requests for appeals and issue press releases and other papers, or report to the relevant authorities if these arise in the course of a mission.415 Cooperation should be undertaken by the CPTA with other regional and international bodies developing relevant memoranda of understanding.416 The Rules of Procedure also provide, ambiguously, that the CPTA’s work ‘shall be kept confidential so long as it is not published’.417 Furthermore, in its Strategic Plan in 2012 the CPTA set out four ‘strategic areas of intervention’ for its work: i. Raising public awareness on the RIG and the prohibition and prevention of torture ii. Advocating for the effective implementation of the RIG at national level iii. Strengthening capacities of relevant actors for the effective implementation of the provisions of RIG iv. Providing advice and making recommendations to African States and other relevant actors on the effective prohibition and prevention of torture as well as on responding to the needs of victims.418 These involve the dissemination of the Robben Island Guidelines through in-country initiatives and media awareness raising; effective implementation of the Guidelines through missions to States; cooperation with regional and international bodies and engagement of States during the African Commission’s Sessions; as well as developing guidelines on anti-torture laws.419 The results of its work include promotional visits to States420 and holding workshops.421

I. Remedies Ordered As noted in Chapter 2, the African Commission’s approach to remedies generally is not particularly consistent and it has not, so far, adopted certain remedies for violations of certain rights. Remedies proposed in the context of violations of Article 5 have therefore 413 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 6. 414 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 6. 415 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 7. 416 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 8. 417 Rules of Procedure of the Committee for the prevention of Torture in Africa (CPTA), 26 August 2012, para 9. 418 CPTA, Strategic Plan of the Committee for the Prevention of Torture in Africa 2012–2014, para A(iv). 419 CPTA, Strategic Plan of the Committee for the Prevention of Torture in Africa 2012–2014, Strategic Objective 2. 420 E.g. to Mauritania in March 2012, see Africa Torture Watch, A Newsletter of the African Commission on Human and Peoples’ Rights, 4th Edition, 2012, p.2. 421 E.g. in Uganda in December 2014, see CPTA, Africa Torture Watch A Newsletter of the African Commission on Human & Peoples’ Rights, 5th edition, p.11.

180

6. Article 5: Respect of Dignity; Prohibition of Slavery

varied significantly.422 They include that the relevant legislation be amended;423 or the particular penalty which the African Commission found in violation of the Charter, for example, with respect to lashes as a form of punishment, be abolished.424 Similarly where the Lunatics Detention Act in the Gambia governing the detention of individuals on the grounds of their mental health was found to be in violation of the ACHPR, the African Commission urged the government to repeal the Act and ‘replace it with a new legislative regime for mental health in The Gambia compatible with the African Charter and international standards and norms for the protection of mentally ill or disabled persons as soon as possible’.425 In some instances, the remedies have been much more ambitious, for example, in Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Republic of Guinea, the African Commission recommended ‘that a Joint Commission of the Sierra Leonean and the Guinea Governments be established to assess the losses by various victims with a view to compensate the victims’.426 It is difficult to understand precisely why the African Commission adopts a more detailed approach in some cases but not others,427 especially as in some of these there is very little legal analysis provided in the decision of the Commission.428 The answer lies, in part, in the specific requests that the applicants make in their submissions to the Commission. There have therefore been a variety of different reparations ordered in its decisions.

1. Amend Legislation The Sudanese government, for example, was called upon in relation to violations of Article 5, among others, in Darfur, to ‘take all necessary and urgent measures to ensure protection of victims of human rights violations in the Darfur Region, including to undertake major reforms of its legislative and judicial framework in order to handle cases of serious and massive human rights violations’.429

2. Improvement in Conditions of Detention States have been called upon to improve conditions of detention in a general sense for specific individuals whose Article 5 rights have been found to have been violated,430 as 422 See general principles now laid down in General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, section VI. 423 Communication 236/2000, Curtis Francis Doebbler v Sudan, 33rd Session, 2003. Communication 368/ 09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013. 424 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 43. 425 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 426 Communication 292/2004, the State should ‘establish a Commission of inquiry to investigate the circumstances under which the victims were expelled and ensure the payment of adequate compensation of all those whose rights were violated in the process’, para 87. 427 E.g. Communication 279/2003; Communication 296/2005, Centre on Housing Rights and Evictions v Sudan, para 229: ‘the African Commission recommends that the Respondent State should take all necessary and urgent measures to ensure protection of victims of human rights violations in the Darfur Region’. 428 Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Republic of Guinea. 429 Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 289(b). 430 Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, paras 26 and 27.

I. Remedies Ordered

181

well as provide victims with relevant medical care. More general recommendations have been made with respect to provision of medical care generally and for ‘all persons in detention’ to be given ‘proper medical examination and medical treatment and care’.431 So with respect to findings of violations of the treatment of those with mental health illnesses in the Gambia, the African Commission among other things required the government to provide ‘adequate medical and material care for persons suffering from mental health problems in the territory of The Gambia’.432 Similarly, with respect to mass deportations and expulsions of individuals from Angola, it recommended that the government take ‘measures to ensure that all persons in detention are provided with proper medical examination and medical treatment and care’.433

3. Investigate the Violations Found Carrying out an investigation is not only part of the State’s obligation under Article 5, but also has been given as a remedy for a violation in some cases. In one case, where the African Commission found that the State had violated Article 5 in part for failure to undertake an effective investigation, it also called for the State, in the recommendations, to ‘investigate the violations, and bring the perpetrators to justice’.434 Similarly, it has required States to conduct ‘effective official investigations’ into abuses found in the context of the communication. Where the Lunatics Detention Act in the Gambia was found to be in violation of the ACHPR it urged the government to ‘create an expert body to review the cases of all persons detained under the [LDA] and make appropriate recommendations for their treatment or release’.435

4. Provide Complaints and Overview Mechanisms In addition, States should also be establishing an appropriate complaints mechanism for those detained not just the victims in the case. This was recommended in the context of treatment in detention of those threatened with mass deportations from Angola.436 Similarly, States have been asked to put in place ‘procedural safeguards or clear procedures/policies that guarantee for all persons deprived of their liberty (nationals and non-nationals alike) effective access to competent authorities such as administrative tribunals and courts responsible for prison/detention oversight and/or review’.437

431 Communication 292/2004, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 432 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 433 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 5, and 87. 434 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. Communications 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. See also Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013. 435 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 436 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 5, and 87. 437 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 5, and 87.

182

6. Article 5: Respect of Dignity; Prohibition of Slavery

5. Compensation In some instances where a violation of Article 5 has been found the States has been urged to ‘take appropriate measures to ensure compensation’ to the victims.438 With respect to punishment of lashing, the African Commission requested the government to ‘take appropriate measures to ensure compensation of the victims’.439 Similarly compensation was ordered for the family of the victim where a death sentence was carried out in violation of the African Charter.440 Other cases have called on the State to provide the victims with ‘adequate compensation . . . in accordance with the domestic law’441 or in one case, ‘in line with international standard’.442 The norm is to leave it to the State to determine the quantum,443 although on occasion it has been prepared to state the amount (EP 57,000 to each victim) ‘as requested by the Complainant’, that should be paid.444 States in other instances have been called upon to set up a mechanism, such as a commission of inquiry, to determine the amount.445 On several occasions it is not clear precisely what the compensation is being ordered to address; on others the African Commission has referred to compensation ‘for the physical and emotional damages/traumas they suffered’,446 or ‘for the torture and trauma caused’.447

6. Safeguards Against Non-refoulement Where individuals were deported from Angola in violation of the ACHPR, the African Commission called on the government to put in place ‘safeguards to ensure that individuals are not deported/expelled to countries where they might face torture or their lives could be at risk’.448 Interestingly the M’Baye Draft of the ACHPR included an article which stated that ‘[i]‌n no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions’.449

7. Training States found in violation of the ACHPR have been required to ensure in general terms that their law enforcement organs and officials respect the rights of suspects450 and also to provide training on prohibition of torture and rights of detainees.451 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003. Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 43. 440 Communication 319/06, Interights and Ditshwanelo v The Republic of Botswana, 28 June 2016, para 99. 441 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013. 442 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011. 443 Communications 236/2000; Communication 292/2004. 444 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 445 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 5, and 87. 446 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011. 447 Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012 448 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 5, and 87. 449 Article 29(8), M’Baye Draft. 450 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011. 451 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013; Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, recommendation 8. 438 439

I. Remedies Ordered

183

8. Release the Victims A violation of Article 5 has led to calls for the State to release the victims, although this was also in the context of violations of the right to fair trial and independence of the judiciary.452

9. Bring Perpetrators to Justice On several occasions a violation of Article 5 has resulted in the African Commission calling for the perpetrators to be brought to justice453 or for ‘those responsible’ to be prosecuted.454 It has not necessarily made clear how far this latter responsibility extends.

10. Supervision by National and International Bodies A finding of an Article 5 violations among others in relation to mass deportations of individuals from Angola led the African Commission to require the State ensured the ‘regular supervision or monitoring of places of detention by qualified and/or experienced persons or organisations’ and to allow representatives of not only the African Commission but also other international and national organisations to visit places of detention.455

11. Report Back to the African Commission As with other remedies, the African Commission calls on States to report back on the measures it has taken to implement the decision. It does not appear, as a general rule, to apply a quicker time to report back on measures taken to remedy some violations and recommendations than others. However, in one case which related to the detention and torture of an individual in custody in Zimbabwe, the African Commission required that the government report on implementation within three months of the decision, rather than the more common 180 days.456 It is not clear what was an intention behind this more expedited process.

Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011. Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012, recommendation 2. 454 Communications 279/03–296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 299. 455 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, paras 5, and 87. See also Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, Plan of Action, para (h): NGOs ‘should have easy access to places of detention and their involvement should be encouraged’. 456 Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012. 452 453

7. Article 6 Right to Liberty and Security of the Person Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons

and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

A. Introduction Article 6 violations have been a mainstay of the African Commission’s work since its inception.1 The African Commission has stated that Article 6 ‘has two arms –the right to liberty and the right to security of the person’.2 It has distinguished between the two: ‘The second arm of Article 6 deals with the right to security of the person. This second arm, even though closely associated with the first arm, the right to liberty, is different from the latter’.3 This approach to separate the two elements, however, is not always adopted.4 It has been recognised that deprivation of the right to liberty and security ‘is likely to have a direct and adverse effect on the enjoyment of other rights, ranging from the right to family and private life, through the right to freedom of assembly, association and expression, to the right to freedom of movement’.5 Earlier drafts of the African Charter on Human and Peoples’ Rights (ACHPR) included more detail than is found in Article 6, including expressly that detainees be informed of the reasons for their detention and, promptly, the charges; that they be brought promptly before a judge; have trial within a reasonable time; and recourse to a competent court.6

1 E.g. Communication 8/88, Nziwa Buyingo v Uganda, 22 March 1995. Report of the African Commission on Human and Peoples’ Rights Mission to The Sudan 1–7 December 1996, April 1998, paras 16 and 184; Zimbabwe Report of the Fact-Finding Mission June 2002, November 2003, DOC/OS(XXXIV)/346a, pp.20 and 29; Promotional Mission Report of Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa. In the Republic of The Sudan (from 30 March to 4 April 2003), December 2005, para 49; ACHPR/Res. 67, Resolution on Côte d’Ivoire, 4 June 2004. 2 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 170. 3 Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 173. 4 E.g. ‘States shall ensure that the right of everyone on its territory and under its jurisdiction to liberty and security of person is respected’, African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M(1(a). 5 Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 171. 6 M’Baye Draft, Article 20.

C. Right to Liberty

185

B. Absolute The right to liberty and security of the person is not absolute and can be restricted in certain circumstances.7 It ‘does not grant complete freedom from arrest or detention’,8 and ‘the African Charter allows the deprivation of this right through lawful means’.9 Conversely, the Economic Community of West African States (ECOWAS) Community Court of Justice has held that the prohibition of arbitrary arrest and detention is absolute and cannot be derogated from.10

C. Right to Liberty Article 6, being phrased as it is—‘Every individual shall have the right to liberty and to the security of his person’—could be read as limiting the right to liberty to ‘personal liberty’,11 but this is not the approach adopted by the African Commission.12 It has been interpreted broadly: ‘[a]‌simple understanding of the right to liberty is to define it as the right to be free. Liberty thus denotes freedom from restraint –the ability to do as one pleases, provided it is done in accordance with established law’.13 The requirements here do not differ substantially from those found in other international and regional systems, although in the African system they are perhaps lacking in some of the detail. As to what is deprivation of liberty, most of the instances on which the African Commission has had to rule relate to detention in prisons or police facilities. However, in a case against Sudan, the African Commission held that the detention was ‘arbitrary’ where individuals were invited to a meeting ‘from which they were not allowed to leave voluntarily and were subsequently detained’.14 Similarly, in a judgment by the ECOWAS Community Court of Justice, the son of the former President Gbagbo had been removed from the presidential residence and then held under house arrest and not permitted to communicate with his family. This had been in the aftermath of the post-election crisis in Côte d’Ivoire and emergency legislation adopted to deal with the situation.15 The Court held the arrest and detention was arbitrary.16 The African Commission has also noted that ‘the existence of a disability can in no case justify a deprivation of liberty’.17 7 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 103. 8 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 79. 9 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 53. 10 ECW/CCJ/JUD/03/13, Simone Ehivet et Michel Gbagbo v Côte d’Ivoire, 22 Feb 2013, para 78. 11 C. Okpaluba, ‘Protecting the right to personal liberty in Namibia: Constitutional, delictual and comparative perspectives’, 14 AHRLJ (2014) 580–608, at fn.10. 12 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 171. 13 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 172. 14 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 106. 15 ECW/CCJ/JUD/03/13, Simone Ehivet et Michel Gbagbo v Côte d’Ivoire, 22 Feb 2013. 16 ECW/CCJ/JUD/03/13, Simone Ehivet et Michel Gbagbo v Côte d’Ivoire, 22 Feb 2013, paras 71 and 72. 17 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 33.

186

7. Article 6: Right to Liberty and Security of the Person

All deprivation of liberty that is not in accordance with the ACHPR or international human rights law standards will be considered to be arbitrary by the African Commission.18 It would appear that both the arrest and any subsequent detention can be arbitrary.19 ‘[M]‌assive and arbitrary arrests’20 where hundreds are detained without charge or trial are violations of Article 6,21 as will detention after a trial which did not conform with international standards.22 In such cases a violation of Article 6 will still stand, even if the individuals are subsequently released.23 Where threats of arrest were made to an individual who was planning to and so subsequently did not travel to give a lecture, the African Commission held ‘the allegations of arrests, detentions and threats constitute a violation of Article 6’.24 Legislation should provide for those who do arrest or detain individuals arbitrarily to be brought to justice25 and for victims of such to be able to claim compensation.26 Consideration should be given to non-custodial sentences.27 For example, it has been recommended that ‘petty offences should be dealt with according to customary practice’28 or mediation, restorative or traditional justice,29 and the ‘principle of civil reparation or financial recompense’ be considered along with community service.30 Particular attention should also be given in this context to young offenders and those with ‘mental health or addiction problems’.31 A custodial sentence should only be imposed where ‘there is no 18 See also UN Body of Principles for the Protection of Persons under Any Form of Detention or Imprisonment, 1988; Standard Minimum Rules for the Treatment of Prisoners, 1957; United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), E/CN.15/2015/L.6/Rev.1, Annex I. See also C. M. Peter, ‘Incarcerating the innocent: Preventive detention in Tanzania’, 19 HRQ (1997) 113–135. 19 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M(1)(b). 20 Communications 64/92-68/92-78/92_8AR, Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, 22 March 1995, para 8. 21 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 22 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 113. 23 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 24 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 53. 25 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M1(b). 26 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M1(h). 27 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007. 28 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, ‘Alternative Sentencing’, paras 1-3. See also Resolution on the Need to Develop Principles on the Declassification and Decriminalization of Petty Offences in Africa—ACHPR/Res. 366 (EXT.OS/XX1) 2017, 4 March 2017. 29 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, Plan of Action, para 1. 30 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, ‘Alternative Sentencing’, paras 1–3. 31 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, Plan of Action, para 1.

C. Right to Liberty

187

other appropriate sentence’, with imprisonment being reserved only for ‘very serious offences or when protection of the public requires it’.32 Hence, the African Commission has recommended that certain offences such as ‘being a rogue of vagabond, loitering, prostitution, failure to pay debts and disobedience to parents’ be decriminalised.33 In order for deprivation of liberty to not be arbitrary, certain conditions need to be met.

1. Arrest on Warrant and on the Authority of Competent Persons The arrest must be ‘pursuant to a warrant, on reasonable suspicion or for probable cause’.34 Arrest and detention must ‘be under the authority and supervision of persons procedurally and substantively competent to certify it’,35 and officials should ‘clearly identify themselves and the unit to which they belong by showing an official identity card which visibly displays their name, rank and identity number’.36 Vehicles should have similarly visible identities.37 Use of force in securing an arrest is not prohibited absolutely but must be ‘a measure of last resort and limited to circumstances in which is it strictly necessary’.38 It should then be used proportionately, in accordance with national and international law, ‘at the minimal level necessary’, with firearms being employed only if the person being arrested presents ‘an imminent threat of death or serious injury, to prevent the perpetration of a serious crime involving grave threat to life, and only when less extreme measures are insufficient to make the arrest’.39 Under s 3(1) of the Lunatics Detention Act in the Gambia, mentally disabled persons could be received into a place of detention through an order of a judge of the Supreme Court, a magistrate or two justices of the peace; and two certificates of ‘duly qualified medical practitioners’, who, according to the African Commission ‘may not be actual experts in the field of mental health care and as such there is a possibility that they could make a wrong diagnosis upon which certain persons may be institutionalised’.40 The African Commission found, however, that this situation ‘falls short of international standards and norms’ but was not a violation of Article 6 because it was ‘not intended to cater for situations where persons in need of medical assistance or help are institutionalised’.41 32 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, Plan of Action, para 1. 33 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, Plan of Action, para 1. 34 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M(1)(b). Communication 143/95, 150/96 Constitutional Rights Project and Civil Liberties Organisation/Nigeria, 15 November 1999, para 28. 35 Communication 241/01: Purohit and Moore v The Gambia, 29 May 2003, as cited in Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 172. Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 3. 36 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 3. 37 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 3. 38 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 3. 39 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 3. 40 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, paras 66 and 68. 41 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 68.

188

7. Article 6: Right to Liberty and Security of the Person

This seems rather bizarre, and it is welcomed that other violations of the ACHPR were found and the government called upon to repeal the Act. The complainants requested a review of the decision but this was rejected by the African Commission.42 The State should have legislation identifying who these persons are and when they can deprive a person of their liberty.43 It should also ensure ‘strict supervision, including a clear chain of command, of all law enforcement officials responsible for apprehensions, arrests, detentions, custody, transfers and imprisonment, and of other officials authorized by law to use force and firearms’.44

2. Arrest and Detention must not be on Discriminatory Grounds Arrest and detention should not be based on discriminatory grounds.45 Detention on the basis of one’s ethnicity46 or political belief47 will be deemed arbitrary and in violation of Article 6.48 The Special Rapporteur on Human Rights Defenders has expressed concern at the arrest of individuals who criticised government actions ‘as an attempt to silence legitimate criticisms and to limit the activities of human rights defenders’, reminding the State of its obligations under Article 6, among others, of the ACHPR.49 Similarly, as was held in a series of communications against the Democratic Republic of the Congo (DRC), not only did the harassment of Jehovah’s Witnesses violate Article 8 but also ‘arbitrary arrests of believers of this religion likewise constitute a contravention of Article 6’.50

3. Laid Down by Law Similar to other international instruments,51 arrest and the subsequent detention must be ‘carried out in accordance with the procedure established by domestic law’ or ‘prescribed by law’ in order not to be arbitrary.52 The law must be ‘clear, accessible and precise, consistent with international standards and the rights of the individual’.53 So where the arrest On file with author. African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M1(c). 44 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M1(c) and (d). 45 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 2. 46 Communications 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 29. Also Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008. 47 Communications 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda/Nigeria, 5 November 1999, para 51. Also Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 57. 48 In relation to pre-trial detention see Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 11. 49 Press Release on the Arrest and Detention of Ali Idrissa and Ten Other Human Rights Defenders in Niger, Banjul, 11 August 2014. 50 Communications 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996, para 45. 51 Communication 922/2001, Bousroual v Algeria, 30 March 2006, para 9.5; Communication 1460/2006, Yklymova v Turkmenistan, 20 July 2009, para 7.2 52 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 79. African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M(1)(b). 53 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 2. 42 43

C. Right to Liberty

189

of the victim ‘had no basis in Sudanese legislation which requires that a person must have been suspected or accused of committing an offence before a warrant of arrest may be issued’ and these arrests took place ‘indiscriminately’ and ‘en masse’, this was in violation of the African Charter.54 Conversely, in an ECOWAS Community Court case against Senegal, the applicant, Barthelelmy Dias, argued that his arrest and detention were arbitrary as they were motivated by political factors. The Court held that there was sufficient legal basis in the Senegalese laws for the arrest and detention not to be arbitrary.55 Political comments made by Senegalese officials did not compromise the independence or impartiality of the judge deciding in this case.56 Nevertheless, where States have argued that limitations on rights are permissible simply because there are domestic laws which regulate them, the African Commission has held that such laws should be in compliance with international human rights law and the ACHPR.57 In Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, individuals who were arrested and detained for the commission of offences, it not being clear from the decision the extent to which these were defined by national law, the African Commission held that in order to justify limitations on a particular right, the State ‘must show that such a law is consistent with its obligations under the Charter’.58 The government must provide details of the specific laws with which the individual is arrested.59 Where the State ‘generally states that their detention is in “consonance with the existing criminal code . . . and other relevant national and international instruments” ’, this will not be sufficient to satisfy Article 6.60 There are various requirements that apply to this domestic law. It cannot apply retrospectively.61 It must also be in compliance with ‘international standards’62 and this usually includes the African Charter. However, in one case the findings of the African Commission imply that it could satisfy this requirement if it is in compliance with rights guaranteed by the domestic constitution. Where individuals were arrested and detained in accordance with a Gambian domestic law, the African Commission held that the authorities ‘should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution or international human rights standards’.63 Similarly, where legislation provided that individuals could be detained without charge for three months and the detention could not be questioned by the domestic courts, the African

368/09 Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 80. Barthelemy Dias v Republic of Senegal, 23 March 2012, ECOWAS, Judgment ECW/CCJ/JUG/05/12, para 20. 56 Barthelemy Dias v Republic of Senegal, 23 March 2012, ECOWAS, Judgment ECW/CCJ/JUG/05/12, para 22. 57 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 16; Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia, 11 May 2000, para 43. 58 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, citing also Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia, 11 May 2000. 59 Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996, paras 9 and 10. 60 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 57. 61 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 12. 62 368/09 Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 79. 63 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 59, also citing Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995. 54 55

190

7. Article 6: Right to Liberty and Security of the Person

Commission held that it prima facie violates the right not to be arbitrarily arrested or detained protected in Article 6.64 In addition, the domestic law must be sufficiently precise in its wording or the way in which it is interpreted, as Article 6: must be interpreted in such a way as to permit arrests only in the exercise of powers normally granted to the security forces in a democratic society. In these cases, the wording of this decree allows for individuals to be arrested for vague reasons, and upon suspicion, not proven acts, which conditions are not in conformity with the spirit of the African Charter.65

4. Access to the Courts/Bring Before the Courts In line with other international instruments and jurisprudence, there is a right to be brought before a court or judicial officer66 and this right should be provided in legislation.67 This is an absolute right.68 Failure to bring individuals before a court, even if they are eventually set free, may still result in a violation of Article 6.69 The African Commission has held that the writ of habeas corpus is ‘especially vital in those instances in which charges have not, or may never be, brought against the detained individual’.70 In a case against Nigeria it considered whether suspension of the right to habeas corpus automatically violated Article 6. Noting that individuals had been held in poor conditions, and incommunicado without access to lawyers, doctors or their family, the African Commission held that these ‘dramatically illustrate how a deprivation of rights under Articles 6 and 7 is compounded by the deprivation of the right to apply for a writ of habeas corpus. Given the history of habeas corpus in the common law to which Nigeria is an heir, and its acute relevance in modern Nigeria’. The decree suspending it was not only in violation of Article 7 but also Article 6.71 The right arises upon arrest or when ‘detained on a criminal charge’.72 The individual must then be tried within a reasonable time or released.73 The African Commission has clarified that this examination by the court or judicial officer is for a number of reasons including an assessment as to whether there is ‘sufficient legal reason’ for the arrest; 64 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 83. 65 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, paras 59, 60. 66 Report of the African Commission on Human and Peoples’ Rights’ Fact-Finding Mission to the Republic of Sudan in the Darfur Region (8–18 July 2004), para 134. Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 56. 67 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M5(a). 68 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M5(f ). 69 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995. 70 Communication 143/95, 150/96 Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 15 November 1999, para 23. 71 Communication 143/95, 150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 15 November 1999, para 31. 72 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M3(a). 73 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M3(a).

D. Further Safeguards for Those Deprived of their Liberty

191

whether bail, conditional or unconditional, should be granted; to ‘safeguard the well- being of the detainee’; prevent violations of the rights of the detainee; and enable the detainee to challenge the lawfulness of their detention and be released if necessary.74 The corollary of this is that the State should establish a procedure requiring those who have the authority to arrest or detain to then ‘inform the appropriate judicial official or other authority of the arrest and detention. The judicial official or other authority shall exercise control over the official detaining the person’.75 If an individual is kept in detention then this should be ‘open to review periodically so that the grounds justifying the detention can be assessed’.76 The independence of the body undertaking the review needs to be guaranteed. Where a panel of nine persons, including the Attorney General, Director of the Prison Service and an appointee of the Inspector-General of the Police, with the rest being appointed by the President, were able to review the detention of individuals under the Nigerian State Security (Detention of Persons) Act, the African Commission found that the panel ‘cannot thus be considered impartial. Consequently, even if recommendations from the meetings of this Panel are responsible for the detainees’ continued detention, this detention must be considered arbitrary’.77 The African Commission has also stated that if there are concerns for the ‘well-being, safety or security of a person deprived of his or her liberty’, there is a ‘right to a prompt and effective judicial remedy as a means of determining the whereabouts or state of health of such a person and/or identifying the authority ordering or carrying out the deprivation of liberty’.78 As noted in the chapter on Article 5, States should ensure the independent monitoring of places of detention and deprivation of liberty.79

D. Further Safeguards for Those Deprived of their Liberty 1. Detention in a Place Recognised by Law Individuals should be detained in ‘an officially recognised place of detention’,80 and, specifically for pre-trial detention facilities, these should be ‘formally recognised and gazetted’, with information on such being readily available.81 Each place of detention should have an official and up-to-date register of ‘all persons deprived of their

74 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M3. See also Communications 64/92-68/92-78/92_8AR, Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, 22 March 1995, para 9. 75 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M1–2. 76 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 56. 77 Communication 153/96, Constitutional Rights Project v Nigeria, 15 November 1999, para 16. 78 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M5(b). 79 See Chapter 6. 80 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M6(a). These provisions and others draw upon the Human Rights Committee’s General Comment No. 20, 44th Session, 1992, para 11. 81 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 10(f ).

192

7. Article 6: Right to Liberty and Security of the Person

liberty’.82 The African Commission has also set out rules regarding recording those deprived of their liberty: that such information should be documented ‘at the earliest possible time following arrest or detention in an official register with sequentially numbered pages’;83 should be ‘accurate’ and include the identity of the individual (their age, address and persons responsible for their care);84 the reasons for their arrest; the time of the arrest and ‘the taking of the arrested person to a place of custody’; their first appearance before a court or other authority; the identity of any law enforcement officials; ‘precise information’ about the place of custody; and which judicial official or authority was informed of the arrest and subsequent detention.85 Those detained pre-trial should be held in facilities ‘as close to their home or community as possible, taking into account any caretaking or other responsibilities’.86 Family members and the individual’s legal representative should be provided ‘promptly’ with information on where individuals are detained and transferred, although the African Commission does not specify if this should be given at the request of the former or on the authorities’ own initiative.87 ‘Any other persons having a legitimate interest in the information’ are also entitled to the same,88 and one presumes this includes those independent and other monitors who may visit places of detention. Furthermore, the register of all individuals deprived of their liberty at any place of detention should be made available to ‘any judicial or other competent and independent national authority seeking to trace the whereabouts of the detained person’.89 There should be penalties for those who ‘without legal justification, refuse to provide information on any detention’.90

2. Rights upon Arrest Many of the standards that the African Commission has articulated that individuals should be provided for upon arrest are as to be found in other international and regional instruments. ‘At the time of the arrest’, individuals should be informed of their rights ‘orally and in writing and in a language and format that is accessible and is understood by the arrested person’.91 82 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M6(d). Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 14(d), an ‘official custody record’ for those detained pre-trial. 83 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 15. 84 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 16. 85 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M6(b). Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 16. 86 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 10(g). 87 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M6(c). Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 15. 88 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M6(c). 89 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M6. 90 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M6. 91 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 5.

D. Further Safeguards for Those Deprived of their Liberty

193

a. Rules Around Searches Searches should be carried out ‘in a manner consistent with the inherent dignity of the person and the right to privacy’.92 They should be done by an official who is the same gender as the subject being searched; the suspect should be informed of the reasons for the search prior to it occurring; a written record which is accessible should be made of the search; a receipt should be provided for items confiscated; and strip and internal searches should be conducted in private, the latter only by a medical professional with informed consent or by court order.93

b. Be Provided with Reasons An individual must be informed of the reasons for the arrest.94 This must be done ‘at the time of the arrest’. At the same time they should also be informed ‘promptly’ in a language that they understand of the charges against them.95 In a case against the DRC where individuals were arrested without a warrant and were only charged a year after being detained, there was a violation of Article 6.96 The ‘nature and cause of the charge’ should be provided ‘in detail’,97 namely include the relevant law and facts alleged. This must be ‘sufficient to indicate the substance of the complaint’ and to permit the individual to prepare a defence and secure their release.98 The charge should also be a ‘legitimate criminal offence’.99 Consequently, where the individuals were not ‘shown a warrant or any other document relating to the charges under which the arrests were being carried out’, a violation of Article 6 was found.100 Indeed, detention without charge will be ‘an arbitrary deprivation of their liberty’101 and a ‘prima facie violation’ of Article 6.102 92 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 3. 93 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 3. 94 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998, paras 84–86. Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 65. Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 106. 95 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections M1(a). Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008, para 54. ACHPR/Res. 4: Resolution on the Right to Recourse and Fair Trial, 9 March 1992, para 1(b). 96 Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, paras 3, 6 and 65. 97 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N.1(a). 98 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N.1(b) and (c). 99 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 56. 100 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008; Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, paras 40–42. 101 Intersession Activity Report compiled by Commissioner Med S. K. Kaggwa as the Special Rapporteur on Prisons and Conditions of Detention in Africa, Member of the Working Group On The Death Penalty In Africa And Member of the African Commission on Human and Peoples’ Rights Presented During The 54th Ordinary Session of the African Commission on Human and Peoples’ Rights 22 October–5 November 2013, Banjul, The Gambia. 102 Communications 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, para 50.

194

7. Article 6: Right to Liberty and Security of the Person

In addition, ‘constant’ arrests and detention without charge or being brought before the courts were also considered to be arbitrary.103 Where two individuals were detained under the Nigeria State Security (Detention of Persons) Decree, No. 2 1984 (as amended in 1990), but no reason were given for their arrest or detention and no charges were taken against them, a violation of Article 6 was found.104

c. Examined by Doctor, Notification of Family and Friends and Embassy As well as being informed of the reasons for the arrest, an individual should also, in a language they understand, be informed of the right to legal representation and to be examined by a doctor of their choice.105 The arrested individual should be able to inform their family or friends about the fact of the arrest and the place where they are detained and be provided with the facilities to do so.106 Foreign nationals should also be informed of the right to communicate with their embassy or equivalent, or, if they are a refugee or stateless under the protection of an international organisation, then with an ‘appropriate international organisation’.107 Individuals who are arrested or detained should be given ‘reasonable facilities to receive visits from family and friends, subject to restriction and supervision only as are necessary in the interests of the administration of justice and of security of the institution’.108

d. Access to a Lawyer This access should be provided ‘promptly’ to an individual who has been arrested or detained and the individual, unless he or she has waived this right in writing, shall not be obliged to answer any questions or participate in any interrogation without his or her lawyer being present’.109 Information should be recorded during questioning including the length of questioning, the identity of those carrying it out, and any confirmation of requests for medical assistance and legal services.110

3. Possibility of Bail If there is no possibility of bail, there may be a violation of Article 6.111 However, although ‘pre-trial detainees should have access to bail by right’,112 the right to bail is not absolute.113 The African Commission has set out grounds for bail including that there Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000, para 21. Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 42. 105 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M. 106 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M. 107 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M. 108 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M. 109 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M. See also Chapter 8 (Article 7). 110 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 9. 111 102/93 Constitutional Rights Project/Nigeria, 31 October 1998, para 55. 112 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, Plan of Action, para 3. 113 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 7. 103 104

D. Further Safeguards for Those Deprived of their Liberty

195

is ‘sufficient evidence that deems it necessary to prevent a person arrested on a criminal charge from fleeing, interfering with witnesses or posing a clear and serious risk to others’,114 or ‘it will not be in the interests of justice’.115 African Court judgments apply similar rules as relate to limitations of other rights including that any such restriction should be ‘provided by law, . . . have a legitimate aim and . . . must serve a public or general interest’.116 However, pregnant women and ‘mothers of infants’ should not be remanded in custody.117 Bail in these and other circumstances can be conditional.118 States have been encouraged to improve access to bail through, for example, ‘widening police powers to bail and involving community representatives in the bail process’.119 Furthermore, if bail is granted by a judicial authority, the State should not subsequently re-arrest the individual under different charges and bring them before a different court.120 There is some suggestion that the amount for bail should be proportionate to the seriousness of the crime alleged to have been committed. For example, the Special Rapporteur on Freedom of Expression and Access to Information in Africa noted concerns in Sierra Leone about reports of the editor of an independent newspaper being ‘granted bail to the amount of 50 million Leones, a sum which appears excessive in comparison to her “alleged crime” ’.121 Recognition should also be taken of the fact that individuals who may be particularly vulnerable or marginalised may be less likely to be released on bail122 and the African Commission has at various times called for more individuals to be bailed.123 The ACHPR has been used in domestic courts to support granting bail. So in a case in Tanzania where the domestic legislation restricted the granting of bail for only certain categories of offences, the Tanzanian Court of Appeal took into account the ACHPR when interpreting the constitution and domestic law to find that this legislation was a violation of the right to personal freedom.124

114 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M(1). 115 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 11. 116 Anaclet Paulo v United Republic of Tanzania, App. No. 020/2016, Judgment, 21 September 2018, paras  64–68. 117 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M(1)(f ). 118 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M(1). 119 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, Plan of Action, para 1. 120 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, para 110. 121 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on Threats, Harassment and Intimidation Against Journalists in Sierra Leone, 21 May 2009. 122 ACHPR/Res. 228: Resolution on the need to develop guidelines on conditions of police custody and pre-trial detention in Africa, 22 October 2012. 123 E.g. Prisons in Malawi Report on a Visit 17–28 June 2001 by Dr Vera Mlangazuwa, Chirwa Special Rapporteur on Prisons and Conditions of Detention in Africa, October 2001, Recommendation (C); Prisons In Mozambique Report on a Second Visit, April 4–14, 2001, by Dr Vera Chirwa, Special Rapporteur on Prisons and Conditions of Detention in Africa, October 2001, p.41. 124 DPP v Pete [1991] LRC (Const.) 553. See F. Viljoen, ‘Application of the African Charter on Human and Peoples’ Rights by domestic courts in Africa’, 43 JAL (1999) 1–17, at 14. See discussion in J. Quigly, ‘The Tanzania Constitution and the right to a bail hearing’, 4 Afr. J. Int’l & Comp. L. (1992) 168–182; A. Akwei- Aryee, ‘New wine in old wineskins: A case for bail under Ghana’s military justice system’, 223 Military Law Review (2015) 945–987.

196

7. Article 6: Right to Liberty and Security of the Person

4. Pre-trial Detention Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa contain detailed provisions around pre-trial detention, defined as ‘the period of detention ordered by a judicial authority pending trial’.125 Such detention should be used as ‘a measure of last resort . . . only where necessary and where no other alternatives are available’126 and for the ‘shortest possible time’.127 It should not be used if the sentence for the criminal offence is not imprisonment.128 There must be ‘due regard’ to the principle of the presumption of innocence;129 the ‘least restrictive conditions’ should be imposed; ‘written reasons’ for the pre-trial detention should be given including as to why alternatives were not available; and there should be a right to challenge that detention ‘at any time’.130 Hearings in relation to pre-trial detention should meet fair trial standards with the burden of proof being on the State.131 There should be a regular review of pre-trial detention and any extension of detention should be based on whether there are ‘sufficient legal reasons’ for the arrest and detention; whether the investigating authorities are acting with due diligence to bring it to trial; whether detention is ‘necessary and proportionate’, looking at the ‘responsibilities as primary caretakers’; and the ‘means necessary to safeguard the well-being of the detainee’.132 Particular considerations need to be given to vulnerable categories of detainees. For children, this includes in addition to the other rights, consideration of what is in their best interests,133 possibilities of diversions from the criminal justice system including counselling, foster care, education and other; and preliminary inquiries taking into account whether they are in need of care or protection.134 On arrest, the parents or guardians and ‘authority charged with the welfare’ should be ‘immediately notified’ if this is in the best interests of the child. The former, unless it is not within the child’s best interests, should also be informed of the reasons for the arrest, the charges, and their rights, and the child should have access to a lawyer.135 For refugees and non-nationals, they should have the right to contact consular officials and relevant international organisations and be informed of this right and given the means to make the contact.136 Stateless persons 125 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 10(b). 126 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 10(a). 127 Kampala Declaration on Prisons Conditions in Africa, adopted at the Kampala Seminar on Prison Conditions in Africa, 21 September 1996, as appended to ECOSOC Resolution 1997/36, 21 July 2007, ‘Remand prisoners’, para 2 and ‘Alternative sentencing’, para 1–7. 128 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 10(c). 129 Communication 288/04, Gabriel Shumba v Zimbabwe, 30 June 2017, para 174. 130 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 11. 131 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 11. 132 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 12. 133 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 31. 134 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 31. 135 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 31. 136 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 34.

D. Further Safeguards for Those Deprived of their Liberty

197

should be able to contact a lawyer or relevant international organisations, and be given the means to do so.137 The facilities to meet such persons or enable unhindered access to such assistance should be provided by the detaining authorities.138

5. Right of Appeal Against Arrest The African Commission has held that appeal must be to an independent body. So where ‘appeal in the case of arrest lies to the body whose president orders the arrests’, this was considered as providing ‘no guarantee of good administration of justice and is more akin to an appeal for clemency than a judicial appeal’.139 Similarly, where the State Security (Detention of Persons) Act in Nigeria provided that individuals could be detained indefinitely if the detention was reviewed periodically by a panel, where six of its nine members were appointed by the President and the others were the Attorney General, the Director of the Prison Service and the head of the Police, this panel ‘cannot be said to meet judicial standards’ and therefore ‘cannot thus be considered impartial. Consequently, even if recommendations from the meetings of this Panel are responsible for the detainees’ continued detention, this detention must be considered arbitrary’.140

6. Length of Detention and Continued Detention Detention cannot be ‘indefinite’141 and the time in police custody should be no greater than forty-eight hours.142 If the length of detention is beyond that set out in the domestic law, there may also be a violation.143 So detention for twelve months when the law set a maximum of two weeks will violate Article 6: ‘their subsequent detention without charge . . . was unlawful and arbitrary’.144 There may be a continuing violation whereby the original court proceedings took place prior to the coming into force of the ACHPR for the State, but where ‘irregularities in the original sentence has consequences’.145 Where an individual was held in prison after his sentence expired and then subsequently on house arrest, a violation of Article 6 was found.146 Similarly in a Nigerian case failure to release a number of soldiers after being found innocent at trial, and subsequently granted pardons, 137 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 34. 138 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 34. 139 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 60. 140 Communication 53/96, Constitutional Rights Project v Nigeria, 15 November 1999, paras 12–16. 141 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008; Communications 25/89-47/90-56/91-100/93 Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996, para 42. See also A. A. An-Na’im, ‘Detention without trial in the Sudan: The use and abuse of legal powers’, 17 Colum. Hum. Rts. L. Rev. (1985–1986) 159–187. 142 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, Plan of Action, para 1. Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 4. 143 Ougadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reform in Africa, 20 September 2002, para found a violation specifically on grounds of failure to provide charges against the individual. 144 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013. 145 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997, para 5. 146 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997, para 5.

198

7. Article 6: Right to Liberty and Security of the Person

amounted to multiple violations of Article 6.147 In a case before the ECOWAS Community Court applying Article 6 of the ACHPR, the Court found that whilst detaining the individuals from the start of December 2003 until 1 March 2004 was ‘justified by the necessities of preliminary inquiry’, once the domestic court had determined that some of them should be released on 1 March 2004, then the continued detention of these applicants beyond this date until the end of November 2005 was unlawful.148 Before the same Court, where an individual was held in prison from 5 May 2003 for nine years and the original detention had been authorised by a magistrate, the Court held that ‘the said process was not meant to keep the plaintiff perpetually in custody but to be tried by an appropriate court thereby making the process legal and competent. No Court would allow such prolong detention to continue without abating same’, the detention was thus illegal.149

7. Disappearances The ‘physical integrity and security of the person’ is violated if an individual is disappeared.150 Disappearances will also violate other norms of international law and the ACHPR including recognition of legal status, and the freedom from torture or other ill treatment, fair trial, family life and the right to life.151 The African Commission has condemned incidents of enforced disappearances in Mali152 and of human rights defenders in the DRC, calling in the latter case on the government to ‘ensure the physical and psychological integrity of all human rights defenders’.153 For determining rationae temporis at admissibility stage, an enforced disappearance, if the person disappeared prior to the coming into force of the ACHPR but had still not been found subsequent to this, will be a continuing violation of the African Charter. Hence, where Mozambique ‘has not proved the whereabouts of first victim and neither has it demonstrated efforts made to investigate his whereabouts. The African Commission is of the view that the forced disappearance of the first victim constitutes a continuing violation of his human rights’.154

8. Incommunicado Detention Incommunicado detention155 has been held to be an ‘arbitrary deprivation of liberty’,156 a ‘gross human rights violation’,157 and one which can lead to violations of other rights in 148/96, Constitutional Rights Project v Nigeria, 15 November 1999, paras 15 and 16. ECW/CCJ/JUD/01/09, Djot Bayi & 14 Others v Nigeria & 4 Others, 28 January 2009, para 50. 149 Siriku Alade v The Federal Republic of Nigeria, ECOWAS Community Court of Justice, Judgment No. ECW/CCJ/JUD/10/12, 11 June 2012, paras  55–56. 150 Declaration on the Protection of all Persons against Forced Disappearances, adopted by the General Assembly of the United Nations in Resolution 47/133 of 18th December 1992, Article 1(2). 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 44. 151 See Chapters 5 and 6. See also Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 44. 361/08, J.E. Zitha & P.J.L. Zitha (represented by Professor Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 81. 152 ACHPR/ Res.258: Resolution on summary Execution and Enforced Disappearance in Mali, 5 November 2013. 153 ‘Enforced Disappearance of Human Rights Defenders in the Democratic Republic of Congo’, press release by Special Rapporteur on Human Rights Defenders. 154 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Professor Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 94. 155 See also Article 5 (Chapter 6). 156 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000. 157 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 55. 147 148

E. Right to Security

199

the ACHPR.158 The African Commission has recognised the impact that this has on the individual who will be ‘cut off from communication with the outside world, with no access to their lawyers or families. Their whereabouts are unknown putting their fate under the exclusive control of the Respondent State’.159 In Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, the African Commission, when considering the arrest and detention, in an unknown location, of eleven former government officials for their criticism of the current administration found that detention should not be ‘secret’; that an individual is being detained and the place where they are held should be disclosed.160

E. Right to Security There are two strands to the right to security under the ACHPR: individual security and national security.161 The African Commission has also suggested that there could be other components by use of the term ‘inter alia’: ‘[t]‌he right to security of the person includes, inter alia, national and individual security’.162 Although the African Commission has separated out these two elements, its case law does not always distinguish between them in its findings. Noting that ‘[i]‌ndigenous populations live in a constant state of insecurity’ in the DRC, it referred to the threats from armed forces and armed groups as well as sexual violence perpetrated against indigenous women.163 In relation to forced evictions, and destruction of housing and property, the African Commission placed this within the context of individual and national security but did not specify which category they fell into, simply finding a violation of Article 6.164 With respect to the State obligations in this context, however, the African Commission held that internally displaced people (IDPs) and refugees ‘can only return when security and safety is guaranteed and the Respondent State provides the protection in the areas of return. Voluntary return under situation of forced displacement must be in safety and dignity’.165 Linking Article 6 with Article 12 it found in this case that ‘[i] f the IDPs or the refugees are not able to move freely to their homes, because of insecurity, or because their homes have been destroyed, then their liberty and freedom is proscribed’.166 What is also interesting here is the link not just with security but also ‘liberty’. So in Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, where internally displaced persons could

Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 55. Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 59. 160 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 55. 161 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 174. 162 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 174. 163 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Research and Information Visit to the Democratic Republic of the Congo, 9–25 August 2009, May 2011, p.76. 164 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 176. 165 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 177. 166 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 177. 158 159

200

7. Article 6: Right to Liberty and Security of the Person

not leave camps for fear of their safety, either because they were concerned that they would be killed or raped by Janjawid militia, the African Commission recognised ‘[l]ife in an IDP or refugee camp cannot be synonymous with the liberty enjoyed by a free person in normal society. . . . The right to liberty and the security of the person, for women and girls, and other victims of the Darfur conflict has remained an illusion’.167 The African Commission concluded, linking security with ‘physical security’ that ‘the Respondent State, in spite all the information regarding the physical abuse the victims were enduring, has not demonstrated that it took appropriate measures to protect the physical integrity of its citizens from abuse either by official authorities or other citizens/third parties. By failing to take steps to protect the victims, the Respondent State violated Article 6 of the African Charter’.168

a. Individual Security Individual security is associated with other rights such as Article 5 and ‘can be seen as an expansion’ of such rights.169 The concept of individual security has been considered from two perspectives: public and private. As the African Commission has held, ‘[b]‌y public security, the law examines how the State protects the physical integrity of its citizens from abuse by official authorities, and by private security, the law examines how the State protects the physical integrity of its citizens from abuse by other citizens (third parties or non-state actors)’.170 An enforced disappearance will violate the right to individual security.171

b. National Security National security relates to broader threats to the State: ‘[n]‌ational security examines how the State protects the physical integrity of its citizens from external threats, such as invasion, terrorism, and bio-security risks to human health’.172 The African Commission has recognised on numerous occasions that internal conflict can have an impact on ‘security’ (whether that be individual or national, is not necessarily defined) and it has linked this specifically with Article 6.173 The responsibility will fall on the State to ‘ensure the security of the citizens’ in the event of violations by State authorities, such as suppression of demonstrations and imposition of martial law.174 In addition, 167 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 177–178. 168 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009 para 179. 169 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 174. 170 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 177. See G. K. Safari, ‘State responsibility and the right to personal security in the DRC: A human rights law perspective’, 7(2) African Journal of Legal Studies (2014) 233–251. 171 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Professor Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 81. 172 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 174. 173 ACHPR/Res.209: Resolution on the Human Rights Situation in the North of Mali, 1 March 2012, preamble. 174 Appeal: The African Commission on Human and Peoples’ Rights Concerned about the Situation in the Republic of Guinea, Banjul, 16 February 2007. See also Concluding Observations and Recommendations on the 5th Periodic Report of the Federal Republic of Nigeria on the Implementation of the African Charter on Human and Peoples’ Rights (2011–2014), November 2015, paras 96–103.

F. Evidence

201

as in Mali in 2012 where the conflict between Tuareg rebels and the Malian army in 2012 led to the displacement of thousands of Malians, the internal conflict can be the result of activities of State authorities or non-State actors. Here the African Commission called on not just the non-State actors, but also the government to ‘protect’ the rights of individuals caught up in the conflict.175 In the same context it noted violations of not only Article 6 but also Article 23.176

F. Evidence As with other Articles in the ACHPR, failure of the government to respond to the allegations will result in the African Commission finding in favour of the complainants.177 The African Commission will ‘decide on the facts provided by the Complainant and treat those facts as given’.178 It initially justified this approach in its earlier decisions by stating that ‘[t]‌his principle conforms with the practice of other international human rights adjudicatory bodies and the Commission’s duty to protect human rights’, as well as the unwillingness of the government to ‘participate in a dialogue’.179 The government has at least to provide a ‘substantive response’ to the allegations.180 So a failure to defend a particularly piece of legislation ‘either for its general validity or its justice as applied in this case’ resulted in a finding of an Article 6 violation,181 as did neglecting to contest the allegations and to respond to requests by the Commission’s secretariat.182 In an ECOWAS Community Court judgment, the applicant had produced the ‘holding charge’ (a procedure by a magistrate) and a sworn affidavit by the applicant among other exhibits to prove that he had been detained for nine years without trial. The Respondent State had argued that this was insufficient to show that he had in fact been detained.183 The ECOWAS Court held that the application of the concept of the burden of proof is more relevant to domestic law than international law and concluded that ‘every material allegation of the claim must be justified by credible evidence and the defence should also sufficiently satisfy every defence and put forward what would rebut the claim or take the risk of putting nothing at all if the claim by their estimation is weak and unproven’.184 It

175 ACHPR/Res. 209: Resolution on the Human Rights Situation in the North of Mali, 1 March 2012, paras 3 and 4. 176 See Chapter 24 (Article 23). ACHPR/Res. 209: Resolution on the Human Rights Situation in the North of Mali, 24 February 2012. 177 Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999, paras 12 and 19. 178 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, para 25. Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000; Communication 148/96 Constitutional Rights Project v Nigeria, 15 November 1999. 179 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, para 25. 180 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995 181 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 84. 182 Communication 232/99, John D. Ouko v Kenya, 6 November 2000, paras 20–21. 183 Siriku Alade v The Federal Republic of Nigeria, ECOWAS Community Court of Justice, Judgment No. ECW/CCJ/JUD/10/12, 11 June  2012. 184 Siriku Alade v The Federal Republic of Nigeria, ECOWAS Community Court of Justice, Judgment No. ECW/CCJ/JUD/10/12, 11 June 2012, para 50.

202

7. Article 6: Right to Liberty and Security of the Person

further held that there had been notice served on the Deputy Comptroller of the prison to produce a detention warrant and he had failed to do so, along with ‘pieces of evidence of the truth of the detention’, and this was sufficient to prove the individual was detained in the prison.185

G. Remedies Several remedies may be recommended in the same decision with respect to a violation of Article 6.186

1. Release the Individual If a violation of Article 6 has been found and the individuals are still in detention, the African Commission has on occasion ordered their release.187 Findings of arbitrary arrest and detention and the lack of impartiality of a panel determining detention resulted in the African Commission appealing to the government to either charge or release the individuals.188 Where the Commission found that individuals had not been released despite being pardoned, it ordered the government to free them.189

2. Annul or Amend Legislation Wording of a decree found to violate Article 6 resulted in the African Commission calling for the decree to be annulled.190 In other instances it has required the offending legislation or ‘legislative or judicial framework’ to be amended.191

3. Compensation and Rehabilitation Individuals who have been arbitrarily detained may also be awarded compensation.192 This is usually in accordance with the national law.193 Similarly, family members, including widows, may also be entitled to compensation in the event of a violation of Article 6.194 185 Siriku Alade v The Federal Republic of Nigeria, ECOWAS Community Court of Justice, Judgment No. ECW/CCJ/JUD/10/12, 11 June 2012, para 54. 186 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008. 187 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998; Communication 206/ 97 Centre for Free Speech v Nigeria, 15 November 1999, paras 12 and 19. 53/96, Constitutional Rights Project v Nigeria, 15 November 1999. 188 Communication 53/96, Constitutional Rights Project v Nigeria, 15 November 1999. 189 Communication 148/96, Constitutional Rights Project v Nigeria, 15 November 1999. 190 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995. 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998. 191 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229(b). See also Communication 368/09, Abdel Hadi, Ali Radi and others v Republic of Sudan, 5 November 2013. 192 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 56. See Communication ‘adequate compensation’, 368/09, Abdel Hadi, Ali Radi and others v Republic of Sudan, 5 November 2013. 193 Communication 368/09, Abdel Hadi, Ali Radi and others v Republic of Sudan, 5 November 2013. 194 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000.

G. Remedies

203

4. Investigations and Prosecutions The African Commission may demand an investigation to be undertaken as part of the remedies to the victims.195 This should be ‘official’ or ‘effective and impartial’.196 Governments have also been expected to prosecute those responsible for the violations and not to adopt amnesty laws.197 In other instances the State should ensure that ‘every person facing criminal charges be tried under the language he/ she understands. In the alternative, the Respondent State must ensure that interpreters are employed in Courts to avoid jeopardising the rights of accused persons’. The African Commission did not set out any further detail on how this could be achieved.198 The African Commission has offered its good offices to achieve an amicable settlement in cases involving, but not limited to, Article 6 violations.199

5. Supervision of Places of Detention and Complaints Procedures The State has also been requested to ensure the ‘regular supervision or monitoring of places of detention by qualified and/or experienced persons or organisations’ as well as by the African Commission and other international organisations, civil society organisations and consulates, and to put in place ‘procedural safeguards or clear procedures/policies that guarantee for all persons deprived of their liberty (nationals and non-nationals alike) effective access to competent authorities such as administrative tribunals and courts responsible for prison/detention oversight and/ or review’.200 Where a number of persons had been disappeared, the African Commission called upon the Mauritanian State to ‘arrange for the commencement of an independent enquiry in order to clarify the fate of persons considered as disappeared, and to identify and bring to book the authors of the violations perpetrated at the time of the facts arraigned’.201

6. Training In a case which involved the illegal deportation of a number of Gambians from Angola, it was insisted that the State establish training for law enforcement agencies and civil servants who were ‘dealing with matters involving non-nationals on non-discrimination, due process, and the rights of detainees, among others’.202

195 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229(a). 196 Communication 368/09, Abdel Hadi, Ali Radi and others v Republic of Sudan, 5 November 2013. 197 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229(c) and (g). 198 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 199 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215(3). 200 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008. 201 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 202 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008.

204

7. Article 6: Right to Liberty and Security of the Person

7. Declaration of Violation The declaration of the court that an arbitrary arrest and detention without trial was in violation of the African Charter and the Gambian constitution can be seen as a remedy, as requested by the plaintiff in a case before the ECOWAS Court of Justice.203

8. Reporting As with other violations, the State is required to report back to the African Commission on ‘at a later stage, measures it has taken to implement the recommendations made in this communication’.204

ECW/CCJ/JUD/08/10 Musa Saidykhan v The Gambia, 16 December 2010, paras 46 and 47. Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 28 May 2008. 203 204

8. Article 7 Right to a Fair Trial 1. Every individual shall have the right to have his cause heard. This comprises: (a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) The right to be presumed innocent until proved guilty by a competent court or tribunal;

(c) The right to defence, including the right to be defended by counsel of his choice; (d) The right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

A. Introduction Udombana writes that ‘the African Charter provisions, building on the European Convention, are the most comprehensive of the three regional human rights instruments’.1 Although not dissimilar to provisions in other international and regional instruments,2 the wording of Article 7, in particular Article 7(1)(a), does not restrict all elements to criminal proceedings and indeed the African Commission has, on occasion, referred to civil procedures too. However, the majority of its jurisprudence and standards adopted, and that of the African Court, relate to criminal proceedings. Many of the cases before the African Commission over the years have included allegations and findings of violations of the right to a fair trial under Article 7. Numerous resolutions have been adopted3 and declarations from other workshops and conferences endorsed, including the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa.4 Reflecting this continued need to examine the right, the African Commission established a Working Group on Fair Trial in November 1999 whose initial aim was to ‘prepare a draft of general principles and guidelines on the right to a fair trial and legal assistance under the African Charter’.5 The results of this Working Group’s 1 N. J. Udombana, ‘The African Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’, 6 African Human Rights Law Journal (2006) 299–332, at 304. 2 Article 14 ICCPR; Article 12 Arab Charter. 3 Resolution on the Right to Recourse and Fair Trial adopted by the Commission at its 11th Ordinary Session in Tunis, Tunisia, in March 1992; recalling further the resolution on the Respect and the Strengthening of the Independence of the Judiciary adopted at the 19th Ordinary Session held in Ouagadougou, Burkina Faso, in March 1996; Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa, ACHPR/ Res.41(XXVI)99: Resolution on the Right to Fair Trial and Legal Aid in Africa (1996), 15 November 1999. 4 Recommendations of the Seminar on the Right to a Fair Trial in Africa held in collaboration with the African Society of International and Comparative Law and Interights, in Dakar, Senegal, from 9–11 September 1999. 5 ACHPR/Res.41(XXVI)99: Resolution on the Right to Fair Trial and Legal Aid in Africa (1996), 15 November 1999.

206

8. Article 7: Right to a Fair Trial

endeavours include contributions to the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa adopted in 2003. States have some discretion to ‘the choice of using means peculiar to their judicial system to meet the requirements of Article 7’ but this must be determined: in the light of the objectives of the Charter, namely taking all appropriate measures to ensure that justice is delivered by a competent, independent and impartial court or tribunal; that justice should be fair and adversarial. This is an obligation to produce result, non-compliance with which cannot be justified by any reason whatsoever and if the result is not achieved, the State is at fault. It is not enough for the State to prove its passivity in the occurrence of a situation which violates the provisions of Article 7 of the African Charter.6

In consideration of the admissibility of communications the consideration of whether local remedies have been exhausted, particularly around whether such remedies are available, effective and sufficient, also touches upon elements of the right to a fair trial in the national courts.7 These issues will be discussed in the context of Article 56(5).8 Article 7 contains perhaps comparably more detail on the content of the right to a fair trial than is found in some of the substantive provisions of the African Charter on Human and Peoples’ Rights (ACHPR), yet it omits some of the content which was included in earlier drafts, the travaux préparatoires providing no explanation as to why this is the case. So Article 21 of the M’Baye Draft read: 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, fiscal, or any other nature. 2. Every person accused of a criminal offence has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings every person is entitled, with full equality, to the following minimum guarantees: (a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; (b) prior notification in detail to the accused of the charge against him; (c) adequate time and means for the preparation of his defence; (d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; (e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; 6 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013. 7 See e.g. Communication 467/14, Ahmed Ismael and 528 Others v The Arab Republic of Egypt, 27 May 2016; Communication 445/13, Human Rights Council and Others v Egypt, 19 May 2016. Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 78. 8 Chapter 34 (Article 56). See N. J. Udombana, ‘So far, so fair: The local remedies rule in the jurisprudence of the African Commission on Human and Peoples’ Rights’, 97 AJIL (2003) 1–37.

C. Article 7(1)

207

(f ) the right of the defence to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; (g) the right not to be compelled to be a witness against himself or to plead guilty; and (h) the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice. As will be seen below, these additional elements have now eventually found themselves, through the Commission’s interpretations and adoption of guidelines and principles, and judgments of the African Court, incorporated into Article 7.

B. No Derogation As noted elsewhere9 there is no derogation clause in the ACHPR and the African Commission has also reiterated that ‘[n]‌o circumstances whatsoever, whether a threat of war, a state of international or internal armed conflict, internal political instability or any other public emergency, may be invoked to justify derogations from the right to a fair trial’.10 This is not dissimilar with the position before other international and regional treaties,11 even if its general approach on derogation does not necessarily align.

C. Article 7(1) 1. The Right to have One’s Cause Heard This right is a ‘universal requirement’:12 In the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body.13

The right to be heard requires ‘unfettered access to a court having jurisdiction to hear his case’, that the issue be brought before the court and that the court is competent and Chapter 2 (Article 1). African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section R. Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa adopted by the Commission at its 26th Ordinary Session, held in Kigali, Rwanda, from 1–15 November 1999; 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria; Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 239. 11 Human Rights Committee, General Comment No. 32, CCPR/C/GC/32 (2007), para 6. 12 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 112. 13 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A.1. ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992). 9

10

208

8. Article 7: Right to a Fair Trial

enable, by law, to hear the case.14 There are inevitable connections with Article 6 here15 and with a duty to investigate with due diligence, leading to the prosecution and trial of perpetrators of violations.16 Andrew Meldrum was deported from Zimbabwe before the date of his hearing before the Supreme Court.17 While the African Commission left open the possibility that deportation per se would not violate Article 7(1)(a) of the Charter as ‘[a]‌dmittedly, the victim could still have proceeded against the Respondent State from wherever he was deported to’,18 it objected to the ‘sudden’ deportation which ‘frustrated the judicial process that had been initiated’.19 The right to be heard extends beyond just those arrested and detained to ‘everyone to have access to relevant judicial bodies with jurisdiction to hear their case and grant them adequate compensation’.20 Where Zimbabwe had passed Clemency Order No. 1 of 2000 whereby perpetrators of ‘politically motivated crimes’ such as kidnappings, destruction of property and imprisonment, could avoid prosecution, the African Commission found that the State had encouraged impunity and ‘effectively foreclosed any available avenue for the alleged abuses to be investigated, and prevented victims of crimes and alleged human rights violations from seeking effective remedy and compensation. This act of the state constituted a violation of the victims’ right to judicial protection and to have their cause heard under Article 7 (1) of the African Charter’.21 Burundi nationals who had been in Rwanda as refugees for a number of years were then told to leave Rwanda without being given an opportunity to challenge the decision before a national court. The African Commission found a violation of the right to be heard under Article 7(1).22 This right of access to judicial protection requires ‘available and effective recourse for the violation of a right protected under the Charter or the Constitution of the country concerned’ and ‘that judicial and other mechanisms are in place to provide recourse and remedies at the national level’.23 If certain procedures are to be foreclosed then the State should put in place ‘alternative adequate legislative or institutional mechanisms to ensure that perpetrators of the alleged atrocities were punished, and victims of the violations duly compensated or given other avenues to seek effective remedy’.24 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para 190. Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 65. 16 Before the African Court, In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment of 28 March 2014, paras 141–56. 17 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 107. 18 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 107. 19 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 107. 20 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para 193. 21 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 211. 22 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme/ Rwanda, 31 October 1996. 23 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, paras 213–214. 24 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 215. 14 15

C. Article 7(1)

209

The Tanzanian government claimed in Communication 243/01 Women’s Legal Aid Center (on behalf of Sophia Moto) v Tanzania that the opportunity to be heard had been provided but the complainant had failed to appear before the High Court on the date of the hearing to determine the share of matrimonial property and child custody. The High Court had not erred in dismissing the matter.25 This fact was not disputed. What was disputed was that the complainant claimed she had never been notified of the date of the hearing. The African Commission found that in dismissing her appeal ‘without giving her an opportunity to be heard and without considering the consequences that may have on her claims to property and child custody (which could have been taken care of by a favourable exercise of discretion by the courts) does not conform with the requirements of the African Charter and the principle of natural justice’.26 Similarly, where the Supreme Court in the DRC reversed its initial decision to reopen proceedings this deprived the complainant of his right to have his cause heard.27 A number of the earlier cases before the African Commission, particularly in relation to Nigeria, concerned the inclusion of ‘ouster clauses’ which prohibited individuals from questioning the validity of the legislation or actions of the government under the legislation before the courts.28 A series of cases in the domestic courts used the ACHPR to challenge their validity.29 For example, the Political Parties (Dissolution) Decree 12993, 13(1) read: ‘Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria 1979, as amended, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act or any other enactment, no proceeding shall lie or be instituted in any court for or on account of any act, matter or thing done or purported to be done in respect of this Decree’.30 Noting that ‘fundamental rights as guaranteed by conventions . . . in force’ in Article 7(1)(a) also included the ACHPR, and that Nigeria had ratified the ACHPR in 1983, the African Commission held that it was still bound by the ACHPR ‘if Nigeria wished to withdraw its ratification, it would have to undertake an international process involving notice, which it has not done. Nigeria cannot negate the effects of its ratification of the Charter through domestic action’.31 The attempt to oust the jurisdiction of the courts in this context was seen as ‘an attack of incalculable proportions on Article 7. . . . An attack of this sort on the jurisdiction of the courts is especially invidious, because while it is a violation of human rights in itself, it permits other violations of rights to go unredressed’.32 As to whether the right to have one’s cause heard is limited if the individual does not act in good faith was an issue considered in Communication 284/03, Zimbabwe Lawyers 25 Communication 243/01, Women’s Legal Aid Center (on behalf of Sophia Moto) v Tanzania, 7 December 2004, para 31. 26 Communication 243/01, Women’s Legal Aid Center (on behalf of Sophia Moto) v Tanzania, 7 December 2004, para 44. 27 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 12 October 2013, para 194. 28 A. A. Oba, ‘The African Charter on Human and Peoples’ Rights and ouster clauses under the military regimes in Nigeria: Before and after September 11’, 4 AHRLJ (2004) 275–302. 29 E.g. Mohammed Garuba and Others v Lagos State Attorney General and Others, Report, (1994) 4 Journal of Human Rights Law and Practice 205; The Registered Trustees of the Constitutional Rights Project (CRP) v The President of the Federal Republic of Nigeria and Others (1994) 4 Journal of Human Rights Law and Practice 218; General Sani Abacha and Others v Chief Gani Fawehinmi [2000] 4 SCNJ 401 (Supreme Court). 30 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, para 12. 31 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, paras 12 and 13. 32 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, para 14. See also Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 54.

210

8. Article 7: Right to a Fair Trial

for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe.33 The Supreme Court had argued that the legislation which the complainant was claiming to be in violation of their rights under the Constitution and ACHPR was the law which the complainant had failed to comply with. The Access to Information and Protection of Privacy Act (AIPPA) of 2002 required the registration of ‘mass media services’ with the Media and Information Commission before they were permitted to operate. The complainant, a newspaper publishing company, refused to register until the constitutionality of the Act had been determined by the Supreme Court, filing an application in this regard. The Supreme Court ruled that by failing to register, the complainant company was operating unlawfully and that it should register first before asking the Court for its view on the constitutionality of the legislation. In its decision the African Commission cautioned against applying the principle to proceedings regarding human rights.34 As to whether the Supreme Court’s refusal to hear the complainant’s petition was a failure to hear their ‘cause’, the African Commission held ‘a “cause” before a tribunal must be construed in broader terms to include everything related to the matter, including preliminary issues raised. The Court need not pronounce itself on the merits of the substantive matter. It simply needed to hear the parties. Thus, by pronouncing on the preliminary issue raised by the Respondent State on the question brought by the Complainants, the Supreme Court in effect heard the “cause” of the Complainants. Besides, the Supreme Court did not close its doors on the Complainants, it simply asked the latter to go and register and come back to it for the matter to be heard on the merits. It can therefore not be said that the Respondent State has violated the Complainants’ rights under Article 7’.35 However, whilst it was unwilling to find a violation of Article 7, it did find violations of Articles 9, 14 and 15 and called on the State to provide compensation to the complainants for the loss suffered.36 In addition, in its Principles and Guidelines the African Commission notes: States must ensure, through adoption of national legislation, that in regard to human rights violations, which are matters of public concern, any individual, group of individuals or nongovernmental organization is entitled to bring an issue before judicial bodies for determination.37

2. Access to Justice and Access to the Courts The concepts of ‘access to justice’ and ‘access to the courts’ have been used interchangeably by the African Commission. Both appear to be overarching principles encompassing a range of elements of the right to fair trial. Hence, access to justice has been interpreted, for example, as requiring that the DRC ‘take the necessary measures to facilitate the effective access to justice of women and girls towards putting an end to impunity and ensuring that the perpetrators and accomplices of such acts are prosecuted before the 33 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009. 34 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 151. 35 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 174. 36 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 179. 37 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section D.

C. Article 7(1)

211

competent courts within a reasonable time’.38 The African Commission also noted concerns in Nigeria and called on the State to ‘steps to ease the difficulties of access to justice occasioned by the high cost of litigation and the complex court processes, by measures such as the provision of mobile courts, introduction of para-legal officers in the judicial system and the use of interpreters and local languages in Courts’.39 Article 8 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa provides ‘access to justice and equal protection before the law’ means that States should take measures to ensure: a . effective access by women to judicial and legal services, including legal aid; b. support to local, national, regional and continental initiatives directed at providing women access to legal services, including legal aid; c. the establishment of adequate educational and other appropriate structures with particular attention to women and to sensitise everyone to the rights of women; d. that law enforcement organs at all levels are equipped to effectively interpret and enforce gender equality rights; e. that women are represented equally in the judiciary and law enforcement organs; f. reform of existing discriminatory laws and practices in order to promote and protect the rights of women.40 For persons with disabilities access to justice requires that they are provided with ‘appropriate support to exercise their legal capacity’, such as through interpreters, accessible information or independent third parties.41 As to whether failure to re-open a case will violate the right of access to the courts, the African Commission considered the doctrine of functus officio in Communication 277/03 Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana.42 In this case the Court of Appeal had refused to reopen an individual’s trial despite new evidence from medical experts which showed that the deceased wounds were caused by a particular bullet and not the gun used by the appellant. However, these medical experts based their findings on records of the post-mortem and not in fact on actually examining the wounds. The Court of Appeal found that these were opinions which needed to be weighed against the evidence of eye witnesses who stated that the appellant shot the deceased, and this testimony had been believed by the trial court and the Court of Appeal. The decision the Court of Appeal came to, according to the African Commission, was based on this eye witness testimony and not the subsequently disputed medical evidence.43 The African Commission consequently found that the Court of 38 284: Resolution on the Suppression of Sexual Violence against Women in the Democratic Republic of Congo, 12 May 2014. 39 Consideration of Reports submitted by State Parties under Article 62 of the African Charter on Human and Peoples’ Rights Concluding Observations and Recommendations on the Third Periodic Report of the Federal Republic of Nigeria, Forty Fourth Ordinary Session, 10–24 November 2008, Abuja, Nigeria, paras 29 and 43. 40 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 8. 41 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 33. 42 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013. 43 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 188.

212

8. Article 7: Right to a Fair Trial

Appeal’s refusal to reopen the case was not in violation of Article 7(1)(b) of the ACHPR.44 In addition, the Court of Appeal also assessed the allegation that better medical care at the hospital would have prevented his death. Finding that it was wanting, it concluded that the murder conviction was based not only on whether the appellant intended to kill the deceased, but that he was reckless as to whether he did or not. The medical care was not taken into account as extenuating circumstances. The African Commission agreed.45 Access to the courts is access to national courts, not sub-regional, regional or international courts. In Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, the complainants argued that a ruling by the SADC Tribunal that deprivation of an individual’s land was a violation of international law had not been complied with by Zimbabwe. The Tribunal had then been suspended by the SADC Heads of State. The Complainants argued that such a suspension violated the right of access to a court, among other fair trial rights. The African Commission did not agree, noting that the ‘language of Article 7(1) (a) of the Charter itself is a clear indication that the provision envisages the right of individuals to access court at the national level’ and these are those ‘within the domestic legal system of the State Parties to the Charter’.46 While Article 1 of the ACHPR could be interpreted in a ‘teleological’ manner to permit States ‘to adopt appropriate measures, including cooperation at intergovernmental levels, to give effect to the rights guaranteed in the Charter, the primary obligation undertaken by State Parties in Article 7(1)(a) of the Charter is to ensure access to national courts’.47 This Articles does not include a duty on the State to provide access to the SADC Tribunal.48 Both access to justice and access to the courts, do however, require that this access be equal.

3. Equality Before the Courts The ‘[e]‌ssential elements of fair trial’ have been said to include: ‘equality of all persons before any judicial body without any distinction whatsoever as regards race, colour, ethnic origin, sex, gender, age, religion, creed, language, political or other convictions, national or social origin, means, disability, birth, status or other circumstances’.49 There is reference to ‘equality . . . before any judicial body’, ‘equality before the law in any legal proceedings’50 and ‘equal access to judicial services’,51 without clarity on whether there is a distinction between these contexts. ‘Special measures’, including providing 44 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 191. 45 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, paras 192–193. 46 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 138. 47 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 139. 48 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 142. 49 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2. 50 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2. 51 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section G.

C. Article 7(1)

213

relevant training to law enforcement and judicial officials, should also be taken to grant access to women and rural communities,52 and to groups with ‘distinct cultures, traditions or languages or have been the victims of past discrimination’.53 Access to justice also includes consideration of the location of judicial institutions, how much information is available on the judicial system, ‘unaffordable or excessive court fees’ and procedures to assist in understanding formalities and procedures.54

4. A Fair Hearing According to the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, ‘the essential elements of a fair hearing’ encompass a range of issues including equality of arms, equality of persons before the courts; dignity for participants; opportunities to present one’s case; the right to a legal representative and interpreter; trial without undue delay and the right to an appeal. In criminal cases the accused should have a hearing to determine their guilt and ‘[g]‌roup trials in which many persons are involved may violate the person’s right to a fair hearing’.55 Interpreting the concept of what is ‘fair’56 in one case the African Commission was required to consider a communication from Mamboleo Mughuba Itundamilamba, a citizen of the DRC and a member of its National Bar Association and the Bar of the Bukavu Court of Appeal.57 Mr Itundamilamba had failed to obtain payment from the Pharmakina Company, a public limited company, for work he had done for them. After approaching the local and national Bar Councils, he obtained an arbitral award for the company to pay him. The company appealed the decision to the Supreme Court which found in favour of the company. The Bar Association, on behalf of the complainant, called on the Supreme Court to withdraw its judgment but no ruling had been given after four years. The African Commission considered that a fair trial encompassed a combination of factors contained in Article 7, it: as a whole presupposes that the parties in the trial can each present their case in a fair manner. It further considers that this fairness is severely compromised when certain combined guarantees are not safeguarded: the rights of defence, equality of arms and respect of the adversarial principle.58

The procedures do not necessarily have to be adversarial. The African Court, when considering the role of the investigating magistrate in questioning civil parties in a case against 52 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section G. 53 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section G. 54 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section G. 55 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 56 ‘Unfair trials’ were found in Communications 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996, para 44, although no further indication is given as to the facts. See for a discussion of S v Jaipal in the South African Constitutional Court, T. van der Walt, ‘The right to a fair trial revisited: S v Jaipal’, 19 South African Journal of Criminal Justice (2006) 315–319. 57 Communication 302/05 Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013. 58 Communication 302/05 Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 114.

214

8. Article 7: Right to a Fair Trial

Burkina Faso, held that ‘it lies with the national judge to determine whether [an adversarial procedure] is necessary and useful based on the specific circumstances of the case’.59 Fairness will also be determined by considering the equality before the law, under Article 3 of the ACHPR, as well as the principle of equality of arms. The combination of these provisions should ensure that the parties are not ‘placed in a position of legal or procedural inequality. This means that that no one could claim to have enjoyed the right to defend himself if he or she were not afforded the same opportunity as his opponent, under the same conditions, to present his or her case and produce evidence’.60

5. A Public Hearing There is a right to a public hearing.61 In one press release the Commission implied that failure to permit members of the defendant’s family to be present in the court room during his trial would violate Article 7 of the ACHPR.62 The African Commission has used Articles 60 and 61 to read into ACHPR more detail of the public nature of trial. For example, citing the UN Human Rights Committee’s (HRC’s) General Comment No. 13 the African Commission has recognised the importance of a public hearing unless there are exceptional circumstances which warrant all or part of it being closed.63 These ‘exceptional circumstances’ have been interpreted as, again taking the Human Rights Committee’s jurisprudence under the International Covenant on Civil and Political Rights (ICCPR), being ‘for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice’.64 This is an exhaustive list.65 The government must clarify precisely which one of these circumstances it is relying upon to justify limitations.66 The public elements of judicial proceedings also include the requirement that information about the proceedings should be public, unless judicial authorities consider otherwise.67 Proceedings should be recorded and stored so they are accessible and be published.68 It does not appear to be a violation of Article 7 if there is a cost to obtaining records of proceedings but such cost ‘should be kept to a minimum and should not be so high as to amount to a denial of access’.69 59 Before the African Court, In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment of 28 March 2014, para 140. 60 Communication 302/05 Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 117. 61 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A.1. 62 Press release on the upcoming verdict in the trial against Ms Sana Seif, Ms YaraSallam, together with twenty-one other individuals, 24 October 2014. 63 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 51, citing Human Rights Committee General Comment No. 13, para 6. 64 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 52. 65 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 52. 66 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 53. 67 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section E. 68 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section E. 69 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section E.

C. Article 7(1)

215

Government publicity in Nigeria prior to the trial of individuals claimed that they were guilty of taking part in a coup. When their subsequent trial was not held in public, the government claimed the court could exclude certain persons from the trial in the interests of defence, public safety and public order among others, but had not indicated which of these grounds applied in this case. The African Commission held that it was ‘constrained to find the exclusion of the same public in the actual trial unjustified and in violation of the victim’s right to fair trial guaranteed under Article 7 of the Charter’.70 Giving reasons as to why the trial is not in public would seem to be required.

6. Right to Effective Remedy Although there is no express right to a remedy in the ACHPR, the African Commission has, through an interpretation of Articles 1 and 7, stated that such a right ‘can be generated implicitly and automatically’.71 In its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, for example, it provides that ‘[e]‌veryone has the right to an effective remedy by competent national tribunals for acts violating the rights granted by the constitution, by law or by the Charter, notwithstanding that the acts were committed by persons in an official capacity’.72 This right includes: ‘access to justice; reparation for the harm suffered; access to the factual information concerning the violations’.73 In this context, there are obligations on the State to ensure that those whose rights have been violated, whether by officials or non-State actors, have an effective remedy, that this should be ‘determined by competent judicial, administrative or legislative authorities’ and any remedy so granted should be enforced by ‘competent authorities’.74 State authorities should comply with the order.75 As noted below, amnesties to perpetrators of human rights violations will deprive individual victims of their right to a remedy.76 The African Commission has, drawing upon scholarly interpretations around the ECHR, interpreted ‘remedy’ as ‘any procedure by means of which one submits a constitutive act of an alleged violation of the [Charter] to an institution qualified in this respect, for the purpose of obtaining, as the case may be, a cessation of the act, its annulment, its amendment or compensation’.77 It further provided that an effective remedy is one ‘which not only exists de facto, but also is accessible to the party concerned and is appropriate. The petition should be appropriate so as to allow the denunciation of the alleged violations and the payment of appropriate compensation’.78 The effectiveness of Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, paras 53 and 54. Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 78. 72 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section C. 73 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section C. 74 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section C. 75 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section C. 76 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section C. 77 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 128, citing Pettiti Louis-Edmond, Decaux Emmanuel nd Imbert Pierre-Henri, the European Human Rights Convention, Paris, Economica, 1999, pp.467–468. 78 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 128. 70 71

216

8. Article 7: Right to a Fair Trial

the remedy is ‘not linked to the expected outcomes. Nonetheless, the effects in question should be of a nature to remedy the alleged violation, otherwise the effective character of the remedy disappears. Finally, there is need to specify that the right to effective remedy sanctions an obligation of diligence, for what is guaranteed is the existence of an appropriate remedy and not its favourable result, but an unfavourable jurisprudence renders the remedy useless’.79 Hence, in this case where the complainants had not obtained compensation for damage to property and physical attacks, they had not been provided with an effective remedy.80

7. Role of Prosecutors Where the applicants alleged that the prosecutor in Burkina Faso, who was under the supervision of the Ministry of Justice, had interfered in the trial process and therefore violated Article 7, the African Court found that there had been no evidence provided by the applicants that the judge was bound to follow the view of the prosecutor and there were provisions in the constitution guaranteeing the independence of the judiciary. The institution of the prosecutor in Burkina Faso was consequently not in itself in violation of the right to a fair trial.81 Although there has been little attention in communications before the African Commission about the role of prosecutors in the context of a right to a fair trial, it has set out certain standards in this regard. States should ensure that prosecutors are appropriately trained and educated in terms of their duties, the ethics of their post, rights of the suspect and victim and human rights standards generally.82 They should be able to perform their duties ‘without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability’ and be entitled to freedom of expression, belief and association, forming and joining organisations that promote or protect their interests.83 Conditions of service should be ‘reasonable’ and include ‘adequate remuneration’ as well as housing, transport, physical and social security and pensions.84 Procedures for promotion should be based on ‘objective factors’.85 Disciplinary procedures require an ‘objective evaluation and decision’ on offences that are set out in law, and determined on the basis of law, codes of professional conduct and other ethical standards.86 Procedures necessitate being conducted

79 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 129. 80 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 130. 81 Before the African Court, In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment of 28 March 2014, paras 121–126. 82 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 83 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 84 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 85 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 86 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F.

C. Article 7(1)

217

‘expeditiously and fairly’ and ensuring a right to a fair hearing with independent review.87 The African Commission has also set out factors that protect their independence, including that the office be ‘strictly separated from judicial functions’; prosecutors should perform their functions ‘fairly, consistently and expeditiously, ‘act with objectivity’ and respect and protect dignity and uphold human rights’, avoiding discrimination of all kinds.88 They are required to keep matters confidential ‘unless the performance of duty or needs of justice require otherwise’. While they should play an ‘active role in criminal proceedings’, they should not ‘initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded’.89 The concerns of victims ought to be considered by prosecutors who should inform them of their rights and due attention must be given to prosecuting crimes committed by public officials in respect of corruption or abuse of power or violations of human rights.90 Prosecutors should cooperate with police, the legal profession, judicial bodies, NGOs and government bodies.91

8. Legal  Aid The right to legal aid has been mentioned on a number of occasions by the African Commission and the African Court even though it is not expressly found in the ACHPR.92 It has been recognised that lack of legal aid is prevalent across the continent and has an impact on access to justice.93 The African Commission has not expressly limited this to criminal proceedings and noted that there is a right in civil cases ‘where the interest of justice so require’ and if the individual ‘does not have sufficient means to pay’ for legal representation.94 In determining what amounts to ‘interests of justice’ in the civil context consideration should be had to how complex the case is; whether the party has the ability to represent themselves; any rights affected; and ‘the likely impact of the outcome of the case on the wider community’.95 In criminal cases, factors include ‘the gravity, urgency

87 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 88 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 89 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 90 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 91 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 92 Unlike, for example, Article 14(3)(d) ICCPR; Article 8(2)(e) ACHR. N. J. Udombana, ‘The African Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’, 6 AHRLJ (2006) 299–332, at 323. 93 ACHPR/Res.100: Resolution on the Adoption of the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System, 29 November 2006. See also S. Gertler, ‘Legal aid and international obligation: Ensuring access to justice in the Liberian context’, 45 Colombia Human Rights Law Review (2013– 2014) 955–986; R. A. S. Morhe, ‘An overview of legal aid for criminal cases in Ghana: The history and challenge of providing legal aid’, 38 Commw. L. Bull. (2012) 105–118. 94 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H(a). 95 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H.

218

8. Article 7: Right to a Fair Trial

or complexity of the case, the severity of the potential penalty, and/or the status of the detainee as vulnerable’.96 The right to legal aid is only an absolute right in capital cases.97 In other instances it depends on to whom and under what circumstances it should be granted and this has not always been consistently stated. In its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa and in case law, the African Commission has stated that consideration of what is in the interests of justice in criminal cases includes the seriousness of the offence and severity of the sentence.98 However, on one occasion it held that it should be provided to ‘the needy’,99 recognition perhaps of ‘considerations of humanity’ to which Udombana refers.100 Similarly, the African Court has said that free legal aid is ‘intrinsic to the right to a fair trial’ and those charged with criminal offences are ‘automatically entitled’ to free legal aid even if they have not requested it, it is in the interests of justice, if the offence is ‘serious’ and the penalty ‘severe’.101 There is some suggestion that legal aid, in civil proceedings, should be provided at ‘each’ and ‘all stages’ of the case.102 Legal aid and the right to have a lawyer of one’s choice are not mutually exclusive rights.103 If the court provides legal assistance in civil cases, the lawyer should satisfy certain standards. These include that he or she is appropriately qualified, trained and experienced, depending on the ‘nature and seriousness’ of the issue; is able to act independently without influence from the State or court; and be provided with ‘sufficient’ compensation for providing the representation.104 The African Commission has also stated that lawyers’ associations should cooperate in the provision of services and facilities in relation to legal aid, including relevantly experienced lawyers making themselves available in criminal and civil cases if the judicial body provides legal aid, and giving legal assistance without payment ‘in important or serious human rights cases’ where the judicial body does not provide such aid.105 The role of para-legals is also considered crucial, although States and the legal profession should

96 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 8. 97 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H. Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 82. 98 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H(b). 231/99, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi, 6 November 2000. 99 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992). 100 N. J. Udombana, ‘The African Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’, 6 AHRLJ (2006) 299–332, at 324. 101 In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, para 85. See also Alex Thomas v United Republic of Tanzania, App. No. 005/2013, Judgment of 20 November 2015, paras 114 and 123. 102 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H. 103 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H. 104 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H. 105 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H.

C. Article 7(1)

219

ensure appropriate training and recognition of their work, granting them similar rights and facilities as lawyers.106

9. Trial in Presence of the Accused Express mention is made of the right of the accused to be tried in his or her presence in the context of criminal proceedings.107 This includes the ‘right to appear in person before the judicial body’.108 There are certain situations in which the accused can be tried in absentia including where adequate notice was given, and it was personally served on the accused. The accused has a right to ask for a reopening of proceedings if these did not occur or if he or she was unable to appear ‘for exigent reasons beyond his or her control’.109 The right can be waived voluntarily by the accused provided that it is ‘established in an unequivocal manner and preferably in writing’.110

10. Right to Interpreter Individuals should have the assistance of an interpreter if they are unable to ‘understand or speak’ the language ‘used in or by the judicial body’.111 This assistance should be free and no costs should be demanded from the accused, even if convicted.112 The right is only available to those accused or defence witnesses who are not ‘sufficiently proficient in the language of the judicial body’.113 The right applies at all stages of the proceedings including pre-trial stage and ‘in the determination of charges’,114 written and oral.115 Therefore ‘all documents or statements necessary for the defendant to understand the proceedings or assist in the preparation of a defence’ or ‘for the judicial body to understand the testimony of the accused or defence witnesses’ should be interpreted or translated.116

106 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section H. 107 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 108 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 109 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 110 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. See also before the African Court, Anaclet Paulo v United Republic of Tanzania, App. No. 020/2016, Judgment, 21 September 2018, para 81. 111 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2(g). 112 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N2–4. 113 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N2–4. 114 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992). 115 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N2–4. 116 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N2–4.

220

8. Article 7: Right to a Fair Trial

11. Evidence and Evidence Obtained by Illegal Means There is an ‘entitlement’ that the rights and obligations of a party to a case should be ‘affected only by a decision based solely on evidence presented to the judicial body’.117 Evidence obtained by ‘illegal means’ should not be admitted.118 This is in relation to ‘any proceeding, except in the prosecution of the perpetrators of the violations.119 As to what amounts to ‘illegal means’, the African Commission has referred to as ‘constituting a serious violation of internationally protected human rights’120 and evidence of a confession by ‘any form of coercion or force’, such as while the individual is detained incommunicado.121 Such evidence should not be ‘considered as probative of any fact at trial or in sentencing’.122 Noting European Court of Human Rights jurisprudence,123 and Article 15 of UNCAT, the African Commission has similarly held that ‘[e]‌vidence or confessions obtained through torture or cruel, inhuman and degrading treatment, cannot be used in judicial proceedings apart from for the purpose of prosecuting the act of torture or ill- treatment itself ’.124 If an allegation is made that a confession has been obtained by torture or ill treatment, the State will have the burden to prove otherwise.125 The African Commission has admitted this is contrary to the position adopted by other international bodies which first require that the applicant show their allegations are well founded.126 For the African Commission, the victim must simply ‘raise doubt as to whether particular evidence has been procured by torture or ill-treatment, the evidence in question should not be admissible, unless the State is able to show that there is no risk of torture or ill-treatment’.127 Safeguards include that confessions should be obtained only in the presence of a judicial officer or official of the court with the burden lying on the prosecution to show that they were acquired without coercion.128 Furthermore, ‘where a confession is obtained in the absence of certain procedural guarantees against such abuse, for example during 117 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2. 118 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9(h). 119 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 120 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9(g). 121 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9(j). Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 95. 122 Principles and Guidelines on Fair Trial, section N(6)(d)(1). 123 ECtHR, Harutyunyan v Armenia at para 63. 124 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 213. 125 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 216. 126 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 217, citing e.g. Report of the Special Rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment; UN doc. A/61/259 (2006), Annex, para 63. 127 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 218. 128 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 9.

D. Article 7(1)(a)

221

incommunicado detention, it should not be admitted as evidence’.129 Individuals raising allegations of torture and ill treatment which were ‘consistent with the circumstances of their case, such as the incommunicado nature of their detention and the reports of the FMA which, at a minimum, indicate a risk of ill-treatment’. Where these were admitted as evidence and ‘appear to have formed at least part of the basis of their convictions and the imposition of the death penalty’, the African Commission found a violation of Article 7.130 Similarly, where prosecutors have possession of evidence that ‘they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights’ they should not use this evidence against anyone other than the alleged perpetrators.131 Prosecutors should inform the judicial body of the evidence and themselves ‘take all necessary steps to ensure that those responsible for using such methods are brought to justice’.132

D. Article 7(1)(a): Right to an Appeal Article 7(1)(a) provides specifically that ‘[e]‌very individual shall have the right to have his cause heard. This comprises: The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force’. The African Commission has referred to the ‘right to a second hearing’, which it has considered ‘has not become an obligation under international law’, but goes on further to note that the right to an appeal is a ‘fundamental aspect’ of the right to a fair trial.133 Its decision in this case, whereby individuals were tried by military courts from which there was no right of appeal, appears to treat the two as the same. The right to appeal is also linked with the right to a remedy.134 The right to appeal can be read to be for both civil and criminal proceedings,135 although mostly the African Commission has focused on the latter: [p]‌ersons convicted of an offence shall have the right of appeal to a higher court’136 or ‘review of his or her conviction and sentence’.137 There must be a ‘genuine and timely review of the case, 129 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 218. 130 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 219. 131 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 132 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section F. 133 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, paras 75–76. 134 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 78. 135 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2(j). Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 14. 136 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992), para 3. 137 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N10(a).

222

8. Article 7: Right to a Fair Trial

including the facts and the law’.138 If, however, new exculpatory evidence comes to light post-conviction, then there should be the possibility of the verdict being corrected. The evidence must be such that the accused was not fully or partly responsible for it not being known at the time.139 Sentences should be stayed while the case is on appeal.140 It has been reiterated on numerous occasions that the right to appeal is of particular importance in death penalty cases and should be ‘mandatory’141 given the ‘heightened importance of fair trial guarantees where life is at stake’.142 If the result of an appeal is that the earlier decision is reversed, there is a pardon or there has been a miscarriage of justice, then the individual who ‘suffered punishment’ should be provided with compensation.143 However, such compensation should be ‘according to law’ but one presumes, given the African Commission’s previous comments on limitations on rights144 and its own rulings on compensation as a remedy, that this is either in accordance with international human rights law and that the domestic proceedings need to be followed in order to obtain such. Where the Egyptian Emergency Law prohibited appeals from the decisions of Supreme State Security Emergency Court, the African Commission noted that this court was ‘not part of the regular criminal court structure in Egypt’, with review only by the President of Egypt. It held that there was no right of appeal in violation of Article 7(1)(a).145 The African Commission has also, in addition to the right to appeal, made reference to a specific right to ‘seek pardon or commutation of sentence’ and that these, clemency or amnesty ‘may’ (but not must) be given all cases of capital punishment.146 However, a presidential pardon, as the only possibility of appeal from a decision of a military court which handed down a death sentence, was not considered to be a ‘jurisdictional remedy’ depending as it did on the ‘good will’ of the president.147 The execution of the judgment is considered to be an ‘integral’ part of the ‘proceedings’ covered by Article 7 and the right to be heard, in line with judgments from the European Court of Human Rights.148 The State should comply with the ruling of a court. With 138 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N10. 139 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N10. 140 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N10. 141 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N10. 142 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 221; Principles and Guidelines on Fair Trial, Section N(10)(a)(1). See also Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 67. Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 75. 143 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N10. 144 See Chapter 2 (Article 1). 145 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, paras 204–205. 146 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N10. 147 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 80. 148 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, paras 74–75, citing Hornsby v Greece of 19 March 1997, Collection 1997-II, pp.510–511, para 40, Burdov v Russia, No. 59498/03, para 34, 7 May 2002.

E. Article 7(1)(b)

223

respect to the right to appeal, the African Commission has held that it would be ‘inconceivable for this Article to grant the right for an individual to bring an appeal before all the national courts in relation to any act violating the fundamental rights without guaranteeing the execution of judicial rulings. . . . As a result, the execution of a final judgment passed by a Tribunal or legal court should be considered as an integral part of the right to be heard which is protected by Article 7’.149 Where the Lunatics Detention Act in the Gambia did not permit any review or appeal of the decision to detain individuals on mental health grounds and where the patients could not challenge medical certificates which determined their detention, the African Commission found a violation of Articles 7(1)(a) and (c).150

E. Article 7(1)(b): Presumption of Innocence The presumption of innocence has been upheld by the African Commission: ‘Persons charged with a criminal offence shall be presumed innocent until proven guilty by a competent court’.151 This includes the right not to be compelled to testify against oneself, and is also linked to the inadmissibility of evidence obtained by coercion or unlawful means152 and the ‘credibility’ of evidence for conviction.153 The presumption of innocence will be ‘all the more significant where the death sentence comes into play’.154 The presumption runs ‘until proved guilty according to law’.155 This has been interpreted as meaning ‘until conviction becomes binding following final appeal. The presumption applies during the pre-trial investigations and should be considered even stronger with regard to a person against whom ‘not even a prima facie case has been confirmed’.156 Where the Ethiopian government established a Special Prosecutor’s Office to investigate alleged perpetrators of a coup, the African Commission considered the establishment to violate the presumption of innocence as it treated everyone ‘as if they were guilty of an offence even before such guilt is established by a competent court’.157 The presumption of innocence may also be violated where an individual’s right to be heard is breached thereby depriving the individual of the ability to defend themselves. In Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, the immigration authorities had deported the individual from the country without bringing him before a court, leading the African Commission to hold that the ‘actions of the Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 75. Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, paras 70–72. 151 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992). 152 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6(d)(ii). 153 Before the African Court, In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/ 2016, Judgment, 21 September 2018; Mohamed Aboubakari v United Republic of Tanzania, App. No. 007/ 2013, Judgment of 3 June 2016. 154 Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 73. 155 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 186. 156 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 186. 157 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 186. 149 150

224

8. Article 7: Right to a Fair Trial

Respondent State amounted to a conclusion that Mr Meldrum was guilty of the allegations against him, contrary to the presumption of innocence’.158 In a case before the ECOWAS Community Court of Justice the applicant, Barthelemy Dias, who was an opposition political leader in Senegal, claimed that his arrest, detention and criminal proceedings against him were not independent and impartial as they were influenced by the President and senior government officials.159 He also alleged he had been selectively prosecuted thus undermining the principle of the presumption of innocence. The Court found the impartiality and independence of the judge had not been compromised, there had been no selective procedures, with others having also been prosecuted, and as a result Article 7 rights had not been violated.160

1. Burden and Standard of Proof The burden of proof will be on the prosecution in a criminal trial161 and while presumptions of fact or law in a criminal case are permissible, this is only if they are rebuttable.162 Thus, the courts must not prejudge the accused before the offence is proven.163 The standard of proof in a criminal trial is beyond reasonable doubt,164 although the African Commission has noted other standards apply at different stages of the trial. At the close of the prosecution’s case the court will not be ‘making a finding of guilt at that stage of the trial’.165 Instead, the accused must be presumed innocent ‘during the course of the trial until the totality of evidence leaves no reasonable doubt that he or she is indeed guilty’.166 Hence, at the close of the prosecution’s case the court is entitled to apply a lower standard of proof than ‘beyond reasonable doubt’ to decide if the case should proceed for the defence.167

158 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 109. 159 Barthelemy Dias v Republic of Senegal, ECOWAS, Suit No. ECW/CCJ/APP/01/12, Judgment No. ECW/CCJ/JUG/05/12, 23 March  2012. 160 Barthelemy Dias v Republic of Senegal, ECOWAS, Suit No. ECW/CCJ/APP/01/12, Judgment No. ECW/CCJ/JUG/05/12, 23 March 2012, paras  23–27. 161 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 162 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 163 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (Fair Trial Guidelines) p.16 para (e)(2); Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v Nigeria (1998) ACHPR para 96; Communications 222/98 and 229/99, Law Office of Ghazi Suleiman v Sudan (2003) ACHPR para 56; Communication 218/98, Civil Liberties Organisation, Legal Defence Centre and Assistance Project v Nigeria, n 8 above, para 41; Communication 224/98, Media Rights Agenda v Nigeria (2000) ACHPR paras 47 and 48. The African Commission, 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 117, has referred to: General Comment 32 ‘Article 14: Right to equality before courts and tribunals and to a fair trial’ HRC (2007); Communication No. 770/1997, Gridin v Russian Federation (2000) HRC paras 3.5 and 8.3, 10 Fair Trial Guidelines n 9 above, p.16, para (e)(1) 30. 164 Communication 301/05 Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 190. Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 117. See also before the African Court, The Matter of Thobias Mang’ara Mango and Shukurani Masegenya Mango v The United Republic of Tanzania, App. No. 005/2015, Judgment of 11 May 2018, paras 94–96. 165 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 124. 166 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 124. 167 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014.

E. Article 7(1)(b)

225

2. Statements by Public Officials The African Commission has imposed an obligation on public officials not to express a view on the guilt of the suspect.168 In a case against Sudan high-level government officers and investigators stated in public that the individuals were guilty of an attempted coup. The African Commission consequently ‘condemns the fact that State officers carried out the publicity aimed at declaring the suspects guilty of an offence before a competent court establishes their guilt’, finding a violation of Article 7(1)(b).169 Barnidge argues that ‘the decision, although helpful in a general sense, fails to state the exact level of negative state publicity that triggers an infringement of the right to be presumed innocent under the African Charter and leaves unanswered whether any negative state publicity suffices to find a violation. Furthermore, the decision does not define “negative state publicity” precisely’.170 The presumption of innocence also requires that ‘all public authorities ‘refrain from prejudging the outcome of a trial’.171 Negative publicity given by State officials which ‘clearly demonstrate the government’s hostility and bias towards the victims’ will violate Article 7(1)(b),172 particularly if those officials are high ranking.173 Hence, ‘State officials should desist from making any statements or taking any measures that would amount to treating the accused person as already guilty or imputing that such person is guilty, before a competent and impartial court has properly pronounced as such’.174 The State also has additional obligations to ensure that it, through legislation ‘or other means that others, such as the media, do not undermine the presumption of innocence of accused persons through adverse news coverage that leaves no other conclusion than the guilty of the accused person’.175 The influence of public officials may raise particular issues in the context of a civil law jurisdiction with an inquisitorial process where ‘where the prosecution acts under the authority of the Minister of Justice who is a member of the executive, the public statements of this authority must be exemplarily impartial and unequivocally neutral. This is the case given that the impression given to the public about a possibility and an intention to influence justice is much more pronounced and plausible in this case’.176 Although a ‘growing suspicion of a person in the course of the criminal proceeding is not per se contrary to the principle of presumption of innocence. Neither is the fact that such mounting suspicion justifies the adoption of safeguards—such as pre-trial incarceration—in regard to the suspect’s person’.177 However, ‘these must be 168 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 169 Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, para 56. See generally on media, R. Kakungulu-Mayambala, ‘Guilty before trial: Presumption of innocence and the public parading of criminal suspects before the press in Uganda’, 15 U. Botswana L.J. (2012) 53–80. 170 R. P. Barnidge, ‘The African Commission on Human and Peoples’ Rights and the Inter-American Commission on Human Rights: Addressing the right to an impartial hearing on detention and trial within a reasonable time and the presumption of innocence’, 4 AHRLJ (2004) 108–120, at 117. 171 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 190. 172 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 193. 173 Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, paras 54–56. 174 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 116. 175 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 116. 176 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016, para 101. 177 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 194.

226

8. Article 7: Right to a Fair Trial

implemented with the “discretion and circumspection necessary to respect the presumption of innocence” ’.178

3. Length of Detention on Remand The presumption of innocence may also be violated by the length of time an individual is detained pre-trial. Drawing upon the Inter-American Commission’s decision in Dayra María Levoyer Jiménez v Ecuador, the African Commission considered the detention of individuals for three years before their trial and then the trial took a further thirteen years before judgment. It held that this ‘essentially meant substituting pre-trial detention for their punishment. . . . [T]‌heir long preventive custody thus lost its purpose as an instrument to serve the interests of sound administration of justice’.179 They were ‘criminally punished by presuming their guilt even before they were heard’, a clear violation of Article 7 and the presumption of innocence.180

4. Lack of Reasoning for Decision may Violate Article 7(1)(b) Drawing upon European Court jurisprudence, the presumption of innocence requires that the court provide reasoning for the decision.181 Decision on guilt is considered to have only taken place once the ‘totality of evidence vitiates all reasonable doubt that the accused is guilty’.182 However, when the Ghanaian Fast Track High Court dismissed an individual’s submission on the basis that he had no case to answer and gave no reasons for this decision, the African Commission was not willing to find a violation stating that a ‘mere fact’ of failure to give reasons would not violate this provision. So, ‘[a]‌s a matter of practicality, it is the articulation of detailed reasons at such a preliminary stage of a trial that would risk the court pronouncing findings of fact based on evidence from one side, and indeed expressing some opinion on the guilt of the accused based on those facts which would be inconsistent with the presumption of innocence’.183 Failure to provide the victims with a copy of the judgment of the court, particularly if this is in the context of an unreasoned verdict, will be a violation of Article 7, the African Commission observing that the burden of proof in this context was on the State to rebut the allegations of the complainants.184 The obligation to give reasons is not just in relation to the presumption of innocence, but also Article 7(1)(a) and the right to a fair hearing.185 178 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 194. 179 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 209. 180 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 209. For discussion of pre-trial detention and presumption of innocence see N. Enonchong, ‘The African Charter on Human and Peoples’ Rights: Effective remedies in domestic law?’, 46(2) Journal of African Law (2002) 197–215. 181 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 118. 182 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 119. 183 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 121. 184 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 90. 185 Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 68. See also African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2.

F. Article 7(1)(c)

227

5. Right to Silence The African Commission has upheld the right to silence noting that silence ‘may not be used as evidence to prove guilt and no adverse consequences may be drawn from the exercise of the right to remain silent’.186 This is in line with some African constitutions.187 Although there is little case law on this issue, the principle has been reiterated on other occasions by the requirement that ‘[a]‌ny person arrested or detained shall have prompt access to a lawyer and, unless the person has waived this right in writing, shall not be obliged to answer any questions or participate in any interrogation without his or her lawyer being present’.188 Furthermore, it is not permitted to ‘take undue advantage of the situation of a detained person for the purpose of compelling or inducing him or her to confess, incriminate himself or herself, or to testify against another person’.189

F. Article 7(1)(c): Right to Defence Although Article 7(1)(c) was criticised for its restrictive wording,190 the African Commission has been open in its interpretation of this provision. The State should provide ‘efficient procedures and mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind’.191 This applies in relation to both criminal and civil cases and there should be public awareness programmes to alert individuals to their rights.192 In criminal procedures the accused should have a right to defend him or herself or should be informed of the right to be provided with legal representation.193 The right to defence thus encompasses ‘a range of related rights working together toward ensuring that the accused person is afforded a fair chance to present his or her defence to the charges’:194 Among others, it entails that the State must clearly outline the arraigned acts and the law under which the accused person is being charged. These are very critical in enabling the accused person to prepare the appropriate defence to the charges. It also entails that the accused must be permitted by law and in practice to call the necessary witnesses and produce relevant documents or other evidence to advance his or her defence. Together, these and other related rights constitute the right 186 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 9. 187 See e.g. South African Constitution, s 35(3)(h). See also T. Van der Walt and S. de la Harpe, ‘The right to pre-trial silence as part of the right to a free and fair trial: An overview’, 5 AHRLJ (2005) 70–88. 188 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section M2(f ). T. Harpe, ‘The right to pre-trial silence as part of the right to a free and fair trial: an overview’, 5 AHRLJ (2005) 70–88. 189 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 9. 190 E. A. Ankumah, ‘The right to counsel and the independence of judges against the background of the African Charter on Human and Peoples’ Rights’, 3 AJICL (1991) 573–588. 191 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section G. 192 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section G. 193 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992). 194 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 138.

228

8. Article 7: Right to a Fair Trial

of an accused person to be heard before being condemned, which is recognised by the comity of civilised nations.195

1. Legal Assistance of Choice The lawyer (who can be a legal representative or ‘other qualified persons’196) must be one of the individual’s choice, including a foreign lawyer.197 This is considered to be ‘an important right which underpins several others, such as freedom from ill-treatment and the right to prepare a defence’.198 In criminal proceedings, the right to choose the lawyer begins when the individual is ‘first detained or charged’.199 The Special Rapporteur on Human Rights Defenders raised concerns with the detention of four members of the International Criminal Court (ICC) and defence team of Seif Al-Islam, indicted by the ICC for crimes against humanity, and their inability to choose counsel and communicate freely with them. She condemned Libya for a violation of the right to a fair trial.200 Independent representation should be ensured in a number of ways. Firstly, they should have the necessary training in terms of human rights standards and ethics and are protected from intimidation or threats when carrying out their work, including by not being threatened with prosecution or sanctions.201 They have impunity for comments, written and oral, and in appearances before the court or authorities that are in ‘good faith’.202 Finally, they should be able to consult with clients and travel ‘freely both within their own country and abroad’.203

2. At All Stages of the Proceedings The ability to consult this lawyer and be represented by him or her should apply at ‘all stages of the proceedings’,204 and will include any preliminary investigations, ‘at least prior to and during any questioning by any authority’,205 administrative detention at trial and appeal.206 Prompt access to a lawyer is not satisfied if the victim has to wait Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 138. African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2. 197 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections G and N. 198 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 209. 199 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 200 Press release on the detention of four staff members of the International Criminal Court (ICC) in Libya, 21 June 2012. 201 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 202 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 203 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 204 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2. 205 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 8. 206 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 124. Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 75. The Matter of Thobias Mang’ara Mango and Shukurani Masegenya Mango v The United Republic of Tanzania, App. No. 005/2015, Judgment of 11 May 2018, at para 87. 195 196

F. Article 7(1)(c)

229

nine months after arrest.207 Where lawyers requested to be present at the interrogation of one of the alleged suspects in the Taba bombings and got no response from the Public Prosecutor’s Office in Egypt, the African Commission found a violation of this right.208 Similarly, denying the accused the ability to consult counsel at the start of the trial, when lawyers were only permitted to speak to the individuals through the bars in the actual court room, and not in private, was held to constitute a violation of Article 7(1)(c).209

3. Adequate Time and Facilities for Preparation of Defence This right includes the ability to communicate with counsel and access to materials, as well as the requirement that the trial should not proceed without counsel being notified of the trial date and charges against the individual.210 There should be ‘time to allow adequate preparation of a defence’ and this is relative, depending on the nature of the proceedings and the facts as well as the complexity of the case, access of the defence to evidence, the time limits set out in the relevant court or judicial rules and prejudice to the defence.211 An individual or his or her legal team should have access to documents and information including ‘all relevant information held by the prosecution that could help the accused exonerate him or herself ’.212 Access to documents held by the competent authorities should be granted ‘in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time’.213 There is also the right to ‘consult legal materials reasonably necessary for the preparation of his or her defence’.214 ‘All evidence submitted must be considered by the judicial body’.215 There is a right to ‘know and challenge’ evidence that may be used in the decision.216 This right should be exercised before judgment or sentence is rendered.217 After trial, but before appeal, there is a right of the defence of ‘access to (or to consult) the evidence which the judicial body considered in making a decision and the judicial body’s reasoning in arriving at the judgement’.218 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 90. Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 125. 209 Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 125. 210 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 211 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 212 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 213 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 214 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 215 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 216 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 217 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 218 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 207 208

230

8. Article 7: Right to a Fair Trial

In one communication an individual had been charged with an offence which had been established in a law at the time of commission. This law was then repealed. The individual argued that the repealed law was only mentioned for the first time when he appealed to the Court of Appeal and so prior to this he had not known of the charge against him to enable him to prepare his defence. The African Commission did not agree, noting that the Court of Appeal had only referred to the repealed law ‘as a historical fact the offence of ‘wilfully causing financial loss to the State’ existed at the time of commencement of the acts he was being tried for. Indeed the Complainant does not suggest that when trial eventually continued before the Fast Track High Court, section 179A(3)(a) of the Criminal Code had been transposed with its predecessor under the repealed law’.219 In relation to whether any defence provided was ‘adequate’, where an individual was represented for over five months and where the presentation of evidence in chief was ‘well led’ and submissions were ‘full and detailed’, the African Commission found that the individual had been defended appropriately.220 A further factor in consideration was that the individual had not raised any complaint about his defence during trial or appeal.221 The African Commission also gave particular weight to the view of the domestic Court of Appeal who considered the complainant to have been ‘adequately represented—I am unable to find that he did not have a fair trial or that the adequacy or inadequacy of his defense was such that it constitutes a special circumstance as to why the doctrines of functus officio or res judicata do not apply and that on this ground he be allowed a retrial’.222

4. Confidentiality of Communications Attorney–client privilege is protected such that ‘all communications and consultations between lawyers and their clients within their professional relationship are confidential’.223 Those arrested and detained should be able to be visited by, communicate and exchange information with their lawyer ‘in full confidentiality’224 and whilst this can be within the sight of officials it should be ‘out of the hearing’.225 The State should recognise this and provide ‘adequate facilities’ to enable this to be achieved.226

5. Protection for Lawyers The State needs to protect the security of lawyers and lawyers ‘shall not be identified with their clients or their clients’ causes as a result of discharging their functions’.227 Lawyers Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, paras 139 and 141. 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 195. 221 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 195. 222 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 195. 223 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 224 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 225 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 8. 226 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N. 227 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections I(g) and (h). 219 220

F. Article 7(1)(c)

231

have rights to freedom of expression, belief and association and specifically to ‘take part in public discussion of matters concerning the law, the administration of justice and the promotion and the protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession’.228 This also includes an ability to form their own associations.229 The African Commission has encouraged States to ‘not prevent’ cross-border collaboration among the legal profession and to establish relevant agreements.230 Where lawyers in one case were physically beaten at the national court, the African Commission found that this ‘has a chilling effect on their ability to defend their clients’ in violation of Article 7(1)(c).231 In turn, there are obligations on lawyers themselves to ‘maintain the honour and dignity of their profession as essential agents of the administration of justice’ and ‘respect the interests of their clients’; to uphold human rights in national and international law; as well as act ‘freely and diligently in accordance with the law and recognized standards and ethics of the legal profession’.232 The legal profession should create codes of conduct and there should be appropriate procedures for processing complaints against lawyers with resulting impartial disciplinary proceedings.233

6. Equality of Arms The principle of equality of arms is the ‘corollary of the right to a fair trial’.234 This applies regardless of whether the proceedings are criminal, civil, military or administrative.235 Although it is not expressly included in Article 7 of the ACHPR, the African Commission has referred to it ‘in order to stress the need for fairness, independence and impartiality not only as factors, but also as an independent component of a fair trial’.236 It encompasses the proper preparation of defence, presentation of arguments and ability to respond to those of the prosecution and equal access to the courts.237

228 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 229 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 230 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section J. 231 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, paras 134–135. 232 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 233 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section I. 234 Communication 302/05 Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 119. See R. J. V. Cole, ‘Validating the normative value and legal recognition of the principle of equality of arms in criminal proceedings in Botswana’, 56 JAL (2012) 68–86. 235 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2. 236 Communication 302/05 Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 126. 237 Communication 286 /2004, Dino Noca v Democratic Republic of the Congo, para 186.

232

8. Article 7: Right to a Fair Trial

In criminal proceedings the concept entails a duty of ‘procedural equality between the accused and the public prosecutor’238 and this has been interpreted to mean that they should have equal time to present evidence and be witnesses for both sides ‘be given equal treatment in all procedural matters’.239 Failure to re-open the proceedings, thereby preventing the complainant from presenting his defence and the parties from discussing whether the case should be continued, would violate the principle of equality of arms.240

7. The Right to Call Witnesses and Cross-examination An accused should be able to ‘[e]‌xamine or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them’.241 This right ‘may’ be limited, however, to those witnesses ‘whose testimony is relevant and likely to assist in ascertaining the truth’.242 This requires that names of those witnesses that the prosecution intends to call should be given to the defence ‘within a reasonable time prior to trial’.243 There is a right of the accused to be present when witnesses give their testimony although this can be limited ‘if a witness reasonably fears reprisal by the defendant, when the accused engages in a course of conduct seriously disruptive of the proceedings, or when the accused repeatedly fails to appear for trivial reasons and after having been duly notified’.244 These circumstances are to be considered ‘exceptional’245 and the list does not appear to be exhaustive; if the lawyer for the accused, but not the accused, is present this appears to be sufficient.246 A court should hear prosecution and defence witnesses or provide reasons if it does not do so.247 This requires the State to be ‘proactive . . . in ascertaining whether the Applicant no longer intended to call his witnesses either because he did not actually want them to appear on his behalf or because he did not have the means to obtain their attendance’.248

238 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 239 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 240 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 12 October 2013, paras 198–200. 241 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 242 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 243 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. See also The Matter of Thobias Mang’ara Mango and Shukurani Masegenya Mango v The United Republic of Tanzania, App. No. 005/2015, Judgment of 11 May 2018, paras 76–79. 244 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 245 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 246 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 247 In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, para 63. 248 In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, para 66.

G. Article 7(1)(d)

233

Cross-examination of witnesses by the defence can be either done at pre-trial or trial stage.249 Where witnesses are victims of sexual violence or are children then the defendant may be restricted in being able to cross-examine them ‘personally’.250 In all events the right to a fair trial of the accused needs to be taken into account when considering such limitations.251 Testimony from anonymous witnesses is permitted but only in ‘exceptional circumstances, taking into consideration the nature and the circumstances of the offence and the protection of the security of the witness and if it is determined to be in the interests of justice’.252 In one case, the complainant argued his right to defence had been violated as an order which had previously been granted by the Fast Track High Court in Ghana required a representative of a company to testify and provide documents to the court. This order was then rescinded after that the company successfully argued that it was immune from the court processes. The African Commission held that the question of whether the company should appear before the court was a matter for domestic law and not one on which the African Commission could rule.253 It noted, in addition, that the right to call witnesses is not an absolute right, and immunity before domestic courts may be a justifiable limitation on the right. This would require consideration of whether immunity was ‘of the type that is generally accepted as customary international law by the comity of nations, in which case it would constitute a recognised limitation of the right in question’.254 As the complainant had not presented any material ‘beyond the bare allegation’, the African Commission could not pronounce on this issue.255

G. Article 7(1)(d): Trial Within Reasonable Time by Impartial Court/Tribunal 1. Within a Reasonable Time Article 7 requires that trial should be within a reasonable time.256 This has been interpreted as meaning that individuals have ‘an entitlement to a determination of their rights and obligations without undue delay and with adequate notice of and reasons for the decisions’.257 This arises in relation to those ‘charged with a criminal offence’. It includes the ‘right to a trial which produces a final judgement and, if appropriate a sentence without undue delay’.258 Noting concerns with the failure to hold trials within a reasonable time 249 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 250 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 251 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992); African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 252 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 253 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 143. 254 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 145. 255 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 145. 256 ACHPR/Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992). 257 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section A2. See also Report of Promotional Visit to Cameroon by Professor E.V.O. Dankwa, 13–19 September 1998, p.7. 258 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N5.

234

8. Article 7: Right to a Fair Trial

in Malawi, the African Commission called on detainees to be released conditionally or unconditionally.259 The prosecution should produce evidence on time and act with due diligence in ensuring a speedy trial.260 Any delay in bringing the case before domestic courts may also have an impact on the requirement to exhaust domestic remedies under Article 56 when the African Commission considers the admissibility of the communication before it.261 Whilst the ACHPR does contain a definition of what is reasonable,262 the African Commission has held that being in detention for two years without charges being brought is unreasonable.263 Inevitably, indefinite detention without trial will also violate Article 7,264 as will ‘many years of detention without trial’,265 seven years in one instance266 and fifteen years in another ‘without any action being taken on the case, or any decision being made either on the fate of the concerned persons or on the relief sought’.267 Where individuals were brought before a judge one year after their arrest, this was also found to be a violation.268 The lodging of an appeal on 19 September 1995 against a judgment of the civil chamber of the court of first instance in Cotonou had not resulted in any judgment by the appeal court when the African Commission was seized of the communication on 8 April 1997. The African Commission found the case before the Appeal Court was unduly prolonged and in violation of Article 7(1)(d).269 However, as to what is reasonable is relative, depending on the circumstances. The African Commission has stated that where, for example, there were ‘a large number of arrested persons and the inherent risk that there were no sufficient grounds for the arrest and detention of at least some of the persons, it was all the more critical to bring all arrested individuals before a judge within the shortest possible time’.270 As to whether the delay was justified or not, will depend on a range of factors including ‘the complexity of the case, the conduct of the parties, the conduct of other relevant

259 Concluding Observations and Recommendations on the Initial and Combined Periodic Report of the Republic of Malawi on the Implementation of the African Charter on Human and Peoples’ Rights (1995– 2013), 57th Ordinary Session, 04–18 November 2015, Banjul, The Gambia, para 66. 260 Communication 301/05 Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011. 261 Communication 199/97, Odjouoriby Cossi Paul v Benin, 4 June 2004, para 21. Before the African Court, In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment of 28 March 2014, para 120. 262 N. J. Udombana, ‘The African Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’, 6 AHRLJ (2006) 299–332, at 318. 263 Communication 153/96, Constitutional Rights Project v Nigeria, 15 November 1999, at para 20; Communication 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997, para 19. 264 Communications 64/92-68/92-78/92_7AR, Krishna Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, 27 April 1994, para 9. 265 Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa by Adv. Pansy Tlakula, presented during the 50th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 24 October–7 November 2011. 266 Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996, para 12. 267 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 40. 268 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 88. 269 Communication 199/97, Odjouoriby Cossi Paul v Benin, 4 June 2004, para 28. 270 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 88.

G. Article 7(1)(d)

235

authorities, whether an accused is detained pending proceedings, and the interest of the person at stake in the proceedings’.271 Other elements include the length of and reasons given for the delay; the ‘effect of the delay on the personal circumstances of the detained person and witnesses’; ‘the actual or potential prejudice caused to the State or the defence by the delay’; its effect on the administration of justice, the public or victims’ and ‘any other factor which in the opinion of the judicial authority ought to be taken into account’.272 So where an individual rejected and dismissed a number of lawyers, changing his mind in the process, over a period of around eighteen months, the African Commission found that ‘most of the delay was the result of the appellants own doing’.273 No violation was found.

a. Institutional Structures Result in Lack of a Speedy Trial The State has the duty to organise its judicial system so as to guarantee the right to a fair trial within a reasonable time.274 If there is a delay, then it is the responsibility of the State to provide ‘specific reasons for the delay’ and a ‘mere affirmation that the delay was not excessive . . . is not sufficient’.275 Even if the State did not intend to cause the delay, the impact on the defendants can still be considered by the African Commission.276 A newly incumbent Ethiopian government dismissed nearly 300 judges and made changes to State institutions. The complainants alleged this impacted on their ability to have a speedy trial. Although the government did not respond to these allegations, the African Commission held that it was ‘unable to determine whether the delays in promptly concluding the trial in the instant case was due partly to the fact that the Respondent State dismantled almost all state institutions, including the court system, as the Respondent State has not specifically addressed this allegation’ but that applying its rule, it would take the facts as presented by the complainants as proven.277 Furthermore, the complainants in the same case alleged that the government had established a model of transitional justice which resulted in significantly more evidence being required. The African Commission referred to a statement by the government which ‘seem to support the allegation of the Complainant’ and noted the documentary evidences as being insurmountable. Without further response from the government, the African Commission found in violation.278

271 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section N5. 272 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, April 2015, para 13. 273 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, paras 193–199. 274 Communication 301/05 Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 235. 275 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 236. 276 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 236. 277 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 218. 278 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 220.

236

8. Article 7: Right to a Fair Trial

b. Lack of Availability of Habeas Corpus and Other Safeguards In the same case it was also argued that there were insufficient legal safeguards at various stages which impacted on the delay to the trial, including the lack of availability of habeas corpus to some of the victims and statutes of limitations. The African Commission held that, in the absence of any evidence to the contrary, the government had violated Article 7(1)(d).279

c. Joinder of Charges or Accused Joinder of charges or accused persons so that there are no separate trials should not be permitted if this causes ‘serious prejudice to the accused or to the interests of justice’.280 In the Dergue trials in Ethiopia more than seventy individuals were charged with a number of offences, but the approach was not consistent, with one person, for instance, being charged with one count, whereas another was charged with several.281 This led to delays with a co-accused having to wait if the other defendant was absent or while evidence was concluded against those tried in absentia. Again as the government had not addressed the allegation the African Commission found for the complainants.282

d. Specificity of the Charges If the charges were insufficiently clear this may delay the proceedings. In Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, the African Commission, stressing that the ‘accused’s ability to fully comprehend the charges brought against him is fundamental to a fair trial’,283 reiterated that this is particularly the case where the matter is ‘serious’. Given that there was no evidence to the contrary from the State, the African Commission agreed with the complainants that lack of clarity of the charges arose because ‘several concepts and legal doctrines were lumped together in one very long sentence’.284

2. By an Impartial Court or Tribunal The African Commission has held that Article 7 entails a right to be heard by a ‘competent court’.285 A competent court can ‘guarantee a fair trial’, competence being ‘a sensitive concept which encompasses facets such as the expertise of the judges and the inherent justice of the laws under which they operate’.286 A competent court or tribunal is one 279 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 225. 280 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, paras 226–228. 281 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 151. 282 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, paras 226–228. 283 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 231. 284 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 231. 285 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 112. 286 Communication 48/90, 50/91, 52/91, 89/93 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 62; Communication 302/05 Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 113. N. J. Udombana, ‘The African Commission on

G. Article 7(1)(d)

237

that has ‘been given that power by law: it has jurisdiction over the subject matter and the person, and the trial is being conducted within any applicable time limit prescribed by law’.287 A hearing in the context of Article 7 does not necessarily have to be judicial. When considering the compatibility of the Lunatics Detention Act in the Gambia with the ACHPR, the African Commission noted that ‘[t]‌he guarantees in Article 7(1) extend beyond hearings in the normal context of judicial determinations or proceedings. Thus Article 7(1) necessitates that in circumstances where persons are to be detained, such persons should at the very least be presented with the opportunity to challenge the matter of their detention before the competent jurisdictions that should have ruled on their detention’.288 The presence of armed forces in a court house, where this was done without first alerting the head of the judiciary, and with the intention of intimidating the judge, was found to violate Article 7(1).289 There is a very close relationship between Article 7 and the requirement of impartiality and the obligation in Article 26 to guarantee the independence of the courts. The two articles have often been applied interchangeably by the African Commission, cited together290 and without distinction. Some clarity in distinguishing between the two provisions is provided by Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt.291 Here the African Commission stated that a ‘combined reading of Articles 7 and 26 brings to the fore two core issues—having access to appropriate justice and the other relating to the independence of justice system. These two issues constitute the bedrock of a sound justice delivery system. The African Commission believes that the right to a fair trial is analogous with the concept of access to appropriate justice and requires that one’s cause be heard by efficient and impartial courts’.292 Thus, impartiality in Article 7(1)(d) is ‘complemented’ by the duty to guarantee independent courts in Article 26.293 Similarly, in another case it has held that there are two duties: the ‘obligation of having an accessible and appropriate court and the obligation of a fair trial (the right to have one’s cause heard fairly). The right to a fair trial is a corollary of the concept of access to an appropriate court. The right to a fair trial requires that one’s cause be held by efficient and impartial courts’.294 Whereas Article 7 focuses on the ‘right to be heard by

Human and Peoples’ Rights and the development of fair trial norms in Africa’, 6 AHRLJ (2006) 299–332, at 312. 287 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. Communication 284/ 03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 172. 288 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, paras 70–72. 289 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, paras 112–121. 290 E.g. Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009. 291 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011. 292 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 195. 293 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 196. 294 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 76.

238

8. Article 7: Right to a Fair Trial

impartial courts’, Article 26 concerns the ‘independence of the courts; the Commission notes that States have the duty to put in place credible institutions for the promotion and protection of human rights. Article 26 being the necessary appendix of Article 7, one can expect a fair trial only before impartial courts’.295 However, to suggest that the African Commission has made a consistently clear-cut distinction between the two provisions would be misleading. For example, where members of a military court were appointed by the President of the DRC this was not considered to be an impartial court in violation of Article 7. A violation of Article 26 was not brought by the complainants.296 Similarly, the African Commission has noted that the ‘obligation to be independent is one and the same as the obligation to be impartial’.297 For the purposes of this Commentary, therefore, attempts have been made to distinguish between the two articles where referred to by the African Commission and Court but close regard should be had to the Chapter on Article 26 when considering interpretation of this aspect of Article 7(1)(d). As to what is impartial, this has been interpreted by the African Commission has having both subjective and objective perspectives: ‘In a subjective manner, the impartiality of a judge is gauged by his internal inclinations. Since it is impossible to infer from this inclination objectively, it was simpler to conclude that subjective impartiality be assumed until proven otherwise’.298 It will only be an appearance of the impartiality of the court but also the ‘calibre of its members’.299 In its Principles and Guidelines on the Right to a Fair Trial, the African Commission sets out the requirements of an impartial tribunal as being based on three elements: the judicial officer should be in a position to ‘play a crucial role in the proceedings’; their opinion would influence the decision-making; and ‘the judicial official would have to rule on an action taken in a prior capacity’.300 The body should also base its decision ‘only on objective evidence, arguments and facts presented before it’ and takes a decision ‘without any restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter or for any reason’.301 The impartiality of the judicial body should also be open to challenge.302 Impartiality will be undermined if ‘a former public prosecutor or legal representative sits as a judicial officer in a case in which he or she prosecuted or represented a party’; a judicial official ‘secretly participated in the investigation of a case’; has ‘some connection’ with the parties or the case; sits on the appeal when they participated in the decision of the lower body; 295 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 77. Similarly, ‘Article 7 focuses on the individual’s right to be heard, Article 26 speaks of the institutions which are essential to give meaning and content to that right’, 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, para 15. 296 Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 78. 297 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 80. 298 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 80. 299 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 81. 300 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 301 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 302 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B.

G. Article 7(1)(d)

239

or consults ‘a higher official authority before rendering a decision in order to ensure that his or her decision will be upheld’.303 In such cases there would be ‘an obligation’ to step down.304 The composition of a tribunal which is determined by the executive branch of government may violate Article 7(1)(d). In a case against Egypt, the President of Egypt could suspend a case, order the release of an individual before the case was determined by the Supreme State Security Emergency Court and render its decisions final, without appeal. This was considered to be in violation of this provision,305 with the African Commission holding that ‘a tribunal cannot be said to be independent when the implementation of its decision squarely vests on the executive branch of the Government, in this case the Head of State’.306 Compliance with Article 7 by military tribunals has been considered on several occasions by the African Commission.307 It has held that ‘a military tribunal per se is not offensive to the rights in the Charter nor does it imply an unfair or unjust process’, but that they ‘must be subject to the same requirements of fairness, openness and justice, independence and due process as any other tribunal or court’.308 This is similar to the approach adopted by some domestic constitutional courts.309 In Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, five soldiers and a civilian were sentenced to death by a Special Military Tribunal whose composition included serving judges but whose Chair was a member of the Provisional Ruling Council (the government). The African Commission noted the military context in which the allegations were made: issues brought before the Commission have to be judged in the environment of a military junta and serving military officers accused of offences punishable in terms of military discipline in any jurisdiction. This caution has to be applied especially as pertaining to serving military officers. The civilian accused is part of the common conspiracy and as such it is reasonable that he be charged with his military co-accused in the same judicial process. We are making this decision conscious of the fact that Africa continues to have military regimes that are inclined to suspend the constitution, govern by decree and seek to oust the application of international obligations.310

However, pointing out international human rights obligations the African Commission stated this military tribunal was under an ‘undemocratic military regime’: ‘In other words, 303 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 304 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 305 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, paras 198–200. 306 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 204. 307 R. Naluwairo, ‘Military courts and human rights: A critical analysis of the compliance of Uganda’s military justice with the right to an independent and impartial tribunal’, 12 African Human Rights Law Journal (2012) 448–469. 308 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001, para 44. 309 Ugandan Constitutional Court: Uganda Law Society and Jackson Karugaba v Attorney General, Constitutional Petitions 02 of 2002 and 08 of 2002 (unreported) as cited in R. Naluwairo, ‘Military courts and human rights: A critical analysis of the compliance of Uganda’s military justice with the right to an independent and impartial tribunal’, 12 African Human Rights Law Journal (2012) 448–469, at 451-2. 310 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001, para 25.

240

8. Article 7: Right to a Fair Trial

the authority of the executive and the legislature has been subsumed under military rule. Far from this suggesting that military rulers have carte blanche to govern at the whim of a gun, we wish to underscore the fact that the laws of human rights, justice and fairness must still prevail’.311 Article 7 should apply to both military personnel and civilians.312 Examining the issues in the case, the African Commission found that the trial violated Article 7(1)(c) of the ACHPR because the individuals were not represented adequately and by counsel of their choice but by military lawyers, a situation which ‘is capable of exposing the victims to a situation of not being able to communicate, in confidence, with counsel of their choice’.313 The failure to permit an appeal from the Tribunal and the in camera nature of most of the trial were also in violation of Article 7.314 As to the independence of the military tribunal, the African Commission underscored that military tribunals must satisfy Article 7 requirements and as violations had been found on other grounds, ‘it is not necessary to find that a tribunal presided over by a military officer is a violation of the Charter. It has already been pointed out that the military tribunal fails the independence test’.315 The African Commission’s approach to whether civilians should be tried by military tribunals has not always been consistent.316 In a case against Nigeria in 2001 where one civilian was tried for an attempted coup with four soldiers, the Commission was ‘not convinced that in the circumstances of this case, it was possible to have a separation of trials nor has it been alleged that the civilian accused applied for such separation. It may well be that the cause of justice would not have been served by such a separation’.317 However, in its 2003 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance, it provides categorically that civilians should not ‘in any circumstances whatsoever’ be tried by military courts: ‘[t]‌he only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel’.318 Neither should military courts ‘try offences which fall within the jurisdiction of regular courts’.319 Following a similar line in a 2009 decision, civilians and soldiers ‘accused of civilian offences are tried by a Military Court presided over by military officers for the theft of drums of gas oil is a flagrant violation of the above-mentioned requirements of good justice . . . the trial of both civilian and militaries [sic] by a military tribunal presided over by a military officer on matters of a civilian nature constitutes an infringement of the requirements of fair justice’.320 311 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001, para 26. 312 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001, para 27. 313 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001, para 31. 314 ACHPR/Res.284, Resolution on the Suppression of Sexual Violence against Women in the Democratic Republic of Congo, 12 May 2014, paras 34–42. 315 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001, para 44. 316 Article 7 could encompass military courts, see A. Tshivhase, ‘Military courts in a democratic South Africa: An assessment of their independence’ 6 New Zealand Armed Forces Law Review (2006) 96–127. 317 Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001, para 42. 318 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section L. 319 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section L. 320 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, paras 86–87.

H. Clemency and Amnesty

241

Traditional forms of justice and traditional courts must also respect international human rights standards, as set out in Article 7.321 Elaborating further, the African Commission has required that States ensure the independence and impartiality of traditional courts namely that members of traditional courts should not express opinions which would influence the decision making; have a ‘connection or involvement with the case or a party to the case’, or have a monetary or other interest in the outcome.322 The State should provide in law the complaints and discipline process for traditional courts and their members and the same rules of fair trial in terms of a fair hearing, representation by legal counsel and independence, will apply.323

H. Clemency and Amnesty The African Commission has made reference to the evolution of a rule of customary international law which prohibits amnesties which lead to impunity for serious human rights violations.324 In numerous decisions and on other occasions it has held that amnesty laws may be incompatible with the ACHPR and international human rights law.325 So where the Mauritanian government had issued enactment No. 023 93 in June 1993 which gave amnesty to alleged murderers and prevented any judicial action being brought by the alleged victims, the African Commission held that ‘an amnesty law adopted with the aim of nullifying suits or other actions seeking redress that may be filed by the victims or their beneficiaries, while having the force of law cannot shield that country from fulfilling its international obligations under the Charter’.326 In addition, Clemency Order No. 1 of 2000 in Zimbabwe had prevented the prosecution of perpetrators of ‘politically motivated crimes’ which involved acts such as kidnapping and destruction of property. The African Commission held that these prevented the victims from seeking remedy and compensation and violated Article 7(1) of the African Charter and the right to have their cause heard.327 Similarly, where the government had granted immunity to individuals involved in a change of government in 1999 in Côte d’Ivoire, it alleged that this was limited to ‘the 321 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section Q. See also C. Nyamu-Musembi, ‘Are local norms and practices fences or pathways? The example of women’s property rights’ in A. A. An-N’aim (ed), Cultural Transformation and Human Rights in Africa, Zed Books, 2002; J. DeGabriele and J. Handmaker, ‘Justice for the people: Strengthening primary justice in Malawi’, 5 AHLRJ (2005) 148–170. 322 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section Q. 323 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section Q. 324 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 91, citing Question of the Impunity of perpetrators of human rights violations (civil and political), prepared by Mr Louis Joinet for the Sub-commission on Prevention of Discrimination and Protection of Minorities, pursuant to Sub-commission decision 1996/119; General Comment No. 20 on Article 7 of the ICCPR, the UN Human Rights Committee; Human Rights Committee, Hugo Rodriguez v Uruguay. 325 Guideline No. 16 of the Robben Island Guidelines adopted by the African Commission during its 32nd Session in October 2002. 326 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 83. 327 See in ‘right to have cause heard’ above section C.1. Communication 245/02: Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 211.

242

8. Article 7: Right to a Fair Trial

Members of the National Committee or Public Security (CNSP) and all the perpetrators of the events’ and so did not cover those who were alleged to have taken part in looting. The African Commission found that this appeared to grant ‘total and complete immunity’ for members of the CNSP.328 Further, ‘[i]‌f there appears to be any possibility of an alleged victim succeeding at a hearing, the applicant should be given the benefit of the doubt and allowed to have their matter heard. Adopting laws that would grant immunity from prosecution of human rights violators and prevent victims from seeking compensation render the victims helpless and deprives them of justice’.329 Consequently this complete immunity and the failure to put in place ‘alternative adequate legislative or institutional mechanisms to ensure that perpetrators of the alleged atrocities were punished, and victims of the violations duly compensated or given other avenues to seek effective remedy’, resulted in a violation of Articles 1 and 7(1). Such a granting of amnesty thereby violated the right to a remedy for the victims.330

I. Article 7(2): Non-retroactive Criminal Punishment Article 7(2) of the African Charter reads: No one may be condemned for an act or omission which did not constitute a legally punishable offence for which no provision was made at the time it was committed.

Where decrees have had retrospective effect, there will be a violation of Article 7(2). The passing of the Economic Crimes (Specified Offences) Decree of 25 November 1994 by the Gambian government but which was said to have come into force in July earlier that same year was held by the African Commission to be a violation of Article 7(2). The Commission noted that the purpose of this provision ‘is to ensure that, citizens at all times are fully aware of the state of the law under which they are living’.331 Similarly, the rule of law is undermined if laws are retroactive: ‘since individuals cannot know at any moment if their actions are legal. For a law-abiding citizen, this is a terrible uncertainty, regardless of the likelihood of eventual punishment’.332 Even if the law was not applied in practice it will still be deemed to have violated Article 7(2) as ‘potential prosecution is a serious threat’.333 In one case against Nigeria, the Nigerian government adopted the Legal Practitioners (Amendment) Decree 1993 which created a new governing body of the Nigerian Bar Association whose composition was principally individuals nominated by the government and where only thirty-one of the 128 members were nominees of the Bar Association.334 This 328 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 90. 329 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 97. 330 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 98. 331 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 63. 332 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998, para 59. 333 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998, para 60. 334 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995.

I. Article 7(2)

243

decree was issued on 18 February 1993 but said to have come into force nearly a year earlier, on 31 July 1992. The African Commission held that its retrospective application violated Article 7(2).335 The rule applies equally to administrative tribunals conducting disciplinary proceedings.336 Recognising that this is a ‘clear and well established principle recognised by the comity of civilised nations both at the international level and within national legal systems’,337 the African Commission was required to rule on a situation where an individual was charged with a number of offences which were set out in section 179A(3)(a) of the Criminal Code 1960 (Act 29) of the Laws of the Republic of Ghana. This clause was inserted by Amendment Act 458 which came into force in July 1993, although the acts of which the complainant was accused occurred prior to this date. The State argued that the acts took place in 1996, producing a charge sheet dated to this effect. Although the African Commission stressed it was ‘not a court of appeal’, it did need to decide whether ‘domestic courts proceeded to try him for acts which did not constitute known offences under the laws of the Respondent State at the time those acts were performed’.338 The Commission considered that it was not its role to determine whether the acts were a criminal offence, this was a matter for the domestic system. Rather, the: only question the Commission is called upon to determine is whether domestic courts failed to live up the undertaking the Respondent State made under Article 7(2) of the Charter. This as of necessity will require the Commission to examine whether the charges against the Complainant before the Fast Track High Court amount to retrospective application of section 179A(3)(a) of the Criminal Code.339

The African Commission found for the State, and that the acts had occurred in 1996 after the relevant part of the Criminal Code came into force and that it was ‘satisfied that the domestic courts proceeded with trial based on charges whose particulars alleged acts which occurred after the relevant law was in force, and thus the relevant offence was known’.340 The African Commission went further to hold that even if the acts were of a continuing nature, there was still no violation of Article 7(2) ‘so long as acts which occurred in 1996 exclusively constitute a known criminal offence and the trial focussed only on those acts’.341 Conversely, there is a right to benefit from a lighter sentence or administrative sanction.342 In addition, the State should apply a lighter sentence that is created prior to the accused having fully served their sentence.343 A law providing for a lesser penalty was adopted during the trial of one accused in the DRC who was subsequently sentenced to the death penalty. The African Commission held Article 7(2) had been violated.344 335 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 13. 336 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, N.7. 337 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 128. 338 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 133. 339 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 134. 340 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 135. 341 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 137. 342 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 343 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections N6–9. 344 Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic Republic of Congo, 28 May 2014, para 80.

244

8. Article 7: Right to a Fair Trial

J. Rights for Children The African Commission makes little reference to the rights of the child, this being principally seen as the domain of the African Committee of Experts on the Rights and Welfare of the Child under the ACRWC. However, its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa ensure not only that fair trial rights are applicable to adults but also to children, and that there are additional guarantees.345 These include that there is adequate training for law enforcement and judicial officials ‘to deal sensitively and professionally with children who interact with the criminal justice system whether as suspects, accused, complainants or witnesses’; the age of criminal responsibility should be provided for in law and not fall below 15 years of age; and that contacts with children should be ‘conducted in a manner that respects their legal status, avoids harm and promotes the well-being of the child’.346 Parents, guardians or family relatives should be notified if a child is arrested or detained; there is particular mention of the child’s right to privacy with respect to ‘undue publicity and no information that could identify a child suspected or accused of having committed a criminal offence shall be published’.347 States should also consider alternatives to criminal prosecution and, with the consent of the child and their parents, ways of dealing with the child without a formal trial. These could include community, customary or traditional mediation; warnings and cautions as well as ‘measures to help the child at home with education and with problems and difficulties’; conferences between the child, victim and the community; and community programmes.348 Children should not be held on remand unless this is in ‘exceptional circumstances’, as a last resort and ‘for the shortest possible period of time’ and not beyond forty-eight hours.349 Children detained on remand should be kept separately from adults. In addition to those guarantees provided to adults children should ‘be treated in a manner consistent with the promotion of the child’s dignity and worth; to have the assistance of his or her parents, a family relative or legal guardians from the moment of arrest’; and to be dealt with through separate procedures and institutions which are ‘based on respect for the rights of the child, shall take into account the vulnerability of children and shall promote the child’s rehabilitation’.350 During trial, ‘if appropriate and in the best interests of the child’, the child should also have the assistance of his or her parents, a family relative or legal guardians.351 A number or principles are also set out to guide the authorities dealing with the case. These include that the ‘action taken against the child shall always be in proportion not 345 African Commission, Africa, 2003, section O. 346 African Commission, Africa, 2003, section O. 347 African Commission, Africa, 2003, section O. 348 African Commission, Africa, 2003, section O. 349 African Commission, Africa, 2003, section O. 350 African Commission, Africa, 2003, section O. 351 African Commission, Africa, 2003, section O.

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in

K. Double Jeopardy

245

only to the circumstances and gravity of the offence but also the best interest of the child and the interests of society’; a focus on non-custodial options ‘which emphasise the value of restorative justice’, such as probation, care, guidance and supervision orders; fines, treatment, and participation in group counselling.352 In terms of sentencing, imprisonment should only be ordered if the child has ‘committed a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response’; and neither the death penalty nor corporal punishment must be imposed on children.353 Child witnesses should be given particular protection including that they give evidence ‘with the minimum distress’.354 In addition, States must ensure that child witnesses are only questioned in the presence of their parents, family relative or legal guardian, or social worker in the alternative, and that this is done through an intermediary.355 The questioning should be conducted so that it ‘avoids any harm and promotes the well-being of the child’ and the child witness, especially if a victim of sexual abuse, should not come into contact with the alleged perpetrator.356 There ought to be protection of the right to privacy of the child and information on the identity of the child witness should not be published.357 A child witness must be permitted to testify through an intermediary ‘if necessary’; ‘where resources and facilities permit video-recorded interviews should be allowed, and screens to shield the witness from the defendant in court.358 The public should not be permitted in court so evidence can be given in private, particularly in cases of sexual offences and those involving intimidation.359 Other protections include the wearing of ordinary dress by judicial officers, prosecutors and lawyers while the child witness is giving evidence. Defendants should not be permitted personally to cross-examine child witnesses and there should be restrictions on when the sexual history of a child victim can be presented as evidence in sexual offences trials.360

K. Double Jeopardy The African Commission prohibits a second trial for the same offence, namely ‘for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’.361 352 African Commission, Principles Africa, 2003, section O. 353 African Commission, Principles Africa, 2003, section O. 354 African Commission, Principles Africa, 2003, section O. 355 African Commission, Principles Africa, 2003, section O. 356 African Commission, Principles Africa, 2003, section O. 357 African Commission, Principles Africa, 2003, section O. 358 African Commission, Principles Africa, 2003, section O. 359 African Commission, Principles Africa, 2003, section O. 360 African Commission, Principles Africa, 2003, section O. 361 African Commission, Principles Africa, 2003, sections N6–9.

and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in

246

8. Article 7: Right to a Fair Trial

L. Sentencing and Punishment The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance provide that those punishments which result in deprivation of liberty should have ‘an essential aim the reform and social re-adaptation of the prisoners’.362 As noted in Chapter 5 (Article 4), the death penalty is not consistently prohibited per se by the African Commission but it has held that it should only be imposed for ‘the most serious crimes in accordance with the law in force at the time of the commission of the crime’ and never on expectant mothers or mothers of infants and young children.363 Overall, ‘the essential aim of the penitentiary system will be the reformation, the integration of the mother to the family and social rehabilitation’.364 Hence, ‘special treatment’ should be given to pregnant women and mothers of infants and young children, including that the imposition of a non-custodial sentence to expectant mothers and to mothers of infants and young children ‘always be first considered’. Alternative measures to custody can ensure that mothers are not imprisoned with their children.365

M. Victims Particular mention is made of victims by the African Commission in its Principles and Guidelines on the Right to Fair Trial and Legal Assistance.366 Victims should be ‘treated with compassion and respect for their dignity’, with access to justice and redress. Specific measures should be put in place for female victims. States should ensure victims are interviewed by female police or judicial officials367 and that they are protected against cruel, inhuman or degrading treatment.368 With respect to complaints of violence against women, States have a general obligation to investigate and punish ‘all complaints . . . whether those acts are perpetrated by the state, its officials or agents or by private persons’.369 For female victims of violence, procedures should be ‘fair and effective . . . and accessible’ and provide remedies which include restitution, reparation or prevention of further violence.370 In addition, there should be ‘respect for the inherent dignity of the human persons, especially of women who participate in legal proceedings as complainants, witnesses, victims or accused’.371 362 African Commission, Principles Africa, 2003, sections N9. 363 African Commission, Principles Africa, 2003, sections N9. 364 African Commission, Principles Africa, 2003, sections N6–9. 365 African Commission, Principles Africa, 2003, section N9. 366 African Commission, Principles Africa, 2003, section P. 367 African Commission, Principles Africa, 2003, section P. 368 African Commission, Principles Africa, 2003, section P. 369 African Commission, Principles Africa, 2003, section P. 370 African Commission, Principles Africa, 2003, section P. 371 African Commission, Principles Africa, 2003, section A2.

and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in and Guidelines on the Right to a Fair Trial and Legal Assistance in

M. Victims

247

Victims should be able to gain redress through ‘formal or informal procedures that are expeditious, fair, inexpensive and accessible’.372 They should be informed of their rights in this regard. There are obligations on judicial officers, prosecutors and lawyers to ‘facilitate the needs of victims’.373 This ought to include information on the proceedings and outcome of the cases; permitting the victims to present their views ‘where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system’; and giving them assistance throughout the proceedings.374 In addition, States must take measures ‘to minimize inconvenience to them, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation’.375 Delay must be avoided and informal mechanisms including ‘traditional or customary practices should be utilized where appropriate to facilitate conciliation and redress for victims’.376 ‘Fair restitution’, including ‘return of property, payment for loss or harm suffered, reimbursement of expenses, the provision of services and the restoration of rights’ should be provided to ‘victims, their families or dependants’.377 Such restitution could be considered as an alternative to criminal sanctions.378 Restitution should be provided by public officials who violated national or international law.379 With respect to compensation, States ought to provide national funds for this purpose and if compensation is not available from the offender then the State should provide financial compensation to those who have ‘sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; the family, in particular dependants of persons who have died or become physically or mentally incapacitated’.380 Furthermore, States must ensure victims ‘receive the necessary material, medical, psychological and social assistance through state, voluntary, non- governmental and community-based means’; that they are informed of health or social services that may be available and ‘be readily afforded access to them’.381 Law enforcement officials should receive training ‘to sensitize them to the needs of victims, and guidelines are adopted to ensure proper and prompt aid’.382

372 African Commission, Africa, 2003, section P. 373 African Commission, Africa, 2003, section P. 374 African Commission, Africa, 2003, section P. 375 African Commission, Africa, 2003, section P. 376 African Commission, Africa, 2003, section P. 377 African Commission, Africa, 2003, section P. 378 African Commission, Africa, 2003, section P. 379 African Commission, Africa, 2003, section P. 380 African Commission, Africa, 2003, section P. 381 African Commission, Africa, 2003, section P. 382 African Commission, Africa, 2003, section P.

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in

248

8. Article 7: Right to a Fair Trial

N. Relationship Between Article 7 and Other Rights It has been recognised that Article 7 ‘is mutually dependent on other rights. Where, for example, the right to a fair trial is infringed, other violations may occur. . . . This flows from the indivisibility and interdependence of human rights’.383 Rights in relation to arrest, such as being informed of the reasons for arrest and being brought promptly before a court, and issues around pre-trial detention, can fall under both Articles 6 and 7.384 For instance, where individuals were arrested and detained, in violation of Article 6 of the ACHPR, but then released within three days, the African Commission did not consider a violation of Article 7 could be ‘sustained’.385 As noted in relation to Article 4,386 a death sentence carried out in violation of Article 7 rights will also result in a violation of Article 4, being an arbitrary deprivation of the right to life.387 However, the trial of a number of individuals which was contrary to the Egyptian Penal Code and which resulted in the death sentence being imposed by the Supreme State Security Emergency courts was held not to violate Article 4 as the individuals were still in custody and the death penalty had yet to be carried out. Thus, while it had violated Article 7 rights, there was no violation of Article 4.388 Ensuring compliance with Article 7 norms will have implications for other rights including economic, social and cultural rights.389 For instance, a magistrate was imprisoned without trial which impacted on his ability to work;390 and in another case the African Commission held that Article 7 also required the execution of a judgment of a national court which had granted compensation for damage to property.391

O. Evidence In presenting the case to the African Commission, although the burden of proof will ‘primarily’ rest with the party alleging the violations, it can shift to the State or be ‘shared equally between the parties’ if the Commission has requested the State to provide specific evidence.392 Where the parties failed to provide the decision of the Supreme Court of the DRC in their submissions to the African Commission, the African Commission held the State should have produced ‘contrary proof of the allegations of the latter by submitting the documents

383 N. J. Udombana, ‘The African Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’, 6 AHRLJ (2006) 299–332, at 305. 384 E.g. African Commission, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, May 2015, Preamble and para 10(d). 385 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 10 March 2015, para 110. 386 Chapter on Article 4 (Chapter 5). See L. Chenwi, ‘Fair trial rights and their relation to the death penalty in Africa’, 55 ICLQ (2006) 609–633. 387 Communication 137/94, 139/94, 154/96 and 161/97, International Pen and Others (on behalf of Saro- Wiwa) v Nigeria, para 103. 388 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 232. 389 T. S. Bulto, ‘The utility of cross-cutting rights in enhancing justiciability of socio-economic rights in the African Charter on Human and Peoples’ Rights’, 29 University of Tasmania Law Review (2010) 142–176. 390 Communication 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997. 391 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006. 392 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 129.

P. Remedies for Violation of Article 7

249

required by the Commission, which it failed to do despite numerous requests’, finding a violation of Article 7 of the African Charter.393 In another case the government of the DRC had not provided any proof to contradict the claims by the complainants that a number of individuals had been sentenced to death by a military court without being granted any legal assistance. The African Commission held that the State had not given references to relevant legislation on legal assistance or ‘proof that the assistance is applicable’ before the particular court. The burden of proof lay with the State.394 The State needed to show not only the measures taken but also ‘the relevance of such measures and to prove in what manner they satisfied the specific requirement of the Complainant, namely the right of accused persons to judicial assistance’.395 As the State could not prove that the specific individuals in this case received any legal assistance, a violation of Article 7(1)(c) was found.396 As in other cases a blanket denial from the government and no ‘substantive response’ will result in the African Commission deciding ‘on the facts provided by the Complainant and treat those facts as given’.397

P. Remedies for Violation of Article 7 A range of remedies have been ordered in response to a violation of Article 7.

1. Compensation Compensation has been awarded in a number of cases where violations of Article 7, usually in conjunction with other violations.398 In relation to Articles 7(1)(b) and (d), the Ethiopian government was ordered to pay compensation to the victims and to try them within a reasonable time by an impartial court or tribunal which satisfied the ACHPR requirements.399 Compensation should be ‘fair and equitable’400 and for the ‘prejudices suffered by the victims or their beneficiaries’,401 and ‘moral wrong suffered’.402 The amount is usually determined ‘in accordance

393 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, paras 130–131. 394 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 83. 395 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 84. 396 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 84. 397 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, paras 25 and 26. 398 See, e.g. Communication 59/91, Embga Mekongo Louis v Cameroon, 22 March 1995, although little detail is given. In addition, Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, para 139. 399 Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011. 400 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 97. 401 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009. 402 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 97.

250

8. Article 7: Right to a Fair Trial

with applicable laws’403 and ‘at the discretion of the courts and national authorities’.404 In one case, however, where the subject matter of the communication had been the failure of the State to pay 195,037,000 FCFA which had been ordered by the High Court of Brazzaville, the African Commission called on the State to pay this amount. The Republic of Congo was also required to pay compensation ‘for the loss suffered by the complainant’, and this particular amount was to be ‘determined in accordance with Congolese legislation’.405 Similarly, in a case against the DRC where the Arbitral award of the National Bar Council had granted the complainant US $ 500,000 for services rendered to the Pharmakina Company, which had not been paid, the African Commission ordered that this be recognised by the DRC who should ‘take or cause to be taken the necessary measures aimed at granting the Complainant a fair compensation as damages for harm arising from the prolonged non-enforcement of the decision. The amount of the compensation will be determined in accordance with Congolese law’.406 In addition, noting that the procedures at the national level took four years and then a subsequent six years after submission of the case to the African Commission, ‘during which period the Complainant must have invested significant resources in the process, including procedural expenses’,407 the African Commission requested the DRC to pay compensation for these costs, again in accordance with national law.408

2. Prohibition on Implementing Death Sentences The African Commission has urged States which have imposed death sentences in violation of Article 7 not to implement them, and to release the individuals.409

3. Amend Composition of the Courts The composition of courts has also been ordered to be changed, to bring them in line with Article 7 guarantees,410 after a violation of a right to fair trial was found in relation to the imposition of the death penalty.

4. Carry Out an Investigation Where the African Court had found a violation of Article 7 as Burkina Faso had failed to carry out effective investigations leading to the trial of the perpetrators, the Applicants had subsequently called for a resumption of the investigations in the murders as a form of

403 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009; Communication 59/91, Embga Mekongo Louis v Cameroon, 22 March 1995. 404 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciares Stratégiques v Democratic Republic of Congo, 24 July 2013, para 88. 405 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006. 406 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 138. 407 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 136. 408 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013, para 138. 409 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011. 410 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011.

P. Remedies for Violation of Article 7

251

reparation.411 The African Court found that ‘this is not really a measure of non-repetition, but rather one of cessation of a violation already established, but nonetheless was a ‘legitimate measure likely to forestall the continued violation of Article 7’.412 How the State should do so was within its discretion,413 but the Court ordered specifically that it should ‘reopen investigations with a view to seek out, prosecute and bring to justice the perpetrators of the assassination of Norbert Zongo and his three companions’.414

5. Amend Legislation Legislation which offends Article 7 should be annulled or brought in line with the ACHPR.415 The government of the DRC was required to bring its legislation into compliance with the ACHPR where a military court was able to hear civil cases.416

6. Courts be Required to Apply Relevant Rules A national court in Tanzania dismissed a case after the individual failed to attend the hearing. The African Commission urged the government to ensure that the courts ‘apply its rules of procedure without fear or favour [and] to allow the complainant to be heard on her appeal’.417

7. Respect the Ruling of the Court In Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, Mr Meldrum was deported despite several High Court orders prohibiting this and ordering his release. The High Court had also ruled that he remain in the country until the Supreme Court had decided on any constitutional issues. The African Commission, finding a violation of Article 7, recommended that Zimbabwe take ‘urgent steps to ensure court decisions are respected and implemented’, including and rescind the deportation order against him, and ‘[e]‌nsure that the Supreme Court finalises the determination of the application by Mr Meldrum, on the denial of accreditation . . . [i]n the alternative, taking into account that the AIPPA has undergone considerable amendments, grant

411 Before the African Court, In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment on Reparations, 15 June 2015. See also Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 93. 412 In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment on Reparations, 15 June 2015, paras 103–104. 413 In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment on Reparations, 15 June 2015, para 108. 414 In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso, App. No. 013/2011, Judgment on Reparations, 15 June 2015, para 110(x). 415 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005; Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995. 416 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, paras 94 and 98. 417 Communication 243/01, Women’s Legal Aid Center (on behalf of Sophia Moto) v Tanzania, 7 December 2004.

252

8. Article 7: Right to a Fair Trial

accreditation to Mr Andrew Meldrum, so that he can resume his right to practice [sic] journalism’.418

8. Engage with Civil Society One case against Swaziland alleged the King had repealed the constitution and then subsequently adopted a Proclamation of 1973, which vested in himself supreme power and consequently deprived individuals of their rights including the ability to have a remedy in the courts, the latter being subject to the King’s ability to overturn court orders.419 Finding a violation of Article 7, among other rights, the African Commission held the proclamation should be brought in line with the ACHPR and that the State ‘engages with other stakeholders, including members of civil society in the conception and drafting of the New Constitution’.420

9. Release the Individual from Detention In some instances the reparation requested, where a trial which violated Article 7 standards led to an individual’s detention, that they be released. The African Court has held that it is not an appellate court,421 and release will only be ordered ‘under very specific and/or compelling circumstances’.422 These include that the arrest or conviction ‘is based entirely on arbitrary considerations and his continued imprisonment would occasion a miscarriage of justice’.423 In one case, despite the African Court finding that the Applicant’s right had been violated because he had not been given legal aid, witnesses had not been heard and there was insufficient evidence to convict, it would not order the State to release him. Rather it required that the State reopen the trial.424

10. Report to the African Commission States are required to report to the African Commission, usually within 180 days, of measures taken to comply with decisions in which violations of Article 7 have been found.425

418 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 419 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 420 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 421 In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, para 100; Mohamed Aboubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016, para 28; Minani Evarist v United Republic of Tanzania, App. No. 027/2015, Judgment, 21 September 2018, paras 81–82 . 422 Alex Thomas v United Republic of Tanzania, App. No. 005/2013, Judgment, 20 November 2015, para 157. 423 In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, para 101. 424 In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, paras 104–105. 425 Communication 302/05, Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo, 18 October 2013. Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, 3 months; Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, 6 months. Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, 6 months.

9. Article 8 Freedom of Conscience and Religion Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be

submitted to measures restricting the exercise of these freedoms.

A. Introduction Article 8 has been referred to on relatively few occasions1 when compared with other rights in the African Charter on Human and Peoples’ Rights (ACHPR) and there have been only a handful of communications dealing with it. Article 8 includes the various elements of the obligation to protect religious pluralism that are in the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and other regional documents, namely, freedom of conscience (but not thought); freedom to practise and profess. It does not include reference explicitly to the manifestation of one’s religion, the right to change one’s religion (although this was included in earlier drafts of the ACHPR2), nor to this being done in community with others, in public or private. ‘Freedom of conscience’ and ‘freedom of religion’ and ‘freedom to practice religion’ are often used interchangeably by the African Commission.3 Article 8 ‘restrict[s]‌the practice, observation and teaching of religion to activities related to religious beliefs as opposed to an endless list of activities. Therefore, the mere fact that a religious figure undertakes an activity does not necessarily make it a religious activity protected by the [Zimbabwean] Constitution’.4 On occasion, violations have been found of other articles with respect to religion, but not specifically Article 8. For example, in the context of Article 2, in Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire the African Commission found that the Dioulas were discriminated against with respect to Ivoirian nationality on the basis of their ‘ethnic origin and their Muslim religious persuasion’.5 An earlier draft of the ACHPR, the M’Baye Draft, was considerably more detailed than Article 8, reading: 1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or 1 See in passing, e.g. Resolution on the Situation of Human Rights Defenders in Tunisia, ACHPR/Res.56, 7 May 2001; Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt— ACHPR/Res.297 (EXT.OS/XVII) 20, 28 February 2015. 2 Article 25(2) of the M’Baye Draft. See N. Lerner, ‘Proselytism, change of religion, and international human rights’, 12 Emory Int’l L. Rev. (1998) 477–561, at 544. 3 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 165. 4 T. Mutangi, ‘Religion, law and human rights in Zimbabwe’, 8 AHRLJ (2008) 526–545, at 543. 5 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016.

254

9. Article 8: Freedom of Conscience and Religion

disseminate one’s religion or beliefs, either individually or together with others, in public or in private. 2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs. 3. Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. 4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own conviction.6

B. Definition of ‘Religion’ and Belief The African Commission has held that the beliefs and ceremonial practices of the Endorois were a religion for the purposes of the ACHPR,7 citing the UN Human Rights Committee’s General Comment which determined that the right in the ICCPR ‘protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief ’ and ‘religion’ are to be broadly construed’.8 Conversely, Article 8 does not refer to ‘belief ’, unlike other regional and international instruments. Despite this, it has been protected. Thus, religion can be a ‘belief ’ for the purposes of Article 8. Noting for example, that: one of the beliefs of the Endorois is that their Great Ancestor, Dorios, came from the Heavens and settled in the Mochongoi Forest. . . . that the Endorois believe that each season the water of the Lake turns red and the hot springs emit a strong odour, signalling a time that the community performs traditional ceremonies to appease the ancestors who drowned with the formation of the Lake.

The African Commission consequently concluded that ‘the Endorois spiritual beliefs and ceremonial practices constitute a religion under the African Charter’.9 The notion of belief has enabled the African Commission to broaden out the concept to encompass political beliefs. In Communication 212/98, Amnesty International v Zambia,10 Mr William Banda and Mr John Chinula were subject to deportation orders ostensibly on the basis that their presence was ‘likely to be a danger to peace and good order in Zambia’,11 but, it was argued by the complainants, on the basis of his political opinions. They alleged discrimination on the basis of ethnic group and social origin (Article 2) and on political opinion.12 The African Commission noted, although specifically in respect of Article 8, that the ‘evidence that William Steven Banda was a political Article 25, M’Baye Draft. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 165. 8 General Comment adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, CCPR/C/21/Rev.1/Add.4, 27 September 1993, para 2; Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 164. 9 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, paras 168–169. 10 Communication 212/98, Amnesty International v Zambia, 5 May 1999. 11 Communication 212/98, Amnesty International v Zambia, 5 May 1999, paras 3 and 5. 12 Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 24. 6 7

B. Definition of ‘Religion’ and Belief

255

opponent of the ruling MMD cannot be lost sight of. The manner in which he was treated was demeaning of the dignity and status of somebody of his standing in society’,13 and that Chinula was a ‘prominent businessman and politician’.14 It then went on to state that the deportation was: accelerated upon the assumption of office of MMD government in 1991, we are therefore persuaded that the deportations were politically motivated. This provision of the Charter reflects the fact that freedom of expression is a fundamental human right, essential to an individual personal development, political consciousness and participation in the public affairs of his country. The Commission has to determine whether the “deportations”, being politically, motivated violate the provisions of Article 9.2 of the African Charter as the two victims were denied the right to freedom of conscience as stipulated in Article 8 of the Charter.15

Without making any further comment it found a violation of Article 8. Relatively little attention has been paid by the African Commission in its jurisprudence and practice to the range of religions and beliefs that exist on the African continent and within many African States.16 It has condemned on one occasion voodoo, noting among ‘areas of concern’ in Togo the ‘practice, by some communities, of voodoo worship which affects the educational cycle of children’.17 It thus called upon Togo to ‘[t]‌ake the necessary measures to eradicate the practice of voodoo worship and tronsi which are detrimental to child development’.18 There is some intersection here between the concept of religion and ‘cultural practices’,19 and sometimes the two have been conflated.20 For example, witchcraft21 has been identified as a cultural practice and linked to religion or belief. The Working Group on the Rights of Older Persons and Persons with Disabilities noted that: though traditionally Older Persons are given a prime place in African societies, there are still pockets of manifestation of ageism in Africa. The association of Older Persons with witchcraft or other unnatural practices or beliefs, and the perception that Older Persons are a burden to society and are useless are but examples. The said stereotypes often lead to serious abuses and violations of the human rights of Older Persons and it is imperative that comprehensive actions are taken to combat ageism through sensitization and mechanisms that deter ageism and offer full protection to Older Persons, including compensation.22

Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 45. Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 46. 15 Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 54. 16 A. M. B. Mangu, ‘Law, religion and human rights in the Democratic Republic of Congo 8 AHRLJ (2008) 505–525; E. K. Quansah, ‘Law, religion and human rights in Botswana’, 8 AHRLJ (2008) 486–504. 17 Concluding Observations and Recommendations on the Combined 3rd, 4th and 5th Periodic Report of the Republic of Togo, 51st Ordinary Session, 18 April–2 May 2012, Banjul, The Gambia, para 47. 18 Concluding Observations and Recommendations on the Combined 3rd, 4th and 5th Periodic Report of the Republic of Togo, 51st Ordinary Session 18 April–2 May 2012, Banjul, The Gambia, para 73. J. Amoah and T. Bennett, ‘The freedoms of religion and culture under the South African Constitution: Do traditional African religions enjoy equal treatment?’, 8 AHLRJ (2008) 358–375. 19 See Chapter 18 (Article 17). 20 J. D. van der Vyver and M. C. Green, ‘Law, religion and human rights in Africa: Introduction’, 8 AHRLJ (2008) 337–356, at 338. 21 J. D. van der Vyver and M. C. Green, ‘Law, religion and human rights in Africa: Introduction’, 8 AHRLJ (2008) 337–356, at 340–341. 22 Statement of the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa of the African Commission on Human and Peoples’ Rights, at the occasion of the 26th International Day of Older Persons, 1 October 2016. 13 14

256

9. Article 8: Freedom of Conscience and Religion

On other occasions no reference has been made to ‘belief ’ or religion or Article 8 in such contexts,23 although the ‘practice of witchcraft’ has been referred to.24 Similarly, the African Commission has discussed to the notion of ‘traditional beliefs’, although, again, not always specifically linking these with Article 8 and religion. So they have been raised in the context, for example of ‘harmful cultural practices and traditional beliefs in the context of HIV’;25 the need for States to take measures to ‘protect women against all forms of violence, as well as traditional beliefs and practices such as burying wives alive with their dead husbands, FGM, despoilment of widows’;26 and concerns in Mozambique around the ‘lack of information on the specific measures to ensure access to land by women, in light of traditional beliefs in areas such as succession’.27 The government of Sudan has been asked to ‘in collaboration with Women’s Associations, elaborate policies aimed at eliminating all forms of discriminatory practices and raising awareness among Women and combating all harmful habits, practices and traditional belief ’.28

C. Freedom of Conscience Article 8 does not refer to ‘freedom of thought’. ‘Freedom of conscience’ and the ‘profession and free practice of religion’ are cited together by the African Commission. As it noted in the Endorois case, ‘freedom of conscience and religion should, among other things, mean the right to worship, engage in rituals, observe days of rest, and wear religious garb’.29 There has been very little reference to ‘freedom of conscience’ on its own. In a series of allegations against then Zaire, although little detail on the facts is given in the decision, the African Commission held ‘Article 8 of the African Charter protects freedom of conscience. The harassment of the Jehovah’s Witnesses, as described in communication 56/ 91, constitutes a violation of this article, since the government has presented no evidence that the practice of their religion in any way threatens law and order’.30 Referring to this paragraph in the Endorois case, the African Commission interpreted this as the ‘right to 23 Consideration of Reports Submitted by States Parties under Article 62 of the African Charter on Human and Peoples’ Rights Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999–2010), 28 February 2015, para 73. 24 E.g. Report on the Human Rights Promotion Mission to the Central African Republic by Commissioners Bechir Khalfallah and Lucy Asuagbor (6–16 June 2011), paras 91, 109 and p.41; 57th Ordinary Session 4–18 November 2015, Banjul, The Gambia Concluding Observations and Recommendations on the Initial and Combined Periodic Report of the Republic of Malawi on the Implementation of the African Charter on Human and Peoples’ Rights (1995–2013), para 69. 25 Final Communiqué of the Consultative Technical Meeting towards Commissioning a Study on “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges, Best Practices and Opportunities for Rights-based Responses to HIV”, 7 June 2014, para 9. 26 Activity Report of Commissioners: Commissioner Julienne Ondziel- Gnelenga (Item 7b), DOC/ OS(XXIX)/217/5, 7 May 2001, p.6. 27 Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999–2010), 28 February 2015, para 61. 28 Promotional Mission Report of Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa in the Republic of the Sudan (30 March–4 April 2003), para 161. 29 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 165. 30 Communications 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, les Témoins de Jehovah v Zaire, 4 April 1996, para 45.

D. Profession and Free Practice of Religion

257

freedom of conscience allows for individuals or groups to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes, as well as to celebrate ceremonies in accordance with the precepts of one’s religion or belief ’.31 As noted above, it would appear that freedom of conscience can also extend to political beliefs.32

D. Profession and Free Practice of Religion The African Commission in Communication 276/ 03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, spent some time considering the right to practice one’s religion. The Endorois had been evicted from their land in order for a game reserve to be created. The Lake Begoria area of the Baringo and Koibatek Administrative Districts, as well as in the Nakuru and Laikipia Administrative Districts within the Rift Valley Province in Kenya, were considered ancestral lands for the Endorois people and they had been prohibited from accessing them. The Lake Begoria area was not only fertile, but also a site for prayers and ceremonial rituals and cultural festivals. It was considered to be where the spirits of all Endorois lived. Because of their eviction, the complainants argued that the Endorois were no longer able to freely practice their religion and their ability to practice and worship had been violated.33 They also claimed that access for religious rituals was denied to the community.34 Citing previous cases, the African Commission held that practice was ‘central to religious freedom’.35 Restrictions on practice of religion can also arise if individuals are persecuted in other ways on account of their faith. For example, where non-Muslims were denied work, food aid and education, where food was not distributed evenly in prisons, the African Commission found that ‘[t]‌hese attacks on individuals on account of their religious persuasion considerably restrict their ability to practice freely the religion to which they subscribe’, in violation of Article 8.36 In one communication relating to the inability of individuals to register their Baha’i faith on official documents in Egypt, the African Commission distinguished between ‘profession of religion . . . [as] an open declaration or affirmation of one’s religion, which is an outward act’, and ‘freedom to practice one’s religion entails all outward manifestations or observance of religious faith or belief, privately or in community with others’.37 31 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 165. 32 Communication 212/98, Amnesty International v Zambia, May 5, 1999, para 54. Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt—ACHPR/Res.297 (EXT.OS/XVII) 20. 33 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, paras 163–164. 34 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 163. 35 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 171. 36 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, November 15, 1999, para 76. 37 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, paras 131–132.

258

9. Article 8: Freedom of Conscience and Religion

Further, ‘forum internum’, as the conscience must be guaranteed unconditionally.38 Requiring individuals to disclose one’s religion as to do otherwise would restrict their ability to obtain identification documents && and necessitate them to falsely declare their religion, was contrary to their forum internum and a violation of Article 8.39 This was not, however, the same, as coercing individuals to change their religion, rather it was an administrative convenience required for official documents.40 In addition, the refusal by the State to recognise the Baha’i faith in official documents was a violation of Article 8 and the forum externum, although the requirement to record religious affiliation on official documents was a legal obligation and not a ‘manifestation of religion’.41

E. Freedom to Worship The African Commission has said little about the right to worship per se, although it has referred to a ‘freedom of worship’42 and it has on several occasions noted and condemned States where violations have occurred at places of worship.43 In a visit to prisons in Benin the Special Rapporteur on Prisons and Conditions of Detention noted a chapel and a small room where prisoners could worship.44 On a promotional visit to Gabon, it was recognised that ‘[t]‌he freedom of worship is enjoyed thanks to the provision of a multi- purpose hall which prisoners belonging to different religions take turns to use’.45 The African Commission does not appear to have taken a restrictive approach to Article 8 by only limiting it to freedom of worship. So the freedom to worship is seen as part of the right of freedom of religion. As it stated in the Endorois case:

38 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 131. 39 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 138. 40 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 139. 41 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 146. 42 Concluding Observations on the 3rd and 4th Combined Periodic Reports of the Peoples Democratic Republic of Algeria, 22 May 2008, para 33(r); Report of the African Commission on Human and Peoples’ Rights Mission to The Sudan, 1–7 December 1996, DOC/OS/35a(XXIII), 29 April 1998, at paras 44 and 130; Promotional Mission Report of Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa in the Republic of The Sudan (from 30 March–4 April 2003), para 161: ‘Ensure that the right to the freedom of worship is respected in Sudan’. 43 E.g. Resolution on the Human Rights Situation in the Republic of Guinea, ACHPR/Res.242, 24 July 2013: ‘Particularly concerned by the several cases of death, high number of seriously injured people, and massive destruction of public and private property and buildings, including places of worship, as a result of these clashes’. Resolution on the Human Rights Situation in Federal Republic of Nigeria, ACHPR/Res.214, 2 May 2012: ‘Also Condemns the subsequent attack that occurred on 29 April 2012, in which gunmen attacked worship services at Bayero University campus in the city of Kano killing at least 16 people and wounding 22 others, and at the Church of Christ in Nigeria, in Maiduguri, killing at least 3 people’, para 2; Press release on the atrocities committed by Boko Haram, 22 January 2015; Resolution on terrorist acts in the Republic of Kenya—ACHPR/Res.302 (LVI) 2015, 7 May 2015. 44 Prisons in Benin Report on a Visit, 23–31 August 1999 by Professor E. V. O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa, pp.13 and 34. See also Prisons in Mozambique Report on a Visit, 14–24 December 1997 by Professor E. V. O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa, p.37. 45 Report of the Human Rights Promotion Mission to the Gabonese Republic, 13–18 January 2014, para 220.

G. Limitations on the Right

259

This Commission is aware that religion is often linked to land, cultural beliefs and practices, and that freedom to worship and engage in such ceremonial acts is at the centre of the freedom of religion. The Endorois’ cultural and religious practices are centred around Lake Bogoria and are of prime significance to all Endorois. During oral testimony, and indeed in the Complainants’ written submission, this Commission’s attention was drawn to the fact that religious sites are situated around Lake Bogoria, where the Endorois pray and where religious ceremonies regularly take place. It takes into cognisance that Endorois’ ancestors are buried near the lake, and has already above, Lake Bogoria is considered the spiritual home of all Endorois, living and dead.46

Some writers in this area have argued that the concept of ‘worship’ includes traditional African customs such as ‘ancestor worship’.47

F. Collective or Individual Nature of the Right The collective element of freedom of religion is not expressly mentioned in Article 8,48 although the African Commission has mentioned this in passing on one occasion, stating in the Endorois case that ‘the right to freedom of conscience allows for individuals or groups to worship or assembly . . . ’.49

G. Limitations on the Right The right to hold religious beliefs is an absolute right.50 The right to ‘act on those beliefs’ is not absolute,51 and Article 8 provides that such limitations must be ‘subject to law and order’. This is different from the formulation in the M’Baye Draft of the Charter which included ‘freedom of conscience and religion’ in the list of rights from which no derogation was permitted.52 The African Commission has limitations on Article 8 by not only setting out the criteria and grounds under which Article 8 can be restricted, but also by making general reference, as in the context of other rights, to Article 27(2). Interference with Article 8 can be by action or omission.53 The justifiable limitations that the State can impose under Article 8 do not seem to differ depending on whether one is considering the right to practice, or the right to religious freedom.54

46 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 166. 47 J. D. van der Vyver and M. C. Green, ‘Law, religion and human rights in Africa: Introduction’, 8 AHRLJ (2008) 337–356, at 339. 48 A. M. B. Mangu, ‘Law, religion and human rights in the Democratic Republic of Congo 8 AHRLJ (2008) 505–525, at 518. 49 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 165. 50 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 41. 51 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 41. 52 Article 33(2) M’Baye Draft. 53 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 169: ‘The African Commission will now determine whether the Respondent State by its actions or inactions have interfered with the Endorois’ right to religious freedom’. 54 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 169: ‘The African Commission will now determine whether the Respondent State by its actions or inactions have interfered with the Endorois’ right to religious freedom’.

260

9. Article 8: Freedom of Conscience and Religion

1. Established by Law The restriction must be ‘established by law’.55

2. Not Applied in a Manner to Vitiate the Right The limitation must ‘not be applied in a manner that would completely vitiate the right’.56 Restrictions should also be ‘viewed in light of the underlying sentiments of the African Charter’, namely not to give ‘credence to violations of the express provisions of the Charter’.57 In the Endorois case the African Commission concluded that ‘the Endorois’ forced eviction from their ancestral lands by the Respondent State interfered with the Endorois’ right to religious freedom and removed them from the sacred grounds essential to the practice of their religion, and rendered it virtually impossible for the community to maintain religious practices central to their culture and religion’.58

3. The Purpose of the Limitation Limitations should ‘be applied only for those purposes for which they were prescribed’.59 They must serve a ‘general purpose’;60 and should be ‘necessitated by any significant public security interest or other justification’;61 or the ‘interests of society’.62 Giving an example of where this may be the case, the African Commission has remarked that a ‘parent’s right to refuse medical treatment for a sick child, for instance, may be subordinate to the state’s interest in protecting the health, safety, and welfare of its minor children’.63 So in the Endorois case, the government claimed that the restrictions on the right to practice religion in terms of access to Lake Begoria by the Endorois was justified because of economic development and ecological protection. The African Commission held that ‘allowing the Endorois to use the land to practice their religion would not detract from the goal of conservation or developing the area for economic reasons’.64 A threat to law and order may be sufficient to justify limitations to the practice of religion. In Communication 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC,65 harassment of Jehovah’s Witnesses through arrests,

55 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 56 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 57 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 58 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 59 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 60 Communication 255/02 Garreth Anver Prince v South Africa, 7 December 2004, para 43. 61 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 62 Communication 255/02 Garreth Anver Prince v South Africa, 7 December 2004, para 41. 63 Communication 255/02 Garreth Anver Prince v South Africa, 7 December 2004, para 41. 64 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 65 Communication 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 4 1996.

G. Limitations on the Right

261

appropriation of church property and inability to access education, was not found to be justified given that the government ‘has presented no evidence that the practice of their religion in any way threatens law and order’.66 In Communication 255/ 02, Garreth Anver Prince v South Africa,67 the African Commission was asked to consider the use of cannabis by a Rastafarian as being a manifestation of his religious belief.68 The African Commission did not agree with the complainant as the restriction was ‘general and happens to affect Rastafari incidentally (de facto)’, drawing comparisons with K. Singh Bhinder v Canada before the Human Rights Committee.69 The purpose of the State imposing restrictions on the use of cannabis was in order to reduce dependence on substances. This was considered a legitimate and reasonable aim, serving ‘a general purpose’ and consequently a justifiable limitation on the right to freedom of religion.70

4. Should be in Line with Article 27(2) Limitations should only those which are in line with Article 27(2), namely, ‘shall be exercised with due regard to the rights of others, collective security, morality, and common interest’.71 As the African Commission stated in Communication 255/02, Garreth Anver Prince v South Africa, ‘the Respondent State’s interest to do away with the use of cannabis and its abuse/trafficking stems from the fact that, and this is also admitted by the Complainant, cannabis is an undesirable dependence-producing substance. For all intents and purposes, this constitutes a legitimate limitation on the exercise of the right to freedom of religion within the spirit of Article 27.2 cum Article 8’.72

5. Be Proportionate and Reasonable Limitations ‘must be directly related and (strictly)73 proportionate to the specific need on which they are predicated’.74 As to what is proportionate, the African Commission held in Amnesty International v Sudan, that a ban on Christian associations, although in the context of Article 10, was ‘disproportionate to the measures required by the government to maintain public order, security, and safety’.75

66 Communication 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996, para 45. 67 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004. For discussion of the case before the South African courts, see L. du Plessis, ‘Affirmation and celebration of the ‘religious Other’ in South Africa’s constitutional jurisprudence on religious and related rights: Memorial constitutionalism in action?’, 8 AHRLJ (2008) at 376–408, at 388–390; and more generally, J. D. van der Vyver and M. C. Green, ‘Law, religion and human rights in Africa: Introduction’, 8 AHRLJ (2008) 337–356, at 339–340. 68 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 40. 69 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 42. 70 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 43. 71 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 72 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 43. 73 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 43. 74 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 173. 75 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 82.

262

9. Article 8: Freedom of Conscience and Religion

Limitations should also be reasonable.76 On one occasion the African Commission has held that restrictions should be ‘negligible’, although without giving further information on precisely what this means in the context of Article 8.77 Limitations can be relative. So if there is a ‘particularly harsh limitation’, then there must be ‘exceptionally good reasons’ provided by the State.78

6. Be Necessary The limitations on the Article 8 rights should be ‘absolutely necessary for the advantages which are to be obtained’.79

7. Not be Discriminatory Recognising that the restrictions imposed on the use of cannabis and thus on Rastafarians ‘fall squarely under Article 2 of the African Charter which requires States to ensure equal protection of the law’, the African Commission decided that they did not apply solely to the complainant or Rastafari. Rather they were ‘of general application . . . applying to all across the board’ and as such ‘they cannot be said discriminatory so as to curtail the Complainant’s free exercise of his religious rights’.80

H. Shari’a Law The African Commission has been asked to consider the compatibility of various aspects of Shari’a law with the ACHPR. It has stressed that its task is not to ‘interpret’ Shari’a law specifically, but rather to consider ‘the application of the African Charter in the legal system of a State Party to the Charter’.81 On other occasions its members have implied that a secular approach should be adopted by the State.82 For example, noting the applicability of Shari’a law and related punishments in northern states in Nigeria, one Commissioner commented ‘[g]‌iven Nigeria’s status as a secular Federal Republic, there is need to stop the predominance of any religion in the lives of all Nigerian citizens whether male or female’.83 In addition, other Commissioners have stated that Shari’a law must be applied in a manner which respects the rights of women.84

Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 43. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 172. 78 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 172. 79 Communication 255/02, Garreth Anver Prince v South Africa, 7 Dec 2004, para 43. 80 Communication 255/02, Garreth Anver Prince v South Africa, 7 Dec 2004, para 44. 81 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 41. 82 See A. Mwansa, ‘Law, religion and human rights in Zambia: The past, present and the Practice’, 8 AHRLJ (2008) 546–567, section 5; C. Rautenbach, ‘Comments on the constitutional protection of religion in Swaziland’, 8 AHRLJ (2008) 432–457, section 2.2; K. Quashigah, ‘Religion and the republican state in Africa: The need for a distanced Relationship’, 14 AHRLJ (2014) 78–92. 83 Activity Report of Commissioners: Commissioner Julienne Ondziel-Gnelenga (Item 7b), 29th Ordinary Session, 23 April–7 May 2001, DOC/OS(XXIX)/217/5 Tripoli, Libya. 84 Activity Report of Commissioners: Commissioner Julienne Ondziel-Gnelenga (Item 7b), 29th Ordinary Session, 23 April–7 May 2001, DOC/OS(XXIX)/217/5 Tripoli, Libya; Promotional Mission Report of Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa in the Republic of the Sudan (30 March–4 April 2003), para 61. 76 77

I. Evidence

263

Lashings carried out in public on the bare backs of female students were considered to be in violation of Article 5 of the ACHPR as they sanctioned ‘state sponsored torture’ by permitting the government to ‘apply physical violence to individuals for offences’.85 Consequently, certain punishments carried out under Shari’a law may violate other provisions of the ACHPR. Examining the application of Shari’a law in northern states in Nigeria, Commissioner Ondziel-Gnelenga noted that amputation of the arm as a punishment for theft violated the ACHPR. Other punishments applied to women in particular, such as imprisonment for consumption of alcohol in public places, imprisonment of girls for incest and for pregnancies outside of marriage, were similarly contrary to the African Charter.86 Practices associated with certain religions and Shari’a law, for example, the burying of women alive with their dead husbands,87 stoning and whipping, particularly when carried out against women or those from a ‘marginalised background’,88 have been considered in violation of the ACHPR, although Article 8 is not always specifically mentioned. The applicability of Shari’a law and punishments under Shari’a law may violate Article 8 if they are imposed on those who are not Muslims. So Sudan has been called on to ensure that Shari’a law is not enforced against Christians or other non-Muslims.89 Tribunals in the country applied Shari’a law against Christians and others who held traditional beliefs and the African Commission held that ‘it is fundamentally unjust that religious laws should be applied against non-adherents of the religion. Tribunals that apply only Shari’a are thus not competent to judge non-Muslims, and everyone should have the right to be tried by a secular court if they so wish’.90 In addition, where individuals were ‘persecuted in order to cause their conversion to Islam. They do not have the right to preach or build their churches; there are restrictions on freedom of expression in the national press. Members of the Christian clergy are harassed; Christians are subjected to arbitrary arrests, expulsions and denial of access to work and food aid’.91

I. Evidence The African Commission has held in respect to a range of rights in the ACHPR that if the government fails to provide any response, then it will take the facts as given. In one Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 42. Activity Report of Commissioners: Commissioner Julienne Ondziel-Gnelenga (Item 7b), 29th Ordinary Session 23 April–7 May 2001, DOC/OS(XXIX)/217/5 Tripoli, Libya. 87 Activity Report of Commissioners: Commissioner Julienne Ondziel-Gnelenga (Item 7b), 29th Ordinary Session, 23 April–7 May 2001, DOC/OS(XXIX)/217/5 Tripoli, Libya. 88 Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, para 40. 89 Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, para 86; Promotional Mission Report of Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa in the Republic of the Sudan (30 March to 4th April 2003), para 61. See also E. S. Nwauche, ‘The Nigerian police force and the enforcement of religious criminal law’, 14 AHRLJ (2014) 203–216, at 212. 90 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 73. 91 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 74. 85 86

264

9. Article 8: Freedom of Conscience and Religion

case involving a number of violations including that of Article 8, it appeared to require that the government not just respond but that it respond in a ‘convincing manner to the allegations’.92 In turn, it would only find the facts presented by the applicants as ‘probable’.93 Given that this communication related to a range of rights had been violated it is not possible to relate this specifically to Article 8. The raison d’être for a particularly harsh limitation on the right to practice religion, such as that experienced by the Endorois, must be based on exceptionally good reasons, and it is for the Respondent State to prove that such interference is not only proportionate to the specific need on which they are predicated, but is also reasonable.94

J. Remedies As with other rights, a range of remedies are recommended by the African Commission in respect of a finding of an Article 8 violation. As elsewhere, it is not always possible to discern the application of the remedy for a violation of Article 8 specifically.

1. Amend Legislation Where a penalty of lashes was imposed under Shari’a law, the African Commission found violations of a number of Articles including 2 and 8, and called on the government of Sudan to amend the law and abolish the penalty.95

2. Compensation In the same case, the lashes resulted in the African Commission requiring the government to provide compensation to the victims.96 Similarly, the government of Kenya was ordered to pay ‘adequate compensation to the community for all the loss suffered’ for denying the Endorois peoples’ access to Lake Begoria in Kenya where religious rites were practised.97

3. Ownership and Access to Religious Sites Where the Endorois were excluded from ancestral land which impacted on their ability to practice religious and cultural rights, the African Commission, finding a violation of a range of rights in the ACHPR including Article 8, demanded the Kenyan government recognise the Endorois rights of ownership over the land and ensure their ‘unrestricted access’ to the area.98 92 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 75. 93 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 75. 94 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 172. 95 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 41. 96 Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 41. 97 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 98 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009.

J. Remedies

265

4. Report to the African Commission As with other violations, the African Commission has called on States to report on the measures taken to implement its recommendations when it has found violations of Article 8, among other rights.99

5. Good Offices of the African Commission In the Endorois case the African Commission also offered its ‘good offices to assist the parties in the implementation of these recommendations’, where a range of violations, including that of Article 8, were found.100

99 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. See also 37th Ordinary Session, 27 April–11 May 2005, Banjul, The Gambia Consideration of Reports submitted by States Parties under the Terms of Article 62 of the African Charter on Human and Peoples’ Rights Concluding Observations and Recommendations on the Seventh and Eighth Periodic Report of the Arab Republic of Egypt, para 36. 100 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009.

10. Article 9 Right to Receive Information and Freedom of Expression 1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

A. Introduction In the earlier years of the African Commission, most of the focus on Article 9 was on Article 9(2) and freedom of expression. Even then it was criticised for being slow to elaborate the content of the right.1 In recent years both paragraphs have been stated by the African Commission to be of ‘fundamental importance’, contain ‘fundamental rights’,2 and be a ‘cornerstone of democracy’,3 and that repression of such rights are a ‘disservice to society’,4 positions also upheld by domestic courts in Africa.5 The relationship between respect for Article 9 rights and respect for all rights has also been acknowledged on several occasions.6 Relatively little attention has been given to new forms of technology.7 In its case law and other documents, the African Commission has, on occasion, not distinguished between Articles 9(1) and (2), simply holding a violation of ‘Article 9’, although in most cases it is obvious to which particular paragraph it relates. For example, appreciating the importance of ‘freedom of expression and information’, in a case related to a lawyer being threatened with arrest if he travelled to give a public lecture on human rights, the African Commission held that Article 9 ‘reflects the fact that freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of public affairs in his country’.8 1 C. E. Welch, ‘The African Charter and freedom of expression in Africa’, 4 Buff. Hum. Rts. L. Rev. (1998) 103–122. There was no provision on freedom of information or expression in the M’Baye Draft. The Dakar Draft is similar to the final Article 9. 2 Resolution on the Safety of Journalists and Media Practitioners in Africa, ACHPR/Res.185, 12 May 2011. 3 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014; Resolution on the Situation of Freedom of Expression in Africa, ACHPR/Res.99, 29 November 2006. 4 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 5 See e.g. High Court in Kenya: Cord v the Republic of Kenya and Others, H.C. Petition No. 628 of 2014; Supreme Court of Uganda: Charles Onyango-Obbo and Anor v Attorney General (Constitutional Appeal No. 2 of 2002), the Supreme Court of Uganda. 6 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014; Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 243. See also L. Chamberlain, ‘Assessing enabling rights: Striking similarities in troubling implementation of the rights to protest and access to information in South Africa’, 16 Afr. Hum. Rts. L.J. (2016) 365–384. 7 However, see Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 8 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, paras 40 and 41. Report of the African Commission’s Working Group on Indigenous Populations/Communities Research And Information Visit To Libya 11–25 August 2005, adopted at the 40th Ordinary Session, 15–29 November 2006, 2009, para 4.3.

A. Introduction

267

Numerous seminars, with their resulting declarations,9 have, over the years, helped crystallise the African Commission’s thinking on Article 9 and culminated in the adoption of its own resolutions and principles.10 Its Declaration on Principles on Freedom of Expression in Africa in 2002 is of particular note.11 The African Commission has said that these Principles have ‘persuasive effect and is used extensively on the African continent and elsewhere as an instrument on freedom of expression and access to information. Its principles are established as a touchstone for effective protection of these rights’.12 It has encouraged States to ‘put in place strategies to implement the Declaration at the national level, while NGOs and other stakeholders should continue to raise awareness for a better understanding of the same’.13 Revisions to the Principles have been considered following the adoption of a Model Law on Access to Information and subsequent developments in 2016.14 Article 9 has arisen in a range of different contexts.15 The African Commission has, citing Article 9 among others, held that de-registration of the Trade Union Congress of Swaziland by the government was in violation workers’ rights.16 Oral traditions in the context of Article 9 have received very little attention, although the African Commission has acknowledged that being ‘rooted in African cultures’, they therefore ‘lend themselves particularly well to radio broadcasting’.17 Many of the situations in which Article 9 has applied relate to the media,18 whether that be harassment and threats towards journalists,19 arrests of journalists and media practitioners as a result of the publication of articles in national newspapers,20 or restrictions on the operation of and closure of media houses, among others.21 It has condemned the 9 E.g. Windhoek Declaration on Promoting an Independent and Pluralistic African Press, the Final Report of the African Conference of ‘The Journalist and Human Rights in Africa’, Tunis, Tunisia, 31 October–1 November 1992; Statement of the Seminar on ‘Freedom of Expression and the African Charter’, Johannesburg, South Africa, 23–25 November 2000. 10 Resolution on Freedom of Expression, 7 May 2001; Resolution on the adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002; Resolution on the Situation of Freedom of Expression in Africa, ACHPR/Res.54 (XXIX) 01; Resolution on the Deteriorating Situation of Freedom of Expression and Access to Information in Africa, ACHPR/Res.99 (XXXX) 06. 11 Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 12 Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, ‘Viewed in 25 years of the Commission’, Presented by Adv. Pansy Tlakula, 52nd Ordinary Session, 9 to 22 October 2012 Yamoussoukro, Côte D’Ivoire, para 14. 13 Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa ‘Viewed In 25 Years of the Commission’, presented by Adv. Pansy Tlakula, 52nd Ordinary Session, 9–22 October 2012, Yamoussoukro, Côte D’Ivoire, para 18. 14 Resolution to Revise the Declaration of Principles on Freedom of Expression in Africa—ACHPR/Res. 350 (EXT.OS/XX) 2016, 18 June 2016. 15 See treatment of freedom of expression in some States, e.g. A. A. Senghor, ‘Press freedom and democratic governance in The Gambia: A rights-based approach’, 2 AHRLJ (2012) 508–538. 16 Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012. 17 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 18 See in relation to situations in particular States, e.g., B. Maripe, ‘Freezing the press: Freedom of expression and statutory limitations in Botswana’, 3 AHRLJ (2003) 52–75. 19 Resolution on Attacks against Journalists and Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014. 20 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014. 21 See e.g. Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa in respect of the proposed Nigerian Press Council and the Practice of Journalism in Nigeria Bill 2009, 25 November 2009. Resolution on the Situation of Freedom of Expression in Africa, ACHPR/Res.99, 29 November 2006.

268

10. Article 9: Right to Receive Information, Freedom of Expression

violation of this provision in a number of States,22 often in the context of violations of a range of rights, of which Article 9 is only one.23 The African Commission has recognised the ‘key role of the media and other means of communication in ensuring full respect for freedom of expression, in promoting the free flow of information and ideas, in assisting people to make informed decisions and in facilitating and strengthening democracy’.24 It has been particularly aware of broadcast media, ‘given its capacity to reach a wide audience due to the comparatively low cost of receiving transmissions and its ability to overcome barriers of illiteracy’.25 Numerous violations have arisen in relation to the activities of civil society organisations. These have been not only in the context of, for example, demonstrations or political debate, but also involved direct attacks against organisations operating in the human rights field. For example, the persecution of those working for the Civil Liberties Organisation in Nigeria and raiding of their offices was found to violate Article 9 of the ACHPR.26

B. Relevance to Admissibility Requirements Article 9 has been employed in the interpretation of two admissibility conditions. Firstly, this with Article 56(3) and the interpretation of ‘disparaging and insulting language’, which is dealt with further below.27 Secondly, it has arisen in relation to Article 56(6) of the ACHPR and the requirement to exhaust domestic remedies within a reasonable time. Complainants contested the compatibility of the provisions of the Broadcasting Services Act in Zimbabwe with the ACHPR as the Act prevented the broadcasting by a private radio station. The Supreme Court had ruled on 25 September 2003 that only four of the seventeen provisions of the Act were unconstitutional.28 The complainants subsequently submitted a communication to the African Commission on 19 August 2005 arguing, among others, that there was a violation of the right to free expression. Considering whether this length of time was ‘reasonable’ the African Commission held that the reasons given by the complainants, that they wished to wait to see if the Supreme Court’s judgment would be implemented and whether any licences would in fact be issued, was ‘neither good nor compelling’. This was because the Capital Radio Private Limited did not apply for a licence, but instead waited for others who had applied to be given licences. The African Commission stated that the complainants had been aware in 22 Resolution on the Attacks against Journalists and Media Practitioners in Somalia, ACHPR/Res.221, 2 May 2012; Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Proposed Decriminalisation of Media Offences in Senegal; Joint press release by the Special Rapporteur on Human Rights Defenders in Africa and the Special Rapporteur on Freedom of Expression and Access to Information regarding the situation of human rights defenders and freedom of expression and assembly in Burundi, 1 May 2015; Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, ACHPR/Res.297, 28 February 2015. 23 E.g. Appeal: The African Commission on Human and Peoples’ Rights Concerned about the Situation in the Republic of Guinea, 16 February 2007. 24 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 25 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 26 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, paras 47–48. 27 See Section E.1. 28 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 87.

C. Article 9(1)

269

September 2003 that the domestic proceedings had reached a ‘dead end’ but had waited for two years ‘with no compelling reason’ before approaching the African Commission. The case was therefore found inadmissible under Article 56(6) of the ACHPR.29 In Lohé Issa Konaté v Burkina Faso, it was alleged that the prosecution for the publication of articles written by Konaté, editor of the L’Ouragan Weekly, and published in the paper, were a violation of his right to free expression.30 The State argued before the African Court that as he was not registered as a journalist in Burkina Faso and neither was the L’Ouragan Weekly registered as a media outlet, then the Applicant could not claim to be a journalist. This was raised in the ruling on admissibility even though, as the African Court stated, ‘the Respondent State does not rely on the provisions of either the Charter, the Protocol or the Rules in support of its allegations’.31 The African Court ruled that he had the ‘de facto status of a journalist’, had been convicted by the courts in Burkina Faso on this basis and that Article 9 of the ACHPR guaranteed the right regardless of whether the individual was a journalist or not. As a result the communication could not be declared inadmissible on these grounds.32

C. Article 9(1) 1. Right to Receive Information Reference has been made to ‘freedom of information’, ‘the right to information’, as well as the right of everyone to ‘access this information’, and the ‘right to impart information’, as elements of, indeed ‘an integral part of freedom of expression’,33 with sometimes no distinction being made between them.34 For example, in Communication 323/06, Egyptian Initiative for Personal Rights and Interights v Egypt, the African Commission started by discussing the inclusion within freedom of expression of the right to impart information to others, but then went on, drawing upon the Inter-American Court’s ruling in Claude Reyes et al v Chile, to note the ‘right of all persons to receive information held by the State’.35 Accordingly, although it is only the right to receive information which is expressly mentioned in Article 9(1), the African Commission has referred to these various other rights. With respect to the right to access information it has held that this ‘is enshrined in Article 9’.36 Articles 9(1) and (2) are sometimes conflated. So the ‘right to impart information’ has been interpreted as an element of the right to free expression, particularly Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, paras 96–99. In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014. 31 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 52. 32 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, paras  57–59. 33 Statement of the Working Group on Access to Information on African at the 51st Session of the African Commission on Human and Peoples’ Rights, Banjul April 2012. 34 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(1). 35 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 250. 36 Resolution to modify the Declaration of Principles on Freedom of Expression to include Access to Information and Request for a Commemorative Day on Freedom of Information, ACHPR/Res.222, 2 May 2012. 29 30

270

10. Article 9: Right to Receive Information, Freedom of Expression

within the context of journalism and media, through coupling Article 9 with Article 27 and duties of the individual: when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to “receive” information and ideas. When the Charter proclaims that every individual has the right to receive information and disseminate opinions, it also implicitly emphasises the fact that the expression, reception and dissemination of ideas and information are indivisible concepts. This means that restrictions that are imposed on dissemination represent, in equal measure, a direct limitation on the right to express oneself freely. The Commission is thus of the opinion that the two dimensions of the right to freedom of expression must be guaranteed simultaneously.37

In Communication 313/05, Kenneth Good v Botswana, Professor Good was expelled from Botswana under the Botswana Immigration Act without being given information on or reasons for the grounds on which he was expelled. Section 36(a) of the Act read: ‘No person affected by any such decision shall have the right to demand any information as to the grounds of such decision nor shall any such information be disclosed in any court’.38 The African Commission held that the right to receive information ‘especially where that information is relevant in a trial for the vindication of a right, cannot be withheld for any reason’,39 this right in the context of a criminal trial being ‘as important as the right to be informed of the reasons of one’s arrest and detention within a reasonable period of time. The information as well as the reasons are necessary to enable the accused prepare their defence. It makes a mockery of justice and the rule of law for a person legally admitted to a country to all of a sudden be told to leave against his will and he/she is not given reasons for the expulsion’.40 The right to be informed thus also ‘forms part of the right to fair trial’.41 As a result, it could not be ‘derogated’ from during a state of emergency.42 Section 36(a) of the Botswana Immigration Act was held to be in violation of Article 9(1) of the ACHPR.43 Where journalists are harassed and intimidated and this is ‘politically motivated’, this will be a deprivation not only ‘of their rights to freely express and disseminate their opinions, but also the public’s right to information’.44 Conversely, the right of the individual to receive information as well as the right to the public, in the context of political debate, to also receive information may be violated if an individual’s right to express themselves on political topics are violated, particularly if those individuals are journalists. As the African Commission held with respect to compulsory registration of journalists in Zimbabwe, ‘by preventing journalists from freely exercising their right to freedom of expression, the Respondent State inevitably violates the freedom of expression of the Zimbabwean society by depriving the society the right to receive information due to the restrictions imposed on the journalists’ right to disseminate information’.45 Similarly, an individual Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 108. Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 191. 39 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 193. 40 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 193. 41 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 194. 42 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 194. 43 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 195. 44 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia, 11 May 2000, para 65. See also Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 253. 45 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 118. 37 38

C. Article 9(1)

271

deported on the grounds of his nationality and political opinions was considered to have been deprived not only of his right to disseminate his opinions but also his right to receive information and the right of ‘the general citizenry to receive information’.46 This reference to the importance of and relationship between the right of the public to receive information and the right to freedom of expression and has been identified by other regional bodies and the African Commission has drawn upon their jurisprudence in the context of political debate.47

2. Right of Access to Information The African Commission has focused particular attention on the right to access information,48 expanding the mandate of its Special Rapporteur to encompass this right, and modifying the content of the Principles on Freedom of Expression.49 Prompted by a series of conferences and other events,50 it has authorised the Special Rapporteur to initiate development of a model law.51 The Model Law on Access to Information for Africa was eventually adopted by the African Commission in 2012. The right of access to information is also recognised in other African instruments including the African Charter on Democracy, Elections and Good Governance,52 the AU Convention on Preventing and Combating Corruption,53 the African Charter on the Values and Principles of Public Service and Administration54 and the African Youth Charter.55 Reference is made in sub-regional instruments to the requirement that States adopt measures on access to information,56 and other initiatives include the Supplementary Act for a Uniform Legal Framework on Freedom of Expression and Right to Information under ECOWAS and the adoption of a regional law on Access to Information by the East African Legislative Assembly.57 Such actions have not been matched, necessarily, by the adoption of legislation at the domestic level.58 46 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 110. 47 For example, the Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, Serie A. N. 5, November 1985 at para 70, as cited in Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, paras 49 and 50. 48 Statement of the Working Group on Access to Information on African at the 51st Session of the African Commission on Human and Peoples’ Rights, Banjul April 2012. 49 Resolution to modify the Declaration of Principles on Freedom of Expression to include Access to Information and Request for a Commemorative Day on Freedom of Information, ACHPR/RES.222 (EXT. OS/XII) 2012, 2 May 2012. Statement of the Working Group on Access to Information on African at the 51st Session of the African Commission on Human and Peoples’ Rights, Banjul, April 2012. 50 E.g. Pan-African Conference on Access to Information, Cape Town, September 2011, resulting in the adoption of the African Platform on Access to information. See also Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa by Adv. Pansy Tlakula, presented during the 50th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 24 October–7 November 2011. 51 Securing the Effective Realization of Access to Information in Africa, ACHPR/Res.167 (XLVIII] 2010. 52 53 54 Among the objectives, Article 2(10). Article 9. Article 6. 55 Articles 10(3)(d), 11(2)(e), 11(2)(i), 20(2)(a), 20(2)(b). 56 SADC Protocol Against Corruption, Article 4(1)(d); ECOWAS Supplementary Act on a uniform Framework for Freedom of expression and the Right to Information, October 2011. 57 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014. 58 Model Law on Access to Information for Africa, p.10.

272

10. Article 9: Right to Receive Information, Freedom of Expression

The right of access to information under Article 9 has been interpreted as comprising ‘the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies’.59 The Model Law and Principles on the Right to Freedom of Expression provide that ‘everyone has the right to access information’.60 This is information that is ‘of ’,61 from, or ‘held by public bodies’62 as well as information held by private bodies which, according to the Principles ‘is necessary for the exercise or protection of any right’,63 but according to the Model Law ‘may assist in the exercise or protection of any right’.64 Access should be provided ‘expeditiously and inexpensively’.65 There should be a presumption of disclosure unless there are ‘exceptionally justifiable circumstances’.66 The Model Law also requires the establishment of ‘independent and impartial’ mechanisms to oversee the promotion, protection and monitoring of the right in the State, setting out detailed requirements that such mechanisms should fulfil.67 ‘Information’ in the context of right of access has been interpreted as including ‘information of all types of knowledge including in political terms’,68 and the Model Law defines it as ‘any original or copy of documentary material irrespective of its physical characteristics, such as records, correspondence, fact, opinion, advice, memorandum, data, statistic, book, drawing, plan, map, diagram, photograph, audio or visual record, and any other tangible or intangible material, regardless of the form or medium in which it is held, in the possession or under the control of the information holder to whom a request has been made under this Act’.69 States are considered to hold information ‘as custodians of the public good’70 and have an obligation to provide the information ‘without a need to demonstrate a direct interest in obtaining it, or personal harm, except where legitimate restrictions apply’71 and this information should be ‘accessible without impediment’.72 Therefore, there is a specific duty on ‘public bodies . . . even in the absence of a request, actively to publish important information of significant public interest’.73 Secrecy laws should also be amended to comply with principles on freedom of information.74 States have been urged to ‘adopt

59 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para 3. 60 61 Model Law on Access to Information, s 12. Model Law on Access to Information s 2(a). 62 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(2). 63 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(2). 64 Model Law on Access to Information, s 2(b) and s 12. 65 Model Law on Access to Information, s 2(a) and (b). 66 67 Model Law on Access to Information, s 2(c). Model Law, Part V. 68 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 252. 69 Model Law on Access to Information for Africa, s 1. 70 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(1). 71 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 251. 72 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 252. 73 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(2). 74 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(2).

D. Article 9(2): Right to Express and Disseminate Opinions

273

and effectively implement national access to Information laws’,75 and indeed the African Commission has commended those States, such as Sierra Leone and Côte d’Ivoire,76 which have done so,77 although it is not clear whether these actions have been done in direct response to the African Commission’s requests. The right to access information or the right to information is not absolute and is ‘subject only to clearly defined rules established by law’.78 Sanctions should not be imposed on individuals ‘for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society’.79 The Model Law adds ‘public interest’ to this list80 and national security and defence.81 However, any refusal to disclose information must be subject to appeal to an independent body and or the courts.82 The Model Law also provides additional exemptions to the right to access information including where it would involve ‘unreasonable disclosure of personal information about a natural third party’,83 where there is commercial or confidential information of an information holder or third party,84 where the information was supplied by or on behalf of another State under an international agreement which required that it be held in confidence,85 as well as if it is in the economic interest of the State, where it may prejudice law enforcement, if the document is legally privileged, where it may jeopardise the integrity of an examination or recruitment process or if it is ‘manifestly vexatious’.86

D. Article 9(2): Right to Express and Disseminate Opinions The right to freedom of expression and information includes ‘the right to seek, receive and impart information and ideas’.87 This can be done ‘orally, in writing or in print, in the form of art, or through any other form of communication, including across frontier’.88 As with other rights in the African Charter on Human and Peoples’ Rights (ACHPR), borrowing the language of international human rights treaty bodies, the African Commission has required States to ‘respect, protect and fulfil’ Article 9 rights.89 This 75 Statement of the Working Group on Access to Information on African at the 51st Session of the African Commission on Human and Peoples’ Rights, Banjul April 2012. 76 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, para 41. 77 Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Republic of Uganda, 26–30 August 2013, 30 August 2013. 78 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(1). 79 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(2). 80 81 Model Law, s 25. Model Law, s 30. 82 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para IV(2). 83 84 85 Model Law, s 27. Model Law, s 28. Model Law, s 31. 86 Model Law, ss 32–37. 87 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 88 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 89 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014, para 1.

274

10. Article 9: Right to Receive Information, Freedom of Expression

phrase is not always repeated exactly or in full, so in some instances it has simply called on States to ‘respect and guarantee’90 or simply to ‘respect’91 or to ‘guarantee’ the rights,92 or ‘protect’.93 More generally, on several occasions it has required States to ‘take the necessary measures’ to ‘put an end to’,94 or ‘stop’ violations, for example, against human rights defenders or media practitioners,95 or to ‘end ongoing violations against journalists, media practitioners, and media organizations’.96 States have also been urged to ‘comply’ with97 or ‘uphold’98 their international obligations. They should also ‘ensure both legal and practical compliance of national laws with international and regional standards on freedom of expression and access to information’.99 Laws should be reviewed,100 and if found to be incompatible with ACHPR standards, repealed.101 So where the Constitutional Court in Uganda had ruled that sedition laws were contrary to the constitution, the African Commission urged the government to expedite their repeal.102 The African Court held not only that the custodial sentences imposed on journalists who criticised the prosecutor were in violation of Article 9, but so was the enforcement of such laws by the national courts.103

90 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014; Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014. Joint press release by the Special Rapporteur on Human Rights Defenders in Africa and the Special Rapporteur on Freedom of Expression and Access to Information regarding the situation of human rights defenders and freedom of expression and assembly in Burundi, 1 May 2015. 91 Joint Press Release on the Verdict against Sanaa Seif, Yara Sallam and 21 Other Co-accused in Egypt, 3 November 2014. 92 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014. 93 Resolution on the Right to Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. 94 Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, ACHPR/ Res.297 (EXT.OS/XVII) 20, 28 February 2015. 95 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014; Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014. 96 Resolution on the Attacks against Journalists and Media Practitioners in Somalia, ACHPR/Res.221, 2 May 2012. 97 Joint Press Release on the Verdict against Sanaa Seif, Yara Sallam and 21 Other Co-accused in Egypt, 3 November 2014; Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, ACHPR/Res.297 (EXT.OS/XVII) 20, 28 February 2015. 98 Resolution on the Safety of Journalists and Media Practitioners in Africa, ACHPR/ Res.185, 12 May 2011. See also Resolution on the Situation of Freedom of Expression in Africa, ACHPR/Res.99, 29 November 2006. 99 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, para 46. Resolution on the Right to Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. 100 Resolution on the Attacks against Journalists and Media Practitioners in Somalia, ACHPR/Res.221, 2 May 2012. 101 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Proposed Decriminalisation of Media Offences in Senegal; Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Situation of Freedom of Expression in The Gambia, 22 June 2009. 102 Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Republic of Uganda, 26–30 August 2013, 30 August 2013. 103 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 167.

D. Article 9(2): Right to Express and Disseminate Opinions

275

The obligation to respect has entailed that the State ‘refrain from prosecuting journalists in retaliation of their independent and critical work of journalism’.104 The duty to fulfil requires the State ‘[prevent] . . . all crimes allegedly committed against journalists and media practitioners and also to bring the perpetrators to justice’.105 Where journalists have been detained the African Commission and its Special Rapporteur have called for their ‘immediate and unconditional release’ and for charges to be dropped.106 The right must be provided without discrimination.107 Examining the admissibility of a communication which alleged that statements were made by the Minister that a particular private broadcasting company would never be given a licence because its owners were predominantly white, the African Commission found that these allegations were a prima facie violation of the ACHPR.108 There is a duty to investigate ‘all crimes allegedly committed’109 and allegations of Article 9 violations.110 This encompasses the obligation that the investigation be ‘thorough’,111 impartial and independent112 and result in the prosecution of the perpetrators,113 by ‘bring[ing] [them] to justice’,114 or holding them accountable.115 In some instances the duty may require the establishment of independent inquiries or commissions.116 States should also ‘take positive measures to promote diversity’.117 These measures include ensuring the ‘availability and promotion of a range of information and ideas to the public; pluralistic access to the media and other means of communication, including by 104 Resolution on the Attacks against Journalists and Media Practitioners in Somalia, ACHPR/Res.221, 2 May 2012. 105 Resolution on the Safety of Journalists and Media Practitioners in Africa, ACHPR/ Res.185, 12 May 2011. 106 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014; Joint Press Release on the Verdict against Sanaa Seif, Yara Sallam and 21 Other Co-accused in Egypt, 3 November 2014; Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Situation of Freedom of Expression in The Gambia, 22 June 2009. Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, para 30. 107 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. Resolution on the Right to Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. 108 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 56. 109 Resolution on the Safety of Journalists and Media Practitioners in Africa, ACHPR/ Res.185, 12 May 2011. 110 Resolution on the Attacks against Journalists and Media Practitioners in Somalia, ACHPR/Res.221, 2 May 2012. 111 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, para 45. Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, ACHPR/Res.297 (EXT.OS/XVII) 20, 28 February 2015. 112 Resolution on the Right to Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. 113 Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, ACHPR/ Res.297 (EXT.OS/XVII) 20, 28 February 2015. 114 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, para 45. 115 Resolution on the Right to Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. 116 Resolution on the Attacks against Journalists and Media Practitioners in Somalia, ACHPR/Res.221, 2 May 2012. 117 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para III.

276

10. Article 9: Right to Receive Information, Freedom of Expression

vulnerable or marginalized groups, such as women, children and refugees, as well as linguistic and cultural groups; . . . the promotion and protection of African voices, including through media in local languages; and . . . the promotion of the use of local languages in public affairs, including in the courts’.118

1. Media and Broadcasting Freedom of the press is considered to be an essential element of democracy.119 As a result States are required to ‘ensure the safety of journalists, media practitioners and human rights defenders’.120 The Principles of Freedom of Expression set out specific obligations with respect to private and public broadcasting.121 For the latter, States should ‘encourage a diverse, independent private broadcasting sector’, and although State monopoly is not necessarily incompatible with Article 9(2) the regulatory should encourage private and community broadcasting. This should be done in line with a number of principles, including ‘equitable allocation of frequencies between private broadcasting uses, both commercial and community’; having an ‘independent regulatory body shall be responsible for issuing broadcasting licences and for ensuring observance of licence conditions’; ensuring that licensing processes are ‘fair and transparent, and shall seek to promote diversity in broadcasting’ and promoting community broadcasting.122 The Principles also require that State-controlled broadcasters should be ‘transformed into public service broadcasters’. These ought to be accountable to the public through parliament and comply with a number of principles including being governed by a board ‘which is protected against interference, particularly of a political or economic nature’; editorial independence; adequate funding such that it ‘protects them from arbitrary interference with their budgets’; coverage of the whole territory of the State; and ‘the public service ambit of public broadcasters should be clearly defined and include an obligation to ensure that the public receive adequate, politically balanced information, particularly during election periods’.123 The Principles also set out obligations of the State in regulating broadcasting and telecommunications. Regulation must be independent and protected against interference, particularly economic and political interference.124 Members of any regulatory body ought to be appointed through an open and transparent process involving civil society and not under the control of any political party.125 Public authorities which have 118 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 119 Burundian Journalists Union v Attorney General of the Republic of Burundi, Reference No. 7 of 2013, East African Court of Justice, Judgment of 15 May 2015. 120 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, para 45. 121 See e.g. C. M. Fombad, ‘The protection of freedom of expression in the public service media in Southern Africa: a Botswana perspective’, 65 Mod. L. Rev. (2002) 649–675. 122 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part V. 123 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part VI. 124 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part VII. 125 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part VII.

D. Article 9(2): Right to Express and Disseminate Opinions

277

power over broadcasting and telecommunications should be accountable to a multi-party body.126 If registration procedures exist for print media, these should ‘not impose substantive restrictions on the right to freedom of expression’ and print media should be ‘protected adequately against undue political interference’,127 where ‘media owners and media professionals shall be encouraged to reach agreements to guarantee editorial independence and to prevent commercial considerations from unduly influencing media content’.128 The State should attempt to increase the circulation of print media in rural areas in particular.129 The State is required to establish a public complaints system which is ‘widely accessible’ and follows rules and codes of conduct that are ‘agreed between all stakeholders’.130 Bodies which hear the complaints should be protected against interference, have administrative powers and ‘not seek to usurp the role of the courts’.131 Self-regulation is considered to be the most appropriate approach.132 More broadly the Principles on Freedom of Expression require States to ensure a conducive economic environment to enable the media to flourish.133 They should also ‘not use their power over the placement of public advertising as a means to interfere with media content’; and ‘adopt effective measures to avoid undue concentration of media ownership, although such measures shall not be so stringent that they inhibit the development of the media sector as a whole’.134 Journalist material and sources should be protected with media practitioners not being required to reveal ‘confidential sources’ or other material.135 The exceptions to this rule are where: the identity of the source is necessary for the investigation or prosecution of a serious crime, or the defence of a person accused of a criminal offence; the information or similar information leading to the same result cannot be obtained elsewhere; the public interest in disclosure outweighs the harm to freedom of expression; and disclosure has been ordered by a court, after a full hearing.136

The use of the term ‘and’ here would seem to imply that all these conditions have to be met in order to justify the requirement that confidential sources be revealed. 126 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part VII. 127 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part VIII. 128 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part VIII. 129 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part VIII. 130 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part IX. 131 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part IX. 132 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, part IX. 133 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XIV. 134 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XIV. 135 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XIV. 136 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XIV.

278

10. Article 9: Right to Receive Information, Freedom of Expression

States have been called on to ensure that media practitioners are ‘free to organise themselves into unions and associations’.137 The African Commission has also set out specific obligations for States regarding attacks on media practitioners, stating that such ‘undermines independent journalism, freedom of expression and the free flow of information to the public’.138 States should ‘take effective measures to prevent such attacks and, when they do occur, to investigate them, to punish perpetrators and to ensure that victims have access to effective remedies’.139 The Special Rapporteur on Freedom of Expression and Access to Information in Africa, noting the sentencing to seven years imprisonment of three Al-Jazeera journalists in Egypt after their arrest during demonstrations and being accused of supporting the Muslim Brotherhood of Egypt, reminded the government of this obligation.140 With respect to the sentencing of a human rights law and a journalist in Swaziland, the Special Rapporteur highlighted this provision and expressed similar concerns.141 During times of conflict, the African Commission requires States to ‘respect the status of media practitioners as non-combatants’.142 Deporting an individual to another country where this was ‘in order to silence him’, while not preventing him from expressing himself in the State to which he was sent, was a violation of Article 9.143

2. Political Debate and Speech Freedom of expression is considered to be ‘essential to an individual(‘s) personal development, political consciousness and participation in the public affairs of a country’.144 Therefore ‘[a]‌higher degree of tolerance is expected when it is a political speech and an even higher threshold is required when it is directed towards the government and government officials’.145 The arrest of Mr Ghazi Suleiman for publicly expressing views about the government’s human rights record was justified on the grounds of this being a threat to national security and public order. The African Commission stated that his speech aimed to promote and protect human rights, drawing on the UN Declaration on Human Rights Defenders, ‘of special value to society and deserving of special protection’, and as such it contributed to political debate and should be protected. A violation of Article 9 was found.146 137 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para X(1). 138 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XI(1). 139 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XI(2). 140 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014. 141 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014. 142 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XI(3). 143 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, paras 110–112. 144 Amnesty International and Others v Sudan; also cited in Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 246. 145 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 198; Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 246. 146 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 52.

D. Article 9(2): Right to Express and Disseminate Opinions

279

In Communication 313/05, Kenneth Good v Botswana, Kenneth Good expressed comments in his position as professor of political science at the University of Botswana in an article he wrote on ‘Presidential Succession in Botswana: No Model for Africa’. His contract with the university was terminated and he was expelled from the country, it was argued by the complainants, without providing the grounds for doing so.147 It was alleged this was in violation of Article 9(1) and the right to receive information. This was not addressed by the State in its submissions to the African Commission.148

3. Honour and Reputation The Dakar Draft of the ACHPR interestingly included honour and reputation within Article 9(2) specifically but this is not found in the final version of the ACHPR. The criminalisation of defamation has been stated by the African Commission to be ‘a serious interference with freedom of expression and impedes on the role of the media as a watchdog, preventing journalists and media practitioners to practice [sic] their profession without fear and in good faith’.149 Principle XII (1) of the Principles of Freedom of Expression in Africa Declaration provides that ‘States should ensure that their laws relating to defamation conform to certain standards, including no one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances’.150 The African Commission has commended States which do not have such laws and called on others to repeal any such legislation,151 but reminded journalists and media practitioners of ethical principles ‘in gathering, reporting, and interpreting accurate information, so as to avoid restriction to freedom of expression, and to guide against risk of prosecution’.152 It has been noted that while the African Court condemned a custodial sentence imposed on a journalist for defamation as not being proportionate, this stopped short of holding criminalization of defamation itself as contrary to Article 9.153 Three of the judges in a separate opinion were more forceful arguing State obligations ‘cannot justify the criminalization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not. Access to civil action, civil sanction, together with specifically defined crimes for safeguarding national security, public peace and the common interest should be sufficient’.154

Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 182. Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 183. 149 Resolution ACHPR/Res.169, Repealing Criminal Defamation Laws in Africa, 24 November 2010. 150 Principles of Freedom of Expression in Africa, Principle XII(1). 151 Resolution ACHPR/Res.169, Repealing Criminal Defamation Laws in Africa, 24 November 2010. See also Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa ‘Viewed in 25 years of the Commission’, presented by Adv. Pansy Tlakula, 52nd Ordinary Session, 9–22 October 2012, Yamoussoukro, Côte D’Ivoire, para 60. 152 Resolution ACHPR/Res.169, Repealing Criminal Defamation Laws in Africa, 24 November 2010. 153 http://www.acthprmonitor.org/a-case-for-optimism-a-qa-with-nani-jansen-reventlow/ 154 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Separate Opinion of Judges Sophia A. B. Akuffo, Bernard M. Ngoepe and Duncan Tambala, 5 December 2014, para 4; see also http://www. acthprmonitor.org/a-case-for-optimism-a-qa-with-nani-jansen-reventlow/. 147 148

280

10. Article 9: Right to Receive Information, Freedom of Expression

E. Limitations on the Right Although the Article 9(2) right appears only to be limited by the term ‘within the law’,155 the Principles on Freedom of Expression provide that ‘[n]‌o one shall be subject to arbitrary interference with his or her freedom of expression. Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary and in a democratic society’.156 Further, the African Commission has drawn heavily on European and Inter-American bodies’ jurisprudence to determine that there is an ‘international consensus’ on not only the right to freedom of expression but also the restrictions.157 On a number of occasions the African Commission has condemned restrictions imposed as being contrary to the ACHPR without necessarily clarifying what test it is applying. For example, it noted concerns about a media bill in Kenya which it determined ‘may restrict the right to freedom of expression and expose journalists to legal penalties’ and urged the authorities to reject it.158 Similarly, the Special Rapporteur on Freedom of Expression and Access to Information in Africa noted a proposed Nigerian Press Council and the Practice of Journalism in Nigeria Bill 2009 which required members of the Council to swear an oath of secrecy, licencing of journalists and a complaint commission to be established which could impose fines on journalists and suspend them from practice. The Special Rapporteur considered the Bill to be contrary to the African Commission’s Principles on Freedom of Expression in Africa and called for its withdrawal or amendment.159 Where an individual was tried, it was alleged because of news stories he published about an alleged coup plot involving senior military officials in Nigeria, the African Commission found that the publication led to his arrest and conviction and this was in violation of Article 9.160 The Special Rapporteur has also reiterated that arrest and imprisonment of demonstrators is a violation of the right to freedom of expression.161

1. ‘Within the Law’ or ‘Provided by Law’ Article 9(2) rights are protected provided they are ‘within the law’. There are several ways in which this phrase has been interpreted by the African Commission and Court. Firstly, ‘within the law’ does not simply mean that States have complete discretion as to what restrictions they impose on the right within their domestic law,162 as some African States have attempted to argue.163 Rather, the ‘law’ referred to in Article 9(2) has been held by

Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 103. Declaration of Principles on Freedom of Expression in Africa, para II. 157 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 187. 158 Press Release on the NGO and Media Bills in Kenya, 4 December 2013. 159 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa in respect of the proposed Nigerian Press Council and the Practice of Journalism in Nigeria Bill 2009, 25 November 2009. 160 Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, paras 67–69. 161 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014 162 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 115. 163 See Chapter 2 (Article 1). 155 156

E. Limitations on the Right

281

the African Commission to be not domestic law but the ACHPR164 and ‘international norms’165 or ‘international human rights instruments and practices’.166 Secondly, and relatedly, the African Commission has used this phrase to enable it to borrow from other international instruments and treaty bodies the principles on which restrictions should be permitted, thereby incorporating concepts of legitimate interests, necessity and democratic society.167 As was stated in Kenneth Good v Botswana: Though in the African Charter the grounds of limitation to freedom of expression are not expressly provided as in the other international and regional human rights treaties, the phrase ‘within the law’ under Article 9(2) provides a leeway to cautiously fit in legitimate and justifiable individual, collective and national interests as grounds of limitation.168

Consequently, and thirdly, by interpreting ‘within the law’ as importing principles from international human rights law, the African Commission and the African Court have also held that any restrictions should be ‘provided by law’,169 ‘prescribed by law’,170 or ‘under lawful conditions’,171 these terms being used interchangeably, but refer to the limitations being set out in domestic legislation. For example, where the editor of a publication in Burkina Faso was convicted for publication of articles relating to the Prosecutor, the African Court drew on this reasoning of the African Commission to rule that as the Penal and Information Codes were the relevant law applicable in this context, the restrictions were ‘provided by law’.172 This domestic legislation not only must be in compliance with the ACHPR and international norms but should also be ‘drafted with sufficient clarity to enable an individual to adapt his/her conduct to the Rules and to enable those in charge of applying them to determine what forms of expression are legitimately restricted and which are unduly restricted’.173 Finally, ‘within the law’ has been interpreted by the African Commission as meaning ‘within the confines of the law’: Implicit in this is that if such opinions are contrary to laid down laws, the affected individual or government has the right to seek redress in a court of law. Herein lies the essence of the law of 164 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia, 11 May 2000, para 59; Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996; Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, paras 113–114. 165 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. See also Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 249; Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 112. 166 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 115; Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 58. 167 See also Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 249. Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 112. 168 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 188. 169 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para II(2). 170 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014. 171 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 106. 172 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 130. 173 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 131. Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 187.

282

10. Article 9: Right to Receive Information, Freedom of Expression

defamation. This procedure has not been followed in this particular instance. Rather, the government has opted to arrest and detain the Complainant without trial and to subject him to a series of inhuman and degrading treatments. The Commission finds this in violation of Article 9 of the Charter.174

2. Serve a Legitimate Purpose and be Necessary and in a Democratic Society The restriction must ‘serve a legitimate interest’175 or a ‘legitimate purpose’.176 States should ensure that they ‘review all criminal restrictions on content to ensure that they serve a legitimate interest in a democratic society’.177 Drawing on European Court jurisprudence, the African Commission has referred to the need for any restrictions to be ‘necessary’178 and ‘in a democratic society’179 in order to be justifiable. There have been a number of cases where the African Commission has been called on to consider the criticism of government or State officials. In general, the African Commission has held that ‘[i]‌n an open and democratic society individuals must be allowed to express their views freely and especially with regards to public figures, such views must not be taken as insulting. The freedom to speak one’s mind is now an inherent quality of a democratic and open society. It is the right of every member of civil society to be interested in and concerned about public affairs –including the activities of the courts’.180 With respect to the publication of the article by Professor Good in which criticisms were made of the Botswanan political system, the African Commission noted that: [t]‌here is nothing in the article that has the potential to cause instability, unrest or any kind of violence in the country. It is not defamatory, disparaging or inflammatory. The opinions and views expressed in the article are just critical comments that are expected from an academician of the field; but even if the government, for one reason or another, considers the comments to be offensive, they are the type that can and should be tolerated. In an open and democratic society like Botswana, dissenting views must be allowed to flourish, even if they emanate from non-nationals. The lack of any tangible response from the State on how the article poses a threat to the State or Government leaves the Commission with no choice but to concur with the Complainants that the said article posed no national security threat and the action of the Respondent State was unnecessary, disproportionate and incompatible with the practices of democratic societies, international human rights norms and

Communication 232/99, John D. Ouko v Kenya, 6 November 2000, para 28. Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para II(2). Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 248. 176 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 132. 177 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para III. 178 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para II(2). 179 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 255. Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para II(2). 180 Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 95. 174 175

E. Limitations on the Right

283

the African Charter in particular. The expulsion of a non-national legally resident in a country, for simply expressing their views, especially within the course of their profession, is a flagrant violation of Article 9.2 of the Charter.181

The concept of proportionality is also brought in when examining what is necessary and in the context of a democratic society.182 The Declaration on Principles on Freedom of Expression provides that ‘sanctions should never be so severe as to interfere with the exercise of the right to freedom of expression’.183 The African Court, in Konaté, drew upon the reasoning of the African Commission in Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe to hold that: the principle of proportionality or proportionate justice is used to describe the idea that punishment for a particular offence should be proportionate to the gravity of the offence itself. The principle of proportionality seeks to determine whether, by State action, there has been a balance between protecting the rights and freedoms of the individual and the interests of society as a whole.184

With this, General Comment No. 34 of the UN Human Rights Committee,185 and European Court jurisprudence, the African Court considered whether the restrictions imposed on the publication of articles were proportionate. It held that this may vary, it being necessary to consider: the function of the person whose rights are to be protected; in other words, the Court considers that its assessment of the need for the limitation must necessarily vary depending on whether the person is a public figure or not.186

There should be less interference ‘in the context of public debate relating to public figures’ and therefore where publications concerned the prosecutor: he is more exposed than an ordinary individual and is subject to many and more severe criticisms. Given that a higher degree of tolerance is expected of him/her, the laws of the States Parties to the Charter . . . will respect to dishonouring or tarnishing the reputation of public figures, such as members of the judiciary, should therefore not provide more severe sanctions than those resulting to offences against the honour or reputation of an ordinary individual.187

This approach is reflected in the African Commission’s Declaration on Principles of Freedom of Expression in Africa that ‘public figures shall be required to tolerate a greater degree of criticism; and sanctions shall never be so severe as to inhibit the right to freedom of expression, including by others’.188 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, paras 199–200. In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 145. 183 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XII(1). 184 Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, para 176. 185 General Comment No. 34, Article 19: Freedom of Opinion and Freedom of Expression, UN Doc. CCPR/C/GC/34, 12 September 2011, para 33. 186 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 155. 187 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 156. 188 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XII(1). 181 182

284

10. Article 9: Right to Receive Information, Freedom of Expression

In a case against a number of African States it was alleged that a judgment handed down by the South African Development Community (SADC) Tribunal had not been complied with by Zimbabwe and that the fourteen States against whom the communication was brought were those heads of State of SADC which had suspended the Tribunal. The African Commission drew from its own jurisprudence around Article 56(3) and whether the remarks were ‘disparaging or insulting’. The test it used in terms of compliance with Article 56(3) was whether the: remark or language is aimed at unlawfully and intentionally violating the dignity, reputation or integrity of a judicial officer or body and whether it is used in a manner calculated to pollute the minds of the public or any reasonable man to cast aspersions on and weaken public confidence on the administration of justice. The language must be aimed at undermining the integrity and status of the institution and bring it into disrepute.189

It concluded that Article 56(3) should be interpreted ‘bearing in mind’ Article 9(2) of the African Charter and that a ‘balance must be struck between the right to speak freely and the duty to protect state institutions to ensure that while discouraging abusive language, the African Commission is not at the same time violating or inhibiting the enjoyment of other rights guaranteed in the African Charter, such as in this case, the right to freedom of expression’.190 In one communication the complainants had published an article in a newspaper which stated that ‘the Supreme Court of Zimbabwe’s handing down of a judgment: marked a sad day for Zimbabwe’s constitutional history. I suppose we should be immensely thankful that we are not prisoners on death row because the practical effect of this judgment is that had we been challenging the death penalty and not AIPPA, we would have had to hang first and challenge the penalty from hell.191

The State alleged that these remarks showed contempt for the Supreme Court and, according to the African Commission: The State notes that its submission should not be taken as an attempt to curtail freedom of expression and criticism of the judiciary but is intended to protect the dignity of the judiciary, adding that the language used by the Complainants go beyond mere criticism of the judiciary, that the language is discourteous, contemptuous and disparaging and is clearly intended to undermine the judiciary in the performance of its duties and hence the administration of justice.192

The African Commission stated: The fundamental question that has to be addressed in the present communication is how far one can go in criticising a judge or the judiciary in the name of free expression, and whether the statement made by the Complainants constitutes insulting or disparaging language within the meaning of Article 56.3 of the African Charter. Indeed, the communication invites the Commission to 189 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014. 190 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 92, citing Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009. 191 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 74. 192 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 76.

E. Limitations on the Right

285

clarify the ostensible relationship between freedom of expression and the protection of the reputation of the judiciary and the judicial process.193

Recognising that statements made against the judiciary have a greater impact than harming the reputation of the particular individual, the African Commission set out a test determining whether remarks or language were ‘disparaging or insulting’ within the context of Article 56(3). Firstly, it is necessary to ask whether the remark was ‘aimed at unlawfully and intentionally violating the dignity, reputation or integrity of a judicial officer or body’.194 Secondly Article 56(3) should be interpreted ‘bearing in mind’ Article 9(2) and a ‘balance must be struck between the right to speak freely and the duty to protect state institutions to ensure that while discouraging abusive language’.195 Recognising that the line between criticism of the judiciary and what is considered insulting has become blurred over time, and drawing upon domestic case law, the African Commission further held that the State would need to show ‘the detrimental effect of this statement on the judiciary in particular and the administration of justice as a whole’,196 or that it was ‘used in bad faith or calculated to poison the mind of the public against the judiciary’.197 In this particular communication the complainants alleged that one of the judges, the most senior, of the Supreme Court was ‘omitted’ from constituting the bench and the State claimed that such a statement brought the judiciary into disrepute. The African Commission held that this was simply a statement of fact and that ‘omitted’ was not disparaging or insulting to the judiciary. A custodial sentence for defamation of a prosecutor was considered to be disproportionate and in violation of Article 9.198 Custodial sentences should be reserved, according to the African Court, to ‘serious and very exceptional circumstances, for example, incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or group of people, because of specific criteria such as race, colour, religion or nationality’.199

3. Not be Arbitrary, be as Minimal as Possible and the Exception The right to free expression should not be subject to ‘undue restrictions’200 and limita tions on the right should not be ‘arbitrary’.201 Any restrictions must be ‘the exception’202 193 Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 87. 194 Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 91. 195 Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 92. 196 Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 96. 197 Communication 284/03, Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 96. 198 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 165. 199 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 165. 200 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para X(2). 201 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para II(2). 202 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 80.

286

10. Article 9: Right to Receive Information, Freedom of Expression

and where imposed ‘as minimal as possible and should not undermine fundamental rights guaranteed under international law’. In Communications 48/90-50/91-52/91-89/ 93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, allegations related to the detention of individuals on the basis of their membership of opposition groups or trade unions. A government decree prohibited political opposition if there was an ‘imminent and grave threat to the security of the country, public safety, independence of the State or territorial integrity and economic stability’.203 The African Commission held that this was a ‘blanket restriction’ and in violation of ‘the spirit of Article 9(2)’.204 Examining the compulsory registration of journalists, in Communication 297/ 05 Scanlen & Holderness v Zimbabwe,205 the African Commission drew heavily on the Inter-American Court’s Advisory Opinion on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism206 to determine whether ‘compulsory accreditation in itself affect[s]‌the enjoyment of freedom of expression’.207 This was mandatory in Zimbabwe and it was a criminal offence to practise without accreditation. On the one hand, the African Commission appears to state that any compulsory registration may be in violation of international human rights law: ‘The compulsory accreditation of journalists has been held at both national and international levels to be a hindrance to the effective enjoyment of the right to freedom of expression’.208 On the other hand, later on in its reasoning, this is diluted: it states that compulsory licencing or accreditation will be a restriction on freedom to practise journalism: where it aims to control rather than regulate the profession of journalism. Regulation is acceptable where it aims at the identification of journalists, the maintenance of ethical standards, competence, and the betterment of the welfare of journalists. In other words the aim of registration should be for purposes of betterment of the profession rather than its control, since control by its nature infringes the right to express oneself.209

It adds to this list by also determining that registration must fulfil certain criteria in order not to violate Article 9. These include that the procedures should be ‘purely technical and administrative in nature and do not involve prohibitive fees, or do not impose onerous conditions’.210 Furthermore, conditions for accreditation ‘should be aimed at facilitating, rather than impeding the exercise of the right’.211 Indeed, it holds that journalists should be self-regulated ‘through their professional organisations, or associations’.212 Self-regulation will not be those where the regulations are drafted by government,213 however, there could also be legislation which ‘provide for civil and other 203 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 79. 204 Communications 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 80. 205 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009. 206 Advisory Opinion OC-5/85, 13 November 1985, Inter-Am. Ct. H.R. (Ser. A) No. 5 (1985). 207 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 87. 208 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 92. 209 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 97. 210 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 90. 211 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 100. 212 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 90. 213 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 91.

E. Limitations on the Right

287

legal sanctions in the event of any injury caused, or infraction of the law by journalists during the practice of their profession’ which together with self-regulation would be sufficient to regulate journalists.214 The African Commission agreed with the complainants in this case that the conditions had the intention of controlling and obstructing the work of journalists.215

4. Grounds on which the Right can be Restricted The grounds for restricting the right are not listed expressly in Article 9(2), and despite reference by the African Commission to an ‘international consensus’ on the restrictions that can be imposed on freedom of expression, the grounds are not always consistently cited. On one occasion it has referred to reasons which aim ‘to protect the rights or reputation of others, for national security, public order, health or morals’.216 Added to this is ‘public interest’,217 ‘public safety’,218 and those that have as their aim ‘to protect the public or individuals’219 or ‘protection of the rights and freedoms of others’.220 Protection of ‘health’ has been cited as protection of ‘public health’.221 In addition, by citing Article 27(2) as the ‘only legitimate reasons’ for limiting rights, the African Commission thereby provides an additional list which is that the rights should be exercised ‘with due regard to the rights of others, collective security, morality and common interest’.222 In applying Article 19 of the International Covenant on Civil and Political Rights (ICCPR) in one case, the African Court also noted the grounds set out in the Covenant, namely ‘respecting the rights and reputation of others or the protection of national security, public order, public health or public morality’.223 Noting that the Information and Penal Codes of Burkina Faso aimed to protect the honour or reputation of an individual or profession and specifically or magistrates, jurors and assessors, the African Court held that ‘this is a perfectly legitimate objective’, the limitations imposed were therefore in line with international standards.224 For the protection of public order, the African Commission has held this ‘implies conditions that ensure the normal and harmonious functioning of institutions on the basis of an agreed system of values and principles’.225 Nevertheless, it determined that

Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 102. Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 102. 216 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 187. Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XIII. 217 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 255. Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 185. 218 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014. 219 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 108. 220 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014. 221 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the arrest and imprisonment of Peter Greste, Mohamed Fahmy and Baher Mohamed, 25 June 2014. 222 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 185. 223 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 135. 224 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 138. 225 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, paras 109–110. 214 215

288

10. Article 9: Right to Receive Information, Freedom of Expression

public order can still be maintained without necessarily restricting the activities of journalists and indeed ‘the same concept of public order in a democratic society demands the greatest possible amount of information. It is the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole that ensures this public order’.226 Any restrictions on grounds of public order or national security should ‘only be imposed if there is ‘a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression’.227 There is no right to privacy provided for in the ACHPR although the African Commission has held that where there are privacy laws they should ‘not inhibit the dissemination of information of public interest’.228 It has also referred to a ‘right to privacy’ in a number of other documents.229

F. Duties of Journalists and Others Although the individual duties provisions in the ACHPR are most often referred to in relation to Article 27(2) and in the context of permissible restrictions on rights, the African Commission has on occasion also held that certain duties apply to non- State entities and in respect of Article 9 this has been directed towards journalists. It has required that journalists may in fact publish information which damages an individual’s reputation or interests, or is contrary to ‘national security, public order, health or morals’.230 Yet, ‘it is sufficient if journalists have made a reasonable effort to be accurate and have not acted in bad faith’.231 Citing Article 9 and Article 27, it has held a specific duty of journalists ‘to respect the rights of others, when exercising their rights to free expression’.232 It follows that if they fail to do so, ‘then their right ceases to be absolute. It is then that the civil and other legal remedies will take their natural course’.233 In addition, ‘all parties involved in situations of armed conflicts’ have been called on to ‘respect the independence and freedom of journalists and media practitioners to exercise their profession and guarantee their safety and security in accordance with international humanitarian law’.234

Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, paras 109–110. Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XIII. 228 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, para XII(2). Resolution on the Right to Freedom of Information and Expression on the Internet in Africa—ACHPR/Res. 362(LIX) 2016, 4 November 2016. 229 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 3 August 2016; Press Release on the implications of the anti-homosexuality Act on the work of Human Rights Defenders in the Republic of Uganda, 11 March 2014; Press release on the launching of the new principles on the Promotion of Human and Peoples’ Rights while Countering Terrorism in Africa, 29 January 2016. 230 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 120. 231 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 120. 232 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 121. 233 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 121. 234 Resolution on the Safety of Journalists and Media Practitioners in Africa, ACHPR/ Res.185, 12 May 2011. 226 227

G. Remedies

289

G. Remedies As with other rights, a variety of different remedies have been ordered by the African Commission in the finding of a violation of Article 9 alone or in conjunction with other rights.

1. Compensation Botswana was urged to pay ‘adequate compensation’ to Professor Good ‘for the loss and cost he has incurred as a result of the violations’ including violations of Article 9.235 This compensation, the African Commission held, ‘should include but not be limited to remuneration and benefits he lost as a result of his expulsion, and legal costs he incurred during litigation in domestic courts and before the African Commission. The manner and mode of payment of compensation shall be made in accordance with the pertinent laws of the Respondent State’.236 The African Court ordered Burkina Faso to pay Mr Konaté 25 million CFA Francs for loss of income; 108,000 CFA Francs for medical and transport expenses and 10 million CFA Francs as ‘compensation for the moral damage suffered by him and his family’.237 In determining the loss of income as a result of the publication being suspended, the Court examined the unit price of each paper although queried the applicant’s statement that the publication sold 5000 copies per week as he had not brought evidence to support this.238 It held that the figure provided by the applicant was ‘unduly inflated and ruling on the basis of equity’ ordered 20 million. It did however agree with the applicant that on returning to the publication after his imprisonment he had been unable to continue publishing the same volume as previously. As no evidence was produced to support the figure provided by the applicant, the African Court concluded that the applicant should be awarded 5 million CFA Francs, not the 37.6 million CFA Francs he claimed.239 It dismissed the claim for loss of physical belongings and replacement equipment as the applicant did not provide supporting documentation.240 Costs for Mr Konaté’s family to visit him in prison were also granted.241 The State was required to pay the compensation within six months, failing which interest would accrue calculated on the relevant rate of the Central Bank of the Community of West African States.242 The monies were paid, albeit with a couple of weeks outside of the deadline.243

Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 244. Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 244. 237 The Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, para 60(iii)–(v). 238 The Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, para 40. 239 The Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, paras 42–43. 240 The Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, paras 44–47. 241 The Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, para 49. 242 The Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, para 60(vii). 243 Information on file with author. 235 236

290

10. Article 9: Right to Receive Information, Freedom of Expression

2. Guarantees of Non-repetition Article 9 violations, along with other rights, have resulted in governments being asked to amend their laws.244 For example, the Zimbabwean government was called upon to repeal Sections 79 and 80 of the AIPPA which required compulsory accreditation of journalists, the African Commission finding this in violation of the ACHPR.245 The government was also required to decriminalise offences relating to accreditation and the practice of journalism and to adopt legislation that set up a framework for journalists’ self-regulation.246 Such amendments are then considered to provide ‘de jure protection of the human rights to freedom of expression, assembly, association and movement’.247 States have been required ‘to preserve the traditional functions of the court by not curtailing their jurisdiction’.248 With respect to a deportation order against an individual which was found by the African Commission to be in violation of Article 9, among other rights, it urged the government to take steps to ensure that court decisions were ‘respected and implemented’ and ‘[e]‌nsure that the Supreme Court finalises the determination of the application by Mr Meldrum, on the denial of accreditation’ as a journalist.249

3. Restitution The African Commission has called on the government of Nigeria to release individuals detained when they protested against elections being annulled.250 A deportation order against an individual that was found to have been in violation of the ACHPR was required to be rescinded and ‘the status quo ante’ be restored.251 It was also recommended that the individual be granted accreditation to enable him to resume his practice of journalism.252 Where custodial sentences were found to be in violation of Article 9 against a journalist who had published articles in respect of the prosecutor, the African Court ordered Burkina Faso to ‘expunge from the Applicant’s judicial records, all the criminal convictions pronounced against him’.253 In order to ensure any sentence was proportionate, namely that fines imposed did not change depending on the person whose reputation it was alleged had been damaged, the African Court also ordered that the State ‘revise downwards the amount of fines, damages and costs charged against the Applicant’.254 No specific amount was set out in the Judgment or Ruling on Reparations although the 244 Communication 228/99 Law Offices of Ghazi Suleiman v Sudan, 29 May 2003; Communication 313/ 05, Kenneth Good v Botswana, 26 May 2010, para 244. Also before the African Court, The Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016. 245 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 125. 246 Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 125. 247 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003. 248 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998. 249 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 250 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998. 251 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 252 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. 253 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, para 60(i). 254 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on Reparations, 3 June 2016, para 60(ii).

J. Special Mechanisms

291

former did note the relevant provisions of the Information and Penal Codes which determined the amounts where defamation was against members of the judiciary, armed and constituted corps and magistrates, jurors or assessors.255

4. Duty to Report States have been asked to report to the African Commission within six months on their implementation of the recommendations where Article 9 violations, among others, have been found.256

H. Evidence As with other rights, where the State did not dispute allegations by the complainants relating to Article 9 violations, the African Commission proceeded on the basis of the evidence presented by the complainants.257 The same approach was adopted where the State made no submissions on the specific allegation that Professor Good was expelled from Botswana because he wrote an article criticising the government.258

I. Amicable Settlement An amicable settlement was reached in one case involving allegations of violations of Article 9. Here Cameroon was alleged to have not been willing to provide a licence for the operation of a particular radio station, the subsequent banning of its programmes and the sealing up of its premises. Although the African Commission did not comment expressly on whether it considered the terms of the settlement to have complied with the ACHPR, it did note that the government had dropped any criminal charges against the radio station director, released its equipment, agreed to grant it a provisional licence and process the application in a ‘fair, transparent and expeditious manner’ if the complainant discontinued the case before the African Commission and settled the matter with the government. The complainant requested the communication be discontinued and the African Commission closed the file.259

J. Special Mechanisms Under Article 45 of the ACHPR the position of Special Rapporteur on Freedom of Expression and Access to Information was created at the 36th Ordinary Session of the African Commission in December 2004.260 Commissioner Andrew Chigovera was 255 In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, para 157. 256 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009. Communication 297/ 05, Scanlen & Holderness v Zimbabwe, 3 April 2009, para 125. 257 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 242. 258 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 196. 259 Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006, paras 8 and 22. 260 Resolution ACHPR/Res.71 (XXXVI) 04, adopted by the Commission at its 36th Ordinary Session, held from 23 November to 7 December 2004.

292

10. Article 9: Right to Receive Information, Freedom of Expression

appointed to the position.261 The decision to appoint a Special Rapporteur on this particular topic arose from the adoption of the Declaration on the Principles of Freedom of Expression in Africa in 2002262 and part of the mandate was to monitor implementation of that Declaration.263 The Special Rapporteur was also required to: analyse national media legislation, policies and practice within Member States, monitor their compliance with freedom of expression standards in general and the Declaration of Principles on Freedom of Expression in particular, and advise Member States accordingly; undertake investigative missions to Member States where reports of massive violations of the right to freedom of expression are made and make appropriate recommendations to the African Commission; undertake country Missions and any other promotional activity that would strengthen the full enjoyment of the right to freedom of expression in Africa; make public interventions where violations of the right to freedom of expression have been brought to his/her attention. This could be in the form of issuing public statements, press releases, urgent appeals; keep a proper record of violations of the right to freedom of expression and publish this in his/her reports submitted to the African Commission; and submit reports at each Ordinary Session of the African Commission on the status of the enjoyment of the right to freedom of expression in Africa.264

In December 2005 Pansy Tlakula took over as Special Rapporteur.265 In 2007 she was reappointed to the position and the mandate was restated, with a few minor amendments as well as the addition of access to information.266 The mandate has since then been extended every two years.267 Press releases268 and letters of appeal by the Special Rapporteur, sometimes in collaboration with others,269 have been issued and sent in line with the mandate to ‘make public interventions where violations of the right to freedom of expression and access to information have been brought to her attention, including by issuing public statements, press releases, and sending appeals to Member States asking 261 Resolution ACHPR/Res.71 (XXXVI) 04, adopted by the Commission at its 36th Ordinary Session, held from 23 November to 7 December 2004. 262 Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 263 Resolution ACHPR/Res.71 (XXXVI) 04, adopted by the Commission at its 36th Ordinary Session, held from 23 November to 7 December 2004. 264 Resolution ACHPR/Res.71 (XXXVI) 04, adopted by the Commission at its 36th Ordinary Session held from 23 November to 7 December 2004. 265 Resolution on Freedom of Expression in Africa ACHPR/Res.84 (XXXXV) 05, 5 December 2005. 266 Resolution ACHPR/Res.122 (XXXXII) 07 on the Expansion of the Mandate and Re-appointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa adopted at the 42nd Ordinary Session, held from 15 to 28 November 2007. 267 Resolution on the Reappointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, ACHPR/Res.161, 25 November 2009; Resolution on the Re-Appointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, ACHPR/Res.199, 5 November 2011; Resolution on the Renewal of the Mandate of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, ACHPR/Res.247, 5 November 2013; Resolution on the Renewal of the Mandate of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, ACHPR/ Res.320, 18 November 2015; Resolution on the Appointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa—ACHPR/Res. 377 (LXI) 2017, 15 November 2017. 268 E.g. Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Proposed Decriminalisation of Media Offences in Senegal; Joint press release by the Special Rapporteur on Human Rights Defenders in Africa and the Special Rapporteur on Freedom of Expression and Access to Information regarding the situation of human rights defenders and freedom of expression and assembly in Burundi, 1 May 2015. 269 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014.

J. Special Mechanisms

293

for clarifications’. Examples include communications to Angola in 2013 regarding allegations on restrictions on demonstrations in the capital Luanda;270 to Ethiopia and Swaziland in 2014 raising concerns about the welfare of journalists and human rights defenders in detention;271 and sentences against human rights defenders tried under circumstances which violated Article 7 of the ACHPR after being arrested for demonstrating in Egypt.272 Individuals who spoke out against the government of President Jammeh in The Gambia in 2009, the arrest and detention of journalists and newspaper editors, where they had not been permitted adequate time to prepare bail bonds and who were denied access to lawyers and their families, also received the attention of the Special Rapporteur who stated that if proven would result in a violation of Article 9.273

270 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, para 20. 271 Activity Report of Advocate Pansy Tlakula as the Special Rapporteur on Freedom of Expression and Access to Information in Africa, Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, 28 April–12 May 2014, paras 22–29. 272 Joint Press Release on the Verdict against Sanaa Seif, Yara Sallam and 21 Other Co-accused in Egypt, 3 November 2014. 273 Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa on the Situation of Freedom of Expression in The Gambia, June 2009.

11. Article 10 Freedom of Association 1. Every individual shall have the right to free association provided that he abides by the law.

2. Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.

A. Introduction Earlier drafts of the African Charter on Human and Peoples’ Rights (ACHPR) differed in the way in which this right was phrased. It was noted that previous drafts had not contained the right to freedom of association, this being explained as being due to ‘the right is one of controversy between differing political ideologies at present active in the affairs of the peoples of Africa. Perhaps the Experts may wish to re-examine the provisions of the International Covenant on the subject and attempt to harmonise them with the differing shades of political thought of the African peoples’.1 The M’Baye Draft drew heavily on Article 16 of the American Convention on Human Rights (in its first paragraph) and Article 22 of the ICCPR (in its section and third paragraphs), providing that: 1. Everyone has the right to associate freely for ideological, religious, political, economic, labour, social, cultural, sports or other purposes. 2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others. 3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police.2

The Dakar Draft simplifies the provision and is closer to that found in the adopted  ACHPR: 1. Every person shall have the right to freely form associations with others, provided that he abides by the law. 2. No one may be compelled to join an association.3

Freedom of association has arisen in a number of situations, often referred to in very general terms. For example, this has been in the context of elections,4 where reference has been made to Article 13(1),5 and to the role of political parties and prohibition of the establishment of political parties has been considered to have violated Article 10.6 The 1 M’Baye Draft African charter on Human and Peoples’ Rights, The draft reprinted here was prepared for the Meeting of Experts in Dakar, Senegal from 28 November to 8 December 1979, by Kéba Mbaye. CAB/LEG/67/1, Introduction. 2 3 Article 27 of the M’Baye Draft. Article 10 of the Dakar Draft. 4 Resolution On The 2013 Elections In Africa, ACHPR/Res.239, 24 July 2013; Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012. 5 Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014. 6 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 61.

A. Introduction

295

African Union (AU) Guidelines on Electoral Observation and Monitoring Missions7 commit governments to ‘safeguard’ freedom of association,8 and to conduct elections under certain principles including that ‘every citizen shall have the right to free association and assembly in accordance with the law’.9 Similarly, the AU’s Declaration on the Principles Governing Democratic Elections in Africa calls on States to ‘safeguard the human and civil liberties of all citizens including the freedom of movement, assembly, association, expression, and campaigning as well as access to the media on the part of all stakeholders, during electoral processes’, and affirms the right of ‘[e]‌very citizen shall have the right to free association and assembly in accordance with the law’.10 Specific attention has also been paid to civil society organisations, particularly those operating in the field of human rights, with the African Commission considering that the Article 10 ‘is fundamentally premised on the idea that the government should distance itself from the sphere of civil society organization’.11 The African Commission has expressed its concern, for example, around restrictions on registering organisations and limits imposed by some governments on foreign funding for these associations.12 In one communication the African Commission held that the deportation of two men by Zambia had denied them their right to freedom of association as they were ‘prevented from associating with their colleagues in the United National Independence Party and participating in their activities’.13 The African Commission has similarly expressed concerns with violations of the right to freedom of association in a number of States.14 Its Special Rapporteur on Human Rights Defenders has had freedom of association incorporated within her mandate and human rights defenders have been of particular interest in the context of Article 10.15 Guidelines on Freedom of Association and Assembly in Africa, adopted by the African Commission in 2017, now provide greater detail on the interpretation of this provision.

1. Relationship with Articles 9 and 11 In the ACHPR and in the earlier drafts of the African Charter, the rights to freedom of assembly and association have been kept distinct. Yet in practice, the two provisions, Articles 10 and 11, are often cited together and conflated.16 For example, the African 8 Adopted July 2002. Para 1.2. Guidelines for African Union Electoral Observation and Monitoring Missions, para 1.2. 10 African Union Declaration on the Principles Governing Democratic Elections in Africa, AHG/Decl.1 (XXXVIII), 2002, paras III(d) and IV(3) respectively. 11 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.86. 12 Press Release on the NGO and Media Bills in Kenya, 4 December 2013; Resolution on Human Rights Abuses in Egypt, ACHPR/Res.287, 29 July 2014. 13 Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 57. 14 E.g. Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt, ACHPR/ Res.297, 28 February 2015; Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Republic of Uganda, 30 August 2013. 15 Resolution on the Renewal of the Mandate of the Special Rapporteur on Human Rights Defenders in Africa, ACHPR/Res.248, 5 November 2013; Resolution on the Appointment of the Special Rapporteur on Human Rights Defenders in Africa, ACHPR/Res.83, 5 December 2005; Resolution on the renewal of the mandate of the Special Rapporteur on Human Rights Defenders in Africa, ACHPR/Res.125, 28 November 2007. 16 See, in general, African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014. Resolution on Attacks against Journalists and 7 9

296

11. Article 10: Freedom of Association

Commission found that one individual was prevented from ‘gathering with others to discuss human rights’ and punished for doing so, thereby violating his rights to ‘freedom of association and assembly’.17 Limitations imposed on forming political parties were held to violate ‘the right to assemble peacefully as the right to associate cannot be divorced from the right to assembly freely and peacefully’.18 The Commission has on some occasions cited one of the articles but meant the other. For example, referring to the ‘right to freedom of association and expression’ with respect to the position of the Sahrawis the African Commission noted allegations that they were ‘not allowed by the Moroccan authorities to assemble freely’.19 Prohibition and restrictions on the ability of civil society organisations or human rights defenders have also been considered as being in violation of both Articles 10 and 11, the regulation of foreign funding imposed on Nigerian organisations being a case in point.20 Indeed, it is not just Article 11 with which Article 10 but has been closely linked, but also Article 9.21 The African Commission has held that there is a ‘close relationship’ between these rights,22 and has explained this is ‘because the protection of opinions and the right to express them freely constitute one of the objectives of the right of association’.23 It has highlighted the situation of political parties as an area where the ‘amalgamation of the two norms is even clearer’, given ‘their essential role for the maintenance of pluralism and the proper functioning of democracy. A political group should therefore not be hounded for the simple reason of wanting to hold public debates, with due respect for democratic rules, on a certain number of issues of national interest’.24 Where the organisation MOSOP was disseminating information and holding demonstrations against oil exploitation in Ogoniland in Nigeria, the African Commission held that what the unfair trial of the members of MOSOP and the imposition of death sentences were ‘inconsistent with Article 9(2) implicit when it violated Articles 10(1) and 11’.25

B. Right to Free Association: Article 10(1) A Study Group established to examine freedom of association and assembly produced a report in 2014. This report contains a range of examples of good and bad practice from Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014. See also Guidelines on Freedom of Association and Assembly in Africa, May 2017. 17 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 56. See also Press Release on the Fact Finding Mission to the Sahrawi Arab Democratic Republic, 17 September 2012. 18 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 59. 19 Report of the Fact-Finding Mission to the Sahrawi Arab Democratic Republic (24–28 September 2012), para 30. 20 Press Release on the implications of the proposed Act Regulation of Foreign Aid to Civil Society Organizations on the work of Human Rights Defenders in the Federal Republic of Nigeria, 30 June 2014. 21 Communication 228/99 Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 46. 22 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 110. 23 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004, para 80. 24 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004, para 80. 25 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 110. See also Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, para 23.

B. Right to Free Association: Article 10(1)

297

across the continent and sets out standards. According to the Study Group’s report the right to freedom of association ‘covers civil society organizations as well as trade unions, political parties, foundations, professional associations, religious associations, online associations, cooperative, and any other forms of group not-for-profit activity’.26 The African Commission has adopted the UN Special Rapporteur on the Right to Freedom of Peaceful Assembly and Association’s approach that the right applies to ‘any group of individual or legal entities brought together in order to collectively act, express, promote, pursue or defend a field of common interests’.27 Defining an association in its Guidelines on Freedom of Association and Assembly, and drawing upon OSCE Guidelines on Freedom of Association, the African Commission notes this is : an organized, independent, not-for-profit body based on the voluntary grouping of grouping of persons with a common interest, activity or purpose. Such an association may be formal (de jure) or informal (de facto). a. A formal (de jure) association is an association that has legal personality. b. An informal (de facto) association is an association that does not have legal personality, but that nonetheless has some institutional form or structure.28

It should be permissible to establish an association by ‘no more than two persons’, in line with international standards.29 The right to form an association must be open to children and ‘non-nationals in de facto residence’ and limitations should not be based on discriminatory grounds, nor past criminal conduct.30 The right entails a number of elements. Rights have been addressed to the association as an entity, as well as to individuals. Indeed, the African Commission has clarified that individuals and associations need to have separate liabilities.31 Article 10 includes the rights of the association itself to ‘be able to freely register’, with registration being ‘governed by a notification procedure in which the association is able to register itself simply by informing the impartial administrative body of its existence and supplying certain basic information’.32 If registration is refused, ‘clear, legally substantiated reasons’ should be given, with the ability to challenge the decision through

26 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para 14. 27 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.2, citing A/HRC/20/27, para 51. 28 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, p.9. 29 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 9. African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, recommendation 16. 30 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 10. African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, recommendation 17. 31 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.111. 32 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 13. African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.19.

298

11. Article 10: Freedom of Association

the courts.33 There should be no requirement to re-register.34 A single body should be in charge of registration and it should be ‘impartial and apolitical’, make decisions based on ‘clear legal criteria’, and have procedures which are ‘accessible and transparent’.35 The association should also ‘be free to pursue a range of activities including exercising their rights to freedom of association and assembly’ and for the association itself to have a right to privacy,36 and ‘be free from excessive state oversight into their internal structures and activities’.37 Associations should also have ‘free access to funding, both domestically and internationally’, and the ‘right to seek and receive funds from their own government, foreign governments, international organizations and other entities’.38 Notification requirements ought to be the same for international as for national associations.39 They should be ‘free to determine their own internal structure and rules of decision making’.40 It has also been noted that the right in Article 10 ‘does not end at the borders of any particular association . . . the right grants associations and their members the ability to cooperate with one another’, including the ability to form federations as well as informal networks.41 Related to this, the ‘same rights and protections’ should be afforded to regional and international NGOs, as are given to other associations.42 Associations registered in other States should consequently ‘be permitted to have a branch office in another country, to receive cash or in kind donations, transfers or loans from sources outside the country as long as all generally applicable foreign exchange and customs laws are satisfied’.43 The Guidelines include the ability for foreign and international associations to 33 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.29. 34 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.30. 35 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, recommendations 31–37. 36 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para 16. 37 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.54. 38 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.76. 39 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.66. 40 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, recommendation 11. 41 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.96–98. 42 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.99. 43 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.108.

B. Right to Free Association: Article 10(1)

299

establish branches in the State in line with national law requirements and any limitations imposed on such should comply with the principle of legality, for a ‘legitimate public purpose’, be ‘necessary and proportionate’ and in light of human rights law.44 As for rights of the individual, Article 10 permits them ‘to join together to pursue and further collective interests in groups, such as NGOs, political parties and trade unions. This right comprises the right to form and join associations freely’.45 On occasion a violation of Article 10 has been found to be a violation of the individual’s as well as the association’s rights. For example, where the director of a human rights organisation in Sudan was harassed and intimidated and the organisation closed and its bank accounts frozen, the African Commission found the ‘interference with the activities of the organization and its staff’ was in violation of Article 10.46 An individual in Nigeria was repeatedly arrested and detained by security officials because of his political beliefs and protests against the annulment of elections in 2012 in the country. The African Commission held that the acts of the security agents were in violation of Article 10(1).47 Trade union rights are encompassed within the right to freedom of association.48 The African Commission has held that Article 10 includes ‘the rights to collective bargaining, strike and other related organisational and trade union rights’.49 The Commission has noted that these collection of rights encompass ‘the right to form and join a trade union of choice (including the right not to), the right of trade unions to join national and international federations and confederations, and the right of trade unions to function freely without undue interference’.50 As with other provisions in the ACHPR the African Commission has called on States to ‘respect, protect and fulfil’ the right to freedom of association.51 Consequently, States have a duty to ‘abstain from interfering with the free formation of associations’,52 or ‘refrain from restricting’ the exercise of such rights,53 and specifically, to ‘refrain from . . . stacking associations with government representatives and then providing such bodies wide discretionary powers in an effort to control civil society space’.54 Further, ‘there must always Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 20. Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 118. 46 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 119. See also Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, paras 47–49. 47 Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000, para 23. 48 See e.g. O. V. C. Okene, ‘Legal constraints to membership of a trade union in Nigeria’, 5 Int’l J. Civ. Soc’y L. (2007) 29–38. 49 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59(b). 50 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59(b). See also Guidelines on National Periodic Reports, 1988, paras 1 and 10–13. 51 Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012. 52 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 15. 53 Press Release on the NGO and Media Bills in Kenya, 4 December 2013; Press Release on the Human Rights Promotion Mission Undertaken by the African Commission on Human and Peoples’ Rights to the Republic of The Sudan from 22–28 May 2015, 28 May 2015. 54 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para 16. 44 45

300

11. Article 10: Freedom of Association

be a general capacity for citizens to join, without State interference, in associations in order to attain various ends’.55 In Egypt, the government was called upon to ‘refrain from disproportionate use of force against protesters as well review its laws on demonstrations and public rallies on the use of firearms against protesters to bring them in line with international standards’.56 States are also required to protect the right, including to ‘protect associations from others who might seek to interfere with them’.57 Positive measures include ‘providing that civil society be consulted on or involved in governance issues in certain sectors’.58 In addition, States have been required to ‘safeguard these rights in line with its international and regional human rights obligations’.59 The Special Rapporteur on the situation of Human Rights Defenders in Africa, for example, has commented frequently on the restrictions as well as harassment and arbitrary detention, imposed on individuals defending human rights through participating in demonstrations and other activities in numerous States and called upon them to guarantee rights to ‘peaceful protest, association and assembly’.60 States have been required to bring ‘to an end the judicial harassment perpetrated against human rights defenders working in the country’.61 The right should be applied without discrimination, for example, with the African Commission noting its concerns with ‘favourable treatment towards NGOs which are seen as ideologically aligned with the current Government’ in Tunisia.62 In addition, the African Commission found that where government officials stated during the trial of individuals belonging to the MOSOP organisation in Nigeria that they were already guilty, there was ‘a clear prejudice against the organisation MOSOP, which the government has done nothing to defend or justify’ in violation of Article 10(1).63 ‘Political persecution’ against individuals may also violate the provision, such as when the leader of the students’ union at the University of Nairobi was forced to leave Kenya due to his political opinions.64

55 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 15. 56 Resolution on Human Rights Abuses in Egypt, ACHPR/Res.287, 29 July 2014, para 4. 57 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para 16. 58 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.89. 59 Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Republic of Uganda, 30 August 2013. 60 Press release on the upcoming verdict in the trial against Ms Sana Seif, Ms YaraSallam, together with twenty-one other individuals, 24 October 2014; see also Resolution on the extension of the deadline for the study on freedom of association in Africa, ACHPR/Res.229, 22 October 2012. 61 Press release on the upcoming verdict in the trial against Ms Sana Seif, Ms YaraSallam, together with twenty-one other individuals, 24 October 2014. 62 Joint statement by the United Nations Special Rapporteur on the Situation of Human Rights Defenders, Margaret Sekaggya, and the Special Rapporteur on Human Rights Defenders of the African Commission on Human and Peoples’ rights, Reine Alapini-Gansou, at the end of their visit to Tunisia. 63 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 108. 64 Communication 232/99, John D. Ouko v Kenya, 6 November 2000, paras 29–30.

C. Justifiable Restrictions: Article 10(1)

301

Instruments which impact on the activities of human rights defenders should be repealed.65 ‘Adequate’ remedies should also be provided by the State to ‘rectify’ violations of the right.66

C. Justifiable Restrictions: Article 10(1) The M’Baye Draft included more detail for when the right could be restricted: The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

The wording is the same as to be found in Article 22 of the ICCPR but it does not appear in the final version of the ACHPR, although various elements of this have been incorporated through the African Commission’s jurisprudence. So in a case against Sudan the African Commission held that ‘any interference with this right must be prescribed by law and meet the conditions prescribed under Article 27 of the Charter, namely the protection of the rights and freedoms of others, collective security, morality and collective interests’.67 To this list the African Commission has added that any restrictions should be ‘based on legitimate public interest and the inconvenience caused by these restrictions should be strictly proportional and absolutely necessary for the benefits to be realised’.68 The law restricting the right should ‘not render the right itself an illusion’.69 If the restrictions cannot be justified under Article 27 then they will be considered ‘arbitrary’.70 Legislation regulating civil society associations is not necessarily in violation of Article 10, although the African Commission has stated that different legal frameworks should be applied to different categories of association, such as political parties, civil society organisations and trade unions, with the latter not being subject to more restrictive regimes than the others.71 The principle of legality means that ‘any limitations must not be overly broad or vague’.72 Article 10 will be violated if informal associations, namely those that

65 Intersession Activity Report (November 2011–April 2012) by Madam Reine Alapini Gansou Special Rapporteur on Human Rights Defenders in Africa, 51st Ordinary Session, Banjul, 18 April 2012–2 May 2012, para 50. 66 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para 17. 67 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 117. 68 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004, para 78. See also Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 117. 69 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004, para 79. 70 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 117. 71 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.3. 72 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.46.

302

11. Article 10: Freedom of Association

do not have authorisation of the State, are banned.73 Blanket restrictions on those who can found associations will be in violation of Article 10.74 Associations should ‘not be required to provide excessive personal information as to their members or officers’, and ‘reporting requirements must not be overly burdensome’, with yearly reporting being seen as sufficient.75 With respect to funding, it has been noted that some States have restricted certain civil society organisations who receive funding from foreign sources.76 Ethiopia’s Charities and Societies Proclamation (No. 621/2009) has been highlighted by the African Commission as a particular example that ‘has had a devastating impact’ on Article 10 rights.77 In response, the African Commission has stated that ‘the receipt of foreign funding should in no way affect an association’s ability to engage in the full range of legitimate activities’78 and any restrictions ‘must be in accordance with international legal standards, be for a legitimate reason, and be clearly codified in law’.79 Criminal sanctions should not be imposed on associations.80 The dissolution of a political party was found to be in violation of Article 10(1). The African Commission noted that the purpose of this dissolution was ‘preventing the party leaders from continuing to be responsible for actions for declarations or for the adoption of positions which, according to the Mauritanian government, caused public disorder and seriously threatened the credit, social cohesion and public order in the country’.81 As the Mauritanian authorities had ‘a whole gamut of sanctions which they could have used without having to resort to the dissolution of this party’, it was ‘not strictly proportional to the nature of the breaches and offences committed by the UFD/EN’.82

73 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, recommendation 11. 74 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para 13. 75 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.65. 76 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para 44. 77 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.70. 78 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.49. Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, paras 37–40. 79 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.77. Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, paras 37–40. 80 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.119. 81 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004, para 81. 82 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004, para 82.

D. Not Compelled to Join an Association: Article 10(2)

303

Where the director of a human rights organisation was harassed and the offices of the organisation closed and its assets frozen, the African Commission noted that as the State had failed to provide information that the organisation’s activities ‘endangered national security, morality, or the rights of other people in Sudan’, the interference with both the staff of the organisation and the organisation itself was ‘unjustifiable and arbitrary’.83 The African Commission has applied a general rule, in line with its approach towards other rights, that ‘[i]‌n regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the Constitution and international human rights standards’.84 A decree established a new governing body of the Nigerian Bar Association of which ninety-seven of its 128 members were nominated by government. This body had the power to set practising fees and discipline legal practitioners. The African Commission found that the composition of the body and its ‘wide discretionary powers’ interfered with the right to freedom of association of the Nigerian Bar Association.85 However, acceptable limitations on the right include ‘limiting engagement in for-profit activity . . . anti-democratic activities, incitement to hatred, or establishing an armed group’.86

D. Not Compelled to Join an Association: Article 10(2) Article 10(2) of the Dakar Draft provided that ‘No one may be compelled to join an association’, and did not therefore include reference to Article 29 and ‘the obligation of solidarity’. Article 10(2) thus reflects the notion, as has been noted, that ‘the principle of solidarity is strictly linked to individual duties’, thereby raising the risk that rights can be further limited by making them subject to duties.87 However, this does not appear to be the approach that has been adopted by the African Commission. As Ouguergouz notes, ‘[I]‌t is not so much the freedom not to join an association as the freedom to join one which poses a problem in the large part of the African continent and it is the way which it is exercised which poses the most subtle and the most serious dangers to the freedom guaranteed in Article 10(1)’.88 In the interpretation of Article 10, thus, the concept of solidarity, even if it has not been explicitly articulated by the African Commission, appears to be more akin to ‘the driving force of collective rights’, than imposing restrictions on the basis

83 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 119. 84 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 16. Communication 228/99 Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 46. See also Resolution on the Right to Freedom of Association, ACHPR/Res.5, 9 March 1992. 85 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, para 17. 86 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, recommendation 47. 87 F. Lenzerini, ‘The African System for the Protection of Human and Peoples’ Rights: Pan-Africanism, solidarity and rights’, in T. Maluwa (ed), Law, Politics and Rights: Essays in Memory of Kader Asmal, Martinus Nijhoff, Leiden, 2014, 13–57, at 39. 88 F. Ouguergouz, The African Charter of Human and People’s Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.419.

304

11. Article 10: Freedom of Association

of individual duties.89 This is in line with what others have seen as the rationale behind the ACHPR and its broader recognition of the rights of peoples in the post-colonial, post-apartheid context and is seen as reflective of African social theory.90 The African Commission has held that ‘individuals must not be required to join associations, and must always be free to leave them’.91 Legislation governing associations ‘should include an objective description that makes it possible to determine the criminal nature of a fact or organisation’.92 In a communication against Mauritania the African Commission found a violation of Article 10(2) as individuals who were considered to be supporters of the Ba’ath Arab Socialist Party were ‘imprisoned for belonging to a criminal association. The accused in the third case relating to the “Manifesto” (para 6) were charged [with] belonging to a secret movement. The government did not provide any argument to establish the criminal nature or character of these groups. The Commission is of the view that any law on associations. In the case under consideration, the Commission considers that none of these simply rational requirements was met and that there was violation of Article 10(2)’.93

E. Evidence Despite its close relationship with Articles 9 and 11 in particular in the ACHPR, in communications alleging a violation of Article 11 in conjunction with other rights the African Commission still requires that specific submissions are made on this provision. For example, while the African Commission was able to find a violation of Article 11 it held that as the complainants had not made ‘any submission’ on Article 10 it was unable to find a violation of the latter.94 As with other articles in the ACHPR if the government makes a ‘blanket denial of responsibility’ and does not give a ‘substantive response’, the African Commission will ‘decide on the facts provided by the Complainant and treat those facts as given’.95 As to what

89 F. Lenzerini, ‘The African System for the Protection of Human and Peoples’ Rights: Pan-Africanism, solidarity and rights’, in T. Maluwa (ed), Law, Politics and Rights: Essays in Memory of Kader Asmal, Martinus Nijhoff, Leiden, 2014, 13–57, at 40–41. 90 B. E. Winks, ‘A covenant on compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples’ Rights’, 11 AHRLJ (2011) 447–464, at 455. 91 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014, para IV.92. Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 8. 92 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 107. 93 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 94 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 133. 95 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, paras 25 and 26.

G. Special Mechanisms

305

amounts to a ‘substantive response’ is not precisely set out by the African Commission but it has held that the State should ‘submit arguments on the merits’.96

F. Remedies States have on occasion only received very general recommendations, for example, that they should ‘take all necessary measures’ to ensure their actions do not violate the rights in the ACHPR.97

1. Restitution Where the leader of the student union in a university in Kenya was forced to flee the country because of his political views, the African Commission called on the government to ensure his safe return to Kenya if this was his desire.98

2. Guarantees of Non-repetition The African Commission has called for decrees in violation of provisions of the ACHPR, including Article 9, to be annulled.99 Where a decree prohibited political parties, the African Commission called for it to be brought in line with the ACHPR.100

3. Duty to Report Swaziland was asked to report back to the African Commission within six months of a communication relating to a decree prohibiting political parties found to be in violation of Article 9 on the measures it has taken to implement the Commission’s recommendations.101

G. Special Mechanisms Although the Special Rapporteur on Human Rights Defenders was not established specifically with respect to Article 10 she has had some role to play in elaborating standards and principles on this provision. For example, in 2009 the African Commission adopted a resolution calling for a study to be made on freedom of association in Africa.102 Members of a study group were appointed in 2011 composed of a number of civil

Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 45. Press Release on the implications of the proposed Act Regulation of Foreign Aid to Civil Society Organizations on the work of Human Rights Defenders in the Federal Republic of Nigeria, 30 June 2014. 98 Communication 232/99, John D. Ouko v Kenya, 6 November 2000. 99 Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995. 100 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005; Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003. 101 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 102 Resolution on the Need for the Conduct of a Study on Freedom of Association in Africa, ACHPR/ Res.151, 25 November 2009. 96 97

306

11. Article 10: Freedom of Association

society organisations under the supervision of the Special Rapporteur on Human Rights Defenders.103 Its remit was to conduct ‘a study on the laws governing freedom of association and practices that violate freedom of association in Africa’.104 After a series of meetings105 the Study was adopted in 2015.106As the Study recommended the drafting of guidelines on freedom of association and assembly, the task was given to the Study group to produce them.107 These Guidelines on Freedom of Association and Assembly in Africa were adopted at the 60th Ordinary Session in May 2017.

103 Resolution on the Appointment of Members for a Study Group on Freedom of Association in Africa, ACHPR/Res.186, 12 May 2011. 104 Resolution on the Appointment of Members for a Study Group on Freedom of Association in Africa, ACHPR/Res.186, 12 May 2011. 105 Statement of Madam Reine Alapini-Gansou, Special Rapporteur on Human Rights Defenders in Africa, 25 May 2015; Final Communiqué of the Finalization Meeting for the Studies on Freedom of Association and Assembly, and the Situation of Women Human Rights Defenders in Africa, 21 August 2014; Resolution on the extension of the deadline for the study on freedom of association in Africa, ACHPR/Res.229, 22 October 2012; Press Release on the Third Meeting of the Study Group on Freedom of Association in Africa, 11 March 2014; Final Communique of the Second Meeting of the Study Group on Freedom of Association in Africa, 14 August 2013; Resolution on the Appointment of Members for a Study Group on Freedom of Association in Africa, ACHPR/Res.186, 12 May 2011; Final Communiqué on the Third Meeting of the Study Group on Freedom of Association and Peaceful Assembly in Africa, 21 March 2014. 106 African Commission, Report of the Study Group on Freedom of Association & Assembly in Africa, ‘Freedom of Association, as Pertaining to Civil Society, and Freedom of Assembly in Africa: A Consideration of Selected Cases and Recommendations’, 2014. 107 Resolution on the drafting of Guidelines on Freedom of Association and Assembly in Africa, ACHPR/ Res.319, 18 November 2015.

12. Article 11 Right to Assemble Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions

provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

A. Introduction Earlier drafts of the African Charter included this as a separate right,1 although in the M’Baye draft the right was qualified: ‘the right of peaceful assembly, without arms, is recognised’. ‘Without arms’ had disappeared by the time of the Dakar Draft. In practice, as noted in Chapter 11 (Article 10), freedom of assembly has often been cited together with freedom of association, sometimes interchangeably, and also with freedom of expression, the African Commission noting their ‘close relationship’.2 Treating the rights in Articles 9, 10 and 11 together, the African Commission has nevertheless stressed their ‘fundamental’ nature3 when commenting on violations of the right to assemble in several African States, usually in the context of a violation of a range of rights.4 The African Commission has noted ‘the importance of communication and the right of access to information before, during and after assemblies’5 and that ‘the links between the right to freedom of assembly, freedom of expression and access to information’.6 Although the attention that has been paid to Article 11 has often been in relation to these other rights, for example, through the conclusions of the Study Group on Freedom of Association and Assembly in Africa,7 and subsequent Guidelines on Freedom of See Article 26 M’Baye Draft; Article 11 Dakar Draft. Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 110. See also Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017. 3 Resolution on Attacks against Journalists and Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014. 4 E.g. Somalia: Resolution on Attacks against Journalists and Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014; Egypt: Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt—ACHPR/Res.297 (EXT.OS/XVII) 20, 28 February 2015; and Uganda: Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Republic of Uganda, 26–30 August 2013, 30 August 2013; and Guinea: Appeal: The African Commission on Human and Peoples’ Rights Concerned about the Situation in the Republic of Guinea, 16 February 2007; Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012; Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014; Statement on the situation of human rights in Burundi in the upcoming Presidential Elections, 3 May 2015. 5 Resolution on the Need to Develop Guidelines on Policing and Assemblies in Africa, ACHPR/Res.363, 4 November 2016. 6 Resolution on the Need to Develop Guidelines on Policing and Assemblies in Africa, ACHPR/Res.363, 4 November 2016. 7 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014. 1 2

308

12: Article 11: Right to Assemble

Association and Assembly,8 particular focus has been provided on the right to assemble in other contexts, such as through the African Commission’s Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa.9 Consequently, freedom of assembly has arisen in similar contexts to Article 10. These include protests,10 and activities of civil society organisations and condemnation by the African Commission’s Special Rapporteur on Human Rights Defenders of proposed legislation, for example, in Nigeria, which limited organisations from receiving funds from foreign sources.11

B. Right to Assemble Freely with Others The African Commission takes the definition of an assembly provided by the UN Special Rapporteur, as ‘an intentional and temporary gathering in a private or public space for a specific purpose’.12 The right should be ‘understood in a broad manner consistent with international human rights law’.13 It has not referred to a ‘right to protest’ specifically.14 The right can be exercised, according to the African Commission, ‘in a number of ways, including through demonstrations, protests, meetings, processions, rallies, sit-ins, funerals, through the use of online platforms, or in any other way people choose’.15 The right to assemble has a collective dimension, with the African Commission noting that it is a right that ‘adheres in the people’, which implies that notification, rather than ‘authorization’ should be required,16 and assemblies should be considered ‘as a use of public space as legitimate as any other’. The right has arisen commonly in the context of political demonstrations. In its Resolution on the Right to Peaceful Demonstrations the African Commission called on Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017. African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017; Resolution on the drafting of Guidelines on Freedom of Association and Assembly in Africa, ACHPR/Res.319, 18 November 2015. Resolution on the Need to Develop Guidelines on Policing and Assemblies in Africa, ACHPR/Res.363, 4 November 2016. 10 S. E. Hager, ‘Furthering the enjoyment of freedom of assembly in Sub-Saharan Africa through its legal systems’, 11 Intercultural Hum. Rts. L. Rev. (2016) 55–87, at 63. 11 Press Release on the implications of the proposed Act Regulation of Foreign Aid to Civil Society Organizations on the work of Human Rights Defenders in the Federal Republic of Nigeria, 30 June 2014. 12 A/HRC/20/27, para 24; see Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 69. 13 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.4. 14 See African Commission on Human and Peoples’ Rights, the Danish Institute for Human Rights (DIHR) and the African Policing Civilian Oversight Forum (APCOF) Newsletter No. 004 April 2014, Police and Human Rights in Africa. Generally, I. T. Sampson, ‘The right to demonstrate in a democracy: An evaluation of public order policing in Nigeria’, 10 AHRLJ (2010) 432–456. L. Chamberlain, ‘Assessing enabling rights: Striking similarities in troubling implementation of the rights to protest and access to information in South Africa’, 16 African Human Rights Law Journal (2016) 365–384. 15 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, para 1.1. 16 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 8 9

B. Right to Assemble Freely with Others

309

States to ‘[r]‌efrain from conducting arbitrary arrests and detentions of demonstrators’ and from ‘disproportionate use of force against demonstrators whilst fully complying with international standards on the use of force and firearms by law enforcement officials’.17 Where MOSOP, an organisation in Nigeria, held public meetings and disseminating information about those living in Ogoniland, an oil-producing region in Nigeria, the African Commission noted that ‘[i]t appears that the Tribunal holds the accused responsible for the murders because they organised the rally after which the murders took place’, a position it considered to ‘adversely affect the right to assembly’.18 In another case, where the State prevented an individual from ‘gathering with others to discuss human rights and by punishing him for doing so’, the African Commission found a violation of his rights to freedom of association and assembly under Articles 10 and 11.19 Swaziland was held to have violated the same Articles through a 1973 Proclamation which prohibited political parties from being formed or existing.20 The African Commission has also condemned the prohibition and ‘brutal suppression’ by the Moroccan authorities of peaceful demonstrations by Sahrawis in refugee camps in ‘occupied territories’.21 Morocco is not party to the African Charter on Human and Peoples’ Rights (ACHPR), although the Sahrawi Arab Democratic Republic (SADR) is. As with Article 10, Article 11 has also been considered in the context of elections,22 with the African Commission condemning, for example, ‘violence, intimidation or harassment’ against citizens and calling on States to ensure the right during electoral periods.23 It has stated that the ‘credibility of an electoral process and the legitimacy of the elected authorities strongly depend on the effective participation of citizens in a transparent and fair process, as well as respect for their fundamental freedoms of expression, of association and of assembly’.24 State obligations consequently include: ‘guarantee the rights of civil society organizations, including those of human rights defenders and journalists to enable them to conduct election-related activities in a conducive and reprisal- free environment’.25 In other contexts, concern has been expressed by the African Commission about ‘restrictions and intimidations’ towards journalists26 and trade unions, the latter, for instance, through deregistration of a Trade Union Congress in Swaziland.27

Resolution on Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, paras 106 and 110. 19 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 56. 20 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 61. 21 Report of the Fact-Finding Mission to the Sahrawi Arab Democratic Republic (24–28 September 2012), paras 29–30. See J. Quigly, ‘The relation between human rights law and the law of belligerent occupation: Does an occupied population have a right to freedom of assembly and expression?’, 12 B. C. Int’l & Comp. L. Rev. (1989)  1–28. 22 Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012. 23 Statement on the situation of human rights in Burundi in the upcoming Presidential Elections, 3 May 2015. 24 Resolution on 2015 Elections in Africa—ACHPR/Res.293 (EXT.OS/XVII) 20, 28 February 2015. 25 Resolution on 2015 Elections in Africa—ACHPR/Res.293 (EXT.OS/XVII) 20, 28 February 2015. 26 Resolution on Attacks against Journalists and Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014. 27 Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012. 17 18

310

12: Article 11: Right to Assemble

1. State  Duties States have been required to ‘respect, protect and fulfil the rights to freedom of expression, freedom of association, and freedom of assembly’ as set out in the ACHPR and other regional and international instruments.28 They have also on other occasions been called on ‘to respect and guarantee their right to freedom of opinion and expression’,29 and on others to ‘respect, protect and promote . . . freedom of expression and freedom of association and assembly of journalists and media practitioners’.30 The State has a duty to ‘protect and promote the conduct of peaceful assemblies’, particularly if these are simultaneous demonstrations or counter-demonstrations,31 and protect bystanders.32 They should ‘[p]‌rotect peaceful protesters regardless of their political affiliation, and/or sex’,33 and to protect those who are marginalized and discriminated against to enable them to voice their concerns.34 In general terms the African Commission and its special mechanisms have urged States to ‘take all necessary measures’, in one instance ‘to ensure that this Bill does not lead to a regression of the enjoyment of rights and freedoms’;35 in another ‘to stop all acts of harassment and intimidation carried out against human rights defenders and media practitioners working in the Kingdom of Swaziland’;36 or to ‘ensure the conduct of free, fair and credible elections in 2013’.37 Where journalists have been subject to harassment, arbitrary arrest and detention, the government was urged to ‘put an end’ to such activities.38 There is a duty on the State to conduct impartial and independent investigations of violations, including Article 11 violations,39 and prosecute the perpetrators.40 Commenting on the post-Revolution era in Tunisia, the African Commission noted that a committee had been set up to investigate deaths and injuries during Martyrs’ Day commemoration

28 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014. See also Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012. 29 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014. 30 Resolution on Attacks against Journalists and Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014. 31 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, paras 96–97; Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 32 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 95. 33 Resolution on Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. 34 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 94. 35 Press Release on the implications of the proposed Act Regulation of Foreign Aid to Civil Society Organizations on the work of Human Rights Defenders in the Federal Republic of Nigeria, 30 June 2014. 36 Resolution on Freedom of Expression in the Kingdom of Swaziland, ACHPR/Res.286, 29 July 2014. See similarly, Resolution on Attacks against Journalists and Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014. 37 Resolution on the Human Rights Situation in the Kingdom of Swaziland, ACHPR/Res.216, 2 May 2012. 38 Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt—ACHPR/ Res.297 (EXT.OS/XVII) 20, 28 February 2015. 39 Resolution on Peaceful Demonstrations, ACHPR/Res.281, 12 May 2014. 40 Resolution on the Deteriorating Human Rights Situation in the Arab Republic of Egypt—ACHPR/ Res.297 (EXT.OS/XVII) 20, 28 February 2015. See also similarly in relation to Somalia, Resolution on Attacks against Journalists and Media Practitioners in the Federal Republic of Somalia, ACHPR/Res.264, 14 March 2014.

C. Permissible Limitations

311

in Tunis in April 2012 but ‘regret[ted] that hardly any information is available on its findings so far’.41 States should ‘facilitate assemblies within sight and sound of the target audience’.42 Where an individual is violent or involved in ‘unlawful activity’, the State authorities ought not to break up the assembly, rather they should remove the individual,43 dispersal of assemblies being a measure of last resort and should ‘only be undertaken where violence occurs, or where the perceived threat of violence is genuine and imminent’.44 States should protect assemblies from the actions of third parties.45 The police have particular responsibilities in this regard.46 More generally, States are required to ‘ensure that human rights defenders operate in a conducive environment free from administrative processes, likely to be a constraint in the execution of their activities, and from reprisals or prosecution because of foreign funding and contribution received’.47 State authorities and parliamentarians have been urged to ‘dissociate themselves from any attempt to violate the rights of human rights defenders to carry out their work in harmonious and serene conditions’.48 Those whose rights are violated ‘in the context of assemblies’ should be entitled to ‘access effective remedies and accountability must be ensured, without exception’.49

C. Permissible Limitations The M’Baye Draft differed in its wording, although not significantly, from the adopted Article 11. It read: The right of peaceful assembly, without arms, is recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedoms of others.50 41 Joint statement by the United Nations Special Rapporteur on the Situation of Human Rights Defenders, Margaret Sekaggya, and the Special Rapporteur on Human Rights Defenders of the African Commission on Human and Peoples’ rights, Reine Alapini-Gansou, at the end of their visit to Tunisia, 7 October 2012. 42 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 43 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 44 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.39. 45 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.35. 46 Resolution on the Need to Develop Guidelines on Policing and Assemblies in Africa—ACHPR/Res.363, 4 November 2016. 47 Press Release on the implications of the proposed Act Regulation of Foreign Aid to Civil Society Organizations on the work of Human Rights Defenders in the Federal Republic of Nigeria, 30 June 2014. 48 Press Release on the implications of the proposed Act Regulation of Foreign Aid to Civil Society Organizations on the work of Human Rights Defenders in the Federal Republic of Nigeria, 30 June 2014. 49 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 50 Article 26, M’Baye Draft.

312

12: Article 11: Right to Assemble

The Guidelines on Freedom of Association and Assembly define ‘peaceful’ as ‘conduct that annoys or gives offence as conduct that temporarily hinders, impedes or obstructs activities of third parties’, with ‘isolated acts of violence’ not rendering an assembly as a whole non-peaceful.51 There should be a presumption in favour of the right to assemble freely, with restrictions being seen as ‘the exception’52, or on one occasion, ‘the last resort’.53 The African Commission has set out criteria for restrictions which it considers to be compatible with the ACHPR. In general terms, in line with is approach towards the limitations of other rights in the ACHPR, it has held that ‘governments should be especially careful that in regulating the use of this right, that the competent authorities should not enact provisions which would limit the exercise of this freedom and that the regulation of the exercise of the right . . . should be consistent with State’s obligations’ under the ACHPR.54 Mr Ghazi Suleiman alleged he was prevented from travelling to give a public lecture to some human rights defenders as state authorities threatened him with arrest. The African Commission found that ‘[b]‌y preventing Mr Ghazi Suleiman from gathering with others to discuss human rights and by punishing him for doing so, the Respondent State had violated Mr Ghazi Suleiman’s human rights to freedom of association and assembly’.55 The banning of political parties has been held to be a violation of Article 11.56 More specifically, there should be no blanket prohibitions, ‘such as on assemblies at certain times or locations’.57 In addition, ‘the speech content of the assembly must not be restricted, except where it meets the strict guidelines defining incitement to hatred’,58 and issues relating to ‘matters of public concern, public interest or political or policy affairs including criticism of the State or State officials . . . is given maximum protection’.59 The African Commission has thus criticised, for example, Law 89-28 of 1989 in Algeria which does not permit assemblies opposing the government.60 There should be no discrimination in the application of limitations on the right.61 Any restrictions imposed should ‘comply with the principles of legality’62 and be necessary and Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 70. African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, para 2.1.3. 53 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 54 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 46. 55 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 56. 56 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 69. 57 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, paras 83–84; Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 58 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 59 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 79. 60 Law 89-28 of 1989, Article 9; see Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.15. 61 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 80; Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.16. 62 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, para 1.2.2. 51 52

C. Permissible Limitations

313

proportionate and for a legitimate interest.63 In addition, restrictions must have a ‘foundation’ in the grounds listed in Article 11. So indictments of individuals for holding unauthorised meetings were found to be in violation of Article 11, as the African Commission noted that the government ‘did not come up with any element to show that these accusations had any foundation in the “interest of national security, the safety, health, ethics and rights and freedoms of others”, as specified in Article 11’.64 Counter-terrorism measures must not be used by States to restrict the right to free assembly among others.65 Issues such as the flow of traffic should not ‘take precedence over public assemblies’.66 Where restrictions are imposed the State should provide ‘full, legally backed reasons to the assembly organizers in a prompt manner’ if restrictions are imposed.67 The authorities should also ‘promptly communicate their decision to assembly organizers, together with a clear statement of their legal grounding’.68 Finally, the State ought to make an ‘expedited judicial appeal’ available if restrictions are imposed.69 Where there is violence, then criminal sanctions can be used against those responsible.70 However, the African Commission has made it clear that no sanctions, whether they be civil or criminal, should be used against organisers of assemblies or those who participated peacefully.71 Liability should be personal, and sanctions only ‘strictly proportionate to the gravity of the offence’,72 and given ‘in narrow and lawfully prescribed circumstances . . . and shall only be applied by an impartial, independent and regularly constituted court following a full trial and appeal process’.73 63 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, paras 85–88; Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 64 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, paras 1009–1111. 65 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa. 66 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 67 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 68 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.29. 69 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.17. 70 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.55. 71 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, section V; Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.55. 72 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.59. 73 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, paras 99–103; Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.58.

314

12: Article 11: Right to Assemble

The policing of assemblies must, the African Commission has stated, be in line with the UN Basic Principles on the Use of Force and Firearms by law Enforcement Officials.74 In its Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa75 the African Commission sets out a range of duties on the authorities to ensure a ‘rights- based’ approach. These include that the military should not be used to police assemblies, the principal role of law enforcement should be to protect the public and human rights, and provisions around the regulatory framework and command structures be clear and accessible.76 Obligations around the planning and preparation of assemblies including risk and contingency planning, as well as policing during and after assemblies are also set out in the Guidelines.77 Use of force ought only be a last resort ‘and to the minimum extent necessary’.78 Lethal force should only be used to defend life.79 Requiring notification of assemblies is there ‘to assist the state authorities in fulfilling their role in promoting and protection the conduct of assemblies along with public safety’.80 It is not necessary in all situations.81 For example, the African Commission has expressly stated that it will not be needed for ‘small gatherings or gatherings leading to no disruption to others’.82 When notification is required, certain conditions have been imposed by the African Commission. This should be through a procedure which is ‘easily accessible’ and not ‘overly demanding or bureaucratic’, free and ‘nonburdensome’.83 The African Commissions has thus stated that a requirement that five people sign the notification, as was the case in Egypt, was ‘excessive’.84 Notification should not be required for ‘small or spontaneous assemblies’ nor be ‘too far in advance’.85 As to what is too far, the African Commission cites a number of examples 74 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.53. 75 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017. 76 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, Part 2. 77 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, Parts 3–5. 78 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.54. 79 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.54. 80 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 81 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 71. 82 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.9. 83 Guidelines on Freedom of Association and Assembly in Africa, 22 May 2017, para 72. Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.8. 84 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.8. 85 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and

C. Permissible Limitations

315

ranging from eight to two days, noting that two days ‘is the international standard; slightly longer periods may be reasonable where necessary, but many of the periods discussed above seem clearly excessive’.86 In general, therefore, ‘shorter time periods are preferable, although there should also be sufficient time for organizers and state authorities to iron out any differences as to event details, including through prompt appeal to judicial authorities if necessary’.87 Assemblies should not be dissolved if there is no failure to notify88 and neither should the organisers be subject to sanctions. In a case against Mauritania there were allegations that individuals were accused of holding unauthorised meetings. The African Commission held that the government ‘did not come up with any element to show that these accusations had any foundation in the “interest of national security, the safety, health, ethics and rights and freedoms of others” ’, and found a violation of Article 11.89 Organisers should ‘not incur financial charges for the provision of public services, and should in no circumstances be made liable or considered responsible for the unlawful conduct of others’. Ken Saro-Wiwa and others were tried after their organisation, MOSOP, held public meetings. The Tribunal had ruled that Saro-Wiwa and the other accused ‘created the fire that consumed the four Ogoni chiefs’. This led the African Commission to state that ‘it appears that the Tribunal holds the accused responsible for the murders because they organised the rally after which the murders took place, although Ken Saro-Wiwa for one was prevented by government officials from attending the rally. The Commission has considerable difficulty with this position as it can adversely affect the right to assembly’.90 ‘Adequate, effective and prompt’ remedies should be provided to those whose rights are violated due to the policing of assemblies,91 with ‘effective internal accountability

recommendations’, April 2014, para III.C.2 and para V.7. African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, para 9.1. 86 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.7. 87 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para V.7. 88 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 89 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme/Mauritania, 11 May 2000, paras 109–111. Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 90 Communication 137/94-139/94-154/96-161/97 International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 106. Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 91 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, para 8.1.

316

12: Article 11: Right to Assemble

mechanisms and an adequately resource police civilian oversight body’ being established to carry out this role.92 The African Commission has identified some responsibilities on the part of the individuals participating in demonstrations. Participants and organisers should exercise the right with ‘due respect to the right of others and in compliance with the laws in place which themselves should be consistent with the regional and international human rights standards’.93 In a case against Cameroon force was used against individuals taking part in demonstrations and a number of individuals were subsequently arrested and detained. They were accused of taking part in ‘unlawful political rallies’. The African Commission held that there had been a violation of Article 11. While it was not prepared to ‘condone unlawful acts by individuals or organisations to advance political objectives’, it did ‘encourage’ them in their Article 11 right ‘to operate within the national legal framework’.94 In this same case the African Commission went on to note that despite these responsibilities of the participants in a demonstration, States still have a duty to guarantee the right ‘while maintaining law and order’.95 The detention of individuals and use of ‘excessive force’ to do so, resulting in deaths, was a violation of Article 11.96 State should not use ‘excessive force’ to break up an assembly, ‘the only circumstance justifying the use of firearms is the imminent threat of death or serious injury’.97

D. Evidence As with other rights in the ACHPR, if the State does ‘not submit arguments on the merits in respect of this communication’, the African Commission will ‘base its argument on the elements provided by the Complainant’.98

E. Remedies 1. Guarantees of Non-repetition Sudan was asked to amend its laws ‘to provide for de jure protection of the human rights to freedom of expression, assembly, association and movement’ when found in violation of Article 11 among other rights.99 Swaziland was called on to bring a proclamation and decree that violated Article 11 ‘in conformity with the provisions of the African Charter’.100

92 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, para 8.2. 93 African Commission on Human and Peoples’ Rights, Policing Assemblies in Africa, Guidelines for the Policing of Assemblies by law Enforcement Officials in Africa, 4 March 2017, para 1.2.3. 94 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 138. 95 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 138. 96 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 138. 97 Report of the Study Group on Freedom of Association and Assembly in Africa, ‘Freedom of Association, as pertaining to civil society, and freedom of assembly in Africa: A consideration of selected cases and recommendations’, April 2014, para III.C.2. 98 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 45. 99 http://achpr.org/english/_doc_target/documentation 100 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005.

E. Remedies

317

2. Dialogue On a couple of occasions where violations of Article 11, among other rights, have been found, the State has been required to engage with the complainants or other actors. In Cameroon, the State was called on to enter into a ‘constructive dialogue with the Complainants, and in particular, Southern Cameroons National Council (SCNC) and Southern Cameroons People’s Organization (SCAPO) to resolve the constitutional issues, as well as grievances which could threaten national unity’.101 The Swaziland government was required to engage ‘with other stakeholders, including members of civil society in the conception and drafting of the New Constitution’.102

3. Responsibilities on Complainants In addition to addressing individuals in the merits of the decision, the African Commission has also set out recommendations for the complainants as measures to be adopted in the implementation of the decision. For example, in one case against Cameroon it directed some towards in particular two organisations, the Southern Cameroons National Council (SCNC) and Southern Cameroons Peoples’ Organisation (SCAPO).103 The complainants were members of these two organisations, the latter campaigning for the rights of southern Cameroonians, including the right to self-determination. The African Commission in its recommendations, after finding a number of violations by the State, including of Article 11, called on these two organisations ‘to transform into political parties’ and to ‘abandon secessionism and engage in constructive dialogue with the Respondent State on the Constitutional issues and grievances’.104

4. Good Offices of African Commission The African Commission has offered its good offices to the parties to a communication where an Article 11 violation, among other violations, has been found, ‘to mediate an amicable solution and to ensure the effective implementation of the above recommendations’.105

5. Duty to Report States have been required to report back to the African Commission on the measures taken to implement the recommendations within 180 days or six months after the adoption of the decision by the AU Assembly.106

6. Special Mechanisms As has been noted with respect to Article 10, the right to assemble has been considered by the Special Rapporteur on Human Rights Defenders.107 266/03 Kevin Mgwanga Gunme et al/Cameroon, 27 May 2009, para 215. Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 103 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 104 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 105 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 106 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 107 Final Communiqué of the Finalization Meeting for the Studies on Freedom of Association and Assembly, and the Situation of Women Human Rights Defenders in Africa, 21 August 2014. See also Final Communiqué on the Third Meeting of the Study Group on Freedom of Association and Peaceful Assembly in Africa, 21 March 2014. 101 102

13. Article 12 Freedom of Movement Article 12 reads: 1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in

other countries in accordance with the law of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.

A. Introduction Article 12 is a broad right encompassing the rights to freedom of movement and residence, the right to leave, asylum and prohibition against mass expulsion or expulsion without due process. Although in its early years the African Commission paid limited attention to the issue of refugees and internally displaced persons (IDPs),1 it has increasingly recognised the situation on the continent,2 and expressed general concerns about the influx of refugees into African States and the subsequent impact on their resources,3 noting its ‘alarm’ at large numbers of internally displaced persons as a result of conflict.4 Article 12 has been interpreted to include rights for refugees and internally displaced persons, as well as, in conjunction with Article 5, the right to nationality. In more recent years the African Commission has also included migrants in its attention, adopting resolutions condemning attacks on them, for example, in South Africa,5 and calling on the government to ‘investigate and prosecute those responsible for the attacks, and to institute further measures to ensure the protection of foreign migrants in South Africa, 1 J. Oloko-Onyango, ‘The plight of the larger half: human rights, gender violence and the legal status of the refugee and internally displaced women in Africa’, 24 Denver Journal of International Law (1996) 349–394; see also R. Murray, Human Rights in Africa. From the OAU to the African Union, Cambridge University Press, 2004, chapter 7. 2 E.g. Intersession Report by Mrs Maya Sahli- Fadel Commissioner/ Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, 21 April–7 May 2015, para 43. Resolution on the Situation of Internally Displaced Persons in Africa—ACHPR/Res. 369 (LX) 2017, 22 May 2017. 3 Press Release on the Promotion Mission to the Republic of Djibouti by the African Commission on Human and Peoples’ Rights, 31 May 2015. 4 Resolution on Sudan, ACHPR/Res.15, 22 March 1995 5 Resolution on the Situation of Migrants in South Africa, ACHPR/Res.131, 22 May 2008.

A. Introduction

319

and their property’.6 This has been heightened with the international attention on migrant flows to European States, and the African Commission has condemned trafficking and called on African States to provide protection for migrants and to ‘view migrants as an economic potential and not as an element of insecurity and to adopt the position of effective governance of migration’.7 The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (hereinafter ‘OAU Refugee Convention’), adopted as it was in 1969,8 has a much older history than the African Charter on Human and Peoples’ Rights (ACHPR).9 As domestic legislation around asylum and refugees did not really develop in the decade or so after the 1969 Convention was adopted, it had a very limited impact on national law.10 A 1979 Pan-African Conference on Refugees resulted in the adoption of model legislation for refugees which drew on the provisions of the OAU Refugee Convention.11 A Memorandum of Understanding was also signed by the African Commission with the United Nations High Commissioner for Refugees (UNHCR).12 There was no mechanism established within the OAU Refugee Convention to monitor its implementation. In 2003 an experts meeting at the level of the AU recommended that the African Commission monitor compliance with the Convention.13 Subsequently, although the African Commission has not developed specific procedures for doing so, it has, for example, reminded States of their obligations under the Convention14 and its Special Rapporteur has called on States ‘to draft domestic legislation on asylum and establish national institutions to protect refugees living in their respective territories’.15 Whether these actions of the African Commission have gone far enough has been questioned by some, reasoning that this may be the result of a lack of coordination between Resolution on the Situation of Migrants in South Africa, ACHPR/Res.131, 22 May 2008. Resolution on Mixed Migratory Flows, Challenges of Protecting Migrants and the Prohibition of Trafficking in Persons and all forms of Violence in North and Sub-Saharan Africa, 9 May 2018. 8 Adopted by the Assembly of Heads of State and Government at its Sixth Ordinary Session, 10 September 1969, UNTS No. 14691, entry into force 20 June 1974. B. T. M. Nyanduga, ‘Refugee protection under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’, 47 German Y.B. Int’l L. (2004) 85–104. See also M. Sharpe, The Regional Law of Refugee Protection in Africa, Oxford University Press, 2018 for a detailed analysis of the OAU Convention and its relationship with the African human rights system. 9 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at 88. J. g-Onyango, ‘Human rights, the OAU Convention and the refugee crisis in Africa: Forty years after Geneva’, 3 Int’l J. Refugee L. (1991) 453–460; O. Jonas, ‘Reflections on the refugee protection regime in Africa: Challenges and prospects’, 14 U. Botswana L.J. (2012) 71–94. 10 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at 97. 11 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at 97. 12 Memorandum of Understanding between the African Commission on Human and Peoples’ Rights and the UN High Commissioner for Refugees, Peoples’ Rights and the United Nations High Commissioner for Refugees, 26 May 2003; Resolution on the Mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa, ACHPR/Res.72, 7 December 2004. 13 Report of the Meeting of Experts of the First AU Ministerial Conference on Human Rights in Africa, at para 40(2). Draft Report of the Consultative Meeting between the African Commission on Human and Peoples’ Rights and the United Nations High Commissioner for Refugees, 20–21 March 2003, Addis Ababa, Ethiopia (no reference, on file with author), Conclusions and Recommendations, Annex I, para 7. 14 Statement by the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa on the occasion of World Refugee Day 2015, 19 June 2015. 15 Statement by the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa on the Occasion of the 2014 World Refugee Day Celebration. 6 7

320

13: Article 12: Freedom of Movement

the relevant AU bodies and the African Commission.16 The move to establish a Special Rapporteur on Refugees, Asylum Seekers, Migrant Workers and Displaced Persons may have addressed some of these concerns.17 Similarly, the monitoring mechanism envisaged under Article 14 of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), adopted in 2009, utilises the African Commission. In addition to a conference on State Parties, the Kampala Convention includes the requirement that States give information on the legislative and other measures they have taken to implement its provisions in their Article 62 reports to the African Commission and under the APRM. The Kampala Convention, whilst not using the communication procedure under the ACHPR, expressly provides that nothing in its provisions shall preclude internally displaced persons submitting a case to the African Commission.18 It also requires that the AU ‘share information’ with the African Commission ‘on the situation of displacement, and the protection and assistance accorded to internally displaced persons’.19 The different elements of Article 12, as will be seen below, are sometimes dealt with together and not always distinguished.

1. Definitions There is no definition of a refugee provided in the ACHPR, although the African Commission has drawn upon that given in Article 1 of the OAU Refugee Convention.20 ‘Refugee’ here is defined as: every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself or the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

This has been praised as an expansive definition,21 although Okoth-Obbo questions whether the definition is in fact that radical or expounded: ‘[T]‌he definition was expanded to deal specifically with the situation of refugees from territories still under colonial or minority racist rule. And, in the context of that concern, the predominant issue was not the civil war character of freedom fighters nor the question of numbers’.22 Furthermore: 16 A. M. Abebe, ‘Legal and institutional dimensions of protecting and assisting internally displaced persons in Africa’, 22 J. Refugee Stud. (2009) 155–176, at 161–162. 17 A. M. Abebe, ‘Legal and institutional dimensions of protecting and assisting internally displaced persons in Africa’, 22 J. Refugee Stud. (2009) 155–176, at 162. 18 19 Article 20(3) Kampala Convention. Article 8(3) Kampala Convention. 20 H. Solomon, ‘Protecting refugee rights –Getting serious about terminology’, 2 AHRLJ (2002) 60–67; M. J. gg, ‘Refugees in Africa: The geopolitics of forced displacement’, 32(1) African Studies Review (1989) 3–29; G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention’, 8 African Yearbook of International Law (2000) 3–70, at 38. 21 G. J. Naldi and C. d’Orsi, ‘The Multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 128. 22 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at 112.

A. Introduction

321

it is striking to note the limited extent to which the OAU Convention has actually and concretely provided the anchor for refugee dialogue and action in Africa. Its most celebrated feature, the expounded definition, needs to be put in context in this connection. . . . neither the governments nor the international community are really ever exercised by the question of the refugee status of the group.23

The African Commission has noted that ‘nationality is consubstantial with the concept of the State. The existence of a nationality presupposes the existence of a sovereign State’.24 It has recognised ‘there is no universally agreed-upon definition of nationality’, but that a legal concept of nationality can be ‘delineated’ from international law and materials.25 Drawing upon international law in the Nottebohm Case before the ICJ,26 the African Commission has said that the ‘the relationship between the individual and the State must be effective: the individual must enjoy all the rights and be bound by the obligations which the State’s legislation grants to or imposes on its citizens’.27 Consequently, States are: bound to protect their nationals in two ways: through aid and assistance provided by diplomatic and consular officials for nationals exercising their legitimate rights or activities abroad; by filing appeals to call for damages and interest from the State, should it fail to uphold its obligations towards these persons, in keeping with international law.28

The African Commission, recognising that the right to nationality is not fully protected in Africa, has recommended the elaboration of a Protocol to the African Charter on the Right to a Nationality in Africa, giving this task to its Special Rapporteur.29 It has called on States to provide provisions in their constitutions that ‘all men, women and children have the right to a nationality, as it is a fundamental prerequisite for the enjoyment and exercise of the human rights recognised by the African Charter and the other African human rights treaties that they have ratified’.30 There should be domestic legal protection to ‘prevent and reduce statelessness and provide protection to stateless persons’.31 23 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at 106. 24 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, p.13. 25 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, p.13. 26 ICJ, Nottebohm Case (Liechtenstein v Guatemala), Judgment of 6 April 1995. 27 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, p.13. 28 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, pp.13–14. 29 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, p.50. Resolution on the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on the Right to Nationality in Africa, ACHPR/Res.277, 12 May 2014. 30 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, p.50. 31 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para I.3.

322

13: Article 12: Freedom of Movement

No one should be arbitrarily deprived of their nationality and the right to a nationality should be given without discrimination on the grounds listed in Article 2 as well as gender and disability.32 Those deprived of their right to nationality should have an effective remedy and during proceedings determining their status, they should be considered a national of that State.33 The African Commission’s study on the Right to Nationality sets out specific requirements with respect to children, noting that States should provide guarantees that children acquire a nationality and ‘access to nationality for all children born on their territory who would otherwise be stateless and for all children born abroad to a parent who is a national of said State and who would otherwise be Stateless’.34 Every individual has ‘the right to the nationality of the country or countries of origin of either or both of his or her parents’ and ‘the right to the nationality of the country in which he or she is born, either at birth or after living in the country for a predetermined length of time and, at the latest, on reaching majority (taking account of the exceptions provided under international law for children of diplomats or people in similar positions)’.35 Women should be able to transfer their nationality to their children on the same basis as men and there should be no distinction between children born within and outside of wedlock.36 Nationality can be acquired by becoming the spouse of a national and domestic legislation should permit women ‘whose marriage has been dissolved to recover their former nationality by simple declaration if, through marriage, they automatically lost their nationality or were required to renounce it’.37 Those who live in a country ‘for a reasonable amount of time’ should be able to choose to be naturalised. Any naturalisation procedures should be ‘accessible and respect due process’.38 Differences in treatment between nationals of origin and those who acquired nationality later are permitted but only in ‘certain situations, such as the exercise of political rights, but they should be strictly limited to the minimum necessary to achieve the expected results and, in all cases, be proportionate and reasonable’.39 Dual citizenship ought to be encouraged and be provided for children who have parents of different nationalities and ‘spouses of non-nationals who, residing in their 32 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, p.50. 33 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para I.7. 34 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para II.1. 35 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para II.1. 36 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para II.4. 37 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para III.2. 38 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para III.3. 39 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para III.4.

A. Introduction

323

spouse’s State, express the wish to acquire that nationality without losing their nationality of origin’.40 Where there is State succession, those who hold the nationality of the previous State should have the right to citizenship in one of the successor States, they must be able to choose their citizenship, or be given the citizenship of the country of ‘habitual residence’.41 States can deprive individuals of their nationality but the grounds on which they do so should be ‘reasonable and proportionate’, with ‘legitimate reason and in compliance with international law’.42 The State cannot deprive an individual of their nationality unless they have first proved that she or he holds another nationality ‘that is effective and undisputed’.43 Deportation to another State should not occur unless the deporting State ensures that they have a nationality of the receiving State and deportation should be in compliance with international human rights and humanitarian and refugee law.44 States should register the birth of all children, regardless of the position of their parents. The registration should be immediate and at birth and without discrimination.45 Equal access to documents to prove nationality should be provided by the State, with the burden being on the State to prove that an individual does not have that nationality.46 Where decisions are taken on nationality reasons should be provided and the decision should be subject to appeal through the courts.47 Any limitations imposed on individuals on the basis of their being non-nationals should be ‘reduced to a minimum’, in compliance with international human rights law, not be solely on the basis of nationality of another country, and be ‘rationally linked to the achievement of a legitimate public policy goal, is proportionate to the importance of said goal and does not adversely affect any other recognised human rights’.48 Differential treatment on the basis of a particular nationality should be subject to a court decision.49 40 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para IV.2. 41 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para V. 42 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para VI.1. 43 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para VI.1. 44 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para VI.1. 45 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para VII. 46 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para VIII.1 and 2. 47 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para VIII.3. 48 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para IX. 49 African Commission, The Right to Nationality in Africa, Study undertaken by the Special Rapporteur on the Rights of Refugees, Asylum Seekers and Internally Displaced Persons, pursuant to Resolution 234 of April 2013 and approved by the Commission at its 55th Ordinary Session, May 2014, para IX.

324

13: Article 12: Freedom of Movement

Although it did not initially look in detail at the situation of migrants, with their explicit addition to the mandate of the Special Rapporteur50 and the adoption of resolutions and other findings addressing their situations,51 the African Commission has in more recent years recognised their particular position. So, it has urged States to provide ‘diplomatic protection to all African migrants’ and ‘guarantee the rights of migrants in their territories’.52 In addition, for example, in a Resolution on the Implementation of the New York Declaration for Refugees and Migrants in 2017 it highlighted the recent loss of lives in the Mediterranean Sea, noted that the response to refugees and migrants has ‘thus far been mainly humanitarian’ and recommended that States should adopt ‘a comprehensive approach to issues relating to population displacement regardless of the cause’.53 States are required to provide information on migration in their Article 62 reports.54

2. State Obligations Specific obligations are also set out under each of the sub-paragraphs of Article 12 below. In addition, the African Commission has noted a number of obligations States have in respect of Article 12 more generally. As well as being encouraged to ratify international instruments, States are required to adopt national laws for refugees, IDPs and migrants ‘based on international norms with the aim of making protection more effective and to enable the finding of lasting solutions for this category of the population’.55 States are called on to ‘commit to the prevention and the peaceful settlement of conflicts through concrete measures with the aim of fighting against forced displacement and to reinforce their capacity to protect, to assist and finding permanent solutions to the problem of displacement in the continent’.56 They are also required to ‘take every necessary measure to ensure the protection of refugees, asylum seekers, and displaced persons’.57 Refugees and IDPs should be able to enjoy their rights without discrimination.58 See below. E.g. see Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999 –2010), 5 November 2013. 52 Report of Activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur for Refugees, Asylum Seekers, IDPs and Migrants in Africa during the Intersession Period November 2007 To May 2008, p.4. 53 Resolution on the Implementation of the New York Declaration for Refugees and Migrants, ACHPR/ Res. 371, 22 May 2017. 54 Resolution on Migration and Human Rights, ACHPR/Res.114, 28 November 2007. 55 Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced Persons and Migrants in Africa Since its Creation, by Madam Maya Sahli-Fadel, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012, para 60. 56 Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced Persons and Migrants in Africa Since its Creation, by Madam Maya Sahli-Fadel, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012, para 60. 57 Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced Persons and Migrants in Africa Since its Creation, by Madam Maya Sahli-Fadel, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012, para 57. 58 Statement by the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa on the occasion of World Refugee Day 2015, 19 June 2015 50 51

B. Article 12(1)

325

B. Article 12(1) Article 12 sets out a range of different rights but they have been interpreted as having a close relationship with each other. So the African Commission has held that freedom of movement ‘asserts that a citizen of a State generally has the right to leave that State, and return at any time’,59 the former being provided for in Article 12(1) and the latter in Article 12(2). However, Ouguergouz claims that Article 12 ‘is probably addressed only to persons in a lawful situation, in other words, whose entry to and stay in the territory of the host State comply with the regulations in force’.60

1. Freedom of Movement Freedom of movement is considered by the African Commission to be ‘a fundamental human right to all individuals within States’ and it being ‘crucial for the protection and promotion of human rights and fundamental freedoms’.61 Although Article 12(1) provides for this to be a right for an ‘individual’, the African Commission has also referred to it as being a right of ‘a citizen of a State’.62 The right has been interpreted as including a right to ‘travel to, reside in, and/or work in, any part of the State the citizen wishes, without interference from the State’63 and has a right to ingress and egress.64 Therefore, depriving individuals of their citizenship on the basis of their colour may also violate Article 12(1).65 Similarly, the eviction of Black Mauritanians from their houses was a violation of Article 12(1).66 The claims by the Mauritanian government that it had set up a department for resettlement of these individuals, that these individuals could still cross back into Mauritania after their expulsion and they could obtain authorisation from the Mauritanian Embassy in Senegal to return to the villages where they were born, ‘while . . . laudable, . . . do not annul the violation committed by the State’.67 Restricting the travel outside the Gambia of former government officials and parliamentarians has been found to violate the right to freedom of movement under Articles 12(1) and (2).68 In addition, in a communication against Sudan, an individual, Mr Ghazi 59 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 187. 60 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, The Hague, 2003, p.122. 61 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 187. 62 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 187. 63 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 187. 64 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 70. 65 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 126. 66 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 126. 67 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 126. 68 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 70.

326

13: Article 12: Freedom of Movement

Suleiman, was threatened with arrest by security officials if he travelled to Sinnar to give a lecture on human rights.69 The African Commission held that Mr Suleiman was ‘acting to promote the protection of human rights in his country, Sudan. This is not only indicated by his longstanding record of human rights advocacy, but also by the events that transpired around the time of each arrest or act of harassment. These events always concerned actions or statements he made in support of human rights’.70 One could, arguably, imply that the African Commission holds in particular regard the fact that the individual was promoting human rights and had been restricted from doing so, noting that ‘[s]‌uch actions and expressions are among the most important exercises of human rights and as such should be given substantial protection that do not allow the State to suspend these rights for frivolous reasons and in a manner that is thus disproportionate to the interference with the exercise of these fundamental human rights’.71 A violation of Article 12 was found in this case. The African Commission has established that restricting an individual’s freedom of movement not only has an impact on that particular person but may ‘have a seriously discouraging effect on others who might also contribute to promoting and protecting human rights in Sudan’.72

2. Right to Residence Article 12(1) provides for a right to residence. This is a right to ‘choice of residence’.73 Residence can mean the country in which one lives.74 Where individual human rights defenders have alleged that they have been forced, as a result of their work, to leave the State of their country of residence, the African Commission has found a violation of Article 12(1).75 Applying these decisions subsequently in a case against Sudan, the African Commission observed there was a ‘well-founded fear of the risk of further persecution should they have stayed in Sudan’.76 The African Commission based this particular finding on the ‘treatment to which they were previously subjected and the nature of their jobs’.77 This fear then prevented the individuals from residing in Sudan and a violation of Article 12(1) was found.78 On the basis of this decision, one could argue that there would be a number of elements that would need to be proved to find a violation of Article 12(1) in cases alleging an individual had to leave the State in fear: that there was a ‘well-founded

Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 61. 71 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 62. 72 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 65. 73 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 189. 74 John D. Ouko v Kenya, 36 and in Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009; Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014. 75 John D. Ouko v Kenya, 36 and in Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE)/Sudan, 27 May 2009. 76 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 123. 77 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 123. 78 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 123. 69 70

B. Article 12(1)

327

fear of the risk of further persecution’ if the individual remained in the State; and that this fear prevented the individual from residing in the State. Compulsory residence was considered by the ECOWAS Community Court of Justice to restrict the right to enter and leave. Here the applicant had claimed that the residence to which he was being forced to return was not ‘personal residences which fulfilled all the conditions of comfort and security enabling a moral and intellectual development conducive to the preservation of human dignity’ and the Court held that the restrictions on Article 12 were arbitrary and limited the right to freedom of movement and ‘free choice of residence’.79

3. Right to Protection from Displacement The African Commission has, taking the right to freedom of movement and the right to ‘choice of residence’ together, found a ‘right to protection from displacement’.80 Displacement per se may not violate the ACHPR, but it will if it is ‘by force, and without legitimate or legal basis’.81 Consequently, where thousands of civilians in Darfur were evicted from their homes to camps for the internally displaced, or ended up as refugees in other States, and where those who remained were unable to ‘move freely’ because of the risk of them being killed by State-supported militia, the African Commission found that Sudan had ‘failed to prevent forced evictions or to take urgent steps to ensure displaced persons return to their homes’, in violation of Article 12(1).82 The place of residence from which an individual should not be evicted can be that which is ‘chosen’ or ‘established’.83 In 2009 the AU adopted the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention).84 It came into force in December 2006 with the necessary fifteen ratifications. The African Commission has on numerous occasions urged States to ratify the Convention and subsequently ‘effectively implement it through national laws and action plans’.85

ECW/CCJ/JUD/03/13, Simone Ehivet and Michel Gbagbo v Côte d’Ivoire, 22 February 2013, para 80. Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 189. 81 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 189. 82 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 190. 83 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 186. 84 Adopted on 23 October 2009. L. Juma, ‘The narrative of vulnerability and deprivation in protection regimes for the internally displaced persons (IDPs) in Africa: An Appraisal of the Kampala Convention’, 16 Law Democracy & Dev. (2012) 219–252. A. M. Abebe, ‘Legal and institutional dimensions of protecting and assisting internally displaced persons in Africa’, 22 J. Refugee Stud. (2009) 155–176; J. Oloka-Onyango, ‘The plight of the larger half: Human rights, gender violence and the legal status of refugee and internally displaced women in Africa’, 24 Denv. J. Int’l L. & Pol’y (1995-1996) 349–394. F. Z. Giustiniani ‘New hopes and challenges for the protection of IDPs in Africa: The Kampala Convention for the protection and assistance of internally displaced persons in Africa’, 39 Denv. J. Int’l L. & Pol’y (2010–2011) 347–370. C. Beyani, ‘The elaboration of a legal framework for the protection of Internally Displaced Persons in Africa’, 50(2) Journal of African Law (2006) 187–197. 85 E.g. Intersession Report by Mrs Maya Sahli-Fadel Commissioner/Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, 21 April–7 May 2015, para 43. 79 80

328

13: Article 12: Freedom of Movement

The Kampala Convention defines internally displaced persons as: persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.86

‘Internal displacement’ is stated to be ‘the involuntary or forced movement, evacuation or relocation of persons or groups of persons within internationally recognized state borders’.87 The AU under the Kampala Convention is should ‘[s]‌hare information with’ the African Commission ‘on the situation of displacement, and the protection and assistance accorded to internally displaced persons in Africa’ and to cooperate with its Special Rapporteur on Refugees, Returnees, IDPs and migrants.88 Mechanisms for monitoring compliance with the Convention include that States ‘indicate the legislative and other measures that have been taken to give effect to the Convention’ in their Article 62 reports under the ACHPR.89 The African Commission has remarked that displacement may also be caused by ‘urban renewal’ and the ‘natural resource extractive industry’ and States have been urged to address these issues90 as well as to adopt ‘practical measures to prevent forced displacements of populations both within and beyond borders regardless of the reason for displacement (armed conflict, climate change, large development projects) and ensure their protection should prevention measures fail’.91 It has noted that internally displaced persons should be protected by national law ‘without distinction’, as well as by international human rights and law and international humanitarian law.92

4. ‘Provided He Abides by the Law’ Actions taken by the government to restrict movement should be proportionate93 and necessary to achieve ‘any legitimate goal’.94 This will be determined by considering whether ‘alternative means’ were offered to an individual. So in the case of Mr Suleiman, the African Commission held that the government had not provided such to ‘enable him to 86 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), Article 1(k). 87 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), Article 1(l). 88 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), Article 9(3)(e) and (f ). 89 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), Article 14(f ). 90 Report of Intersession Activities by Commissioner Bahame Tom Nyanduga Special Rapporteur on Refugees, Asylum Seekers, Migrants and IDPs in Africa to the 41st Session of the African Commission on Human and Peoples’ Rights 16–30 May 2007, Accra, Ghana. 91 E.g. Intersession Report by Mrs Maya Sahli-Fadel Commissioner/Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, 21 April–7 May 2015, para 43. 92 Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced Persons and Migrants in Africa Since its Creation, by Madam Maya Sahli-Fadel, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012. 93 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 63. 94 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 65.

B. Article 12(1)

329

[express] his support for human rights in each instance. Instead the Respondent State has either prohibited Mr Ghazi Suleiman from exercising his human rights by issuing threats, or punished him after summary trial, without considering the value of his actions for the protection and promotion of human rights’.95 The African Commission may also consider whether the individual in question had used ‘violent actions’ or ‘caused civil unrest’ in determining whether the response by the government was in violation of the ACHPR.96

5. Article 12(1) and (2) Articles 12(1) and (2) are sometimes dealt with together and not necessarily distinguished.97 Due to threats by alleged government agents an individual then flees Nigeria and is subsequently granted refugee status by Benin and the USA. The African Commission held that the complainant claimed he fled because of a ‘well-founded fear of persecution’ and found a violation of Articles 12(1) and (2).98 Mass transfer of persons from provinces in the DRC to camps in Rwanda, has also been found to be a violation of the right to freedom of movement and the right to leave and return to one’s country under Articles 12(1) and (2).99 Article 12(5) was not mentioned in this case. The deportation of Mr Modise four times from Botswana was found by the African Commission to have ‘greatly jeopardised the Complainant’s right to freedom of movement, as a citizen of Botswana, in contravention of his rights under Article 12(1) of the Charter. It also infringed upon his right to leave and to return to his country guaranteed by Article 12(2) of the Charter’.100 Where two individuals were arrested and detained after arriving back in Nigeria from abroad, the African Commission found a violation of Article 12(2) of the ACHPR, observing that: when re-entry points become sites of frequent harassment and arrest, freedom of movement is infringed. Further that the Charter provides for restrictions on the right to freedom of movement only by law for the protection of national security, law and order, public health or morality. The arrest and subsequent detentions of the two men is unjustified by any appeal to these restrictions. . . . The said encroachment, not being in consonance with the above restrictions, is therefore a violation of the victims’ right to freedom of movement under Article 12 (1) and (2) of the African Charter.101

In addition, one communication against Côte d’Ivoire alleged that denial of nationality to the ethnic Dioulas in the country resulted in them not being able to acquire or renew identity documents and travel in Côte d’Ivoire and outside it, as well as having to pay more for public transport because of their dialect or clothing, in violation of Articles 12(1) and (2). The African Commission held that ‘the refusal to deprive a foreign resident of his residence permit without a justifiable reason automatically prevents him from moving from one place

Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 63. Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 65. 97 E.g. Communication 232/99, John D. Ouko v Kenya, 6 May 2000, para 31. 98 Communication 215/98, Rights International v Nigeria, 15 November 1999, paras 30 and 31. 99 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 81. 100 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 94. 101 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, paras 50 and 51. 95 96

330

13: Article 12: Freedom of Movement

to another within the territory of the host State’ and that all the acts complained about violated Article 12.102

C. Article 12(2) The restrictions in this right are set out more clearly than they are in any other provision of the ACHPR, thereby ‘it appreciably reduces the freedom of manoeuvre of the legislative power of States parties’.103 Where the Zambian government claimed that the deportation of individuals who were considered a ‘danger to peace and good order in Zambia’ was justified under the ACHPR because it was ‘provided for by law for the protection of national security, law or order, public health or morality’ in accordance with Article 12(2), the African Commission held that it had not been proved that they were indeed a danger to law and order. Furthermore, ‘the suggestion that they were “likely” to be a danger was vague and not proved’, with the onus on the State to prove that that the limitation is justified.104 The OAU Refugee Convention arguably provides for voluntary repatriation in Article 5, and this has been bolstered by, for example, memoranda between States and the UNHCR around return.105

1. The Right to Leave When Mr Ouadraogo, the secretary general of a political party in Burkina Faso, was prevented from leaving the State after publishing a statement on the situation in the country, the African Commission held that as there was not ‘any threat to public security or morality that either the journey or even the person of the said Mr Ouadraogo could have represented’, a violation of Article 12 had occurred.106

2. The Right to Return This right ‘does not give the same individual right of access to the territory of a State other than his own’.107 Thus, what link the individual should have to his country is not specified, but as Ouguergouz notes, it is likely to be the country of which he or she is a national.108 Where individuals have shown that their work in human rights has prevented them from returning to the State of which they are nationals, the African Commission has found a violation of Article 12(2). The right to return may be violated if there is a Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, paras 160–161. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.124. 104 Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 50. 105 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at pp.123–124. 106 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 47. 107 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.123. 108 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.123. 102 103

D. Article 12(3)

331

‘well-founded fear of persecution by the authorities should they return’.109 Forced exile should arguably be prohibited,110 although the African Commission nor African Court have made no explicit comment on this. The African Commission has made some statements on the principle of voluntary return. It has, for instance, stated that IDPs and refugees should only return where ‘security and safety is guaranteed’ and the return must be ‘in safety and dignity’, linking the right to liberty with freedom of movement.111 Where internally displaced persons in Sudan could not leave refugee camps because they would be killed or raped by Janjaweed militia, then it was considered that this ‘cannot be synonymous with the liberty enjoyed by a free person in normal society’.112 Voluntary repatriation, as well as resettlement, is seen as a long-term solution to the refugee crisis,113 an approach also echoed by the former OAU and now AU.114 Concerns have been expressed, however, that this is only a suitable approach if their safety is ensured and the situation to which they are returned are secure.115

D. Article 12(3) The right to seek asylum poses less of a challenge than the right to ‘obtain’ asylum: ‘in general international law there is no corresponding obligation on States, which have wide discretionary power as regards the admission of refugees’.116 It is encouraging that that the ACHPR includes both elements, although as Edwards notes, ‘surprising’117 that it did not draw on the OAU Refugee Convention in Articles 2(1) and (2): Member States shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality.

109 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 125. 110 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.123. 111 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 171. 112 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 177. 113 Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, 4 August 2012. 114 See also Kigali Declaration, MIN/CONF/HRA/Decl.1(I), paras 12–14; Resolution on the Root-Causes of the African Refugee Problem, CM/Res.1274 (LII), preamble; Addis Ababa Document on Refugees and Forced Population Displacements in Africa, Recommendations of the OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa, adopted by the OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa, 8–10 September 1994, Addis Ababa, Ethiopia. See R. Murray, Human Rights in Africa. From the OAU to the African Union, Cambridge University Press, 2004, chapter 7. 115 G. J. Naldi and C. d’Orsi, ‘The multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 149. 116 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.126. C. d’Orsi, ‘Legal aspects of asylum in Sub-Saharan Africa: A deadlock or a concrete hope or a better future?’, 7 Regent J. Int’l L. (2009–2010) 223–297. G. J. Naldi and C. d’Orsi, ‘The multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152. 117 A. Edwards, ‘Refugee status determination in Africa’, 14 AJICL (2006) 204–233, at 211.

332

13: Article 12: Freedom of Movement

This provision is seen as more expansive118 but does not equate to right to asylum per se.119 Article 12(3) of the ACHPR is more explicit.120 The African Commission has on several occasions referred to a ‘right of asylum’121 and although the Kampala Convention does not go quite this far, it does provide that it should not be interpreted so as to undermine a right of internally displaced persons ‘to seek and be granted asylum’ within the ACHPR.122 It is argued that ‘persecution’ within Article 12(3) has been interpreted by the African Commission, through use of the phrase ‘those who are subject to persecution’, to refer to a risk of persecution, rather than that individuals have actually experienced it.123 On this basis it could perhaps also include those who are the victims of poverty or environmental disasters.124 States have been required to: revoke the notion of “safe third country”; to strengthen institutional structures for addressing and managing individual asylum requests; to respect the right of asylum seekers to contest rulings on asylum status; and to improve the reception structures and processes of refugees seeking asylum.125

The OAU Refugee Convention in Article 2(3) also includes the principle of non-refoulement: No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.

Although the reference to the ‘person’ rather than a ‘refugee’ arguably ‘guarantees the principle of non-refoulement without exception’, this is subject to debate.126 As the African Commission has held, States can prosecute those who are a threat to its security: rebels and arms crossing a border will be a ‘legitimate concern’ of the government.127 118 R. Murray, Human Rights in Africa. From the OAU to the African Union, Cambridge University Press, 2004, chapter 7. 119 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at 90. See also R. Murray, Human Rights in Africa. From the OAU to the African Union, Cambridge University Press, 2004, chapter 7; J. Oloka-Onyango, ‘Human rights, the OAU Convention and the refugee crisis in Africa: Forty years after Geneva’, 3 Int’l J. Refugee L. (1991) 453–460, at 457; G. J. Naldi and C. d’Orsi, ‘The multi- faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 135. 120 G. Okoth-Obbo, ‘Thirty years on: A legal review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’, 20(1) Refugee Survey Quarterly (2001) 80–138, at 89. J. Oloka-Onyango, ‘Human rights, the OAU Convention and the refugee crisis in Africa: Forty years after Geneva’, 3 Int’l J. Refugee L. (1991) 453–460, at 456. 121 E.g. Resolution on the Situation Between Sudan and South Sudan, ACHPR/Res.219, 2 May 2012. 122 Article 20(1) Kampala Convention. 123 Communication 27/89-46/91-49/91-99/93, Organisation Mondiale contre la Torture et al v Rwanda, para 31; see G. J. Naldi and C. d’Orsi, ‘The multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 137. 124 G. J. Naldi and C. d’Orsi, ‘The multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 137. 125 Resolution on Migration and Human Rights, ACHPR/Res.114, 28 November 2007. See also Report of Activities for the Inter-Session Period June to November 2006 for Commissioner Bahame Tom Nyanduga, The Special Rapporteur For Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, 15 November 2006. 126 G. J. Naldi and C. d’Orsi, ‘The multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 141. 127 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, paras 71–72. G. J. Naldi and C. d’Orsi, ‘The

D. Article 12(3)

333

The African Commission has also consistently upheld the principle of non-refoulement, noting its customary international law status,128 and calling on States, to ‘ensure no one is expelled or extradited to a country where he or she is at risk’129 or ‘through extradition or other mechanisms, by transferring or returning individuals to circumstances where their lives might be endangered’.130 In addition, they should ‘receive the refugees arriving in their countries and provide them with the necessary protection and assistance’,131 and for them to: make legal requirements for entering a territory more flexible, in order to take into account the needs for asylum seekers; to revoke the notion of ‘safe third country’; to strengthen institutional structures for addressing and managing individual asylum requests; to respect the right of asylum seekers to contest rulings on asylum status; and to improve the reception structures and processes of refugees seeking asylum.132

The principle of non-refoulement does appear to apply even in cases of mass influx.133 Where the government of Sudan had an agreement with the UNHCR to return thousands of Ethiopian refugees to Ethiopia, the African Commission agreed with Sudan that its repatriation had been voluntary.134 In addition, it was prepared to accept, in line with the complainant’s arguments, that: a few refugees who feared the worst during the time immediately after the Cessation Clause was announced. The fear of the unknown by a substantial number of refugees who were able to communicate with their lawyer as well as the publicity generated by press reports, coupled with the frustrations of denial of visas by the Respondent State to the Complainant, compounded the perception that the Respondent State was about to refoule the refugees.135

It did not believe, in conclusion, that any refugees had been refouled as there was no evidence proven of detention, arrest or forcible repatriation. Violations of Articles 4, 5, 6 and 12 could consequently not be found.136 Where the African Commission had evidence that Somalians had been arrested in Kenya and then sent back to Somalia, the Special Rapporteur noted the lack of ‘credible institutions of justice’ in the latter and expressed his concern about ‘the violations of the right to non refoulement due to these people, and also to request that the Commission, be given assurances that those who were arrested and handed over will receive a fair trial, and where it is established that their rights were violated, appropriate remedies and compensation must be made to these people’.137 multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 141. Resolution on Migration and Human Rights, ACHPR/Res.114, 28 November 2007. Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, ACHPR/Res.61, 23 October 2002, para D. 130 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2015, para 40. 131 Press Release on the Human Rights Situation in the Central African Republic, 12 May 2014. 132 Resolution on Migration and Human Rights, ACHPR/Res.114, 28 November 2007. 133 G. J. Naldi and C. d’Orsi, ‘The multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 145. 134 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009, para 161. 135 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009, para 162. 136 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009, paras 162–168. 137 Report of intersession Activities by Commissioner Bahame Tom Nyanduga Special Rapporteur on Refugees, Asylum Seekers, Migrants and IDPs in Africa to the 41st Session of the African Commission on Human and Peoples’ Rights 16–30 May 2007, Accra, Ghana. 128 129

334

13: Article 12: Freedom of Movement

E. Article 12(4) Again, Articles 12(4) and (5) are often taken together where mass expulsion has taken place without due process. Although the African Commission has recognised the economic pressures faced by States which can result in protection for their nationals,138 any measures taken should be in compliance with their human rights obligations.139 The individuals need to be ‘legally in the territory’ of the State in order to obtain the protection of this provision.140 States will have some discretion to ‘take legal action against illegal immigrants and deport them to their countries of origin, if the competent courts so decide’.141 But this can only be done after the individuals have had ‘the possibility to plead their case before the competent national courts’.142 If a court process has been followed, which found individuals are permitted to stay, but the State subsequently deports the individuals anyway, there will be a violation of Article 12(4).143 Exactly what type of court or legal process is required has been interpreted as including: being taken before a court of law ‘to answer any charge concerning their activities and stay’ in the country;144 where there was a ‘decision or order made in accordance with the applicable laws’;145 or that individuals should be ‘allowed access to the remedies under domestic law to at least challenge, if not reverse, their expulsion’.146 Although Article 12(4) provides for a specific list of bases on which individuals should not be expelled en masse, the African Commission has widened this to include ‘other considerations’.147 Expulsion of individuals on the basis of their nationality, as occurred with Burundian refugees from Rwanda, was a violation of the ACHPR.148

138 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 16. 139 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 16. 140 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 62. 141 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 20. 142 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 20. Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 114. 143 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 116. 144 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 62. 145 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 62. 146 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 63. 147 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 16. 148 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996.

F. Article 12(5)

335

F. Article 12(5) An earlier draft of the ACHPR prohibited any mass expulsion absolutely, ‘the mass expulsion of non-nationals shall be prohibited. No economic, political or other reasons would justify such a measure’.149 Mass expulsion is seen as ‘a special threat to human rights’.150 The ACHPR ‘does not bar deportations per se’151 and States can expel non-nationals if procedures are put in place,152 and take action against those who are illegally in the State. However, this must be done after a court decision.153 States will have a right to bring legal action against those illegally within the State.154 Exactly what is ‘mass’ has not been interpreted expressly. The expulsion of ‘groups of Burundian refugees’, with five individuals being named in the communication, was found to be a violation of Article 12(5).155 Where Zambia argued that deportations of 517 West African nationals that took place over a period of two months, at different locations and with the orders being served on different dates, the African Commission held there was a ‘mass deportation’.156 There is also a recognition that mass expulsion may threaten other rights including the right to property, work, education and family.157 Article 2 may be engaged as well, as if the government action is directed specifically at these particular groups it may be discriminatory.158 In one case those who had been expelled were from West Africa, including Senegal, Mali, Guinea, among others. The Zambia government argued that their deportation was not discriminatory as it applied to nationals of a number of African states who were treated the same.159 Finding that West Africans ‘constitute the majority of those expelled’,160 the African Commission then went on to hold that ‘the mass deportation of the individuals in question here, including their arbitrary detention and deprivation of 149 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.129. 150 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 20. 151 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 23. 152 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.131. 153 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 20. 154 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 31. 155 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 33. 156 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 31. 157 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 17. 158 Communication 71/92, Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 21. 159 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 24. 160 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 26.

336

13: Article 12: Freedom of Movement

the right to have their cause heard, constitute a flagrant violation of the Charter’.161 When over 200 Gambians were deported from Angola in 2004 after being detained and not brought before a court, the African Commission noted that ‘tens of thousands of other non-nationals have been expelled from Angola in the same year’. Even though the victims were part of a group of other non-nationals who included nationals from other West and Central African States, this did not mean that there was no discrimination. Rather, the African Commission agreed with the complainants that ‘so many aliens received the same treatment is tantamount to an admission of a violation of Article 12(5)’, remarking that as ‘the deportees as a group were arrested over a period of several months at different places and may have been served with deportation orders on different dates does not qualify, for purposes of the African Commission, to be sufficient to negate the en masse element of the expulsions’.162 This is encouraging, as Bekker notes: the African Commission was prepared to find a violation ‘in spite of the fact that the victims had not been singled out and discriminated specifically on the basis of their nationality as Gambians or their racial, ethnic or religious affiliation, but rather because they formed part of a broader group of non-nationals from West and Central African countries’.163 As she says, this ‘paves the way for the possibility of categories not specifically mentioned in article 12(5) from being afforded protection in terms of this provision’.164 Mass expulsions may take place over a number of months and still be in violation of the ACHPR.165

G. Limitations The grounds on which the rights in Article 12 can be restricted are not clearly defined: ‘the absence of any reference to certain particular interests which the law is supposed to protect opens the door to unwarranted limitations’.166 Further, contrasting the ‘generality of the limitation cause in Article 12(1)’ with the ‘relative precision of the clause’ in Article 12(2) ‘suggests that the authors of the African Charter sought to make a clear distinction between the legal regimes to be granted to the rights and freedoms expressed in each of the first two paragraphs of Article 12’.167

161 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 31. 162 Communication 292/04, IHRDA (on behalf of Esmaila Connateh & 13 others) v Republic of Angola, 22 May 2008, para 69. 163 G. Bekker, ‘Mass expulsion of foreign nationals: A ‘special violation of human rights’ –Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola’, 9 AHRLJ (2009) 262–273, at 269–270. 164 G. Bekker, ‘Mass expulsion of foreign nationals: A ‘special violation of human rights’ –Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola’, 9 AHRLJ (2009) 262–273, at 270. 165 G. Bekker, ‘Mass expulsion of foreign nationals: A ‘special violation of human rights’ –Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola’, 9 AHRLJ (2009) 262–273, at 270. 166 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.122. 167 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.123.

G. Limitations

337

Restrictions on the rights in Article 12 should not be arbitrary. They should also ‘be proportionate and necessary to respond to a specific public need or pursue a legitimate aim’.168 The State ought to ‘take all measures to avoid conditions which might lead to displacement and thus impact the enjoyment of freedom of movement and residence. Principle 5 of the Guiding Principles on Internal Displacement requires States to adhere to international law so as to prevent or avoid situations that might lead to displacement’.169 Measures, for example, adopted to address terrorism should equally not infringe upon the rights of refugees or migrants or be ‘likely to stigmatize them’.170 Article 12 is limited by Article 23(2) of the ACHPR which provides that ‘any individual enjoying the right of asylum under 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter’. Considered as ‘a sensible proscription to prevent unrest and incitement to violence’,171 this provision was dealt with in one communication where it was alleged that a number of States ‘sheltered and supported terrorist militia’.172 Unfortunately the African Commission did not pronounce on this aspect of the communication. In an early Declaration, the then OAU’s Assembly of Heads of State and Government stated that States should not tolerate ‘any subversion originating in our countries against another member state of the Organization of African Unity; . . . the use of our territories for any subversive activity directed from outside Africa against any member states of the Organization of African Unity’; and ‘oppose collectively and firmly by every means at our disposal every form of subversion conceived, organised or financed by foreign powers against Africa, the OAU or its member states individually’.173 In addition, they should ensure that they do not ‘create dissension within or among member states by fomenting or aggravating racial, religious, linguistic, ethnic, or other differences’.174 In the context of refugees, States ought to ensure that they ‘observe strictly the principles of international law with regard to all political refugees who are nationals of any member states of the Organization of African Unity’, endeavouring to ‘promote, through bilateral and multilateral consultations, the return of refugees to their countries of origin with the consent of both the refugees concerned and their governments’; and ‘continue to guarantee the safety of political refugees from non-independent African territories, and to support them in their struggle to liberate their countries’.175

168 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 188. 169 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 188. 170 E.g. Intersession Report by Mrs Maya Sahli-Fadel Commissioner/Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, 21 April–7 May 2015, para 43. 171 G. J. Naldi and C. d’Orsi, ‘The multi-faceted aspects of asylum-law applicable to Africa: Analysis for reflection’, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014–2015) 115–152, at 142. 172 Communication 157/96, Association pour la Sauvegarde de la Paix au Burundi v Kenya, Rwanda, Tanzania, Uganda, Zaire and Zambia, 29 May 2003, para 3. See also Guidelines for National Periodic Reports. 173 Declaration on the Problem of Subversion, AHG/Res.27 (ii), Second Ordinary Session, Ghana, October 1965. See, M. Sharpe, The Regional Law of Refugee Protection in Africa, Oxford University Press, 2018, at 145-148. 174 Declaration on the Problem of Subversion, AHG/ Res.27 (ii), Second Ordinary Session, Ghana, October 1965. 175 Declaration on the Problem of Subversion, AHG/ Res.27 (ii), Second Ordinary Session, Ghana, October 1965.

338

13: Article 12: Freedom of Movement

H. Evidence Complainants have used statements made under oath by refugees to provide evidence of discrimination on the basis of their nationality.176 Where it was alleged that the President of Guinea broadcast a speech which then incited the harassment of and violence against refugees from Sierra Leone, the African Commission acknowledged reports from the complainants, statements under oath and witnesses.177 The Respondent State asked that the complainants provide evidence of the number of those killed or injured and to which hospitals they had been taken.178 The African Commission found for the complainants despite noting that it had not been given a transcript of the President’s speech. Instead, ‘submissions before the Commission led it to believe that the evidence and testimonies of eye witnesses reveal that these events took place immediately after the speech of the President of the Republic of Guinea on 9th September 2000. The African Commission finds that the situation prevailing in Guinea during the period under consideration led to certain human rights violations’.179 As with other rights, the African Commission will conclude any case on the basis of facts provided by the complainants where the government fails to respond to the allegations.180

I. Remedies In some decisions, the African Commission has simply called upon the State to ‘draw all the legal consequences arising from the present decision’181 or ‘adopt measures in conformity with this decision’.182 There is an unusually detailed section explaining the rationale behind the award of various remedies in a case against Côte d’Ivoire. When the violation of Article 12, among other rights, was found as the result of restrictions on the citizenship and nationality of the Dioula ethnic group in Côte d’Ivoire, the African Commission required the complainants to ‘provide an evaluation and prove the prejudice suffered’.183 As the complainant did not quantify the prejudice suffered, then the Commission said it ‘will bear the responsibility of providing it’, drawing upon the principle of restitutio in integrum and where this is impossible, for the victim to be provided with compensation.

176 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean Refugees in Gambia) v Guinea, 7 December 2004, para 43. 177 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean Refugees in Gambia) v Guinea, 7 December 2004, paras 56–60. 178 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean Refugees in Gambia) v Guinea, 7 December 2004, para 65. 179 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean Refugees in Gambia) v Guinea, 7 December 2004, paras 73–74. 180 Communication 215/98, Rights International v Nigeria, 15 November 1999, para 31. 181 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997. 182 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996. 183 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 198.

I. Remedies

339

The principles it applies in this case to determine compensation are more clearly set out than in the majority of its other decisions. The African Commission stated that redress needs to be ‘fair, adequate, effective, sufficient, appropriate, victim-friendly and proportionate to the prejudice suffered’,184 with the purpose not being to punish the State nor to ‘enrich the victim by granting him an exorbitant and unreasonable compensation. It is particularly inappropriate to prescribe compensation when the prejudice suffered is as material as that the highest compensation would not be able to right the wrong’.185 Noting the importance of the right to nationality, the Commission held that ‘for a violation as symbolic as that one, it is proper to prescribe an equally token redress. To be specific, the highest monetary compensation could not replace attacks on the dignity suffered by the Dioulas for decades’.186 Instead it considered ‘immediate rehabilitation’ as the most appropriate remedy.187 But consequently, for ‘violations which are the result of this main violation, the Commission notes that they were resolved in a material loss, particularly of a monetary nature. For example, the expropriation of lands, the loss of promotion or potential employment, and the enjoyment of socio-economic development witnessed by Côte d’Ivoire’.188 Whereas ownership and work were ‘merely potential’, freedom of movement should result in monetary compensation, ‘unless it is proven that their violation has caused material or financial losses, which is not the case in this situation’.189 As the situation affected 700,000 individuals, and although the communication only provided a sample of these, the African Commission considered that ‘material or monetary redress is not appropriate’, but rather it was necessary to give a ‘token compensation and the immediate adoption of administrative, legislative, regulatory and practical measures to put an end to the violations and to avoid their recurrence in future’.190 It recommended that Côte d’Ivoire not only amend the relevant provisions of its Constitution and legislation; recognise the nationality of the Dioulas; provide ‘independent, equitable and impartial legal remedies to take cognizance of the nationality dispute’; and introduce a system which endures the birth certificate is proof of nationality; as well as ‘share the burden of proof between the applicant and the State in the event of a dispute on the usual place of residence or a claim to nationality with written alternative modes of proof ’.191

1. Restitution Where it was found that an individual had been forced to leave Kenya due to his political opinions, in violation of Articles 12(1) and (2), the African Commission urged the government to ‘facilitate the safe return of the Complainant to the Republic of Kenya, if he so wishes’.192 Similarly, a deportation order issued against a Mr Andrew Meldrum, a permanent resident in Zimbabwe, in violation of the ACHPR, was recommended to be rescinded and he be given the opportunity to return to Zimbabwe ‘if he so wishes’.193 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 199. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 200. 186 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 201. 187 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 201. 188 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 201. 189 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 202. 190 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 203. 191 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 201. 192 Communication 232/99, John D. Ouko v Kenya, 6 May 2000 193 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 116. 184 185

340

13: Article 12: Freedom of Movement

The Mauritanian government was requested to ‘take diligent measures to replace the national identity documents of those Mauritanian citizens, which were taken from them at the time of their expulsion and ensure their return without delay to Mauritania’.194 The replacement of travel documents was required in a case of mass expulsion.195

2. Guarantees of Non-repetition Sudan, being found in violation of numerous articles of the ACHPR including Article 12, was asked to amend its legislation ‘to provide for de jure protection of the human rights to freedom of . . . movement’.196 Finding that the situation of mass expulsion raised in a communication against Angola was not the only evidence of such violations, the African Commission requested that the government undertake a range of measures including amending its immigration policies to ensure they were not discriminatory; establish a commission of inquiry to investigate the expulsion of the victims and payment of compensation; and put in place safeguards to protect the principle of non-refoulement.197

3. Compensation The deportation of Mr John Modise, forcing him to remain in ‘no-man’s land’ of Bophutatswana, in violation of a number of rights in the ACHPR including Articles 12(1) and (2) resulted in the African Commission requiring that Botswana recognise him as a citizen by descent and ‘compensate him adequately for the violations of his rights occasioned’.198 Where three individuals left Sudan for fear of persecution and arrest, the African Commission found in their favour and called on the State to ‘[p]‌ay adequate compensation to the Complainants named in the present Communication in accordance with the domestic law of The Sudan for the rights violated’.199 Compensation has been awarded to victims of mass expulsion.200 In another case where Sierra Leonean refugees were deported from Guinea in violation of the ACHPR, the African Commission recommended that a body composed of both the governments of Sierra Leone and Guinea be set up to ‘assess the losses by various victims with a view to compensate the victims’.201

194 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 195 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 85. 196 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003. 197 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008. 198 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000. 199 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014. 200 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 85. Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 201 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004.

J. Special Mechanisms

341

4. Other On finding a violation of Article 12, among others in the ACHPR, with respect to the deportation order against Mr Andrew Meldrum, the African Commission called on the State to ‘[e]‌nsure that the Supreme Court finalises the determination of the application by Mr Meldrum, on the denial of accreditation. In the alternative, taking into account that the AIPPA has undergone considerable amendments, grant accreditation to Mr Andrew Meldrum, so that he can resume his right to practice journalism’.202 Where IDPs and refugees were returning to Darfur, the African Commission recommended that the State put in place measures such as the rehabilitation of ‘economic and social infrastructure, such as education, health, water, and agricultural services, in the Darfur provinces in order to provide conditions for return in safety and dignity’.203 The government in the same case was also called on to set up a National Reconciliation Forum ‘to address the long-term sources of conflict’.204

5. Duty to Report States have been required to report to the African Commission within six months of decisions finding violations of Article 12 on the measures they have taken to implement the recommendations,205 or in one case involving a range of remedies, ‘at a later stage’.206

6. Amicable Resolution On occasion the African Commission has noted efforts to reach an amicable resolution where it has found violations of Article 12, among others.207

J. Special Mechanisms At its 35th Ordinary Session in 2004, the position of Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons was established208 and Commissioner Bahame Tom Nyanduga appointed for a period of two years. At the subsequent session later that same year a Resolution was adopted which set out the mandate to: 1. seek, receive, examine and act upon information on the situation of refugees, asylum seekers and internally displaced persons in Africa; 202 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 116. 203 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 204 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 205 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 116. Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014. 206 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008. 207 Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v Zambia, 31 October 1997. 208 Resolution on the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons, ACHPR/Res.72. See for further discussion of this mechanism, M. Sharpe, The Regional Law of Refugee Protection in Africa, Oxford University Press, 2018, pp.206–209.

342

13: Article 12: Freedom of Movement

2. undertake studies, research and other related activities to examine appropriate ways to enhance the protection of refugees, asylum seekers and internally displaced persons in Africa; 3. undertake fact-finding missions, investigations, visits and other appropriate activities to refugee camps and camps for internally displaced persons; 4. assist Member States of the African Union to develop appropriate policies, regulations and laws for the effective protection of refugees, asylum seekers and internally displaced persons in Africa; 5. cooperate and engage in dialogue with Member States, National Human Rights Institutions, relevant intergovernmental and non governmental bodies, international and regional mechanisms involved in the promotion and protection of the rights of refugees, asylum seekers and internally displaced persons; 6. develop and recommend effective strategies to better protect the rights of refugees, asylum seekers and internally displaced persons in Africa and to follow up on his recommendations; 7. raise awareness and promote the implementation of the UN Convention on Refugees of 1951 as well as the 1969 OAU Convention Governing the Specific Aspects of Refugees Problems in Africa; 8. submit reports at every ordinary session of the African Commission on the situation of refugees, asylum seekers and internally displaced persons in Africa.209

In May 2006 the mandate of the Special Rapporteur was extended for a further two years and expanded to include migration, ‘migrants’ being subsequently added to the title,210 despite the ACHPR providing little explicit recognition of the issue of migration.211 The mandate of the Special Rapporteur has been renewed subsequently, with other Commissioners then taking on the position.212 Among the work undertaken,213 the Special Rapporteur has made statements, for example on World Refugee Day,214 conducted promotional and fact-finding missions to States as part of an African Commission delegation, part of which was to examine the situation of refugees, migrants and others.215 209 Resolution on the Mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa, ACHPR/Res.72, 7 December 2004. 210 Resolution on the Renewal of the Term and Extension of the Mandate of the Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa, ACHPR/Res.95, 25 May 2006. 211 D. Millard, ‘Migration and the portability of social security benefits: The position of non-citizens in the Southern African Development Community’, 8 AHRLJ (2008) 37–59, at 52. 212 Resolution on the Renewal of the Mandate of the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, ACHPR/Res.116, 28 November 2007; Resolution on the Appointment of the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, ACHPR/Res.180, 12 May 2011; Resolution Appointing the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, ACHPR/Res.203, 5 November 2011; Resolution on the Renewal of the Mandate of the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, ACHPR/Res.246, 5 November 2013. 213 Report of Intersession Activities by Commissioner Bahame Tom Nyanduga Special Rapporteur on Refugees, Asylum Seekers, Migrants and IDPs in Africa to the 41st Session of the African Commission on Human and Peoples’ Rights, 16–30 May 2007, Accra, Ghana; Report of Activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur on Refugees, Asylum Seekers, IDPs and Migrants in Africa for the Intersession Period between May and November 2009. 214 Statement by the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa on the Occasion of World Refugee Day 2015, 19 June 2015. 215 Resolution on the Situation of Migrants in South Africa, ACHPR/Res.131, 22 May 2008; Press Release on the Promotion Mission to the Republic of Djibouti by the African Commission on Human and Peoples’ Rights, 31 May 2015; Press release on the promotion mission to the Republic of Djibouti, 23 May 2015; Fact-finding mission to the Central African Republic in September 2014, see Intersession Report by Mrs Maya Sahli-Fadel Commissioner/Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, 21 April–May 2015, paras 36–38.

J. Special Mechanisms

343

The Special Rapporteur has written to States encouraging them to ratify the Kampala Convention,216 participated in various regional and international conferences and meetings around the issues,217 and sent urgent appeals to governments with respect to, for example, the safety of refugees in refugee camps,218 and to halt the expulsion of two Sudanese individuals from Egypt.219 Their inter-session reports have covered these issues as well as identifying broad trends around refugees, migrants and IDPs in Africa. Despite the existence of the Special Rapporteur ensuring that there is more attention paid in the African human rights systems to the rights of refugees,220 asylum seekers and IDPs, the individuals holding this position have recognised that the mechanism is ‘seldom known by the population and even policy makers’, necessitating greater awareness raising through seminars and training across the continent.221 States should ‘facilitate and encourage the activities of the Special Rapporteur by authoring the latter to conduct promotion and protection missions on the Rights to Refugees, Asylum Seekers, Displaced Person and Migrants in Africa’.222 The Kampala Convention requires that the AU ‘cooperate’ with the African Commission’s Special Rapporteur ‘in addressing issues of internally displaced persons’.223

216 Intersession Report by Madam Maya Sahli-Fadel from Maya Fadel as Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons, from the 50th Ordinary Session of the African Commission held in Banjul, The Gambia, from 24 October–5 November 2011, para 3. 217 E.g. Intersession Report by Mrs Maya Sahli-Fadel Commissioner/Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, 21 April–7 May 2015, Part II. 218 E.g. Intersession Report by Mrs Maya Sahli-Fadel Commissioner/Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, 21 April–7 May 2015, para 33. 219 Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons, 47th Session, 12–26 May 2010. Banjul, Gambia, para 8. 220 G. Bekker, ‘The protection of asylum seekers and refugees within the African regional human rights system’, 13 AHRLJ (2013) 1–29, at 24. 221 Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced Persons and Migrants in Africa Since its Creation, by Madam Maya Sahli-Fadel, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012, para 7.2. 222 Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced Persons and Migrants in Africa Since its Creation, by Madam Maya Sahli-Fadel, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012, para 60. 223 Article 8(3)f, Kampala Convention.

14. Article 13 Participation in the Government, Access to the Public Service and to Public Property 1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

2. Every citizen shall have the right of equal access to the public service of the country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

A. Introduction It is perhaps not surprising that the right to participate in government was included in the African Charter on Human and Peoples’ Rights (ACHPR) given the continent’s history of dictatorships and military coups post-independence: ‘Hence, in framing article 13, the drafters of the African Charter might have been compelled by the desire to wrest political power and governmental authority from the hands of the emerging post-colonial despots and vest it in citizens’.1 What is disappointing, according to some, is that the final version of the ACHPR did not include ‘the full scope of the right to participate in government, or at least to bring article 13 on par with equivalent provisions of other international human rights instruments, such as the Universal Declaration and the European Convention’, rather adopting a ‘superficial’ approach which omits reference to free and fair elections, and the right to vote expressly.2 This is even more perplexing when one considers earlier drafts of the ACHPR. The M’Baye Draft Article 30 is extensive. Not only does it provide, as does the final Article 13 in the ACHPR, for the right of citizens to ‘take part in the conduct of public affairs, either directly or through freely chosen representatives’, and to have ‘access under general conditions of equality, to the public service of his country’ (as per the final Article 13(2)), but also includes expressly the right of them to ‘to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters’. In addition, in the provision on derogation in the M’Baye Draft it included these rights among those which could not derogated from at any time.3

1 M. K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 187. 2 M.K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 187. See also G. H. Fox, ‘The right to political participation in international law’, 17 Yale J. Int’l L. (1992) 539–608, at 568. 3 M’Baye Draft, Article 33(2).

A. Introduction

345

This detail was lost in the following Dakar Draft, which is then mirrored in Article 13 ACHPR with some minor amendments.4 Having said that, as will be seen below, the African Commission has interpreted Article 13 to include various elements. As noted in one decision: every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2, and without unreasonable restriction, taken part in the conduct of government of his country, directly or through freely chosen representatives, which includes to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot’5

It has had concerns with attempted coups in, for example, The Gambia in 2014 and 2015,6 the electoral impasse in Zimbabwe in 2008 where results were awaited weeks after the elections,7 and the ability of citizens to vote and elect leaders of their choice in Mali in July 2013.8 Conversely it has also been acknowledged where elections have been free and fair in a number of African States.9 In addition, by developing broader concepts of public participation beyond elections, including, for example, linking public and community participation, and its relationship with local government, with Article 13,10 the African Commission has recognised that the right ‘serves as an important bridge between three key elements that define the benchmark of good governance in any civilised society —the rule of law, democracy and human rights’.11 Articles 13(1) and (2) are rights of ‘every citizen’, similar to Article 25 of the ICCPR,12 whereas Article 13(3) is a right of every individual.13 As the African Commission has held in relation to Article 13(1): ‘[u]‌nlike Article 2 which talks of “every individual”, Article 13 is even clearer as it talks of “every citizen” ’.14 The recently adopted Malabo Protocol proposing the establishment of an African Court of Justice and Human and Peoples’ 4 Article 13(2) and (3) of the Dakar Draft are the same as the respective provisions in the final ACHPR. Article 13(1) reads: ‘Every citizen shall have the right to freely participate in the direction of his country’s public affairs, either directly or through freely chosen representatives’, thereby referring to ‘direction of his country’s public affairs’, rather than ‘government’ and omitting the limitation clause. 5 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 76. 6 Statement of the African Commission on Human and Peoples’ Rights on events of 30 December 2014 in The Gambia, January 2015; Resolution on the Human Rights Situation in the Republic of The Gambia— ACHPR/Res.299, 28 February 2015. 7 Press Release of the African Commission on the Electoral Impasse in the Republic of Zimbabwe, 15 April 2008. 8 Resolution on the Political Situation in the Republic of Mali, ACHPR/Res/238, 24 July 2013. 9 Final Communiqué of the 51st Ordinary Session of the African Commission on Human and Peoples’ Rights Held in Banjul, The Gambia, 18 April–2 May 2012. 10 C. M. Bosire, ‘Local government and human rights: Building institutional links for the effective protection and realisation of human rights in Africa’, 11 AHRLJ (2011) 143–170, at 151; see also O. N. Fuo, ‘Public participation in decentralised governments in Africa: Making ambitious constitutional guarantees more responsive’, 15 African Human Rights Law Journal (2015) 167–191. 11 M. K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 186. 12 See Human Rights Committee, General Comment 25 (57), adopted by the Committee at its 1510th meeting, UN Doc.CCPR/C/21/Rev.1/Add.7 (1996). 13 See also OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.1. 14 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 76.

346

14. Article 13: Participation in the Government

Rights provides for the crime of ‘unconstitutional change of government’, for which an individual can be punished by this Court.15 There is a collective dimension to these rights, recognised in the linking of Article 13 with Article 20(1) in a number of cases.16 Having said that, the African Commission and Court have held that Article 13(1) and the right to vote and to stand for elections ‘is an individual right and conditions must be made to ensure that he individual exercise these rights without reference to his/her attachment to other individuals’.17 Hence, only permitting an individual to stand for President if their parents were both born in Côte d’Ivoire was considered ‘unreasonable and unjustifiable and . . . an unnecessary restriction on the right to participate in government’.18 The right needs to be enjoyed without discrimination.19 In this same case this requirement resulted in discrimination of members of the Dioula ethnic group from the north of the country.20 An individual of this ethnic group, Alassane Ouattara, was disqualified from standing in presidential elections in 2000 and many Dioulas also were deprived of their right to vote. The African Commission found the position to be in violation of Article 13(1) and the right to stand for election: In practice, the Dioulas cannot get elected to the positions concerned since they cannot demonstrate their Ivorian nationality, particularly that of « origin », in accordance with the provisions of the Constitution and the other relevant legislations, even though they are Ivorians.21

Similarly, this also occasioned a violation of the right of Dioulas to appoint representatives of their choice.22 Respect for Article 13 is contingent on the existence of other rights that are seen as necessary for democracy and the rule of law.23 Conversely, a violation of Article 13 rights may result in violations of other rights such as freedom of expression and association.24

B. Democracy and Political Models At the level of the former Organisation of African Unity (OAU) and now African Union (AU), political participation, unconstitutional changes of government, democracy and rule of law have received considerable attention. The 2007 African Charter on Democracy, 15 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 27 June 2014, Article 28E of the Statute of the African Court of Justice and Human and Peoples’ Rights. 16 See also Chapter 21 (Article 20). 17 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 86. See also In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 98. 18 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 86. 19 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 77. 20 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016. 21 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 167. 22 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 169. 23 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 77. Resolution on the 2013 Elections In Africa, ACHPR/Res.239, 24 July 2013; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 2; SADC Principles and Guidelines Governing Democratic Elections. 2004, 2.1.2. 24 Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 54.

B. Democracy and Political Models

347

Elections and Governance is indicative,25 the AU’s Constitutive Act26 and several of the sub-regional founding treaties include reference in their principles to ‘democracy and the rule of law’,27 and these are also concepts recognised by the African Commission. Indeed, as Odinkalu notes, limitations on rights, such as excluding individuals from participation in political processes such as elections: reinforces a widespread sense of illegitimacy of the African States . . . the only reason left for the many people . . . excluded from participation in the state in these ways is extra-constitutional and often violent.28

Ouguergouz remarks that Article 13 ‘does not, therefore, favour any one political model over any other’.29 Similarly the AU has stated that ‘Member States have the sovereign right to choose their political system in accordance with the will of the people and in conformity with the Constitutive Act of the African Union and the universally accepted principles of democracy’.30 ‘Democracy’, and the ‘rule of law’, are mentioned throughout the former OAU, AU, sub-regional and African Commission documents in relation to elections and participation in government. One can glean from the ways in which the terms are presented that they include a number of factors, although not necessarily consistently. Article 3 of the African Charter on Democracy, Elections and Governance sets out the principles underpinning this Charter which include not only respect for human rights but also the exercise of power in accordance with the constitution; representative government; ‘regular, transparent, free and fair elections’; the separation of powers; gender equality; effective participation of citizens as well as transparency and fairness in public affairs; the rejection of unconstitutional changes of government; and ‘political pluralism’ and the rights of political parties.31 Many of these are reflected in other treaties and documents,32 which include reference to the independence of the judiciary, an apolitical armed forces; 25 Adopted 30 January 2007, came into force 15 February 2012. See documents adopted by others, including the 1990 African Charter for Popular Participation in Development and Transformation, the result of a conference in Conference in Arusha, 12–16 February 1990, see UN Doc. E/ECA/CM. 16/11. For discussion see K. O. Kufuor, ‘The African Charter for Popular Participation in Development and Transformation: A critical review’, 18 Neth. Q. Hum. Rts. (2000) 7–22. 26 Article 4(m). 27 E.g. Treaty Establishing the Southern African Development Community (SADC), Article 4; African Peer Review Mechanism, see Objectives, Standards, Criteria and Indicators for the African Peer Review Mechanism (‘APRM’), NEPAD/HSGIC-03-2003/APRM/Guideline/OSCI, 9 March  2003. 28 C. Odinkalu, ‘Back to the future: The imperative of prioritising for the protection of human rights in Africa’, 47 JAL (2003) 1–37, at 18. 29 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.177. 30 Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 3.12. 31 M. Mangu, ‘African civil society and the promotion of the African Charter on Democracy, Elections and Governance’, 12 AHRLJ (2012) 348–372, at 354. See also J. E. Nyang’oro, Discourses on Democracy in Africa in Comparative Perspective, Dar es Salaam University Press, 1996; I. G. Shivji, State and Constitutionalism: African Debate of Democracy, SAPES Trust, 1991. 32 H. W. O. Okoth-Ogendo, ‘The quest for constitutional government’, G. Hyden, D. Olowu and H. W. O. Okoth-Ogendo, African Perspectives on Governance, Africa World Press, 2000, pp.33–60; Aginam notes ‘Article 26 of the African Charter has made the role of the courts in the realization of legitimate governance a critically important one’, O. Aginam, ‘Legitimate governance under the African Charter on Human and Peoples’ Rights’, in E. F. Quashigah and O. C. Okafor, Legitimate Governance in Africa. International and Domestic Legal Perspectives, Kluwer Law International, 1999, pp.345–374, at 357. Declaration on the Framework for an OAU Response to Unconstitutional Changes in Government, AHG/Decl.5 (XXXVI).

348

14. Article 13: Participation in the Government

secularism; and the principle of non-discrimination.33 The concept of ‘good governance’, encompassing many of these elements, is apparent across the relevant instruments and documents.34

C. Article 13(1) The African Commission has drawn on General Comment No. 25 of the Human Rights Committee in its interpretation of Article 13 of the ACHPR, specifically that the former ‘entails the right of citizens to directly or indirectly take part in the conduct of public affairs through electoral processes and have access to public services and property without discrimination of any kind’.35 In this case against South Africa, it considered that ‘the disparities that ensued from the privatization process cannot be said to have deprived the Complainants from enjoying the rights guaranteed under Article 13’.36 However, as the complainants had not shown that they had been restricted from participating in government or denied access to public services or property, there was no violation of Article 13.37

1. Elections Many incidents of violations under Article 13 have arisen in the context of elections.38 This is an area around which the African Commission has developed standards,39 including its 2017 Guidelines on Access to Information and Elections in Africa.40 The latter set out obligations for various ‘electoral stakeholders’ including State authorities, electoral commissions, political parties and candidates, election observers and monitors, law enforcement agencies, the media and civil society.41

33 ECOWAS Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security, Dakar, December 2001, Article 1. 34 ECOWAS Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security, Dakar, December 2001, Article 32. African Charter on Democracy, Elections and Governance, Article 32. 35 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 128; see also In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, paras 116–119. 36 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 128. 37 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 129. 38 M. Wambali, ‘The practice on the right to freedom of political participation in Tanzania’, 9 AHRLJ (2009) 203–223. 39 E.g. Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013; Resolutions on Freedom of Expression in Africa, Freedom of Association in Africa and Human Rights Defenders in Africa, including ACHPR/Resolution 62 (XXXII) 02, ACHPR/Res.99 (XXXX) 06, ACHPR/Res. 151 (XLVI) 09 and ACHPR/Res.196 (L) 11; Resolutions on the Electoral Process and Participatory Governance in Africa, ACHPR/Res.184, 3 March 2011; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014; Resolution on 2015 Elections in Africa—ACHPR/Res.293, 28 February 2015. 40 Guidelines on Access to Information and Elections in Africa, November 2017. 41 Guidelines on Access to Information and Elections in Africa, November 2017.

C. Article 13(1)

349

Elections should be held regularly42 and citizens should have a right to ‘participate in a free, democratic and transparent electoral process’.43 Elections should also be ‘peaceful’, necessary for maintaining peace and security in Africa,44 and ‘free and fair’, ‘under democratic constitutions; ‘under a system of separation of powers that ensures in particular the independence of the judiciary’.45 However, the role of the judiciary in protecting against electoral anomalies has been questioned by some.46 States are required to ‘take all necessary measures to preserve and protect the credibility of the electoral process’.47 In addition, they should ‘safeguard . . . equal access to media during campaign for all stakeholders’.48 More generally, the State authorities ought to ensure the elections taken place in an appropriate environment. The African Commission called upon Mali, for example, to ‘take the necessary measures to preserve social peace towards creating the necessary conditions for credible, free, transparent and peaceful elections’.49 Information held by ‘electoral stakeholders’ should be fully disclosed, through a procedure which is ‘simple, quick and affordable;50 and such information should be ‘machine-readable formats and in a manner that facilitates the right of access to information. This requires that electoral stakeholders keep and record information for a reasonable period of time on electoral cycle activities, and arrange this information in a manner that allows prompt and easy identification and also safeguards the integrity of its content’.51 Standards have been developed by the AU for its election observers requiring them to take into account the ‘existence of a “level playing field”, which determines the conditions for electoral competition’.52 They must also consider a number of factors in assessing whether elections are ‘credible, legitimate, free and fair’: the rights guaranteed by the constitution and law; whether the electoral system is based on the rights to freedom of association; the independence of the electoral commission; whether rights of observers are guaranteed; and the ‘neutral role’ of security forces. In addition, there needs to 42 OAU’s Principles Governing Democratic Elections in Africa, adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para 4; SADC Principles and Guidelines Governing Democratic Elections. 2004, 2.1.7; see also same language in SADC Principles and Guidelines Governing Democratic Elections, 2004, section 7. 43 Resolution on 2015 Elections in Africa—ACHPR/Res.293, 28 February 2015, para 1. See also ECOWAS Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security, Dakar, December 2001, Articles 5 and 6. 44 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013; Resolution on 2015 Elections in Africa—ACHPR/Res.293, 28 February 2015. 45 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para 4; SADC Principles and Guidelines Governing Democratic Elections. 2004, 2.1.7; see also same language in SADC Principles and Guidelines Governing Democratic Elections, 2004, section 7. See also African Charter on Democracy, Elections and Governance, Article 17. 46 E.g. O. Kaaba, ‘The challenges of adjudicating presidential election disputes in domestic courts in Africa’, 15 African Human Rights Law Journal (2015) 329–354; M. Azu, ‘Lessons from Ghana and Kenya on why presidential election petitions usually fail’, 15 African Human Rights Law Journal (2015) 150–166. 47 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 1; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 1; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 1. 48 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 2; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 2. 49 Resolution on the Political Situation in the Republic of Mali, ACHPR/Res/238, 24 July 2013. 50 Guidelines on Access to Information and Elections in Africa, November 2017, paras 3 and 5. 51 Guidelines on Access to Information and Elections in Africa, November 2017, para 4. 52 Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 4.6.

350

14. Article 13: Participation in the Government

be consideration of whether the situation in the state is peaceful of if there is ‘political violence’; ‘clearly articulated rules for political party funding’; ‘equitable use or access to public resources for election campaigning’; registration of voters without discrimination; and an independent media authority that will be ‘monitoring and regulating the media to allow equitable access to the public media of all contesting parties and candidates’.53

a. Right to Stand for Elections Constitutional amendments in Tanzania barred independent candidates from presidential, parliamentary and local government elections.54 It was alleged, among other rights, that this violated the right to participate in the public or government affairs in one’s country.55 The State had argued in response that barring independent candidates was necessary for good governance and in order to stop anarchy and disorder.56 The African Court held that Article 13(1) was ‘patently clear’ in giving ‘the citizen the option of participating in the governance of her country directly or through representatives’, consequently requiring a candidate to belong to a political party ‘to participate in the governance of Tanzania surely derogates from’ the right.57 Noting the phrase ‘in accordance with the law’ in the provision as well as Article 27(2) and 29(4), and the arguments raised by the State that such restrictions were justifiable in the context of developing a multiparty democracy.58 Looking at whether such restrictions were ‘necessary in a democratic society; . . . reasonably proportionate to the legitimate aim pursued’, the Court drew upon jurisprudence from the African Commission as well as European Court of Human Rights and Inter-American Court,59 to find in line with the African Commission that restrictions can only be imposed if they are in accordance with Article 27(2) of the ACHPR. Thus, ‘the needs of the people of Tanzania, to which individual rights are subjected, we believe, must be in line with and relate to the duties of the individual’ and the restrictions imposed by the State here did not fall within what was permissible, neither were they proportionate to achieve national unity and solidarity.60 Considering that the UN Human Rights Committee’s General Comment No. 25 was ‘an authoritative statement of interpretation of Article 25 of the ICCPR, which reflects the spirit of Article 13’ of the

53 Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 4.6. 54 See also M. Wambali, ‘The practice on the right to freedom of political participation in Tanzania’, 9 AHRLJ (2009) 203–223. 55 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 89.3. 56 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 90.1. 57 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 99. 58 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 105. 59 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 106. 60 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 107.

C. Article 13(1)

351

ACHPR,61 the African Court held that ‘in order to even choose a representative of one’s choice one is compelled to choose only from persons sponsored by political parties, however, suitable such persons might be’, thus denies citizens the right of direct participation in violation of Article 13(1).62 It further held that even though Reverend Mtikila had subsequently set up his own political party to get over the barriers imposed, ‘he should not be forced to continue if he finds himself unable to cope with the burden of establishing and maintaining a political party’.63 Amendments in 1996 to the Zambian Constitution required those standing for president to have Zambian parents by birth or descent. The African Commission held that: The pain in such an instance is caused not just to the citizen who suffers discrimination by reason of place of origin but that the rights of the citizens of Zambia to “freely choose” political representatives of their choice, is violated.64

The importance of this statement has been noted: the African Commission establishes an important principle to the effect that the imposition of exclusionary bars with the intention to check political opposition affects both the discriminate individual and the people he or she intends to represent in accordance with Article 13(1).65

Similarly in Botswana, where citizens by registration could not be elected as President, only citizens by birth, the government claimed that Mr Modise ‘enjoyed all other rights enjoyed by a citizen of Botswana’.66 As Mr Modise was founding an opposition party and was deported shortly after he did so, the African Commission looked at this together with ‘a pattern of action designed to hamper his political participation’, it found that citizenship by registration ‘gravely deprived him of one of his most cherished fundamental rights, the right to freely participate in the government of his country, either directly or through elected representatives’.67 Quotas to ensure the representation of particular groups in political roles have been adopted in a number of States.68 African States have recognised the importance of gender equity when the AU was launched,69 and in the subsequent appointment of individuals to positions in the organisation and its organs.70 61 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 107.3, with respect to para 17 of the General Comment. 62 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 109. 63 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013, para 110. 64 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 72. 65 M. K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 189–190. 66 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 96. 67 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 97. 68 See F. Viljoen and M. Nsibirwa, ‘Political participation of women in Lesotho: the case of Molefi Ts’epe v The Independent Electoral Commission and Others, judgment of 30 June 2005, 39 Comp. & Int’l L.J. S. Afr. (2006) 351–360. 69 Durban Declaration in Tribute of the Organization of African Unity and on the Launching of the African Union, ASS/AU/Decl.2 (I), para 18. 70 Maputo Declaration on Gender Mainstreaming and the Effective Participation of Women in the African Union, on file with author. See also e.g. Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament, CM/2198 (LXXIII), Annex I, Article 4(2).

352

14. Article 13: Participation in the Government

b. Rights and Duties of Political Parties Individuals should have ‘the freedom to establish or be a member of a political party’ if they so wish.71 The African Commission has set out a number of rights for political parties specifically. These include being ‘allowed to conduct their campaign freely’;72 and individuals and political parties should be able ‘to express political opinions with full access to the media and information’;73 as well as have ‘the right to be represented at polling and counting stations by duly designated agents or representatives’;74 and the ‘right to appeal and to obtain timely hearing against all proven electoral malpractices to the competent judicial authorities’.75 A King’s Proclamation outlawed political parties being formed in Zambia. As these are ‘one means through which citizens can participate in governance either directly or through elected representatives of their choice’, this ‘seriously undermined the ability of the Swaziland [sic] people to participate in the government of their country’ and was therefore a violation of Article 13.76 The prohibition also violated Articles 10 and 11 of the ACHPR.77 Although the African Commission has held violations of the ACHPR with respect to the deportation of members of an opposition party in Zambia, for example, this was not under Article 13(1).78 The African Commission has imposed responsibilities on individuals and on political parties. Firstly, it has stated that States must require them to ‘ensure that their supporters do not engage in or incite violence before, during or after the elections’.79 Further, ‘[n]‌o individual or political party shall engage in any act that may lead to violence or deprive others of their constitutional rights and freedoms. Hence all stakeholders should refrain from, among others, using abusive language and/or incitement to hate or defamatory allegations and provocative language. These acts should be sanctioned by designated electoral authorities’.80 ‘All stakeholders in electoral contests’ are also called upon to ‘publicly renounce the practice of granting favours, to the voting public for the purpose of influencing the

71 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.4. 72 Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 2. 73 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.5. 74 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.7. 75 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.6. 76 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, paras 53 and 62. 77 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, paras 60 and 61. 78 M. K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 188. 79 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 7; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 4; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 7. 80 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.8.

C. Article 13(1)

353

outcome of elections’.81 The impartiality of the media also should be respected by ‘every candidate and political party’, namely by ‘undertaking to refrain from any act which might constrain or limit their electoral adversaries from using the facilities and resources of the public media to air their campaign messages’.82 Individuals and parties participating in elections are also required to respect the Electoral Commission or other body’s authority and to give it their ‘full cooperation’.83 Where elections are held to be free and fair, the results should be accepted by every citizen and political party.84 Any challenges ought be ‘in accordance with the law’.85 The African Commission has called on leaders of political parties and the candidates themselves ‘to put the general interest of the people at the centre of the electoral processes’,86 as well as, on one occasion, to ‘engage in constructive dialogue, to exercise restraint, and to respect the results of the polls towards restoring lasting peace and security, as well as trust and national unity’.87

c. Right to Vote Although the right to vote was made explicit in earlier drafts of the ACHPR,88 it does not appear in the final version. While on the one hand it could be argued that this omission has an impact at the national level where States, such as Nigeria, do not have the right to vote explicitly in their constitution.89 On the other hand, the right to ‘participate freely in government’ in Article 13(1) has been interpreted by the African Commission as including a ‘right to vote’90 and consolidated in other documents of the OAU and then AU.91 So, for example, Article 4(2) of the African Charter on Democracy, Elections and Governance, requires States Parties to ‘recognize popular participation through universal suffrage as the inalienable right of the people’.92 The African Commission has underscored this approach noting the right to vote and to be voted for ‘is the bedrock of modern democratic systems which the Member States of

81 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.9. 82 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.10. 83 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.11. 84 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.13. 85 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.13. 86 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 8; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 8; Resolution on 2015 Elections in Africa— ACHPR/Res.293, 28 February 2015, para 6. 87 Resolution on the Political Situation in the Republic of Mali, ACHPR/Res/238, 24 July 2013. 88 M’Baye Draft, Article 30. 89 B. Ugochukwu, ‘Ballot or bullet: Protecting the right to vote in Nigeria’, 12 AHRLJ (2012) 539–563. 90 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 50. Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 3; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 3; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 3. 91 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para IV.2; Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 1.2. 92 African Charter on Democracy, Elections and Governance.

354

14. Article 13: Participation in the Government

the African Union have committed themselves to build’.93 This is a right to vote ‘for a representative of one’s choice’.94 The right should be exercised ‘in a peaceful environment free of intimidation, violence and any other impediment’.95 Thus, the African Commission condemned the elections in Burundi which were ‘hampered by acts of violence’ thereby creating an ‘environment of insecurity’ which prevented individuals ‘participate in the management of the affairs of the country under Article 13 of the African Charter including by running as candidates or importantly by casting their votes for candidates of their choice’.96 Given that the right falls within Article 13(1), it is a right of ‘every citizen’. This, the African Commission has reiterated, extends to cover those with mental disabilities. In Communication 241/01, Purohit and Moore v The Gambia, where the government prohibited individuals held under the Lunatics Detention Act from voting on the grounds that to do so ‘would open the country’s democratic elections to much controversy as to the mental ability of these patients to make an informed choice as to which candidate to vote for’.97 The African Commission, noting that the right could be restricted: by reason of legal incapacity or that the individual is not a citizen of a particular State. Legal incapacity may not necessarily mean mental incapacity. For example a State may fix an age limit for the legibility of its own citizens to participate in its government. Legal incapacity, as a justification for denying the right under Article 13(1) can only come into play by invoking provisions of the law that conform to internationally acceptable norms and standards.98

Any limitation to the right needed to be based on ‘objective and reasonable criteria established by law’ and the African Commission could find none in this case.99 The right of prisoners to vote has not arisen before the African Commission nor the African Court, although has been the subject of case law before African domestic courts.100 In Ahumah Ocansey v The Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney General and The Electoral Commission101 the Ghanaian Supreme Court was asked to consider prisoners on remand who being unable to meet residency or registration requirements for voting in forthcoming elections and therefore being denied their right to vote under the Constitution. Interpreting the Constitution ‘liberally, generously, benevolently or purposively construed’, and Ghana’s international human rights commitments including the ACHPR (although not Article 13 explicitly) the Court held that ‘the express provisions of article 42 of the Constitution confers the right to vote on Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 164. Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 50. 95 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 3; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 3; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 3. 96 Report of the Delegation of the African Commission On Human And Peoples’ Rights On Its Fact- finding Mission To Burundi 7–13 December 2015, 17 May 2016, paras 138–139. 97 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 74. 98 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 75. 99 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 76. See H. Combrinck, ‘Everybody counts: The right to vote of persons with psychosocial disabilities in South Africa’, 2 Afr. Disability Rts. Y.B. (2014) 75–100; L. Thuo, ‘Implementation of political participation standards for persons with intellectual disabilities in Kenya’, 2 Strathmore L.J. (2016) 97–132. 100 See in general A. K. Abebe, ‘In pursuit of universal suffrage: The right of prisoners in Africa to vote, 46 Comp. & Int’l L.J. S. Afr. (2013) 410–446. 101 Ahumah Ocansey v The Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney General and The Electoral Commission, (2010) AHRLR 165 (GhSC 2010). 93 94

C. Article 13(1)

355

all Ghanaians, save those below eighteen years and persons of unsound mind’.102 If the drafters of the constitution had intended to exclude prisoners they would have explicitly done so in the Constitution.103 The approaches of other African domestic courts has not always been consistent with this ruling.104 The corollary of the right to vote is that ‘the results of free expression of the will of the voters are respected; otherwise, the right to vote freely is meaningless’.105 Hence, these rights are ‘not limited to the casting of a ballot paper but invariably includes the individual right to know, and in a timely manner, the outcome of the voting exercise’.106 The African Commission has commented on electoral processes in a number of States. For example, it noted its concerns that the results of Presidential Elections in March 2008 in Zimbabwe were pending over two weeks after voting took place, considering that this ‘unusual and prolonged delay . . . may constitute a violation of . . . Article 13 which provides for the right to vote and participate in government’.107 Where election results were subsequently annulled, after the elections had been judged to have been free and fair and ‘reflected the free choice of the voters’, the African Commission found a violation of Article 13(1).108 The Nigerian government had contested that the elections were in fact free and fair, contrary to the views of international observers. The African Commission held that the opinions of the latter stand: ‘[t]‌he criteria for what constitutes free and fair elections are internationally agreed upon, and international observers are put in place to apply these criteria. It would be contrary to the logic of international law if a national government with a vested interested in the outcome of an election, were the final arbiter of whether the election took place in accordance with international standards’.109

d. Role of Civil Society Civil society organisations and human rights defenders are considered to play an important role in elections110 and their rights and those of journalists should be ‘respected and protected’.111 They ought to be permitted to conduct election activities ‘in a conducive and reprisal-free environment’.112 Article 8 of the Economic Community of West African States (ECOWAS) Protocol on Democracy and Good Governance requires States 102 Ahumah Ocansey v The Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney General and The Electoral Commission (2010) AHRLR 165 (GhSC 2010), paras 46 and 50. 103 Ahumah Ocansey v The Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney General and The Electoral Commission (2010) AHRLR 165 (GhSC 2010), paras 46, 50, 53. 104 Thomas Sibanda v The Attorney General of Botswana & Secretary of the Independent Electoral Commission, Case No. MAHLB-000347-09, High Court of Botswana (7 September 2009) (unreported), as cited in A. K. Abebe, ‘In pursuit of universal suffrage: The right of prisoners in Africa to vote, 46 Comp. & Int’l L.J. S. Afr. (2013) 410–446. 105 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 50. 106 Press Release of the African Commission on the Electoral Impasse in the Republic of Zimbabwe, 15 April 2008. 107 Press Release of the African Commission on the Electoral Impasse in the Republic of Zimbabwe, 15 April 2008. 108 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 50. 109 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 48. 110 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013; Resolution on 2015 Elections in Africa—ACHPR/Res.293, 28 February 2015. 111 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 4; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 4. 112 Resolution on the 2015 Elections in Africa—ACHPR/Res.293, 28 February 2015, para 2.

356

14. Article 13: Participation in the Government

to ‘use the services of civil society organisations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence’.113

e. Independent Institutions The independence of the institutions responsible for organising elections should be ‘guaranteed’ and ‘respected’ by the State114 who ought to provide them with ‘sufficient resources to them for the effective discharge of their mandates in the administration of efficient and transparent elections’.115 These institutions should be ‘impartial, all-inclusive competent accountable electoral institutions’.116

f. Election Observers States are required to permit and promote international and national election observers ‘in the entire electoral process’,117 the African Commission itself calling on, for example, ECOWAS, the AU and the international community to monitor the electoral process in Mali.118 The AU’s Guidelines on election observation note similarly that the State must formally invite the AU to observe elections119 and regional economic communities ‘should be involved actively in elections observation and monitoring’.120 However, whether these are effective or not has been contested, with instances noted where the AU observers have upheld election results that were not considered by others to be free or fair.121 The AU Guidelines set out the rights of electoral observation missions sent by the AU. These include freedom of movement in the State; accreditation without discrimination; free communication with parties and civil society organisations (CSOs); free communication with voters; access to the media and election commission; ability to communicate 113 ECOWAS Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security, Dakar, December 2001. 114 Respectively Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 5, Resolution on 2015 the Elections in Africa—ACHPR/Res.293, 28 February 2015, para 4 and Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 5; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 6. 115 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 5; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 5. 116 OAU’s Principles Governing Democratic Elections in Africa, Adopted at the 38th Ordinary Session of the OAU, 8 July 2002, para 4; SADC Principles and Guidelines Governing Democratic Elections. 2004, 2.1.7; see also same language in SADC Principles and Guidelines Governing Democratic Elections, 2004, section 7. See also ECOWAS Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security, Dakar, December 2001, Article 3; African Charter on Democracy, Elections and Governance, Article 17. 117 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 6; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 5; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 6; Resolution on 2015 Elections in Africa—ACHPR/Res.293, 28 February 2015, para 5. 118 Resolution on the Political Situation in the Republic of Mali, ACHPR/Res/238, 24 July 2013. 119 Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 4.3. 120 Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 4.14; SADC Principles and Guidelines Governing Democratic Elections, 2004. 121 M. Mangu, ‘African civil society and the promotion of the African Charter on Democracy, Elections and Governance’, 12 AHRLJ (2012) 348–372, at 360–361.

C. Article 13(1)

357

with the judiciary, parliament, security and government departments; access to legislation and regulations relating to elections; access to voters lists and to polling stations or counting centres.122 Any human rights abuse that takes place in the context of elections should be ‘promptly’ investigated and those necessary prosecuted.123 Victims of such violations should be provided with redress which is ‘fair and equitable’124 and ‘prompt, adequate and effective’.125 The AU election observation guidelines set out a code of conduct for their observers.126 Similar provisions are provided in other instruments.127

g. Unconstitutional Changes of Government The former OAU, the AU and sub-regional organisations have condemned unconstitutional changes of government.128 The Constitutive Act explicitly ‘condemns and rejects unconstitutional changes of governments’,129 permitting sanctions to be imposed on any Member State that fails to comply with ‘decisions and policies of the Union’ and prohibiting the participation of ‘governments who come to power through unconstitutional means’ from participating in the activities of the Union’.130 This has been used on some, albeit very few, occasions, with, for example, the Peace and Security Council of the AU suspending Madagascar after President Ravalomanana resigned noting ‘pressure from civilian opposition and the armed forces’. The PSC noted that the transfer of power was in violation of the constitution and conferring the presidency on Mr Andry Rajoelina was an unconstitutional change of government which it ‘strongly condemns’, suspending Madagascar until ‘the restoration of constitutional order’.131 Reiterated in its Resolution on the Unconstitutional Change of Governments in May 2012,132 the African Commission has held that coups will violate Article 13(1) and the African Commission has reiterated this on numerous occasions in relation to a number of States.133 It has been seen not only as a violation of the right of individuals but also of peoples and ‘a threat to democracy, peace and security on the continent’, and development.134 Hence, a military coup in the Comoros was considered to be ‘a grave and unacceptable violation of the rights of the Comorian People to freely choose their 122 Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 5.2. 123 Resolution on the 2013 Elections in Africa, ACHPR/Res.239, 24 July 2013, para 8; Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 7; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 8. 124 Resolution on the 2015 Elections in Africa—ACHPR/Res.293, 28 February 2015, para 6. 125 Resolution on the 2013 Elections In Africa, ACHPR/Res.239, 24 July 2013, para 8; see also Resolution on Elections in Africa, ACHPR/Res.232, 25 February 2013, para 7; Resolution on the 2014 Elections in Africa, ACHPR/Res.272, 12 May 2014, para 8. 126 Guidelines for African Union Electoral Observation and Monitoring Missions, EX.CL/91 (V), Annex II, para 6.2. 127 E.g. African Charter on Democracy, Elections and Governance, Article 21. 128 E.g. see among the Principles in the African Charter on Democracy, Elections and Governance, Articles 3(4) and (10), and further, Articles 14(2) and (3). 129 Article 4(p) Constitutive Act. 130 Articles 23 and 30 respectively of the Constitutive Act. See also African Charter on Democracy, Elections and Governance, Articles 25 and 26. 131 See Communiqué of the 181st Meeting of the Peace And Security Council, PSC/ PR/ COMM. (CLXXXI), paras 3 and 4. 132 Resolution on the Unconstitutional Change of Governments, ACHPR/Res.213, 2 May 2012. 133 E.g. Resolution on the Situation in Comoros, ACHPR/Res.34, 5 May 1999. 134 Resolution on the Unconstitutional Change of Governments, ACHPR/Res.213, 2 May 2012.

358

14. Article 13: Participation in the Government

government’.135 Those who have taken power in a coup must reinstate democratically elected civilian rule and do so without delay.136 The African Commission has referred to relevant provisions in the Constitutive Act including Article 4.137 In an early case before the African Commission, the former head of State of the Gambia, Sir Dawda K. Jawara, alleged that during a military coup in 1994 his government was overthrown and as a result there was a ‘blatant abuse of power by . . . the military junta’. Political parties were also banned and ministers from the former government were not permitted to take part in political activities.138 Article 13 was not in the list of alleged violations by the complainant, but the African Commission held that the latter was a violation of ‘their rights to participate freely in the government of their country provided for under Article 13(1) of the Charter’.139 Although the banning of political parties was held to be a violation of Article 10(1), Article 13 was not mentioned in this context.140 There is a close relationship between Article 13 and Article 20 and this has been mentioned on a number of occasions by the African Commission. The 1970 Gambian Constitution required that elections should be held within at least five years. Where the military seized power in 1994 it was alleged by the former head of state that this violated not only the right of the Gambian people to self-determination, but also that people should be able ‘freely choose to determine their political status’.141 The African Commission again did not reference Article 13 in this context but held a violation of Article 20(1).142 It is interesting to note that the concept of an ‘unconstitutional change of government’ can include not only coup d’état, but is broader than this. The African Charter on Democracy, Elections and Good Governance’s Article 23, for example, drawing upon but expanding a 2002 OAU Declaration of the Framework for an OAU Response to Unconstitutional Changes of Government,143 defines ‘illegal means of accessing or maintaining power constitute an unconstitutional change of government’ and lists this as any: ‘putsch or coup d’état against a democratically elected government; intervention by mercenaries to replace a democratically elected government; replacement of a democratically elected government by armed dissidents or rebels; refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; or amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’. The 2014 Malabo Protocol, in setting out its ‘crime of unconstitutional change of government’ adopts this definition but adds ‘political assassination’, and an amendment or revision of the constitution or legal instruments which infringes the constitution itself.144 Previous discussions Resolution on the Situation in Comoros, ACHPR/Res.34, 5 May 1999. Resolution on the Situation in Comoros, ACHPR/Res.34, 5 May 1999. 137 Resolution on the Unconstitutional Change of Governments, ACHPR/Res.213, 2 May 2012. 138 Communication 147/95-149/96, Sir Dawda K. Jawara/Gambia (The), 11 May 2000. 139 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 67. 140 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 68. 141 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 72. 142 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 73. 143 Declaration of the Framework for an OAU Response to Unconstitutional Changes of Government, AHG/Decl 5 (XXXVI). M. K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 191. 144 Malabo Protocol, Article 28E of the Statute. Amnesty International, Malabo Protocol. Legal And Institutional Implications of the Merged And Expanded African Court, Amnesty International, London, 2016, AI Index: AFR 01/3063/2016. 135 136

C. Article 13(1)

359

in the drafting of the Malabo Protocol also considered, but rejected, whether a popular uprising should fall within this definition.145 It has been argued, nevertheless, that this should include ‘a government which refuses to call for elections at the end of its tenure, or the one which manipulates the constitution to prevent a democratic change of government. It also ignores the effects of vote-rigging and other electoral malpractices’.146

h. Limitations Article 13(1) is subject to the right being exercised ‘in accordance with the provisions of the law’. Despite concerns that this will be used to limit right inappropriately,147 the African Commission has held that the same rule, with respect to restriction of all rights in the ACHPR, also applies to Article 13(1), namely that ‘Governments should avoid restricting rights, and take special care with regard to those rights protected by constitutional or international human rights law’.148 Accessing information by electoral stakeholders is subject to limitations but these should be ‘narrowly defined exemptions, which shall be provided by law and shall comply strictly with regional and international standards and good practices’.149 The Guidelines on Access to Information and Elections set out a number of grounds in which information can legitimately be withheld and if it also outweighs the public interest in it being disclosed.150 In a Separate Opinion in Mtikila, Judge Fatsah Ouguergouz argued that the inclusion of the phrase ‘in accordance with the law’ in Article 13(1) should be ‘interpreted in the same spirit as Article 25 of the ICCPR which required that the right be exercised ‘without discrimination and unreasonable restrictions’.151 It was then for the Respondent State to show that any restrictions should be to ensure ‘respect for the rights of others, collective security, morality and common interest’, which it failed to do so. This was an issue that the ‘Court ought to have expressed in a clearer manner’, showing that it was not the barring of independent candidates which was a violation of Article 13(1), rather that the limitations imposed were unreasonable and this resulted in a violation.152 Where the Constitution of Côte d’Ivoire set out conditions for certain State offices, this resulted in a certain proportion of the population being disqualified. The Constitution required that the President had to be born of a father and mother who were Ivorian by birth. The African Commission held that although States have the right to regulate the 145 Report on the Workshop on the Definition of Crimes of Unconstitutional Change of Government and Financial and Structural Implications, AfCHPR/LEGAL/Doc.3, para 12. 146 M. K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 191. 147 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.178. 148 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 73. 149 Guidelines on Access to Information and Elections in Africa, November 2017, para 7. 150 Guidelines on Access to Information and Elections in Africa, November 2017, paras 8 and 9. 151 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Separate Opinion of Vice-President Fatsah Ouguergouz, 14 June 2013, para 30. 152 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Separate Opinion of Vice-President Fatsah Ouguergouz, 14 June 2013, para 34.

360

14. Article 13: Participation in the Government

conduct of elections and determine who should vote and who should stand for elections, it drew upon the UN Human Rights Committee’s General Comment No. 25 to hold that any restrictions should be ‘justifiable on objective and reasonable criteria and reasonable and non-discriminatory’.153 Such restrictions imposed by the constitution were thus in violation of the ACHPR. Similarly, in Zambia, the constitution had required that those wishing to stand for President have both parents who were Zambian by birth or descent. The African Commission, distinguishing between ‘limitations’ and ‘justifications’, considered whether the fact that the public wished for such a restriction to be imposed on those who held the office of President was justification. It linked Article 13 closely with the ‘right to equality’ in Article 2 of the ACHPR154 and held that the phrase ‘in accordance with the provisions of the law’ in Article 13 ‘is surely intended to regular how the right is to be exercised rather than that the law should be used to take away the right’.155

D. Article 13(2) The provision has been raised on a limited number of occasions. In one communication it was alleged that workers were dismissed after a strike. The African Commission was unable to find a violation for lack of information being provided in the submissions.156 In a recent case against Côte d’Ivoire where nationality laws in effect prevented the Dioula ethnic group from Ivorian nationality and thereby their ability to hold public offices including in the judiciary, the African Commission held that: While this limitation could be legitimate with regard to foreigners who have acquired nationality, it violates the provisions of Article 13(2) of the Charter regarding Dioulas as a result of the conclusions of the Commission on rights to legal status and equality.157

For Ouguergouz he sees ‘public service’ as ‘synonymous with “civil service” (fonction publique)’158 and argued that this right ‘amounts, if anything, to an individual’s right of access ceteris paribus to public service or the civil service in his country’.159 As another author notes: A distinction could be drawn between articles 13(2) and (3) in that, while the former intends to guarantee citizens the right to participate in the public service of their country, the latter guarantees every individual access to public services without discrimination. In other words, article 13(2) appears to preclude state parties to the African Charter from adopting measures that would hinder some of their citizens from participating in the public service of their countries. Such measures could be in the nature of unfair legislation, policies or practices that are discriminatory in their

153 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 80 and 83. 154 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 71. 155 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 72. 156 Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001, para 48. 157 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 169. 158 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.178, 159 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.178.

F. Remedies

361

form, substance or effect. A cursory glance at articles 13(2) and (3) would, however, not reveal the distinction between these two provisions.160

The deportation of Mr Modise after he established a political party was considered not only to violate Article 13(1) but also Article 13(2) and the right of equal access to the public service of the State in Article 13(2).161 There was no additional analysis of Article 13(2) in the decision.

E. Article 13(3) This is the ‘first time such a right has been recognized by an international legal instrument’.162 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, alleged, among other violations, that members of the Dioula ethnic group on account of nationality laws which prohibited their citizenship. This resulted in them not being able to carry identity cards and presumptions being made, on the basis of their clothing or accents, by law enforcement officials. They were then required to pay additional costs on public transport. The African Commission found this was a violation of Article 13(3) and the ‘right to use public services in strict equality of all before the law’.163 Ouguergouz interprets public property as ‘roads, parks and gardens, museums and where services are concerned, of hospitals, the post, the police and transport’.164 He does not consider that this provision gives individuals the right to ‘a particular property or service; it simply places on the State an obligation to refrain, which consists in not exercising any discrimination with respect to the users of its services and the property which is its heritage’.165 Article 13(3) is phrased ‘equality before the law’ and not ‘equality in the law’, suggesting that this provision ‘does not formally condemn discriminatory laws with respect to a certain category of people, such as non-nationals’.166 Such protection, would however be provided by Articles 2 and 3.167

F. Remedies As with other rights, the remedies recommended by the African Commission in communications where it has found a violation of Article 13 are dealt with in conjunction with other violations and specific reparations for a violation of this provision are not given. On 160 M. K. Mbondenyi, ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’, 9 AHRLJ (2009) 183–202, at 186. 161 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 97. 162 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.182. 163 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 169. 164 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.182. 165 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.182. 166 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.182. 167 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.182.

362

14. Article 13: Participation in the Government

a few occasions its approach has been general, for example, requesting the State ‘to take the appropriate measures to remedy the situation’168 and ‘take the necessary steps to bring its laws and Constitution into conformity with the African Charter.’169 In Mtikila, the African Court ruled, in addition to ordering other reparations, that the judgment itself was ‘per se a sufficient form of reparation for non-pecuniary damages’.170

1. Guarantees of Non-repetition The government of Swaziland was required to amend a proclamation and decree found to have been violation of Article 13 of the ACHPR, among other rights.171 Similarly, where the Gambian government denied persons with mental disabilities the right to vote, the African Commission urged it to repeal the legislation ‘and replace it with a new legislative regime for mental health in The Gambia compatible with the African Charter and international standards and norms for the protection of mentally ill or disabled persons as soon as possible’.172 Elections in Nigeria were annulled in violation of the ACHPR, including Article 13, and the African Commission called on the State to ‘preserve the traditional functions of the court by not curtailing their jurisdiction’.173 The judgment against Tanzania finding a violation of Article 13 among other rights for prohibiting independent candidates from standing for election held that the State should ‘take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court’.174

2. Dialogue and Good Offices The State has been requested to ‘[engage] with other stakeholders, including members of civil society in the conception and drafting of the New Constitution’ where a violation of Article 13, among other rights, was found.175 The African Commission has also offered its ‘good offices’ to assist the parties.176

3. Duty to Report States have been given six months to report back on measures taken to address Article 13, among others, violations, for example where this required amendments to legislation and dialogue with stakeholders in the drafting of a new constitution.177 On one occasion it required that the State inform the African Commission of the measures in its next Article 62 report.178 On another, no time frame was given.179 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001. 170 Reverend Christopher R. Mtikila v The United Republic of Tanzania, App. No. 011/2011, Ruling on Reparations, 13 June 2014, para 46(1). 171 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 172 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 76. 173 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998. 174 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v United Republic of Tanzania, App. No. 009/2011 and 011/2011, Judgment, 14 June 2013; Reverend Christopher R. Mtikila v The United Republic of Tanzania, App. No. 011/2011, Ruling on Reparations, 13 June 2014, para 43. 175 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 176 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 177 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 178 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001. 179 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 168 169

F. Remedies

363

4. Restitution Nigeria was required to release individuals who had protested against the annulment of elections in the country in violation of Article 13 and other rights.180 Where an individual was denied citizenship resulting in his arrest, detention and subsequent deportation, the African Commission called on the government to ‘to take appropriate measures to recognise Mr John Modise as a citizen of Botswana by descent’.181

5. Compensation The African Commission ordered Botswana to pay ‘adequate’ compensation to Mr Modise after violations of Article 13 and other rights were found when he was denied citizenship.182 Pecuniary damages for the costs of setting up a political party and participating in elections and costs of national litigation were not awarded in a case where barring of independent candidates from standing for elections was found to have violated Article 13, among other rights. This was because the applicant had failed to provide ‘sufficient evidentiary elements . . . to establish that these damages directly arose from the facts of the case and the violations’.183

6. Satisfaction After finding that it had violated Article 13 among other rights, even though not expressly requested by the applicant, Tanzania was ordered to translate the Court’s summary of the judgment into Kiswahili and publish it once in the official gazette and once in a national paper ‘with widespread circulation’, and publish the whole judgment on an ‘official website’ of the State maintaining it in place for one year.184

Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998. Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000. 182 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000. 183 Reverend Christopher R. Mtikila v The United Republic of Tanzania, App. No. 011/2011, Ruling on Reparations, 13 June 2014, para 30. 184 Reverend Christopher R. Mtikila v The United Republic of Tanzania, App. No. 011/2011, Ruling on Reparations, 13 June 2014, para 45. 180 181

15. Article 14 Right to Property The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general

interest of the community and in accordance with the provisions of appropriate laws.

A. Introduction Private property as a human right was controversial in the drafting of the African Charter on Human and Peoples’ Rights (ACHPR).1 The Dakar Draft read: ‘Where the right to property is guaranteed by state legislation, it may only be encroached upon in the interest of public need or in the general interest of the community’.2 The right to property, according to the African Commission, is composed of two principles: one of a ‘general nature. It provides for the principle of ownership and peaceful enjoyment of property’.3 The second ‘provides for the possibility, and conditions of deprivation of the right to property’.4 It has arisen in a number of contexts including confiscation or looting of ‘belongings and property’,5 expropriation of land and houses6 and forced evictions. It has also arisen with respect to indigenous peoples’ rights and as has been stated, on the continent, ‘indigenous land and natural resources rights—the most contested property domain—are a tinderbox apt to ignite’.7 The African Commission has stated that an ‘independent and broad conception’ should be taken of the right to property.8 It includes the right to have ‘access to property of one’s own and the right not for one’s property to be removed’.9 Indigenous peoples

1 F. Ouguergouz, The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.152. 2 Dakar Draft, Article 14. 3 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 44. 4 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 44. 5 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000; Communication 54/ 91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 128. 6 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 128. 7 K. Sing’ Oei A and J. Shephard, ‘ “In land we trust”: The Endorois’ Communication and the quest for indigenous peoples’ rights in Africa’, 16 Buff. Hum. Rts. L. Rev. (2010) 57–111, at 77. 8 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012; Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. 9 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998.

B. Who Has the Right to Property?

365

should be able to ‘own, control and manage their ancestral lands in the forests and protected areas’.10 Women, specifically widows, should have the ‘right to inherit the movable and immovable property of their husbands, as well as their right, irrespective of the matrimonial regime, to continue to live in the matrimonial house’.11 According to the African Court, the right to property has three elements: ‘the right to use the thing that is the subject of the right (usus), the right to enjoy the fruit thereof (fructus) and the right to dispose of the thing, that is, the right to transfer it (abusus)’.12 Article 14 encompasses a number of obligations on the State to: a. Ensure peaceful enjoyment of property and protection from forced eviction. This obligation implies that the State shall protect the enjoyment in all its forms, from interference by third parties as well as its own agents. b. Define by law the terms and conditions for the acquisition, nationalisation or expropriation of property based on acting in the public interest at all times. c. Ensure that “public need or in the general interest of the community” as expressed under the Charter serves legitimate public interest objectives such as economic reform or measures designed to achieve greater social justice. d. Ensure effective public participation and transparency in any acquisition process. e. Ensure that compensation for public acquisition of property fairly balances the rights of the individual and the wider interests of society. In general, compensation should be reasonably related to the market value of the acquired property. However, in certain circumstances public interest may require less than market value compensation or, exceptionally, none at all. f. To ensure that members of vulnerable and disadvantaged groups, including indigenous populations/communities who are victims of historical land injustices, have independent access to and use of land and the right to reclaim their ancestral rights, and are adequately compensated for both historical and current destruction or alienation of wealth and resources. This may include land redistribution programmes implemented according to the due process of the law. States should protect traditional land ownership, while ensuring gender equality. g. To prevent unfair exploitation of natural resources by both state and non state national and international actors. h. To ensure equitable and non-discriminatory access, acquisition, ownership, inheritance and control of land and housing, especially by women. This includes the obligation to take measures to modify or prohibit harmful social, cultural or other practices that prevent women and other members of vulnerable and disadvantaged groups from enjoying their right to property, particularly in relation to housing and land.13

B. Who Has the Right to Property? Unlike all the other rights in the ACHPR, Article 14 does not state explicitly who the right is for. However, the right has been interpreted as having both an individual and

Resolution on Indigenous Populations/Communities in Africa, ACHPR/Res. 334, 25 February 2016. Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. See also R. A. Onuoha, ‘Discriminatory property inheritance under customary law in Nigeria: NGOs to the rescue’, 10 Int’l J. Not-for-Profit L. (2007–2008) 79–93. 12 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment of 26 May 2017, para 124. 13 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 55. 10 11

366

15. Article 14: Right to Property

collective element,14 although there has been some criticism that the communal element of the right has not always been recognised.15 As Ouguergouz notes: a relatively restrictive interpretation of this right –communal property –could be defended by certain States in the name of “values of African civilization”. The wording of Article 14 neither excludes nor corroborates such an interpretation. The reference to “general interest of the community” could even favour a liberal interpretation of this right, suggesting as it does the possibility of a conflict between private interests and the general interest. However, it could also be viewed to support the opposite solution if those private interests are viewed as consisting solely in the – collective –interests of part of a group, and the general interest in the interests of the group as a whole. Ultimately, it is our view that Article 14 interprets the right to property both individually and collectively.16

The African Commission has held that ‘every individual has the right to property’,17 as well as interpreting the right as being a right of a ‘group or people’:18 The right to property is a broad right that includes the protection of the real rights of individuals and peoples in any material thing which can be possessed as well as any right which may be part of a person’s patrimony. The concept also includes the protection of a legitimate expectation of the acquisition of property. It encompasses the rights of the individual, group or people to peaceful enjoyment of the property.19

Similarly, the African Court in relation to a case alleging violations of the rights of the Ogiek people in Kenya has held that the right ‘may also apply to groups or communities; in effect, the right can be individual or collective’.20 The application of Article 21 in a number of cases involving Article 14 also offers a further collective dimension to the right to property.21 In one case, when considering a violation of Article 21(2) the African Commission noted that ‘the movable and immovable property of the complainant that had been destroyed during the socio-political events which shook the country in 1993 does not constitute the wealth and natural resources of a people but rather individual assets. It is important to point out that in the present communication the complainant is acting on his own behalf and on behalf of a group of individuals or of a population living in a given territory’.22 Writing about the Endorois case, Sing’ Oei argues ‘[w]‌hile the African Charter creates two distinct rights, to 14 See also S. B. Lugard, ‘The clash of property and environmental rights in the Niger Delta region of Nigeria’, 7 J. Sustainable Dev. L. & Pol’y (2016) 43–63. 15 W. Wicomb and H. Smith, ‘Customary communities as “peoples” and their customary tenure as ‘culture’: What we can do with the Endorois decision’, 11 Afr. Hum. Rts. L.J. (2011) 422–446, at 435, criticising the guidelines on economic, social and cultural rights in the ACHPR. 16 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, pp.153–154. 17 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 128. 18 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. 19 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. 20 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment of 26 May 2017, para 123. 21 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006; K. Sing’ Oei A and J. Shephard, ‘ “In land we trust”: The Endorois’ Communication and the quest for indigenous peoples’ rights in Africa’, 16 Buff. Hum. Rts. L. Rev. (2010) 57–111, at 77; K. Sing’Oei, ‘Engaging the Leviathan: National development, corporate globalisation and the Endorois’ quest to recover their herding grounds’, 18 Int’l J. on Minority & Group Rts. (2011) 515–540. 22 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 82.

C. Property

367

both property (Article 14) and the free disposal of wealth and natural resources (Article 21), the two rights interact quite closely in the context of traditional lands. In particular, because indigenous people look at land and its resources in a wholistic fashion, the violations of their right to property and natural resources appurtenant to it occur contemporaneously. The artificiality of creating different incidences with regard to the two rights becomes intensely clear in the case of the Endorois who, upon eviction from their land, also lost access to ‘traditional medicines made from herbs found around the Lake and resources, such as salt licks and fertile soil, which provided support for their cattle and therefore their pastoralist way of life’.23 The collective dimension of the right has arisen in the context of indigenous peoples’ claims to land. In addition to the seminal Endorois decision,24 the African Commission has, for example, found a right to adequate housing to be included within the ACHPR through a combined reading of Article 14 with other provisions. It has then held that this was ‘a collective right’ of the Ogoni people in Nigeria and their being forcibly evicted from their homes and villages was a violation.25 Similarly, protected under Article 14 ‘are rights guaranteed by traditional custom and law to access to, and use of, land and other natural resources held under communal ownership. This places an obligation on State Parties to ensure security of tenure to rural communities, and their members’.26

C. Property The concept of property in the African Charter has been interpreted as including ‘any material thing which can be possessed’,27 as well as ‘any right which may be part of a person’s patrimony’,28 and ‘protection of a legitimate expectation of the acquisition of property’.29 The African Commission has also referred to a ‘right to land’, particularly in the context of the rights of women.30 23 K. Sing’ Oei A and J. Shephard, ‘‘In Land We Trust’: The Endorois’ Communication and The Quest For Indigenous Peoples’ Rights In Africa’, 16 Buff. Hum. Rts. L. Rev. (2010) 57–111, at 77. 24 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. For discussion see W. Wicomb and H. Smith, ‘Customary communities as ‘peoples’ and their customary tenure as ‘culture’: What we can do with the Endorois decision’, 11 Afr. Hum. Rts. L.J. (2011) 422–446; K. Sing’ Oei A and J. Shephard, ‘ “In land we trust”: The Endorois’ Communication and the quest for indigenous peoples’ rights in Africa’, 16 Buff. Hum. Rts. L. Rev. (2010) 57–111; S. A. D. Kamga, ‘The right to development in the African human rights system: The Endorois case’, 44 De Jure (2011) 381–391; T. Mennon and C. Morel, ‘From M’Intosh to Endorois: Creation of an International Indigenous Right to Land’, 21 Tulane J. Int’l & Comp. L. (2012-2013) 37–85; E. Ashamu, ‘Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya: A landmark decision from the African Commission’, 55 J. Afr. L. (2011) 300–313. 25 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 63. 26 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 54. 27 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. 28 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. 29 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. 30 Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. See T. Mennon and C. Morel, ‘From M’Intosh to Endorois: Creation of an international indigenous right to land’, 21 Tulane J. Int’l & Comp. L. (2012-2013) 37–85.

368

15. Article 14: Right to Property

As for ‘material’ possessions, cases have related to ‘television sets, shoes, wrist watches and clothing’.31 Income may also be property. Where the Zimbabwean State prevented newspaper publishers from publishing and confiscated their equipment, the African Commission held that this had deprived them of ‘a source of income and livelihood’, which amounted to a violation of Article 14.32 Furthermore, a judgment of a national court which grants monetary compensation to an individual has been considered to be an asset and refusal by the State to honour the judgment a violation of Article 14.33 In the Endorois case the African Commission held that ‘the rights, interests and benefits of such communities in their traditional lands’ also constituted ‘property’.34 The concept of intellectual property has been mentioned in passing by the African Commission,35 where it has referred, for example, to ‘rights to traditional knowledge and intellectual property of local and indigenous communities’.36 Although the right to housing or shelter is not provided expressly by the ACHPR,37 the African Commission has said that ‘the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under Article 16 . . . , the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected. It is thus noted that the combined effect of Articles 14, 16 and 18(1) reads into the [African] Charter a right to shelter or housing’.38 It has referred to a right to housing and a right to shelter interchangeably, but it is not clear whether the right to shelter is different from the right to housing in the ACHPR. In the Ogoni case the two were treated separately but not explicitly differentiated.39 It is not just a right to housing that has been referred to by the African Commission, but a ‘right of access to adequate housing’40 and this should ‘meet the basic need of a decent livelihood’.41 States should thus ensure a ‘minimum degree of security of tenure, including protection from forced evictions’.42

31 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008. 32 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 179. 33 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 76. 34 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 89. 35 See for discussion of the concept in the African context, E. S. Nwauche, ‘The emerging right to communal intellectual property’, 19 Marq. Intell. Prop. L. Rev. (2015) 221–244. 36 Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa, ACHPR/ Res.153, 25 November 2009; Guidelines for National Periodic Reports, 14 April 1989, para 16(b). 37 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 60. 38 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 60. 39 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 60. 40 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 41 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 42 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012.

D. Ownership

369

A right to shelter is ‘at the very least basic shelter for everyone’.43 The right has been further interpreted as going ‘further than a roof over one’s head. It extends to embody the individual’s right to be let alone and to live in peace, whether under a roof or not’.44 Thus, where the complainants in a case against Nigeria alleged that the military government had violated the right to housing of the Ogoni community by destroying their homes and villages and obstructing, harassing and killing those who tried to return to rebuild their homes, the African Commission held that such actions were ‘massive violations of the right to shelter’ contrary to Articles 14, 16 and 18(1) of the ACHPR.45 The right to ‘adequate housing’46 includes protection against forced eviction, with the African Commission defining the latter term as that provided by the UN Committee on Economic, Social and Cultural Rights as ‘the permanent removal against their will of individuals, families and/or communities from the homes and/or which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’.47 Similarly, it has applied the Committee’s General Comment No. 4 provision that ‘all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats’,48 to find that the government of Nigeria, in evicting individuals from their homes and villages ‘clearly demonstrates a violation of this right enjoyed by the Ogonis as a collective right’.49

D. Ownership The concept of ownership has been interpreted as ‘general one which focuses on the principle of the right of ownership and the peaceful enjoyment of property’.50 Drawing on international law, the ACHPR has been held to include ‘the right of ownership rather than mere access’.51 This is particularly important in the context of indigenous peoples who otherwise would ‘remain vulnerable to further violations/dispossession by the State or third parties. Ownership ensures that indigenous peoples can engage with the state and third parties as active stakeholders rather than as passive beneficiaries’.52 Indigenous peoples, under the ACHPR, and drawing on Article 26 of the UNDRIP and Inter-American Court case law, have a ‘recognised claim to ownership to ancestral

43 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para F. 44 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 61. 45 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 62. 46 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 47 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 63. See in general, A. Otubu, ‘Fundamental right to property and right to housing in Nigeria: a discourse’, 2011 Acta Universitatis Danubius Jur. (2011) 25–42. 48 E/1992/23, annex III. Paragraph 8(a). 49 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 63. 50 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 143. 51 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 204. 52 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 204.

370

15. Article 14: Right to Property

land . . . in the absence of official title deeds’.53 Similarly, when examining the eviction of the Ogiek from the Mau Forest in Kenya, the African Court applying this same provision from the UNDRIP held that rights of indigenous peoples’ on their ancestral lands ‘are variable and do not necessarily entail the right of ownership in its classical meaning, including the right to dispose thereof (abusus). Without excluding the right to property in the traditional sense, this provision places greater emphasis on the rights of possession, occupation, use/utilization of land’.54 It held that as the Ogiek were an indigenous people and had been occupying the lands ‘since time immemorial’ then ‘they have a right to occupy their ancestral lands, as well as use and enjoy the said lands’.55 In a dispute between two Mauritanian citizens over ownership of real estate property, Mr Bah Ould Rabah, the complainant in the case before the African Commission, had argued that the land belonged to his father and that his mother had had no separate title to dispose of the land.56 Mr Mohamed Moustapha Ould Bah argued that he had been donated the complainant’s property and this included the plot of land under dispute. He said he had been in possession of that property for twenty-seven years. The complainant stated that he and his family had been expelled from their home by Mr Mohamed Moustapha Ould Bah as the mother of the complainant had been Mr Ould Bah’s slave and the land therefore belonged to him. The Mauritanian courts ruled against the complainant. The African Commission held that ‘to accept that someone, and a mother for that matter, can deprive her own children of their inheritance for the benefit of a third party, with no specific reason as in this case, is not in conformity with the protection of the right to property’.57 It further added that the government should ‘persevere in their efforts so as to control and eliminate all the offshoots of slavery’.58 Unusually for African Commission decisions, a dissenting opinion from Commissioner El Hassan, is appended to the decision.59 He stated that having examined the documents in the file ‘it was not indicated anywhere that the recipient of the donation had claimed that the Complainant’s mother had donated the land because she was the slave of the recipient. On the contrary, the recipient indicated clearly that the Complainant’s mother donated the land to him because of the existence of good ties and relationship between the two of them’.60 He reiterated that slavery was banned in 1980.61 He considered that the domestic courts:

53 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 206. 54 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment of 26 May 2017, para 127. 55 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment of 26 May 2017, para 128. 56 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004, para 26. See in general J. Allain and R. Hickey, ‘Property and the definition of slavery’, 61 Int’l & Comp. L.Q. (2012) 915–938. 57 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004, para 30. 58 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004, para 31. 59 Dissenting Opinion by Commissioner Yasir Sid Ahmad El Hassan, Vice-Chairperson of the African Commission, Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004. 60 Dissenting Opinion by Commissioner Yasir Sid Ahmad El Hassan, Vice-Chairperson of the African Commission, Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004, para 11. 61 Dissenting Opinion by Commissioner Yasir Sid Ahmad El Hassan, Vice-Chairperson of the African Commission, Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004, para 17.

D. Ownership

371

cannot restrain the right or freedom of the claimant’s mother to dispose part of her property by way of donation to a member of her family without a legal basis, neither do they have the right to compel the claimant’s mother to explain the reasons why she donated such property to one of her family members, while she is sane, mature and not restrained from disposing her property by a court order. Had the Mauritanian courts prevented the [Complainant’s] mother from disposing of part of her property by donating it to a relative and deprived her son of that portion of property, they would have violated Article 14 of the African Charter, which related to the right to property and also embodies the rights to freely dispose of one’s property.62

As the courts had confirmed the ownership of the property by the mother and her ability to dispose of it as she wished, this ‘proved that she was neither a slave nor a servant’, and thereby there had been no violation of Article 14.63 In a case against the DRC, an Italian national, Mr Noca, claimed that his property had been expropriated on the basis that it had been considered by the State authorities to be abandoned. He said he had left the country but made the necessary arrangements including entrusting the building to the State-owned National Insurance Company (SONAS) which managed buildings belonging to expatriates not resident in the country. He did this before his departure to ensure that the building would not be considered abandoned. He claimed the building was declared abandoned by an Order in September 1980 as a result of attempts by the government to take the assets of foreigners. Despite this Order subsequently being repealed a registration certificate was still issued to another individual to allocate him Mr Noca’s building. The African Commission held that ‘the State failed in its obligation to protect the rights of foreigners living in its territory, and that the State could have demonstrated good faith by reinstating the rights of the victim’.64 It agreed with the complainant who drew on case law that provides that ‘only the holder of a registration certificate can lay claim to the ownership of a building and the property is deemed to belong to him as long as the transfer of property ownership has not been made’.65 It consequently concluded that ‘the proven misconduct of the administration, resulting in particular from an irregularity committed in the procedure for granting the title deed that was still in the inheritance of Mr. Dino Noca, the Respondent State has indisputably violated Article 14 of the African Charter’.66 In the Endorois case, the African Commission found that the Endorois were not given full title to their land which had instead been made subject to a trust, and that there was ‘effective denial of ownership of their land’.67 Although they had been able to ‘exercise their traditional rights without restriction’, the trust system was ‘inadequate to protect their rights’.68

62 Dissenting Opinion by Commissioner Yasir Sid Ahmad El Hassan, Vice-Chairperson of the African Commission, Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004, paras 22–23. 63 Dissenting Opinion by Commissioner Yasir Sid Ahmad El Hassan, Vice-Chairperson of the African Commission, Communication 197/97 Bah Ould Rabah v Mauritania, 4 June 2004, paras 24–26. 64 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 137. 65 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 141. 66 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 173. 67 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 199. 68 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 199.

372

15. Article 14: Right to Property

E. Peaceful Enjoyment Article 14 includes the right to ‘peaceful enjoyment of the property’.69 Considerable attention has been paid to forced evictions, which the African Commission has condemned,70 recognising that they can result in internal displacement and violation of other rights. It has called on governments to put ‘an end to all forms of forced evictions, in particular evictions carried out for development purposes’,71 and evictions of indigenous peoples from their ancestral lands.72 Forced evictions have been defined as: acts and/or omissions involving the coerced or involuntary displacement of individuals, groups and communities from homes and/or lands and common property resources that were occupied or depended upon, thus eliminating or limiting the ability of an individual, group or community to reside or work in a particular dwelling, residence or location, without the provision of, and access to, appropriate forms of legal or other protection.73

Where Sierra Leonean refugees were evicted from their homes and refugee camps by Guinean soldiers the African Commission found a violation of their right to property among other massive violations.74 Any evictions undertaken should be carried out with ‘prior consultation and notice, adequate compensation or appropriate alternative housing solution’.75 They ought to be used ‘as a last resort after all alternatives to eviction have been provided and that all evictions comply with international and regional standards’.76 Legislative and other measures should be adopted to ‘ensure that legal procedures are complied with prior to any eviction and making available remedies that are likely to result in the right to reparation either in the form of restitutio in integrum or monetary compensation’.77 Particular protection should be given to women, whether the evictions are carried out by public or private actors.78 The African Commission has applied the UN Committee on Economic, Social and Cultural Rights’ test on forced removals that they are ‘prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law’,79 and that 69 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 143. 70 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 71 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. See also Resolution on the Situation of Human Rights in Zimbabwe, ACHPR/Res.89, 5 December 2005. 72 Resolution on Indigenous Populations/Communities in Africa, ACHPR/Res. 334, 25 February 2016. 73 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011. 74 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004. 75 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 76 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 77 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 78 Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. 79 Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant), 1 January 1992, para 18.

G. Access

373

States Parties should ‘prior to carrying out any evictions, to explore all feasible alternatives in consultation with affected persons, with a view to avoiding, or at least minimizing, the need to use force’.80

F. Possession In the Endorois case the African Commission held that possession of land by the indigenous people: has the equivalent effect as that of a state-granted full property title; . . . entitles indigenous people to demand official recognition and registration of property title; the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and the members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently, possession is not a requisite condition for the existence of indigenous land restitution rights.81

In a case against Sudan, the complainants argued that the victims’ property had been destroyed by the Sudanese army and military groups. The African Commission found that while the State had not taken possession of the property, drawing on Dogan and others v Turkey, Akdivar and others v Turkey before the European Court of Human Rights and the UN Sub- Commission on the Promotion and Protection of Human Rights Pinhero Principles, it found that the State had: failed to show that it refrained from the eviction, or demolition of victims’ houses and other property. It did not take steps to protect the victims from the constant attacks and bombings, and the rampaging attacks by the Janjaweed militia. It doesn’t matter whether they had legal titles to the land, the fact that the victims cannot derive their livelihood from what they possessed for generations means they have been deprived of the use of their property under conditions which are not permitted by Article 14.82

G. Access The right to property includes the right to ‘have access to one’s property’.83 Access is considered as ‘de facto ownership’ rather than de jure ownership.84 Thus it was necessary

80 Committee on Economic, Social and Cultural Rights, General Comment No. 7: The right to adequate housing (art. 11 (1) of the Covenant): Forced evictions, 1997, para 13. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 200. 81 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 209. 82 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 205. 83 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 186. 84 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 205.

374

15. Article 14: Right to Property

to grant the Endorois title to the land and not just access to ceremonial sites on the land.85

H. Compensation Compensation is not specifically mentioned in Article 14, although there is reference in Article 21. The complainants in the Endorois case argued that Article 14 had been violated because the government had failed to respect the Kenyan Constitution and domestic law by never paying adequate compensation. This failure thus renders the restriction on the right to property not ‘in accordance with the law’ required by Article 14.86 In this instance, the African Commission held that compensation should be ‘prompt’ and ‘full’ as well as ‘fair and just’.87 It appears that it may need to be accepted by the victims.88 Furthermore, regarding the denial of property rights of indigenous peoples, drawing upon UNDRIP the African Commission has held that ‘[u]‌nless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status’.89 In the Endorois case the issue of compensation arose in the context of Article 14. Here not all the families had been compensated and the complainants alleged that compensation was not adequate. In determining which principles apply in determining compensation, the African Commission adopted the recommendations by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, namely that displaced persons should be: ( i) compensated for their losses at full replacement cost prior to the actual move; (ii) assisted with the move and supported during the transition period in the resettlement site; and (iii) assisted in their efforts to improve upon their former living standards, income earning capacity and production levels, or at least to restore them’.90

I. State Obligations Various obligations arise under Article 14. In general, the African Commission has held that States have an obligation to ‘respect and protect’,91 in other instances, that States 85 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 205. K. Sing’Oei, ‘Engaging the Leviathan: National development, corporate globalisation and the Endorois’ quest to recover their herding grounds’, 18 Int’l J. on Minority & Group Rts. (2011) 515–540, at 532. 86 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 112. 87 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 231 and 232. 88 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 231. 89 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 90 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 237. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 143. 91 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 43.

I. State Obligations

375

have obligations to ‘ensure, protect and promote’, the right to property,92 or indeed to ‘take appropriate steps to ensure respect, protection and realisation’, in this instance of the right to adequate housing.93 The obligation to respect and protect is ‘against any form of encroachment’.94 States are prohibited ‘from interfering arbitrarily in the enjoyment of property rights. Expropriation without legal grounds or which is not performed in the public interest is an example of breach of the obligation to respect the right to property’.95 States should also ‘regulate the exercise of this right in order for it to be accessible to everyone, taking public interest into due consideration’.96 The obligation to respect, for example, housing rights includes a requirement by States that: all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs.97

This obligation to respect is ‘at the very minimum’.98 Tying this with Article 1 of the ACHPR, the African Commission held in one case there had been ‘culpable negligence or wilful misconduct’ on the part of the State for failing to recognise the repeals of orders which consolidated the ownership of a building by the complainant.99 The obligation to respect and protect includes the requirement that States ‘refrain from and prevent forced evictions, including by private actors’.100 Where individuals are evicted, the State should also ‘[ensure] that any alternative housing provided to people complies with international and regional standards on the right to adequate housing’.101 With regard to the right to housing, States should ‘refrain from and protect’ against forced evictions from home(s) and land’.102 They should also ‘guarantee to all persons a degree of security of tenure which confers legal protection upon those persons, households and communities currently lacking such protection, including all those who do not have formal titles to home and land, against forced evictions, harassment and other

Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 94 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 43. 95 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 160. 96 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 43. 97 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 61. 98 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 61. 99 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, paras 153–155. 100 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 101 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 102 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para F. 92 93

376

15. Article 14: Right to Property

threats’.103 This ought to be done with the ‘prior and informed consent of the affected people’.104 Other obligations under the right to housing include that States should ‘[i]‌mplement housing programmes, including subsidies and tax incentives, to expand housing construction to meet the needs of all categories of the population, particularly low-income families; and Prioritise in national plans and policies the provision of shelter for all persons in need of emergency housing’.105 They must consider ‘the use of scientific and technical knowledge and of international cooperation for developing and improving housing construction, including safety measures against earthquakes, floods and other natural hazards’.106 The African Commission has also referred to ‘measures taken for the protection of tenants, such as rent control and legal guarantees’.107 The obligation to protect specifically includes protection ‘from arbitrary deprivation of the enjoyment of property rights, adequate compensation for public acquisition, nationalisation or expropriation, peaceful enjoyment of property and protection from arbitrary eviction’.108 In the context of housing, the obligation requires the State to ‘prevent the violation of any individual’s right to housing by any other individual or non-state actors like landlords, property developers, and land owners, and where such infringements occur, it should act to preclude further deprivations as well as guaranteeing access to legal remedies’.109 Protection is broader than this, encompassing the establishment of an environment conducive to the exercise of the right, namely to protect against: political, economic and social interference. Protection generally entails the creation and maintenance of an atmosphere or a framework through an effective interplay of laws and regulations, so that individuals can freely exercise their rights and freedoms. This is inextricably linked to one of the obligations of the State which consists in promoting the enjoyment of all human rights.110

Where individuals in Darfur were forced to leave their homes by government forces and militias supported by the Sudanese State the African Commission held that it was: the primary duty and responsibility of the Respondent State to establish conditions, as well as provide the means, to ensure the protection of both life and property, during peace time and in times of disturbances and armed conflicts. The Respondent State also has the responsibility to ensure that persons who are in harm’s way, as it seems the victims were, are resettled in safety and with dignity in another part of the country.111

103 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para F. 104 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 105 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para F. See also Guidelines for National Periodic Reports, April 1989, para 33. 106 Guidelines for National Periodic Reports, April 1989, para 33. 107 Guidelines for National Periodic Reports, April 1989, para 33. 108 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 159. 109 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 61. 110 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012. 111 Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 201.

J. Limitations

377

State obligations are both positive and negative. States have a duty ‘not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes’.112 In some circumstances ‘special measures’ may need to be taken.113 This is particularly the case with indigenous peoples where it is necessary to acknowledge that ‘rights, interests and benefits of such communities in their traditional lands constitute ‘property’ under the Charter and that special measures may have to be taken to secure such ‘property rights’.114 This is not discriminatory, as argued by the Kenyan government in the Endorois case and rejected by the African Commission: positive discrimination or affirmative action helps to redress imbalance. The African Commission shares the Respondent State’s concern over the difficulty involved; nevertheless, the State still has a duty to recognise the right to property of members of the Endorois community, within the framework of a communal property system, and establish the mechanisms necessary to give domestic legal effect to such right recognised in the Charter and international law. Besides, it is a well established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination. Legislation that recognises said differences is therefore not necessarily discriminatory.115

States should also ‘put in place special measures to protect the property rights of women with disabilities’.116

J. Limitations Article 14 provides that the right can be ‘encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws’. This is a ‘two-pronged’ test’ and ‘conjunctive’, namely ‘in order for an encroachment not to be in violation of Article 14, it must be proven that the encroachment was in the interest of the public need/general interest of the community and was carried out in accordance with appropriate laws’.117 The right may be limited by the State ‘in a non-arbitrary manner, according to the law and the principle of proportionality’,118 and should be done ‘transparently’.119 Any limitations imposed on Article 14, as with other articles in the ACHPR, should be proportionate and ‘absolutely necessary for the

112 Communication 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 61. 113 Drawing on the Inter-American Saramaka v Suriname case, and Moiwana v Suriname, Yakye Axa v Paraguay, Sawhoyamaxa v Paraguay, and Mayagna Awas Tingni v Nicaragua. 114 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 189. 115 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 196. 116 Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. 117 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 211. 118 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 53. 119 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011.

378

15. Article 14: Right to Property

advantages which follow’,120 serve a legitimate need and be ‘the least restrictive measures possible’.121 The ‘two-pronged’ approach of the African Commission, in combination with Article 21, and its use of the Inter-American Court of Human Rights’ Saramaka case has been criticised as resulting in a ‘much weaker legal protection for indigenous communities’ and ‘gave no indication how this might play in the context of national development priorities. The Commission’s approach fails to address that states “shall give legal recognition and protection” to indigenous “land, territories, and resources.” . . . Ultimately, it appears that the African Commission’s Decision on the Endorois’ natural resource claim hinged on a failure of both parties to address Article 14’s two-prong test in a consultative manner’.122 Where peaceful enjoyment of property is limited, States should ‘ensure that compensation for public acquisition of property fairly balances the rights of the individual and the wider interests of society’.123 They ought to guarantee that members of ‘vulnerable and disadvantaged groups, including indigenous populations/communities, where applicable, who are victims of historical land injustices, have independent access to and use of land and the right to reclaim their ancestral rights, and are adequately compensated for both historical and current destruction or alienation of wealth and resources’.124 There should also be ‘equitable and non discriminatory access, acquisition, ownership, inheritance and control of land and housing, especially by women and members of low income groups’.125

1. ‘The Interest of Public Need or in the General Interest of the Community’ The test may vary depending on the context. For indigenous land, there will be a ‘much higher threshold in the case of encroachment’, particularly ancestral lands, than if the land is the private land of an individual.126 Illegal deportation of an individual may violate Article 14. In a case involving the expulsion of West African nationals from Angola, with the victims losing their belongings as a result, although the complainants did not appear to raise Article 14 among the rights alleged to have been violated, the African Commission held in its decision that ‘[t]‌his type of deportations calls into question a whole series of rights recognised and guaranteed 120 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 213. 121 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, paras 213–214. Communication 286/ 2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 145. Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010; Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 193. 122 K. Sing’ Oei A and J. Shephard, ‘ “In land we trust”: The Endorois’ Communication and the quest for indigenous peoples’ rights in Africa’, 16 Buff. Hum. Rts. L. Rev. (2010) 57–111, at 103. 123 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011. 124 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011. 125 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011. 126 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 212.

J. Limitations

379

in the Charter; such as the right to property’, among others.127 It held there had been a violation of Article 14. Where individuals were deported en masse from Nigeria resulting in them having to leave behind property such as televisions, shoes, watches and clothing, the African Commission found that the State had not provided evidence ‘to prove that its actions were necessitated either by public need or community interest. Without such a justification and the provision of adequate compensation determined by an impartial tribunal of competent jurisdiction, the African Commission finds the Respondent State’s actions in violation of the right to property under Article 14 of the African Charter’.128 Premises sealed up by the government thereby preventing access was found by the African Commission not to be ‘ “appropriate” or in the interest of the public or the community in general’.129 A similar approach was taken when magazines were seized by the authorities.130 The Kenyan government had argued that the Ogiek community should be evicted from the Mau Forest in order to preserve the natural ecosystem. The African Commission found that the State had not provided evidence to show that the presence of the Ogiek would deplete the natural environment, there were other factors that impacted on the environment including action by the government itself and other groups, and the government itself had conceded that any degradation was not entirely attributable to the Ogiek.131 The African Commission held that denying them access to the forest and eviction from it ‘cannot be necessary or proportionate to achieve the purported justification of preserving the natural ecosystem of the Mau Forest’.132

2. Proportionate Where the Kenyan authorities had evicted the Endorois indigenous people from land in order to create a game reserve, the African Commission found their actions which led to ‘the upheaval and displacement of the Endorois from the land they call home and the denial of their property rights over their ancestral land’ to be disproportionate to ‘any public need served by the game reserve’.133 Although it did not rule out the potential that a game reserve could serve such a legitimate aim or public need, other means could have been adopted. It acknowledged that the Endorois community had been willing to work with 127 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 17. 128 Communication 292/04 Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 75. 129 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998, para 76; See also Communication 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999, para 54. 130 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998, para 76. See also Communication 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999, para 54. See also Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 53. 131 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment of 26 May 2017, para 130. 132 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment of 26 May 2017, para 130. 133 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 214.

380

15. Article 14: Right to Property

the government without precluding the idea of a game reserve.134 The fact that the issues engendered the right to life was highlighted as having particular importance in this case, with the African Commission citing Inter-American Court jurisprudence.135 In addition, in determining what was proportionate, the African Commission took into account the fact that force was used to evict the people. Forced evictions will not be considered to be proportionate.136 Interpreting the concept of proportionality in another case, the African Commission noted that it should seek to clarify if ‘a fair balance has been struck between the protection of the rights and freedoms of the individual and the interests of the society as a whole’.137 This will require consideration of a number of questions, namely: Was there sufficient reasons supporting the action? Was there a less restrictive alternative? Was the decision- making process procedurally fair? Were there any safeguards against abuse? Does the action destroy the very essence of the Charter rights in issue?138 In this particular communication the Zimbabwean authorities had prevented the complainants from publishing newspapers, closed their premises and seized their equipment because they had not registered, as required by a new law, with the Media and Information Commission. The African Commission did not agree that these were ‘genuine reasons’,139 noting that any concerns of illegal operations on the part of the complainants should have been dealt with by the State through seeking court orders.140 As it had failed to do this, this was a violation of Article 14.

3. ‘In Accordance with the Law’ The ‘law’ here refers to both domestic and international law.141 Confiscation of property, for example, which has not been carried out in accordance with the law will be deemed to be arbitrary.142 In the Endorois case, analysing whether there had been a violation, the African Commission took a number of issues into consideration. These included whether ‘there was a trust in favour of the Endorois, was it legally extinguished’; ‘how was it satisfied’; and whether the community received ‘adequate’ compensation; and whether the legislation which established the game reserve ‘expressly required the removal of the Endorois from their land’.143 134 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 215. 135 E.g. Yakye Axa v Paraguay, Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 216. 136 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 120. 137 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 176. 138 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 177. 139 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 178. 140 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 178. 141 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 144. 142 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 45. 143 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 219.

L. Remedies

381

Any ‘forced eviction’ will not satisfy Article 14 as it will be contrary to what is ‘in accordance with the law’ which should be interpreted as ‘at the minimum, that both [national] law and the relevant provisions of international law were respected. The grave nature of forced evictions could amount to a gross violation of human rights’.144 In the context of indigenous peoples, the African Commission has held that the test as to whether restrictions are in accordance with the law ‘is especially stringent in favour of indigenous peoples, as it also requires that consent be accorded. Failure to observe the obligations to consult and to seek consent—or to compensate—ultimately results in a violation of the right to property’.145 Drawing on the test laid out by the Inter- American Court in the Saramaka case and applying it in respect of the Endorois, the African Commission held that there had been neither ‘effective participation’, nor ‘any reasonable benefit enjoyed by the community’ and neither was a ‘prior environment and social impact assessment’ carried out.146 The fact that these three elements were missing amounted to a violation of Article 14.147

4. Compensation The African Commission has stated that not only must the State show justification for limiting the right, but it needs to provide ‘adequate compensation’ in the event of deprivation of property, such as by confiscating the complainant’s building.148 This compensation needs to be decided by an ‘impartial court of competent jurisdiction’.149

K. Evidence As with communications under other rights in the ACHPR, a failure of the government to respond to,150 ‘refute’ or ‘contest’ the allegations raised by the complainants will result in the African Commission taking the facts as given.151 The burden of proof will be on the Respondent State to show the ‘existence of the sales contract or proved that the transfer of ownership had indeed taken place’, where it is contested whether the complainant was the holder of the disputed property.152

L. Remedies In some cases it has not been specified what is required, with the African Commission urging, for example, the State to ‘draw all the legal consequences arising from the 144 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 119 and 219. 145 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 226. 146 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 228. 147 As well as a right to development, Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 228. 148 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 147. 149 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 147. 150 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 54. 151 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000. 152 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012, para 167.

382

15. Article 14: Right to Property

present decision’,153 or ‘take all necessary steps to comply with its obligations under the Charter’.154 In the context of the rights of women, the State should provide ‘effective remedies’ where there is a violation of the right to property as well as ‘free legal assistance in order to ensure compensation and the restitution of land’.155 Broader remedies ordered in its decisions have included that the Kenyan authorities recognise the rights of ownership of the Endorois in their ancestral land and ensure that they have ‘unrestricted access’ to it.156 The Kenyan government was also required to grant registration to the Endorois Welfare Committee, who represented the Endorois community.157 In respect of massive violations in Darfur, including the right to property, Sudan was ordered to establish a National Reconciliation Forum to, among other things, ‘resolve issues of land, grazing and water rights’.158

1. Restitution In a number of cases where there has been a violation of the right to property, the African Commission has recommend the government to ‘restore the plaintiff his rights’,159 and for individuals deprived of their land to be ‘restored in their rights’.160 This could also include reinstating the title deed of the disputed building.161 The Mauritanian government was required to replace identity documents that had been removed from citizens when they were expelled from the country.162 Similarly belongings looted should also be restituted.163 Where there was oil exploitation in Ogoniland in Nigeria, the government was called on to ‘ensure protection of the environment, health and livelihood of the people of Ogoniland by . . . undertaking a comprehensive cleanup of lands and rivers damaged by oil operations’.164 One of the litigants before the African Commission in the Endorois case has criticised the decision for failing to create a more ‘coherent land restitution remedy’, by not recommending that the State ‘identify and demarcate Endorois territory’ and for failing

153 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme,RADDHO, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997. 154 Communication 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999. See also Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 86. 155 Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. 156 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 157 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 158 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 228. 159 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004. 160 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 161 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012. 162 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 163 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 164 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001.

L. Remedies

383

to ‘articulate a temporal limit to the right of indigenous communities to regain their ancestral land’.165

2. Compensation Compensation is one of the reparations used in the violation of property rights.166 The African Commission ordered, among other reparations, the government of Kenya to pay the Endorois community ‘adequate compensation . . . for all the loss suffered’,167 and in another case ‘fair and equitable compensation’,168 or ‘expeditious, just and fair compensation’.169 The amount is one that the African Commission has said should be determined by national law170 and in a case against Angola where the African Commission recommended the establishment of a Commission of Inquiry to investigate the issues, it also suggested that this Commission be tasked with ensuring the payment of compensation.171 Similarly, in another communication the Cameroonian government had established a Rescue Committee for the Victims which had evaluated damages that should be paid to them. The African Commission found, as a result, that the victims ‘had not been entirely unprejudiced’ but that the government should ‘pursue its commitment to give fair and equitable compensation to the victims and without delay, to pay fair and equitable compensation for the prejudices suffered by the victims or their beneficiaries’, with the amount being determined in accordance with national law.172 Sometimes, as in the Noca decision, compensation has been offered as an alternative if the government is unable to give the property back to the individual.173 As to what the compensation is for, in one case involving a range of violations including of Article 14, it was ‘for the violations of his rights occasioned’,174 and in another, ‘for the loss they have incurred’ (when magazine premises were closed and their equipment seized),175 or further, ‘for the loss suffered’ (where property of a political party

165 K. Sing’ Oei A and J. Shephard, ‘ “In land we trust”: The Endorois’ Communication and the quest for indigenous peoples’ rights in Africa’, 16 Buff. Hum. Rts. L. Rev. (2010) 57–111, pp.69–70. 166 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 228. 167 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009; see also Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001; Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003; Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 64. See also Communication 97/93_ 14AR, John K. Modise v Botswana, 6 November 2000; Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 182. 168 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 169 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012. 170 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006; Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012. 171 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 172 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, paras 134–138. Communication 253/02 Antonie Bissangou v Congo, 29 November 2006, para 84. 173 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012. 174 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000. 175 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 182.

384

15. Article 14: Right to Property

was confiscated).176 In one decision, it was recommended that the State ‘take appropriate measures to ensure payment of a compensatory benefit to the widows and beneficiaries of the victims of the above-cited violations’.177 Some cases have involved the African Commission requiring the State to pay compensation that has already been ordered by domestic courts.178

3. Investigate, Punish and Prosecute In response to a range of violations in Darfur, the African Commission called on Sudan to carry out effective investigations into the abuses.179 The authorities in another case involving destruction of property were required to take steps to prosecute and hold those who had been responsible.180

4. Duty to Report States have been required to report back to the African Commission within 180 days of receiving the decision on measures taken to implement the decision where a violation of Article 14 was found, among other rights.181 In the Endorois case, it was three months.182 In other instances it has not been so prescriptive, calling on the State simply to report ‘at a later stage’.183 In the communication against Nigeria which found violations against the Ogoni people the African Commission asked the government to keep it informed of measures take including the role of the newly established Federal Ministry of Environment, relevant legislation and a Judicial Commission of Inquiry that was created to investigate violations.184

5. Engage in Dialogue and Amicable Resolution On occasion the State authorities have been called upon to engage in dialogue with the complainants. This has been in order to achieve ‘effective implementation’ of the African Commission’s recommendations.185 In other instances it has urged the State to pursue an amicable settlement.186 176 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 64. 177 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 178 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 83. 179 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 228. 180 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 228. 181 Communication 373/06, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 64. Communication 286/ 2004, Dino Noca v Democratic Republic of the Congo, 22 October 2012. 182 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 183 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 184 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 185 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 186 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008.

L. Remedies

385

6. Good Offices The African Commission has offered its good offices’ to the parties in cases involving violations of Article 14 among other rights. This was offered ‘to assist the parties in the implementation’ of recommendations in the Endorois case,187 and the African Commission’s ‘full cooperation and support in the application of the above-mentioned measures’ was offered in a series of communications against Mauritania.188 This does not appear to be proposed in every case and it is not easy to discern what criteria, if any, the African Commission applies as to when this option will be advanced.

7. Guarantees of Non-repetition Where a number of rights were violated including Article 14, the African Commission has made generic statements that the government should ‘harmonise its legislation with that of the African Charter’,189 or to take ‘major reforms of its legislative and judicial framework in order to handle cases of serious and massive human rights violations’.190 Where the non-application of legislation in practice led to the violations, the State has been called upon to ensure its ‘effective application’.191

8. Other Reparations In the Endorois case, the Kenyan government was required to pay royalties to the Endorois people ‘from existing economic activities and ensure that they benefit from employment possibilities within the reserve’.192

187 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 188 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 189 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006. 190 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 228. 191 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008. 192 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009.

16. Article 15 Right to Work Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.

A. Introduction Article 15 has been criticised as being ‘extremely vague . . . it does not really recognize the individual’s right to work, or explain what “equitable and satisfactory conditions” are supposed to be’.1 It is interesting that earlier drafts of the Charter were much more elaborate. Article 6 of the M’Baye Draft provided that ‘every person has the right to work including the opportunity to gain his living by work which he chooses or accepts’ but then went on to include the requirements that States ‘recognise the right to work including the right of everyone of the opportunity to gain his living by work which he chooses or accepts, and shall take appropriate steps to safeguard this right’. It also included a right to ‘the enjoyment of just and favourable conditions of work’, encompassing remuneration which has, as a minimum, fair wages and equal pay for work of equal value, as well as ‘safe and healthy working conditions’; equal opportunities and rest, leisure and limitation of working hours. Although the detail in the M’Baye draft did not find its way into the Dakar Draft2 and the final ACHPR, many of the references in the former have subsequently been included in the African Commission’s interpretation of Article 15. Also in its elaboration of this provision, the African Commission has drawn on the International Covenant on Economic, Social and Cultural Rights (ICESCR) and General Comments of its Committee. It has been argued that ‘the justiciability of socio-economic rights of the African Charter could greatly benefit from the use of other overarching rights such as the equality guarantee, the right to judicial protection and remedies and the right to due process as a means of proving violations of socioeconomic rights’.3 Although the African Commission could not be said to have adopted a strategic approach in this regard, it has, as will be seen below, underscored other rights in the ACHPR, such as the provision on non-discrimination, when interpreting Article 15. It has also made the connection between the right to work and other rights in the African Charter on Human and Peoples’ Rights (ACHRP), in particular economic, social and cultural rights.4

1 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.183. 2 Article 15 of the Dakar Draft read: ‘Every person shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work’. 3 T. S. Bulto, ‘The utility of cross-cutting rights in enhancing justiciability of socio-economic rights in the African Charter on Human and Peoples’ Rights’, 29 U. Tas. L. Rev. (2010) 142–176, at 145. 4 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 57.

B. The Right to Work

387

The right to work, according to the African Commission, ‘forms an inseparable and inherent part of human dignity, and is integral to an individual’s role within society’,5 and ‘critical for both survival and human development’.6

B. The Right to Work Ouguergouz has criticised Article 15 for not being ‘very explicit’ on whether there is a right to work, ‘appearing to protect only the worker and not everybody, whether or not they have a job’, in contrast to the ICESCR.7 Indeed, although the ACHPR does provide some clarification as to what that right should entail (equitable and satisfactory conditions and equal pay), it does not go further than this, in contrast to the detail found in the earlier drafts of the Charter. The M’Baye Draft, for instance, included a ‘right to work’ per se and then details ‘the opportunity to gain his living by work which he chooses or accepts’, with a corresponding State obligation to ‘safeguard’ the right,8 ensure ‘just and favourable conditions of work’, including equal opportunities in promotion, as well as rest, leisure and holidays.9 In one early case against Cameroon, a magistrate, Mr Mazou, was not reinstated in his position despite the Amnesty Law of 23 April 1992 which reintegrated into public employment those who had been granted amnesty.10 The African Commission found that as Mr Mazou had been tried by a military tribunal, even though this was for an ordinary criminal offence, not one of subversion and not one to which the amnesty law applied, it was odd that he had not also been given amnesty. It consequently held that the government had prevented Mr Mazou from working as a magistrate when others similarly condemned had been reinstated, resulting in a violation of Article 15.11 Where the government barred the complainants from publishing newspapers, closed their offices and seized their equipment, the African Commission found that this did not enable them and their employees to work, in violation of Article 15.12 According to the African Commission there are minimum core obligations on States with respect to the right to work. They include the prohibition of slavery and forced labour; ensuring the right to freedom of association, including collective bargaining, the right to strike and trade union rights; adopting national employment strategies and plans of action; promoting a ‘social environment that is conducive to business creation’; and ensuring education systems prepare the young with the necessary skills to obtain employment.13 5 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 57. 6 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 57. See also Mwalusa-Nya, J., Augustine Masatu v Mwanza Textiles Ltd High Court of Tanzania at Mwanza, Civil Case 3 of 1986, at 174. 7 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.183. 8 9 M’Baye Draft, Article 6(1) and (2). M’Baye Draft, Article 6(3). 10 Communication 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997, paras 24 and 25. 11 Communication 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997, para 29. 12 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 179. 13 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59.

388

16. Article 15: Right to Work

It is not just the State-sector where States have obligations. The African Commission has also provided that States should ‘[d]‌evelop mechanisms to hold non-state actors especially multi-national corporations and businesses accountable for violations of economic, social and cultural rights in such matters relating to child labour, industrial safety standards, protection against forced evictions and low wages, protection of the environment, including global warming and its impact on ecosystems, livelihood and food security’.14

1. What is ‘Work’? Although what amounts to ‘work’ has not been expressly defined by the African Commission, it has referred on a number of occasions to ‘self-employment’ (for example, that States provide ‘opportunities for self-employment’15) and considers, for instance, that ‘household labour’ have some form of protection,16 as should those working in the ‘informal economy’,17 those employed in ‘domestic work, agriculture and/or family enterprises’.18 ‘Unpaid work’ has been referred to on occasion, although with no clear indication how Article 15 standards apply.19 Relatedly, the Maputo Protocol recognises that ‘both parents bear the primary responsibility for the upbringing and development of children and that this is a social function for which the State and the private sector have secondary responsibility’.20

2. The Right to Obtain Employment The right to work has been interpreted by the ACHPR organs, and reflected in some domestic African constitutional provisions, as obliging the State to ‘facilitate employment’, and not an absolute or unconditional right to ‘obtain employment’.21 Confusingly, however, the African Commission has commended, for instance, the Libyan government’s policy of ensuring ‘the right to employment of its population’.22 Despite this ambiguity, the African Commission’s Principles and Guidelines on economic, social and cultural 14 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 11(a). Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, 28 February 2015. 15 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59(f ). 16 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 17 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 82(l). 18 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59(h). 19 For example, in the context of indigenous peoples: ‘The Aka continue to be subjected to the practice of servitude by other communities. This practice leads to various forms of abuse, particularly low or unpaid work in the fields of the Akas’ “masters”, although the African Commission made no comment on this’, Report of The African Commission’s Working Group on Indigenous Populations/Communities, Research and Information Visit to the Central African Republic, 15–28 January 2007, 2008, para 3.15. 20 Maputo Protocol, Article 15. 21 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 58. Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 129. See C. Mashamba, ‘The promotion of basic employee rights in Tanzania’, 7 AHRLJ (2007) 475–495, at 476. Timothi Kaare v Mara Co-operative Union, as cited in I. G. Shivji, Lawyers in Neoliberalism: Authority’s Professional Supplicants or Society’s Amateurish Conscience University of Dar es Salaam, 2006, 8. 22 Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, 28 February 2015, para 39.

B. The Right to Work

389

rights require the State to ensure the ‘creation of an environment conducive to the full employment of individuals within society under conditions that ensure the realisation of the dignity of the individual’.23 The African Commission has expressed concern about high levels of unemployment.24 There is a right to ‘enter’ employment, as well as a right not to be unfairly deprived of employment.25 The latter may be violated if business premises are closed down, and bank accounts frozen thereby resulting in individuals losing income.26 The African Commission has referred to ‘access to equitable and decent work’27 and the requirement that States provide a ‘[c]‌onducive investment environment for the private sector to participate in creating gainful work’.28

3. Right to Gain a Living On several occasions the African Commission has stated that Article 15 includes the right to ‘gain a living’.29 Individuals should be able to ‘freely and voluntarily choose what work to accept’,30 reflecting the content of the M’Baye Draft of the Charter.31 Consequently, individuals ought not to be compelled to choose their employment.32 The right to gain a living has been interpreted by the African Commission as encompassing training, ‘policies to achieve steady economic; social and cultural development and full productive employment’, as well as services to assist individuals in finding employment and ‘promotion of the rights and opportunities of those in the informal sector, subsistence agriculture and in small scale enterprise activities’.33 States have also been asked to provide information on ‘protection against arbitrary termination of employment’ and protection against unemployment more generally.34 Article 15 has not been explicitly connected to the right to an adequate standard of living, unlike earlier

23 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 58. Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 129. 24 Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, 28 February 2015, para 39. 25 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 130. 26 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, para 131. 27 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 57. 28 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 29 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines). 30 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 58. See also State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines). 31 ‘Every person has the right to work including the opportunity to gain his living by work which he chooses or accepts’, Article 6(1) M’Baye Draft. 32 Guidelines for National Periodic Reports, 1988. 33 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 34 Guidelines for National Periodic Reports, 1988. See A. Govindjee and O. Dupper, ‘Constitutional perspectives on unemployment security and a right to work in South Africa’, 22 Stellenbosch L. Rev. (2011) 775–803.

16. Article 15: Right to Work

390

drafts of the ACHPR,35 the latter tending to be associated with the right to health in Article 16.36

C. Equitable and Satisfactory Conditions Ouguergouz considers the use of ‘equitable and satisfactory conditions’ to be ‘highly subjective and it would have been preferable to define it more precisely’.37 On occasion the African Commission has referred to the requirement to provide ‘just and favourable’ conditions of work,38 the wording employed in the M’Baye draft39 and the ICESCR.40 The various elements of equitable and satisfactory conditions as set out below should cover those working in the ‘informal sector, including those employed in domestic work, agriculture and/or in family enterprises’.41 Hence, the African Commission has also noted in particular the need for States to promote and protect ‘equitable and satisfactory conditions of work of women engaged in household labour’.42

1. ‘Safe and Healthy’ States are required to ‘promote and safeguard’ as well as ‘ensure . . . effectively respected’ safe and healthy working conditions.43 These are obligations that are ‘generally and in particular occupations’.44 As part of their Article 62 reports to the African Commission States need to report on occupational accidents and occupational disease.45 States are also required to put in place ‘effective and accessible remedies for work place-related injuries, hazards and accidents’.46 There should be ‘safe and hygienic working conditions’.47

2. Remuneration There ought to be ‘fair remuneration’.48 Although no criteria are provided as to what constitutes ‘fair’, the African Commission has noted in this context issues such as ‘minimum wagefixing machinery, collective bargaining’.49 An examination of what 35 See Article 6(3)(a) of the M’Baye Draft which provided that ‘Every person has the right to the enjoyment of just and favourable conditions of work which ensure in particular: Remuneration which provides all workers, as a minimum, with: . . . A decent living for themselves, and their families in accordance with the provisions of the present Charter’. 36 See, e.g. Guidelines for National Periodic Reports, 1988, paras 31–33. 37 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.184. 38 39 Guidelines for National Periodic Reports, 1988. M’Baye Draft, Article 6(3). 40 Article 7 ICESCR. 41 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 42 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 43 Guidelines for National Periodic Reports, 1988, para 7. See also Article 6(3)(b) of the M’Baye Draft. 44 Guidelines for National Periodic Reports, 1988, para 7. 45 Guidelines for National Periodic Reports, 1988, para 7. 46 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 47 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines); Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 48 Guidelines for National Periodic Reports, 1988, para 6. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 49 Guidelines for National Periodic Reports, 1988, para 6.

C. Equitable and Satisfactory Conditions

391

is fair may take into account bonuses and ‘temporary cost of living differentials’ and ‘minimum wage’,50 the latter being a requirement.51 The M’Baye Draft of the Charter provided that remuneration should be that which grants all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work. (ii) A decent living for themselves, and their families in accordance with the provisions of the present Charter.52

3. Equal Opportunity for Promotion Under ‘equitable and satisfactory conditions’ the African Commission has required that States provide equal opportunity for promotion.53 In earlier drafts of the ACHPR the right to work explicitly included ‘[e]‌qual opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no consideration other than those of seniority and competence’.54 This should be in the public and private spheres and cover various aspects including training, careers, and policies on promotion and placements.55 States are also expected to report to the African Commission on the ‘extent of the participation of the workers’ representatives in such arrangements’.56

4. Rest, Leisure and Holidays There ought to be ‘rest, leisure and reasonable limitation of working hours, periodic holidays with pay, public holidays with pay’.57 Although the African Commission has said relatively little about the exact nature of these, it has asked from States information on ‘weekly rest; normal hours of work and overtime’ and ‘remuneration for public holidays’.58 Whist it has not made a statement that the State may justifiably limit these for certain workers, it has asked States to provide it with information on ‘arrangements and procedures to implement these rights in the various sectors including industries and services where work is organised on a continuous basis, such as health care, the police, etc.’59

Guidelines for National Periodic Reports, 1988, para 6. ‘[A]‌minimum living wage for labour’, Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 52 53 M’Baye Draft, Article 6(3)(a). Guidelines for National Periodic Reports, 1988. 54 55 M’Baye Draft, Article 6(3)(c). Guidelines for National Periodic Reports, 1988. 56 Guidelines for National Periodic Reports, 1988. 57 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines); Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. See, similarly, Article 6(3)(d) of the M’Baye Draft: ‘Rest, leisure and reasonable limitation of working hours, and periodic holidays with pay as well as remuneration for public holidays’. 58 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), para 9. 59 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), para 9. 50 51

392

16. Article 15: Right to Work

5. Maternity Leave, Paternity Leave and Parental Leave The Maputo Protocol provides in Article 13(j) that States should ‘guarantee adequate and paid pre and post-natal maternity leave in both the private and public sectors’,60 although the African Commission has been less prescriptive. The length of time has not been stipulated, although in a Press Statement in relation to Lesotho, the African Commission noted its concern that women in certain industries were only entitled to six weeks’ maternity leave when compared to the twelve weeks given to women in public and private sectors. It called this ‘discriminatory’ and in violation of rights under the ACHPR and Maputo Protocol.61 It focused here, however, on the unjustified differential treatment between the women, recommending that laws be amended adopted to provide equal treatment, rather than making a comment on the length of time per se.62 States have referenced legislation providing maternity leave in their jurisdictions.63 The African Commission has made no statement on paternity leave, although African States do themselves have laws which provide such cover.64 States have been expected, nevertheless, to provide ‘parental leave’,65 although no further detail is given on exactly what this entails.

6. Right to Strike and Trade Union Rights As well as including the right to strike and trade union rights within freedom of association,66 the African Commission has also incorporated various elements of these within the right to work.67 States have been asked to report to the African Commission on measures they have taken to ‘promote, safeguard or regulate trade union rights’,68 and ‘ensure the rights to unionise, to collective bargaining, and to strike’.69 It has noted a right to ‘form and join trade unions of one’s choice’, as well as the right not to so join,70 and although these Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Kingdom of Lesotho, 11 September 2012. 62 Press Statement on the Promotion Mission of the African Commission on Human and Peoples’ Rights in the Kingdom of Lesotho, 11 September 2012. Mission Report of The Joint Promotion Mission to the Kingdom of Lesotho By Commissioner Pansy Tlakula & Commissioner, Med S.K. Kaggwam, 3–7 September 2012, para 92. 63 E.g. Federal Civil Servants Proclamation 515/2006, see Federal Democratic Republic of Ethiopia Combined Report (Initial and Four Periodic Reports) to the African Commission on Human and Peoples’ Rights, November 2008, para 281. 64 For example, one-day paternity leave in Mozambique, Law No. 23/2007, Labor Law Republic of Mozambique, see African Commission on Human and Peoples’ Rights Report from the Government of the Republic of Mozambique Submitted in Terms of Article 62 of the African Charter on Human and Peoples’ Rights (Combined Report 1999–2010), African Commission on Human and Peoples’ Rights Maputo, August 2012, para 58. 65 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines); Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 5. 66 See Chapter 11 (Article 10). 67 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 68 Guidelines for National Periodic Reports, 1988, para 10. See C. Mashamba, ‘The promotion of basic employee rights in Tanzania’, 7 AHRLJ (2007) 475–495. 69 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines); Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 70 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 60 61

D. Equal Pay for Equal Work

393

can be subject to restrictions the African Commission does not clarify their precise nature.71 Trade unions themselves should be able to ‘function freely’72 and federate at the national and international levels.73 The African Commission has also interpreted Article 15 as protecting the right to strike.74 It has, however, asked States whether these various trade union rights are restricted in certain professions such as the armed forced, police or ‘administration of the state’, but without making any clear comment on whether or the extent to which such limitations may be permissible.75 States ought also to provide ‘adequate protection against unfair or unjustified, arbitrary and constructive dismissal, and other unfair labour practices’.76

D. Equal Pay for Equal Work 1. Equality and Non-discrimination In general terms, States have been required to ensure equality and non-discrimination in access to work.77 This encompasses ‘equal pay for work of equal value, and promotion without discrimination of any kind and ensuring conditions of work to members of vulnerable and disadvantaged groups that are not inferior to those enjoyed by other employees to members of vulnerable and disadvantaged groups’.78 In Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, it was alleged that given the Nubian community in Kenya were denied appropriate citizenship and thereby discriminated against, this also resulted in ‘consequential violations’ as it impacted on their rights to equal access to work.79 Although the African Commission was unwilling to examine ‘in detail’ the ‘violations consequent on this discriminatory treatment’, it did acknowledge that ‘it is common knowledge that in Kenya, those without national identity cards cannot vote or contest for public office, cannot be employed in the public service’.80 This affected the ability of Nubians to enjoy their Article 15 rights, among others.81 States should put in place legislation and other measures against harassment in the workplace that may result in discrimination on the grounds listed in Article 2.82 Sexual Guidelines for National Periodic Reports, 1988, para 11. Guidelines for National Periodic Reports, 1988, para 13. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 73 Guidelines for National Periodic Reports, 1988, para 12. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 74 Guidelines for National Periodic Reports, 1988, para 14. 75 Guidelines for National Periodic Reports, 1988, para 15. 76 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines); Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 77 Guidelines for National Periodic Reports, 1988; Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 78 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines). 79 Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 93. 80 Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 168. 81 Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 168. 82 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 71 72

394

16. Article 15: Right to Work

harassment in particular has been considered to be ‘an affront to a worker’s dignity and prevents in particular women from making a contribution commensurate with their abilities’.83 Following on from this the African Commission has also required that States take measures to ‘recognise the economic value of care giving and other household work, for example, subsistence and market gardening, cooking, and caring for children and the elderly’.84 States are expected to educate men and male children to ‘take an equal share of household labour to ensure that the girl-child is not unduly disadvantaged in the provision of household labour’.85 There are additional obligations on States to promote opportunities in the labour market for persons with disabilities including career development, and access to work86 and to provide social protection and insurance for all workers, whether they be employed in the informal or formal sectors or work from home.87 Special measures, such as education and training, should be granted for women to ensure they have ‘equal opportunities to accept employment’, and to ‘seek decent work of their own choice’.88 When considering the employment situation in Libya in 2006, the African Commission noted that the Amazigh population faced greater unemployment than the Arabic- speaking population. It concluded that ‘when the language required to access work is not one’s own, equal opportunities cannot exist. This places the Imazighen generally, and the Tuareg in particular, in a weaker position compared to the Arabs’, in violation of Article 15.89 The Maputo Protocol in Article 15 provides that ‘States Parties shall adopt and enforce legislative and other measures to guarantee women equal opportunities in work and career advancement and other economic opportunities’. This encompasses ‘transparency in recruitment, promotion and dismissal of women and combat and punish sexual harassment in the workplace’, as well as guaranteeing women ‘freedom to choose their occupation, and protect them from exploitation by their employers violating and exploiting their fundamental rights as recognised and guaranteed by conventions, laws and regulations in force’. The Draft Protocol on Rights of Persons with Disabilities, requires that States ensure that persons with disabilities have the right to ‘decent and productive work, to just and favourable conditions of work, to protection against unemployment and to protection from forced or compulsory labour’ and this be provided ‘on an equal basis with others’.90 83 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 84 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 85 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 86 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 87 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 88 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 89 Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to Libya, 11–25 August 2005, adopted 29 December 2006. 90 Draft Protocol on Rights of Persons with Disabilities Up-dated from Draft I following meeting of Working Group on Older Persons and Persons with Disabilities (WG) held in Banjul, The Gambia, on 28 February–1 March 2014, Draft II, 14 March 2014, Article 14(1).

D. Equal Pay for Equal Work

395

This should be achieved through a number of means including prohibition of discrimination on ‘all matters concerning all forms of employment’, promoting their ‘opportunities for self-employment and entrepreneurship’; providing for quotas for persons with disabilities in the public sector; and giving tax incentives to promote employment of persons in the private sector.91 Reasonable accommodation ought to be made in the workplace for persons with disabilities; those who become disabled should not be laid off.92

2. Equal  Pay Access by employment has been interpreted as ‘the prerogative to access employment as a source of income and to benefit from the same treatment as persons in a work situation and in similar circumstances’.93 In a case against Côte d’Ivoire, it was argued that by denying the Dioula ethnic group the right to Ivoirian nationality, so they were also unable to access employment on the same basis as nationals. Specifically, they were unable to hold public office and also to be promoted as a judge. The African Commission held that these constituted violations of Article 15.94 According to the Draft Protocol on the Rights of Persons with Disabilities the principle of equal pay for equal work should not be ‘used to undermine the right to work for persons with disabilities’, requiring States to take measures to ‘recognise the social and cultural value of the work of persons with disabilities’.95 The Economic Community of West African States (ECOWAS) Court of Justice has ruled that equal work for equal pay ‘implies that two or several persons who carry out the same job, occupy the same position in an organisation must earn the same remuneration and have the same prospects for promotion, except where the employer justifies a difference in treatment by objective factors not related to any form of discrimination. . . . the objective of the principle of equal work for equal salary is to prohibit every form of discrimination between individuals who find themselves under the same condition’.96 Applying this formulation in Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, where the African Commission was asked to consider differentiations between beneficiaries of private pension schemes. It based its analysis of whether there was equitable working conditions and equal pay for equal work principally around Article 2. Finding that the grounds for the different treatment were objective, rational and legitimate, it consequently held that the issue under Article 15 did not arise.97 There has been some focus on equal pay and in particular equal pay for women. The M’Baye Draft provided more explicitly than Article 15 that there should be ‘fair wages and 91 Draft Protocol on Rights of Persons with Disabilities Up-dated from Draft I following meeting of Working Group on Older Persons and Persons with Disabilities (WG) held in Banjul, The Gambia, on 28 February–1 March 2014, Draft II, 14 March 2014, Article 14(1). 92 Draft Protocol on Rights of Persons with Disabilities Up-dated from Draft I following meeting of Working Group on Older Persons and Persons with Disabilities (WG) held in Banjul, The Gambia, on 28 February–1 March 2014, Draft II, 14 March 2014, Article 14. 93 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 176. 94 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 177. 95 Draft Protocol on Rights of Persons with Disabilities Up-dated from Draft I following meeting of Working Group on Older Persons and Persons with Disabilities (WG) held in Banjul, The Gambia, on 28 February–1 March 2014, Draft II, 14 March 2014, Article 14(2). 96 Etim Moses Essien v Gambia, ECOWAS Community Court of Justice, ECW/CCJ/JUD/05/07, 29 October 2007, para 27. 97 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 134.

396

16. Article 15: Right to Work

equal remuneration for work of equal value’.98 Such should be provided ‘without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work’.99 The African Commission, in turn, has interpreted Article 15 as providing that the right of equal pay is ‘for work of equal value’.100 Under this right, women should be ‘guaranteed conditions of work not inferior to those of men, with equal pay for work of equal value’.101 The Maputo Protocol expects that States should also ‘take the necessary measures to recognise the economic value of the work of women in the home’, as well as ensure that taxation laws apply equally to men and women, and the ‘right of salaried women to the same allowances and entitlements as those granted to salaried men for their spouses and children’.102

E. Forced Labour and Slavery States should prohibit slavery and forced labour.103 States ought to take measures to ‘prevent the economic exploitation of members of vulnerable and disadvantaged groups’, including through criminal law.104 Forced labour has been interpreted as ‘all forms of work or service exacted from any person under the menace of any penalty and/or for which the said person has not offered himself/herself voluntarily. It includes also all forms of economic exploitation of children and other members of vulnerable and disadvantaged groups’.105 ‘Exploitation’, according to ECOWAS, takes the definition as set out in the UN Protocol on the Prevention, Repression and Punishment of Trafficking in Persons, especially women and children, supplementary to the United Nations Convention on Organised Transborder Crimes,106 namely as including ‘at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’.107

F. Child Labour Child labour has been considered a contentious issue on the continent, with debate around whether its prohibition is led by international law and institutions who have little appreciation of the cultural context, the centrality of the family and community and the respective responsibilities of individuals.108 Hence, it is perhaps not surprising that the 99 M’Baye Draft, Article 6(3)(i). M’Baye Draft, Article 6(3)(i). Guidelines for National Periodic Reports, 1988, para 6. 101 102 Guidelines for National Periodic Reports, 1988, para 6. Maputo Protocol, Article 15. 103 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines). 104 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines); Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 6. 105 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 106 Resolution 55/25, Annex II, of the General Assembly, Article 3(a). 107 ECOWAS Declaration on The Fight against Trafficking in Persons, http://www.achpr.org/files/instruments/ecowas-declaration-against-trafficking-persons/ecowas_declaration_against_trafficking_persons.pdf. 108 T. C. Nhenga-Chakarisa, ‘Who does the law seek to protect and from what? The application of international law on child labour in an African context’, 10 AHRLJ (2010) 161–196. 98

100

G. Limitations

397

African Commission’s approach to this issue is not consistent. On the one hand it has stated that ‘child labour’ should be prohibited,109 commending those States who have done so,110 and acknowledging that it still exists on the continent.111 The Maputo Protocol requires States to ‘introduce a minimum age for work and prohibit the employment of children below that age, and prohibit, combat and punish all forms of exploitation of children, especially the girl-child’.112 On the other hand, it has asked States simply ‘to combat child labour and ensure prompt investigation and prosecution of perpetrators’113 and its Principles and Guidelines on Economic, Social and Cultural Rights call on States to prevent child labour and to criminalise ‘the worst forms’.114 It has not clear whether all labour is prohibited, or only certain types and the African Commission has not referred, for example, to the African Charter on the Rights and Welfare of the Child’s (ACRWC) Article 15 which protects every child ‘from all forms of economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s physical, mental, spiritual, moral, or social development’.115 Instead the African Commission has required that the State educate on the effects of child labour, introducing ‘minimum age regulations for paid or unpaid employment and conditions of employment in line with international standards, including hours of work and rest, prohibition or restriction of night work and penalties imposed for violations of such provisions’.116 In addition any child employed should ‘fully enjoy’ the right to education and this should be regulated through ‘the conduct of employers and parents’.117

G. Limitations Where non-nationals had been working in Angola with the requisite work permits and then were subsequently arrested, detained and expelled in a manner not consistent with the ACHPR, the African Commission found that the actions of the State had ‘severely

109 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines); Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, 10 February 2014, para 77. 110 Report of the Joint Promotion Mission Undertaken to the Republic of Uganda by Commissioner Lucy Asuagbor Commissioner Faith Pansy Tlakula Commissioner Med S..K. Kaggwa & Commissioner Pacifique Manirakiza 25–30 August 2013, p.57. 111 See e.g. Press Statement by the African Commission on Human and Peoples’ Rights in Commemoration of the Day of the African Child, 16 June 2008; 35th Activity Report of the African Commission on Human and Peoples’ Rights, July 2013, para 28. Report of the Human Rights Promotion Mission to the Gabonese Republic, 13–18 January 2014, para 90. T. C. Nhenga-Chakarisa, ‘Who does the law seek to protect and from what? The application of international law on child labour in an African context’, 10 AHRLJ (2010) 161–196. 112 Maputo Protocol, Article 15. 113 Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999–2010), 28 February 2013, p.13. 114 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 115 T. C. Nhenga-Chakarisa, ‘Who does the law seek to protect and from what? The application of international law on child labour in an African context’, 10 AHRLJ (2010) 161–196, at 179. 116 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59. 117 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 59.

398

16. Article 15: Right to Work

compromised the victims’ right to continue working in Angola under equitable and satisfactory conditions’.118 There needs to be a legitimate reason and interference with the right to work needs to be justified.119 Any restrictions on the right should be proportionate, namely that ‘a fair balance has been struck between the protection of the rights and freedoms of the individual and the interests of the society as a whole’.120 The African Commission will ask itself a number of questions to determine proportionality: ‘Was there sufficient reasons supporting the action? Was there a less restrictive alternative? Was the decision-making process procedurally fair? Were there any safeguards against abuse? Does the action destroy the very essence of the Charter rights in issue?121 These apply not just to Article 15, but other rights that the State wishes to restrict. There should be ‘genuine reasons’ to restrict the rights, subject to ‘respect for the rule of law’ and carried out under a court order.122 Thus, as the government had not fulfilled these requirements when it prohibited the Associated Newspapers of Zimbabwe from publishing their newspapers, shutting their premises and seizing their equipment, it had thereby prevented employees from working in violation of Article 15.123

H. Remedies 1. Restitution Where individuals have been removed from work or lost their jobs in violation of Article 15, the African Commission has called on the State to reinstate them in their work.124 As with findings of violations of other rights, the African Commission has been vague in what it requires States to do to remedy the violation, simply on some occasions recommending that it, for example, ‘draw all the necessary legal conclusions to reinstate the victim in his rights’.125

2. Guarantees of Non-repetition Where there was mass expulsion of individuals from Angola, the African Commission, in finding a violation of the right to work, among others, recommended that the government

118 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 76. 119 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 131. 120 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 176. 121 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 177. 122 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 178. 123 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 178. 124 Communication 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997, para 85. 125 Communication 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, 24 April 1997.

H. Remedies

399

set up a commission of inquiry to investigate how the victims were expelled and ensure payment of compensation.126

3. Duty to Report In one case the African Commission was not specific about the amount of time the State had before it had to report back to it on the measures it had taken to implement the recommendations.127

4. Compensation Compensation has been awarded in a number of decisions involving violations of Article 15. The amount has not been determined by the African Commission, it referring simply to ‘adequate’ compensation, although it has not provided any criteria as to how this should be quantified.128 The amount has, instead, been left to be determined by the domestic law.129

126 Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 87. 127 ‘[A]‌t a later stage’, Communication 292/04, Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008. 128 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 142. Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe, 3 April 2009, para 182. 129 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 142.

17. Article 16 Right to Health 1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.

2. State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

A. Introduction The right to health is, according to the African Commission, ‘a prerequisite to all other human rights recognized by the African Charter’1 and ‘is vital to all aspects of a person’s life and well-being’.2 The right is broad and encompasses not just a ‘right to health care but embraces all underlying aspects of health’,3 and includes ‘access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions’.4 In addition States are required to provide education and access to information on community health issues as well training for health care personnel in human rights.5 The breadth is perhaps more reflected in the earlier M’Baye Draft, its Article 11 referring to reduction of stillbirth rate and infant mortality, the environment and industry, diseases and medical services.6 Although the African Commission has linked health and development,7 this tends to have been rather tangentially and it has not explored this relationship fully. The right does not, in line with the interpretation of the International Covenant on Economic, Social and Cultural Rights (ICESCR),8 mean the ‘right to be healthy’.9 It has both positive and negative obligations, the latter including the right of an individual ‘to be free from unwarranted interference, including non-consensual medical treatment, experimentation, forced sterilisation and inhuman and degrading treatment’.10 Similarly, in an early case it was held that ‘stopping essential services in the hospital leading to

1 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 261. 2 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 80. 3 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 4 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 63. 5 Pretoria Declaration on Economic, Social and Cultural Rights (ESCRs), para 7. 6 M’Baye Draft, Article 11. 7 O. Nnamuchi and S. Ortuanya, ‘The human right to health in Africa and its challenges: A critical analysis of Millennium Development Goal 8’, 12 AHRLJ (2012) 178–198. 8 ICESCR General Comment No. 14, para 8. 9 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 61. 10 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 65.

B. ‘Physical and Mental Health’

401

deaths of patients’ in the context of mass violations violated a number of rights including Article 16.11 Article 16 draws on Article 12 ICESCR,12 although Article 16(2) has been criticised as being comparatively ‘vague’,13 and the African Commission has similarly brought the principles and approaches adopted by the Committee on Economic Social and Cultural Rights into its interpretation of Article 16. It has thus cited the ‘minimum core obligations’14 and the ‘four elements: availability, accessibility, acceptability and quality’ of the right.15 The African Commission has mostly referred simply to ‘Article 16’, and not the distinct paragraphs of the provision.16 So in an early case it held that the failure of the government to provide ‘basic services such as safe drinking water and electricity and the shortage of medicine’ was a violation simply of ‘Article 16’.17 The distinction between the two paragraphs has, nevertheless, been made on a few occasions. For example, where female protesters during a demonstration in Egypt were attacked, intimidated and sexually assaulted and the police failed to intervene, the African Commission held that the victims had been ‘physically and emotionally traumatized as a result of sexual violence and assaults on their person. The trauma and injuries sustained has affected their physical, psychological and mental health clearly in violation of Article 16(1) of the African Charter’.18 There was, however, no violation of Article 16(2) in this case as the victims had received medical attention after the assaults: ‘meaning that the Respondent State fulfilled its obligation under the sub-Article to ensure that the Victims received medical attention after the injuries sustained. As a matter of fact, it is through the medical reports that they were able to confirm the scars, bruises and scratches that were incurred by the Victims’.19

B. ‘Physical and Mental Health’ ‘Social’, as well as ‘physical and mental’ health was referred to in the Dakar Draft20 but it is not clear why it was removed from the final text of the African Charter on Human and Peoples’ Rights (ACHPR). There is no reference to it specifically as a separate issue throughout the African Commission’s jurisprudence.

11 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 88. 12 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.186. 13 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.186. 14 See further below. 15 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 263. 16 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009; Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 17 Communication 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996, para 47. 18 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 265. 19 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 266. 20 Article 16(1) of the Dakar Draft.

402

17. Article 16: Right to Health

There has been little mention by the African Commission of ‘physical health’ specifically. One example where it did so is in noting its concern in one resolution that ‘conditions of prisons and prisoners in many African countries are afflicted by severe inadequacies including high congestion, poor physical health and sanitary conditions’.21 Consequently ‘physical and mental health’ are usually mentioned together, as per the wording of Article 16, with no distinction being made between them. So in one case the decision notes that the complainants, citing both Articles 16(1) and (2), argued that ‘the acts perpetrated against the Victims included the infliction of physical, mental and sexual harm which has resulted in physical and emotional injury. According to the Complainants, this has detrimentally affected their physical and mental well-being contrary to Article 16 of the African Charter’.22 In contrast, there has been one case, Purohit and Moore v The Gambia, which has focused on mental health care explicitly. Here the African Commission defined ‘mental health care’ as ‘analysis and diagnosis of person’s mental condition and treatment, care and rehabilitation for a mental illness or suspected mental illness’.23 Beyond this, no real clarity has been given by the African Commission on what is encompassed within the term ‘mental’.

C. Right to Social Security The right to social security is not expressly provided for in the ACHPR but has been implied through Article 16 and rights to life, dignity, liberty, work, food, protection of the family and the aged and disabled,24 to the point that States have been asked to report under Article 62 on the ‘right to social security’.25 The right encompasses not only that there be ‘adequate medical attention in the event of sickness or accident’,26 but also ‘access to a social security system which provides for minimum coverage of health and retirement benefits to individuals and their families’.27 The Principles and Guidelines on Economic Social and Cultural Rights of the African Commission mirror, and at some points word-for-word, the UN Committee on Economic, Social and Cultural Rights’ General Comment No. 19,28 but often lacking additional detail provided in the latter. So, the Principles and Guidelines adopt the ‘core obligations’ of the General Comment, including that States ‘[e]‌nsure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and

Resolution on Prisons in Africa, ACHPR/Res.19, 22 March 1995. Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 86. 23 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 24 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 81. 25 Guidelines on National Periodic Reports, paras 17–19. 26 Guidelines on National Periodic Reports. 27 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011. 28 E.g. para 80 of the Principles, with paras 3, 9 of the UN Committee on Economic, Social and Cultural Rights, General Comment No. 19, The Right to Social Security (Article 9), E/C.12/GC/19, 4 February 2008. 21 22

D. Adequate Standard of Living

403

housing, water and sanitation, foodstuffs, and the most basic forms of education consistent with human life, security and dignity’.29 Similarly, in setting out measures for social insurance, the African Commission employs the wording of the UN Committee, although again without the detail in places.30 Furthermore, the ‘nine principal branches of social security set out in the General Comment No. 19, namely health care, sickness, old age, unemployment, employment injury, family and child support, maternity, disability and survivors and orphans, is a formula used by the African Commission, again omitting some of the additional points provided by the UN Committee.31 The most notable alteration is that relating to ‘survivors and orphans’ with the African Commission replacing the word ‘survivors’ with ‘widows’ and requiring that States give them ‘adequate benefits and assistance under social security schemes, including ensuring that they are entitled to inherit property from their husbands, parents or other relatives’, whereas the General Comment reads quite differently.32 Particular obligations towards vulnerable groups are also identified by the African Commission’s Principles and Guidelines, again using the wording in some, but not all, of the General Comment No. 19. So although the former makes reference to the need for States to establish ‘social safety nets to ensure that members of vulnerable and disadvantaged groups are able to survive even in times of severe resource constraints, including in periods of economic recession’,33 and this is not found in the General Comment, it does include paragraphs from the latter that require States to ensure ‘universal coverage’ and this be done through ‘non-contributory schemes’,34 and on providing benefits in a ‘timely manner’ and paying particular attention to certain groups such as those with disabilities, migrants, persons living in remove or disaster-prone areas, those experiencing armed conflict and coverage for those in the informal economy.35

D. Adequate Standard of Living This is not expressly mentioned in the ACHPR, although it did appear in earlier drafts of the instrument. For instance, Article 10 of the M’Baye Draft provided: Every person has the right to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. To that end, States Parties recognise the fundamental right of everyone to be free from hunger, and shall take individually, and through international co-operation, measures, including specific 29 Principles and Guidelines, para 82, and General Comment No. 19, para 59(a). For additional wording adopted in the Principles and Guidelines see para 82(f ) with General Comment para 24; and para 82(g) with General Comment para 25. 30 Principles and Guidelines para 82, General Comment No. 19, paras 4 and 5. 31 Principles and Guidelines para 82(d), General Comment No. 19, paras 12–21. 32 ‘States parties must also ensure the provision of benefits to survivors and orphans on the death of a breadwinner who was covered by social security or had rights to a pension. Benefits should cover funeral costs, particularly in those States parties where funeral expenses are prohibitive. Survivors or orphans must not be excluded from social security schemes on the basis of prohibited grounds of discrimination and they should be given assistance in accessing social security schemes, particularly when endemic diseases, such as HIV/AIDS, tuberculosis and malaria, leave large numbers of children or older persons without family and community support’, General Comment No. 19, para 21. 33 Principles and Guidelines, para 82. 34 Principles and Guidelines, para 82(j), and General Comment No. 19, para 23. 35 Principles and Guidelines, para 82k, and General Comment No. 19, paras 27 and 34 respectively, although detail on the informal economy is lacking in the Principles and Guidelines.

404

17. Article 16: Right to Health

programmes, which are needed to improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing a reformed agrarian system in such a way as to achieve the most efficient development and utilisation of natural resources.

One could argue that the various elements have now been incorporated into the ACHPR through an interpretation of Article 16 in conjunction with other rights. So in its earlier Guidelines on National Periodic Reports the right is referred under Articles 16 and 18 and States are given guidance on what their reports should include. This includes ‘the right to adequate food’ as well as clothing.36 In one case discussing Article 16, the African Commission cited Article 25 of the UDHR and ‘the right to a standard of living adequate for the health and wellbeing of himself and his family’ as encompassing a ‘right to health’.37 However, it continued further to state that: the right to health is an entitlement which is derived from specific obligations claimed by individuals from States, and it is very fundamental to the exercise of other human rights enshrined in the African Charter. In this regard, States have a legal obligation to protect the right to health of its citizens, including inter alia taking concrete and targeted steps towards the full realization of the right, and adopting legislation or other measures to ensure equal access to health-related services and health care.38

This could imply that the right to health is related to but not necessarily the same as the right to an adequate standard of living, but that despite this, the right to health includes taking steps to ensuring access to health care. Yet, the African Commission’s 2011 Principles and Guidelines on Economic, Social and Cultural Rights adopt the broad approach stating that the ‘determinants of health include access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions’.39

1. Right to Food The African Commission has stated that the right to food is ‘implicitly included’ in the ACHPR through the rights to life and health40 as well as the right to development in Article 22.41 It has considered the right to food to be a prerequisite to ‘the enjoyment’ of the rights to life and health,42 as well as rights to education and work and political participation, and is deemed as being ‘inseparable’ from the concept of dignity.43 Guidelines on national Periodic Reports, para 32. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 262. 38 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 264. 39 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 63. 40 Resolution on the Food Crisis in Somalia, ACHPR/Res.289, 29 July 2014. Resolution on the Right to Food and Food Insecurity in Africa, ACHPR/Res. 374 (LX) 2017, 22 May 2017. 41 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 64. 42 Resolution on the Food Crisis in Somalia, ACHPR/Res.289, 29 July 2014. 43 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 65. See D. M. Chirwa, ‘Privatisation of water in Southern Africa: A human rights perspective’, 4 AHRLJ (2004) 218–241, at 237. F. Coomans and K. Yakpo, ‘A framework law on the right to food—An international and South African perspective’, 4 AHRLJ (2004) 17–33. 36 37

D. Adequate Standard of Living

405

Although it is a ‘right to food’ that is referred to, the African Commission has elaborated on this, drawing upon General Comment No. 11 of the ICESCR, to find that ‘sufficient food has to be acceptable, available, accessible and nutritionally adequate and healthy’.44 The right is broader than this, with States being required to provide information in their Article 62 reports on measures taken to ‘develop or reform existing agrarian systems’, improve production methods and the ‘quantity and quality of food produced, and to increase the yield per unit of cultivated land and to improve methods of animal husbandry’, promotion of agricultural research, and knowledge of ‘food conservation, in particular to reduce crop and post-harvest losses and waste and to prevent degradation of resources (e.g. through soil conservation and water management)’.45 They should also consider the improvement of food distribution, facilitation of access to markets, ‘minimum supplies to needy groups’, as well as activities that improve food consumption levels and nutrition, food standards, ‘quality and safety of food’, and food hygiene.46 The ‘right of everyone to be free from hunger’ has been cited,47 and in this context, States should take measures to ‘mitigate and alleviate hunger’ and ‘refrain from and protect against destruction and/or contamination of food sources’.48 Furthermore, not only should States provide access ‘to the minimum essential food which is nutritionally adequate and safe’,49 but they have obligations collectively to cooperate at the international level to ensure ‘equitable distribution of world food supplies’.50 States ought to ensure that access to food is not ‘used as a political tool to reward supporters, punish opponents or recruit militias’.51 Where political and economic situations in a State result in famine, the African Commission has called on the State authorities to ‘to take the necessary measures to address the crisis and achieve self-sufficiency and food security’.52 There is an obligation on States and ‘warring parties’ to ‘open humanitarian corridors to enable the unimpeded delivery of humanitarian assistance to the civilian population’.53 In addition, States should ensure that the provision of food aid does not negatively impact on local producers and markets and is directed towards those who need it.54 There is also some role for the international community to develop ‘a comprehensive strategy for gathering the necessary funds to prevent another humanitarian crisis in Somalia caused by drought and the unstable security situation’.55

Resolution on the Food Crisis in Somalia, ACHPR/Res.289, 29 July 2014. Guidelines on national Periodic Reports, para 32. 46 Guidelines on national Periodic Reports, para 32. 47 Resolution on the Right to Food and Food Insecurity in Africa, ACHPR/Res. 374 (LX) 2017, 22 May 2017. 48 State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para H.(i) and (ii). 49 Pretoria Declaration on ESCRs, para 7. 50 Guidelines on national Periodic Reports, para 32. See also Resolution on the Right to Food and Food Insecurity in Africa, ACHPR/Res. 374 (LX) 2017, 22 May 2017. 51 State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para H.iii. 52 Resolution on the Food Crisis in Somalia, ACHPR/Res.289, 29 July 2014. 53 Resolution on the Food Crisis in Somalia, ACHPR/Res.289, 29 July 2014. Resolution on the Right to Food and Food Insecurity in Africa, ACHPR/Res. 374 (LX) 2017, 22 May 2017. 54 State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para H(d). 55 Resolution on the Food Crisis in Somalia, ACHPR/Res.289, 29 July 2014. 44 45

406

17. Article 16: Right to Health

Outside conflict situations the African Commission has held that States should ‘protect and improve existing food sources and to ensure access to adequate food for all citizens’.56 There is a minimum core obligation to ‘not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves’.57 Oil exploration in the Ogoni region of Nigeria impacted on the health of those in the area due to contamination of the environment including water ways, soil and air. The African Commission noted that the government had: violated all three minimum duties of the right to food. The government has destroyed food sources through its security forces and state oil company; has allowed private oil companies to destroy food sources; and, through terror, has created significant obstacles to Ogoni communities trying to feed themselves.58

2. Right to Adequate Clothing The African Commission has referred to a ‘right to adequate clothing’59 as part of a right to health and an adequate standard of living. Thus, States have been required to report on the methods of ‘production and distribution of articles of clothing’, as well as those that result in an ‘adequate supply of articles of clothing’.60 Exactly what is ‘adequate’ has not been articulated by the African Commission nor the African Court.

3. Right to Water Although a right to water is found expressly in Article 14(2)(c) of the African Charter on the Rights and Welfare of the Child (ACRWC),61 Article 7 of the Revised African Convention on the Conservation of Nature and Natural Resources,62 and Article 9(2) of the Kampala Convention,63 it is not in the ACHPR. It has, nevertheless, been referred to expressly on numerous occasions by the African Commission and States Parties to the Maputo Protocol are required to provide women ‘with access to clean drinking water’.64 Writing in 2011, Bulto criticised the African Commission for taking an ‘overly narrow normative basis and failed to elaborate its normative content’,65 and treating the right to water as ‘an auxiliary right that attracts protection as a component of other more 56 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 65. 57 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 65. 58 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 66. 59 60 Guidelines on National Periodic Reports. Guidelines on National Periodic Reports. 61 ‘States Parties to the present Charter shall undertake to pursue the full implementation of this right and in particular shall take measures: . . . to ensure the provision of adequate nutrition and safe drinking water’. 62 Article 7(2): ‘The Parties shall establish and implement policies for the planning, conservation, management, utilization and development of underground and surface water, as well as the harvesting and use of rain water, and shall endeavour to guarantee for their populations a sufficient and continuous supply of suitable water’. 63 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), adopted 23 October 2009: States shall ‘Provide internally displaced persons to the fullest extent practicable and with the least possible delay, with adequate humanitarian assistance, which shall include food, water’. 64 Article 15(a) of the Maputo Protocol. 65 T. S. Bulto, ‘The human right to water in the corpus and jurisprudence of the African human rights system’, 11 Afr. Hum. Rts. L.J. (2011) 341–367, at 343.

D. Adequate Standard of Living

407

explicit rights’.66 These comments were made before the adoption of the Principles and Guidelines on Economic, Social and Cultural Rights as well as an important resolution on the right to water,67 which addresses these criticisms. Looking across the jurisprudence of the African Commission one can identify that States are required to provide an ‘adequate supply of safe and potable water’,68 ‘clean drinking water’,69 or on other occasions, ‘sufficient, safe, acceptable, physically accessible and affordable water for personal, domestic, and agricultural uses’.70 It is often linked with sanitation.71 The African Commission has broken down what is sufficient, safe and accessible. Sufficient water is ‘an adequate and continuous water supply for each person’s personal and domestic use. This normally includes drinking, personal sanitation, washing of clothes, food preparation and personal and household hygiene. A sufficient amount of water is necessary to prevent death from dehydration’.72 Safe water is water which is ‘free from hazardous substances (microorganisms, chemical substances and radiological hazards) that could endanger human health, and whose colour, odour and taste are acceptable to users’.73 Further, access to water and sanitation is ‘at least, a clean toilet or latrine, together with collection, disposal and treatment of human excreta, wastewater, solid waste and storm water removal and hygiene education’.74 As with other economic, social and cultural rights, there are minimum core obligations around the right to water and sanitation which include, for instance, access to ‘the minimum essential amount of water, that is sufficient and safe for personal and domestic use, including preventing disease, together with access to adequate sanitation’; safe physical access to water with adequate water outlets; and not to use water as a ‘political tool’. States should also adopt a national strategy or plan of action to realise the right.75 There are particular obligations for indigenous populations on ancestral lands, for States to ‘recognize, protect and develop traditional and local water management systems’ and ‘protect water resources from abusive use and pollution’.76 Individuals and communities ought to be involved in decision making on how to manage water resources, there should be greater human rights education around the issue, and States should also

66 T. S. Bulto, ‘The human right to water in the corpus and jurisprudence of the African human rights system’, 11 Afr. Hum. Rts. L.J. (2011) 341–367, at 347. 67 Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII) 20, 28 February 2015. 68 Pretoria Declaration on ESCRs, para 7. 69 Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII) 20, 28 February 2015. 70 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 88. State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para I.i. 71 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 88. 72 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 89. 73 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 90. 74 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 91. 75 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 92. 76 Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII) 20, 28 February 2015.

408

17. Article 16: Right to Health

‘guarantee the justiciability of the right to water’.77 The right must be applied without discrimination.78 There are specific obligations around the protection of water resources, at the national and international levels. This includes ensuring their ‘equitable use’, and that they are distributed to meet ‘vital human needs of the populations concerned’.79 States should take measures towards he ‘preservation of water against pollution’ as well as promoting sustainable use of resources including that there is ‘sufficient and safe water for present and future generations’.80 The African Commission has identified a range of ‘strategies’ that States can adopt including stopping extraction and damming, eliminating contamination of eco-systems, and assessing impacts on water availability, among others.81 Other requirements are that States increase funds for the infrastructure for local water and sanitation services; ensure a regulatory framework for private ownership of water and sanitation services; and guarantee ‘adequate access to water for subsistence farming’.82 Courts at the national level have similarly recognised the importance of access to water. For example, the Botswanan Court of Appeal in Matsipane Mosetlhanyane v The Attorney- General of Botswana83 held that the Basarwa had a right to water in the Central Kalahari Game Reserve. The Basarwa had been relocated from the Game Reserve and it was argued by the government that those who chose to remain had no right to access water through a borehole which had been closed up. Although the rights argued in this case were in relation to inhuman and degrading treatment, the Court of Appeal noted the impact of the lack of water on the health of the Basarwa and referred to a right of access to water, drawing upon ICESCR jurisprudence.84

4. Right to Housing As noted in Chapter 15 (Article 14) the right to housing has been implied from a reading of Articles 14, 16 and 18(1) of the ACHPR in the Ogoni case.85 In addition, forced evictions, whilst violating other rights in the ACHPR also have been held by the African Commission to have impacts on individuals’ physical and mental health and will thus violate the right to housing. They can impact on access to water and health care86 and are:

Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII) 20, 28 February 2015. Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII) 20, 28 February 2015. 79 Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII) 20, 28 February 2015. 80 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011. 81 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011. 82 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011. 83 CALB–074-10 (unreported); see B. R. Dinokopila, ‘The right to water in Botswana: A review of the Matsipane Mosetlhanyane case’, 11 AHRLJ (2011) 282–295. 84 B. R. Dinokopila, ‘The right to water in Botswana: A review of the Matsipane Mosetlhanyane case’, 11 AHRLJ (2011) 282–295. 85 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, paras 60–62. 86 Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. 77 78

E. Treatment in Detention

409

extremely traumatic. They cause physical, psychological and emotional distress; they entail losses of means of economic sustenance and increase impoverishment. They can also cause physical injury and in some cases sporadic deaths.87

The right to housing will require the provision of ‘sufficient alternative accommodation, or restitution when feasible, immediately upon the eviction’.88 Minimum obligations are that those evicted have access to ‘essential food, potable water and sanitation; basic shelter and housing; appropriate clothing; essential medical services; livelihood sources; fodder for livestock and access to common property resources previously depended upon; and education for children and childcare facilities’.89

E. Treatment in Detention The right to health has also arisen in the context of individuals held in detention. The treatment received by individuals while in prison or police custody, for example, as well as access to medical care are issues which the African Commission has considered. There is inevitably a relationship here with Article 5.90 So where individuals were detained in National Security and Intelligence Services offices in Sudan and tortured and ill-treated resulting in ‘physical and psychological harm’, the African Commission found this to be an ‘unjustified interference’ with their right to health.91 Further, the Nigerian High Court held that the failure to provide medical treatment for prisoners who had been diagnosed with HIV/AIDS was in violation of Article 16 and that their detention without such treatment amounted to torture.92 The denial of medical care to an individual in detention may violate Article 16. There is an obligation on the State to ‘refrain from denying or limiting equal access for all persons, including detainees, to health services’.93 As noted in relation to Article 5, the responsibility of the State is ‘heightened’ where individuals are detained:94 ‘the physical integrity and welfare of detainees is the responsibility of the competent public authorities’.95 There is consequently a responsibility to ‘protect’ health.96

87 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 63. See also Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res.231, 22 October 2012. L. Juma, ‘Nothing but a mass of debris: Urban evictions and the right of access to adequate housing in Kenya’, 12 AHRLJ (2012) 470–507. 88 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 79ff. 89 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 79ff. 90 See e.g. Robben Island Guidelines, para A.20(b), and 31, 39 and 50. 91 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 135. 92 Odafe & Others v Attorney-General & Others (2004) AHRLR 205 (NgHC 2004). See also, E. Durojaye, and O. Ayankogbe, ‘A rights-based approach to access to HIV treatment in Nigeria’, 5 AHRLJ (2005) 287–307. 93 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 136. 94 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 112. 95 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 136. 96 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 137.

410

17. Article 16: Right to Health

Even if the individual has previous health issues, this obligation still applies. So in the case against Sudan, the individual had high blood pressure and the African Commission found that the medication given to him was ‘not adequate to guarantee his health’ and instead resulted in this being both ‘life threatening and jeopardized his health’.97 The Commission considered that the State in this circumstance violated his right to health by failing to take the necessary measures to protect his health especially given that he was in the custody of State authorities. Consequently, this links with the obligation of the State to permit independent monitors to access places of detention and underscores the importance of training on human rights of detainees for the judicial and prison administration.98 Where a prison doctor’s requests for hospital treatment for Ken Saro-Wiwa were denied by the authorities and this resulted in his health suffering ‘to the point where his life was endangered’, the African Commission, citing both paragraphs of Article 16 but not distinguishing between them, found a violation of Article 16.99 Although this could imply that one’s life has to be in danger for there to be a violation, this is not necessarily the case. In another decision against Nigeria raising similar concerns, the individual’s health ‘was deteriorating’, although no further detail was given.100 The African Commission held ‘[t]‌o deny a detainee access to doctors while his health is deteriorating is a violation of Article 16’.101 A State will have obligations under Article 16 towards the ‘general state of health of the prisoners’, thereby requiring it to provide, for instance, ‘sufficient food’, blankets and ‘adequate hygiene’.102 It is possible that the conditions in which detainees are held may violate not just Article 5 of the ACHPR but also Article 16.

F. Access to Health Care and Medicines and Services Earlier drafts of the Charter made reference to the obligation of the State to create ‘conditions which would assure medical service and medical attention in the event of sickness to all’.103 Arguably the final Article 16(2) is broader by requiring the State to ‘to protect the health of their people’, as well as ensuring medical attention in sickness. In its interpretation of the ACHPR, although not always linked to either Article 16(1) or (2), the African Commission has cited to a range of rights in the context of access to health care, medicines and services. Firstly, it has noted a ‘right to health care’,104 and a right to have 97 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014, para 137. 98 Resolution on the Human Rights Situation in the Democratic Republic of Ethiopia, ACHPR/Res.218, 2 May 2012. 99 Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 112. 100 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998, para 91. 101 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998, para 92. 102 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 122. 103 Article 11 M’Baye Draft. 104 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 62.

F. Access to Health Care and Medicines and Services

411

‘access to medical care’.105 It has further required States to provide ‘an effective and integrated health system which is responsive to national and local priorities, and accessible to all’.106 On other occasions it has noted ‘access to adequate health services,107 or alternatively, ‘accessible and affordable health facilities, goods and services of reasonable quality for all’,108 and at ‘reasonable distances’.109 Elsewhere it has called on governments to ‘make provisions for adequate health facilities and infrastructure’ for specific groups including indigenous communities.110 Although the government of The Gambia had taken some steps to address the rights of those detained under mental health legislation including the provision of adequate drug supplies, the African Commission considered this was not sufficient to satisfy the right. It did not provide further details in this regard.111 The right to health includes ‘effective access to health-related education and information, including on sexual and reproductive health’.112 Interpreting the Maputo Protocol, General Comment No. 2 requires States to give ‘access to information and education on family planning/contraceptive and safe abortion’.113 This should be integrated into school, at all levels. There ought to be ‘access to family planning and safe abortion services’, including to ‘a variety of contraceptive methods’.114 The African Commission has required that States ensure ‘access to needed medicines for treatment, prevention and palliative care is a necessary condition for leading a healthy and dignified life’ as well as a ‘fundamental component of the right to health’.115 States have a duty to ‘provide where appropriate needed medicines, or facilitate access to them’.116 It has specifically interpreted this as meaning: the ‘availability in sufficient quantities of needed medicines, including existing medicines and the development of new medicines needed for the highest attainable level of health’.117 Needed medicines should be accessible and provided without discrimination, with accessibility being interpreted as physical, economic/affordability; ‘information accessibility on the availability Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 62. 107 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 108 Pretoria Declaration on ESCRs, para 7. Communication 241/01 Purohit and Moore v Gambia (The), 29 May 2003, para 80. 109 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, paras  29–30. 110 Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to Kenya 1–19 March 2010, 2012 African Commission on Human and Peoples’ Rights (ACHPR) International Work Group for Indigenous Affairs the African Commission on Human and Peoples’ Rights adopted this report at its 50th Ordinary Session, 24 October–5 November 2011. 111 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 85. 112 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 64. 113 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, paras  51–60. 114 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, paras 55 and 56. 115 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 116 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 117 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 105 106

412

17. Article 16: Right to Health

and efficacy of medicines’.118 Acceptability should be ‘respectful of cultural norms and medical ethics’.119 There is also the issue of quality, namely that medicines are ‘safe, effective and medically appropriate’.120 The obligation to promote access to medicines, according to the African Commission, includes refraining from adopting measures such as denial to those who are from marginalised communities or who are themselves marginalised; prohibiting or impeding ‘the use of traditional medicines and healing practices that are scientifically sound and medically appropriate’; interfering with humanitarian aid; and implementation of intellectual property policies that fail to take advantage of ‘all flexibilities in the WTO Agreement on Trade Related Aspects of Intellectual Property that promote access to affordable medicines, including entering “TRIPS Plus” free trade agreements’.121 The obligation to protect access requires States to regulate the availability of only those medicines which meet appropriate standards of ‘quality, safety and efficacy’.122 Further they should ‘prevent unreasonably high prices for needed medicines in both the public and private sectors, through promotion of equity pricing in which the poor are not required to pay a disproportionate amount of their income for access’; ‘ensure that medical practitioners and patients have ready access to reliable, complete and unbiased information on the safety and efficacy of medicines’; and ‘stimulate and Promote competition, intellectual property, consumer protection and other laws to promote access to medicines’.123 The obligation to fulfil access to medicines requires the State, to the maximum of its available resources and in addition to its minimum core obligations, to create a ‘national medicine strategy monitoring system’; promote affected individuals and groups through ‘meaningful participation’ in decisions that affect access to medicines; set up systems for patent information and registration of medicines which are accessible; and speed up the regulation and registration of needed medicines.124

G. Spread of Disease Article 11 of the M’Baye Draft explicitly mentioned the obligation of States to take steps towards the ‘prevention, treatment and control of epidemic, endemic, occupational and other diseases’, but this detail did not find its way into the ACHPR. Despite this, over the years, increased attention has been paid by the African Commission to States’ obligations around the spread of disease. When there was a severe Ebola outbreak across several African States in 2014, the African Commission called on States to ‘avoid all decisions which slow down an effective response to the virus, in particular by opening, in

Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 120 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 121 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. See Y. A. Vawda, ‘Achieving social justice in the human rights/intellectual property debate: Realising the goal of access to Medicines’, 13 AHRLJ (2013) 55–81. 122 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 123 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 124 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 118 119

G. Spread of Disease

413

a controlled manner, borders to facilitate access to health and social services for infected and affected persons’.125 States should provide information in their Article 62 reports on ‘[c]‌omprehensive schemes and specific measures, including vaccination programmes to prevent, treat and control epidemic, endemic, occupational and other diseases and accidents in urban and rural areas’.126 They have also been called upon to set up national mechanisms to respond to epidemic, endemic and occupational diseases for a ‘co-ordinated, participatory, transparent and accountable response’,127 as well as ensure health personnel are appropriately trained including in how to care for persons at home.128 However, it is in relation to specific diseases where the African Commission has made more specific comments.129

1. Malaria The African Commission’s Principles and Guidelines on Economic, Social and Cultural Rights require that prevention and treatment of malaria is a priority within national health plans. Those who have malaria ought to be provided with ‘prompt access to and [the ability] to apply the appropriate and affordable treatment within twenty-four hours of the onset of symptoms’.130 The diagnosis and treatment of malaria should be ‘widely available’ in particular to the poorest members of the community.131 States should adopt strategies to control the disease including reducing or eliminating taxes for mosquito nets, drugs and insecticides.132 Community participation and public education should be ensured and there ought to be a national control system to respond to outbreaks.133 Particular measures should be provided for pregnant women and children under five years old to ‘receive the most suitable combination of personal and community protective measures such as insecticide treated mosquito nets and other materials to prevent infection and suffering. All pregnant women who are at risk of malaria, especially those in their first pregnancies, should have access to chemoprophylaxis or presumptive intermittent treatment’.134

125 Statement by the African Commission on Human and Peoples’ Rights on the Spread of the Ebola Virus, 11 September 2014, para 1. 126 Guidelines on National Periodic Reports. 127 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para ll. 128 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para nn. 129 Most of its attention has been on malaria and HIV/AIDS, although other diseases such as polio and cancer have been mentioned, albeit to a very limited degree: Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, paras jjj and kkk. 130 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(oo). 131 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(pp). 132 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(qq). 133 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, paras 67(rr) and (tt). 134 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(uu).

414

17. Article 16: Right to Health

2. HIV/AIDS and Tuberculosis  (TB) There is increased recognition of the impact of HIV/AIDS on human rights in Africa and this has been reflected in a number of resolutions adopted by the African Commission over the years,135 its decision to establish a Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV,136 as well as declarations by the Organisation of African Unity (OAU) and then the African Union (AU),137 with the latter recognising that implementation has been slow.138 The African Commission has called HIV/AIDS a ‘threat against humanity’139 and urged States to adopt a ‘human rights based response’.140 It has recognised that HIV/ AIDS has particular impact on females.141 As noted in Chapter 3 (Article 2) the African Commission, as has the OAU and AU, also noted the discrimination faced by those living with HIV/AIDS and stressed the rights to equality.142 HIV/AIDS is often linked with 135 Resolution on the HIV/AIDS Pandemic—Threat Against Human Rights and Humanity, ACHPR/ Res.53, 7 May 2001. See S. Gumedze, ‘HIV/AIDS and human rights: The role of the African Commission on Human and Peoples’ Rights’, 4 Afr. Hum. Rts. L.J. (2004) 181–200; P. M. Eba ‘HIV-specific legislation in sub-Saharan Africa: A comprehensive human rights analysis’, (2015) 15 African Human Rights Law Journal 224–262. E. Durojaye, ‘Realising equality in access to HIV treatment for vulnerable and marginalised groups in Africa’, 15 Potchefstroom Elec. L.J. (2012) 213–242. A. N. Akonumbo, ‘HIV/AIDS law and policy in Cameroon: Overview and challenges’, 6 AHRLJ (2006) 85–122; E. Durojaye, ‘The General Comments on HIV adopted by the African Commission on Human and Peoples’ Rights as a tool to advance the sexual and reproductive rights of women in Africa’, International Journal of Gynecology and Obstetrics (2014). 136 Resolution on the establishment of a Committee on the Protection of the Rights of People Living with HIV (PLWHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.163 (XLVII) 10, May 2010. Resolution on the Renewal of the Mandate and Reconstitution of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res. 383(LXI) 2017, 15 November 2017. 137 African Union Heads of States and Governments in the Tunis Declaration on AIDS and the Child in Africa (1994); Grand Bay (Mauritius) Declaration and Plan of Action (1999); Lome Declaration on HIV/ AIDS in Africa (2000); Abuja Declaration on HIV/AIDS, Tuberculosis and Other Infectious Diseases (2001); Maputo Declaration on HIV/AIDS, Tuberculosis, Malaria and Other Infectious Diseases (2003); Gaborone Declaration on a Roadmap Towards Universal Access to Prevention, Treatment and Care (2005); Continental Framework for Harmonisation of Approaches among Member State and Integration of Policies on Human Rights and People Infected and Affected by HIV/AIDS in Africa (2005); Brazzaville Commitment on Scaling Up Towards Universal Access to HIV and AIDS Prevention, Treatment, Care and Support in Africa by 2010 (2006); Abuja Call for Accelerated Action Towards Universal Access to HIV and AIDS, Tuberculosis and Malaria Services in Africa (2006); and Africa’s Common Position to the UN General Assembly Special Session on AIDS (2006). 138 E.g. Resolution on Regular Reporting of the Implementation Status of OAU Declarations on HIV/ AIDS in Africa, AHG/Res.247 (XXXII), July 1996. See the Abuja Framework for Action for the Fight against HIV/AIDS, Tuberculosis and Other Related Infectious Diseases in Africa, OAU/SPS/ABUJA/4. 139 Resolution on the HIV/AIDS Pandemic—Threat Against Human Rights and Humanity, ACHPR/ Res.53, 7 May 2001. 140 141 Press Release on World AIDS Day. Press Release on World AIDS Day. 142 E.g. Press Release on World AIDS Day; Uganda: Promotion Mission, 2013, July 2013; Press Statement on the Regional Seminar on Key Human Rights Issues Affecting Women Living with HIV in Africa, 5 October 2013; Press Release on the Promotion Mission to the Republic of Cameroon, 13 August 2012. See also the OAU’s Abuja Declaration, Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious diseases, 24–27 April 2001, OAU/SPS/ABUJA/3. Resolution on AIDS and Africa: Agenda for Action, AHG/ Res.216(XXVIII). ‘We are aware that stigma, silence, denial and discrimination against people living with HIV/AIDS (PLWA) increase the impact of the epidemic and constitute a major barrier to an effective response to it. We recognize the importance of greater involvement of People Living with HIV/AIDS’, Abuja Framework for Action for the Fight against HIV/AIDS, Tuberculosis and Other Related Infectious Diseases in Africa, OAU/SPS/ABUJA/4. See also OAU 1994 Tunis Declaration on AIDS and the Child in Africa, AHG/ DECL.1 (XXX).

G. Spread of Disease

415

TB,143 acknowledging the increased risk of developing TB among those with HIV/AIDS. There are a number of obligations the African Commission has imposed on States relevant to the right to health of those living with HIV/AIDS. Firstly, there should be an appropriate allocation of national resources to address the issue, namely to protect those living with HIV/AIDS, and give support to their families, as well as undertaking public awareness and health care programmes.144 In addition, States should ‘increase the number of medical facilities towards strengthening free HIV counselling, screening and diagnosis, as well as universal access to prevention programmes, effective treatment and support for all persons living with HIV/AIDS’.145 HIV testing brings with it numerous challenges. As a result the African Commission has called on States to ensure that it is not used as a requirement for those wishing to access family planning or abortion.146 Furthermore, if HIV status is known, this should not be used to force certain practices or treatment or to stop providing other services.147 Litigation at the national level has similarly upheld the right to consent on HIV testing.148 The African Commission has considered that international pharmaceutical companies have a role to ‘make affordable and comprehensive health care available to African governments for urgent action against HIV/AIDS’.149 As to whether there is a right to ‘access’ to anti-retroviral drugs and if this is an obligation under the right to health under the ACHPR and international law,150 in addition to well-known judgments of the South African Constitutional Court,151 the African Commission has called on States to ‘guarantee free access to anti-retroviral drugs’.152 A number of these issues are consolidated in the AU’s Solemn Declaration on Gender Equality, where States agreed to: Accelerate the implementation of gender specific economic, social, and legal measures aimed at combating the HIV/AIDS pandemic and effectively implement both Abuja and Maputo 143 E.g. Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious diseases, 24–27 April 2001, OAU/SPS/ABUJA/3; Principles and Guidelines on Economic, Social and Cultural Rights. 144 Resolution on the HIV/AIDS Pandemic—Threat Against Human Rights and Humanity, ACHPR/ Res.53, 7 May 2001. 145 Press Release on World AIDS Day. 146 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 59. 147 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 59. 148 Stanley Kangaipe and Charles Chookole v Attorney-General (2009) HL/86 (unreported), see M. Malila, ‘The dearth of the rights of HIV positive employees in Zambia: A case comment on Stanley Kangaipe and Another v Attorney-General’, 12 AHRLJ (2012) 579–598. 149 Resolution on the HIV/AIDS Pandemic—Threat Against Human Rights and Humanity, ACHPR/ Res.53, 7 May 2001. Resolution on the Appointment of the Chairperson and Members of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.195, 5 November 2011. 150 C. Onyemelukwe, ‘Access to anti-retroviral drugs as a component of the right to health in international law: Examining the application of the right in Nigerian jurisprudence’, 7 AHRLJ (2007) 446–474, at 467– 468. See also J. C. Mubangizi and B. K. Twinomugisha, ‘The right to health care in the specific context of access to HIV/AIDS medicines: What can South Africa and Uganda learn from each other?’, 10 AHRLJ (2010) 105–134. 151 E.g. Treatment Action Campaign and Others v Minister of Health and Others, 2002 (5) SA 721 (CC), Constitutional Court of South Africa. 152 E.g. Concluding Observations on the Cumulative Periodic Reports (2nd, 3rd, 4th and 5th) of the Republic of Angola, February 2014, para 29. See also Tunis Reporting Guidelines, para C.i.

416

17. Article 16: Right to Health

Declarations on Malaria, HIV/AIDS, Tuberculosis and Other Related Infectious Disease. More specifically we will ensure that treatment and social services are available to women at the local level making it more responsive to the needs of families that are providing care; enact legislation to end discrimination against women living with HIV/AIDS and for the protection and care for people living with HIV/AIDS, particularly women; increase budgetary allocations in these sectors so as to alleviate women’s burden of care.153

States ought to provide a package of prevention measures for HIV/AIDs and other infectious diseases which include voluntary counselling and testing, prevention of blood- related transmission and mother-to-child transmission, barrier methods, protection for healthcare workers and access to information and education.154 Particular attention ought to be paid to women and girls and harmful traditional practices which may heighten their risk of HIV/AIDS and other diseases;155 and policies should be developed to support children affected by HIV/AIDS.156 At the national level it has also been held that Article 16 requires that medical treatment is provided regardless of an individual’s HIV status.157 Yet all of these initiatives have, according to the African Commission’s own study, been largely ‘symbolic’ and ‘have not had much impact for the protection of people living, affected by or vulnerable to HIV’.158 This is due to the lack of awareness of these regional mechanisms by affected individuals, their inaccessibility to civil society, and resource constraints of the African Commission itself.159

H. Traditional Medicines The use of traditional medicine has been promoted by the African Commission, calling on States to ‘protect traditional medical knowledge’160 and ensure medicine’s ‘recognition, acceptance, development, efficacy, modernisation and integration . . . into the public health care system’.161 An oversight authority and legislative framework should AU Solemn Declaration on Gender Equality, July 2004, para 1. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para yy. 155 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(zz). 156 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(bbb). 157 Georgina Ahamefule v Imperial Hospital & Another, Unreported suit ID/1627/2000, judgment of the Lagos High Court on 27 September 2012; see E. Durojaye, ‘So sweet, so sour: A commentary on the Nigerian High Court’s decision in Georgina Ahamefule v Imperial Hospital & Another relating to the rights of persons living with HIV’, 13 AHRLJ (2013) 464–480. 158 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-based Responses, Report on the Study of the African Commission on Human and Peoples’ Rights, November 2017, at para 35. 159 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-based Responses, Report on the Study of the African Commission on Human and Peoples’ Rights, November 2017, at paras 36–38. 160 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(w). 161 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(w). State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para C.vii. State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011. 153 154

I. Healthy Conditions and the Environment

417

increase awareness of the benefits of traditional medicine as well as protect individuals against its misuse.162 A State should also ‘cultivate and conserve medicinal plants’ and ‘produce locally standardised African traditional medicines’.163 States should also ‘refrain from measures that negatively affect access such as: . . . prohibiting or impeding the use of traditional medicines and healing practices that are scientifically sound and medically appropriate’.164 Thus, the African Commission condemned the Republic of Congo’s governments attempts to restrict access to forests to indigenous communities thereby ‘eroding the knowledge and skills of the indigenous people in the area of traditional medicine’.165 It subsequently recommended that training be provided to health personnel in the indigenous communities and that the government grant ‘financial assistance for the promotion and practice of traditional medicine by the indigenous population’.166 Access to natural resources and consequently traditional medicines from local plants and herbs has also arisen in the context of Article 21.167 Recognising the impact of pharmaceutical companies not only on local traditional medicines but also licensing and availability of drugs, the African Commission has called on African States to adopt legislation and trade policies with a ‘particular emphasis on local African production for self-reliance in drug industries’, and use tax exemption and other approaches to reduce the price of drugs.168

I. Healthy Conditions and the Environment The broader aspect of the right to health encompasses the conditions or environment in which individuals may find themselves. The African Commission has recognised an environmental aspect to the right to health, reflected in earlier drafts of the ACHPR.169 The environment encompasses a range of perspectives. The looting and destruction of foodstuffs, crops and livestock and poisoning of wells and denial of access to water sources by the Sudanese government in Darfur was found by the African Commission to be a violation of a number of rights including the right to health.170 Sudan was then required to rehabilitate the social and economic infrastructure to enable internally displaced persons and refugees to return to the area; and to establish a

162 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(w). 163 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(w). 164 Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141, 24 November 2008. 165 Report of the Country Visit of the Working Group on Indigenous Populations/Communities to the Republic of Congo, 15–24 March, 2010, p.10. 166 Report of the Country Visit of the Working Group on Indigenous Populations/Communities to the Republic of Congo, 15–24 March, 2010, paras 11 and 13 respectively. 167 See Chapter 22 (Article 21); see Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, para 124. 168 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para. 169 Article 11 of the M’Baye Draft: ‘Every person has the right to the enjoyment of the highest attainable standard of physical and mental health. To ensure this, States Parties undertake to take steps for the full realisation of this right; including: (b) The improvement of all aspects of environmental and industrial hygiene’. 170 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 212.

418

17. Article 16: Right to Health

national reconciliation forum to, among other things, resolve issues of land, water rights and livestock.171 Addressing industrial and occupational hazards are also part of a State’s obligations under the right to health,172 although little attention has been paid to these aspects beyond calling for States to provide information in their Article 62 reports on ‘[m]‌easures taken to protect and improve all aspects of environmental and industrial hygiene, to prevent air, land and water pollution, to overcome the adverse effects of urban development and industrialisation’.173 Some decisions by the African Commission have linked Article 16 and Article 24. Here the obligation to prevent pollution may lie under Article 24 but together with Article 16 States should: desist from directly threatening the health and environment of their citizens. The state is under an obligation to respect the just noted rights and this entails largely non-interventionist conduct from the state for example, not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual.174

In the Ogoni case, the two provisions were interpreted to require that governments must: [order] or at least [permit] independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.175

The government had failed to take appropriate care to protect the victims of violations which were the result of activities of the Nigerian National Petroleum Company, a State-owned company and being the largest shareholder in a consortium with the Shell Petroleum Development Company. The government had also permitted their own security forces to destroy villages and homes.176

J. Medical Research Although it has encouraged research on the African experiences of HIV/AIDS, for example,177 relatively little mention has been made by the African Commission to standards around medical research.178 Its Principles and Guidelines on the Right to Fair Trial and 171 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009. 172 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 173 Guidelines on National Periodic Reports, para 35. See also State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para C.v. 174 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 52. 175 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 53. 176 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 54. 177 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para fff. 178 A. Nienaber, ‘The African regional human rights system and HIV-related human experimentation: implications of Zimbabwe Human Rights NGO Forum v Zimbabwe, 9 AHRLJ (2009) 524–545.

K. Sexual and Reproductive Health

419

Legal Assistance prohibits detainees from being subject to ‘medical or scientific experimentation which could be detrimental to his or her health’, even with their consent179 and the Principles and Guidelines on Economic, Social and Cultural Rights state the right of an individual ‘to be free from unwarranted interference, including non-consensual medical treatment, experimentation’.180 In addition, under Article 4 of the Protocol on the Rights of Women States Parties must ‘prohibit all medical or scientific experiments on women without their informed consent’.181 More broadly the African Commission has reiterated the right not to be subject to medical or scientific experimentation without ‘free and informed consent’, imposing specific obligations towards the vulnerable and disadvantaged.182 It does not appear to prohibit research on embryos per se, but does require States to ensure adequate supervision and regulation of relevant facilities to prevent ‘selective gender-biased eugenics’.183 Benefits from scientific progress should be ensured without discrimination and there should be protection from trade in organs and ‘medical exploitation’,184 although the latter is not defined.

K. Sexual and Reproductive Health Although sexual and reproductive health is applicable to all genders, most of the focus by the African Commission in this area has been towards women. Indeed, the Maputo Protocol’s provisions around these issues have been criticised for focusing on the role of the woman as a mother.185 The right to health has been interpreted as including control over one’s own body and health, including sexual and reproductive freedom.186 The right to control fertility encompasses the ability to ‘freely choose when, whether and with whom to have sex’.187 Others have argued that the African Commission has focused more attention on reproductive rather than sexual health.188 Article 14 of the Maputo Protocol explicitly provides for sexual and reproductive health rights, and the right of women to ‘control their fertility, decide whether to have Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, para M.7.f. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 65. 181 Maputo Protocol, Article 4(2)(g). 182 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011, para C.vi. 183 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 184 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 185 R. Rebouché, ‘Health and reproductive rights in the Protocol to the African Charter: Competing influences and unsettling questions’, 16(1) Washington and Lee Journal of Civil Rights and Social Justice (2009) 79–112, at 110. 186 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 64. General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, para 24. 187 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para lll. 188 V. Balogun and E. Durojaye, ‘The African Commission on Human and Peoples’ Rights and the promotion and protection of sexual and reproductive rights’, 11 AHRLJ (2011) 368–395, at 394. 179 180

420

17. Article 16: Right to Health

children, the number of children and the spacing of children [and] the right to choose any method of contraception’.189 This is reiterated in the Principles and Guidelines on Economic, Social and Cultural Rights, relevant if the State is not party to the Maputo Protocol.190 Beyond these similarities the section on sexual and reproductive health in the Principles and Guidelines differs in its content from the General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14.2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. The approach of the Protocol has been criticised. As Rebouché notes, ‘Article 14 (and perhaps the Protocol in general) does not appear to ground its approach to reproductive health in a way that embraces the area’s complexity’, noting that there could have been more linkages between for example female genital mutilation (FGM) and protection of reproductive health.191 Interpreting the Protocol, the African Commission’s General Comment notes that the provision of health care without discrimination requires the removal of obstacles related to belief and ideology for women to access family planning and contraception.192 Depriving women of access to such services on the grounds of conscientious objection is not permitted and this prohibition is absolute for those women whose ‘health is in serious risk’. In other situations women should be referred to alternative providers.193 Family planning education should be provided by the State, not only under the ACHPR,194 but also the Maputo Protocol.195 This, according to an interpretation of the latter, requires ‘complete and accurate information which is necessary for the respect, protection, promotion and enjoyment of health, including the choice of contraceptive methods’.196 Under the Protocol, treating women in ‘an inhumane, cruel or degrading manner when they seek to benefit from reproductive health services such as contraception/family planning services or safe abortion care’ may be in violation of Article 5 of the ACHPR.197

189 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 190 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para lll. 191 R. Rebouché, ‘Health and reproductive rights in the Protocol to the African Charter: Competing influences and unsettling questions’, 16(1) Washington and Lee Journal of Civil Rights and Social Justice (2009) 79–112, at 106. 192 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14.2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 25. 193 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14.2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 26. 194 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para lll(5). 195 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 28. 196 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 28. 197 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014.

L. Particular Categories of Individuals

421

Individuals should be able to protect themselves against sexually transmitted diseases198 and States should protect children against sexual exploitation, implying also that early marriage can endanger health.199 Child sexual abuse should be prevented and criminalised.200 Measures that States should take to reduce the maternal and infant mortality and stillbirth rates include health care to all children; adequate nutrition and drinking water; high quality maternal health services which are physically accessible; and education for pregnant women.201

L. Particular Categories of Individuals There is a recognition that realisation of the right to health may require additional measures to be taken for certain categories of individuals or groups. So when reporting on measures adopted to implement the ACHPR, States parties are required to provide information on activities ‘to assure to all age groups and all other categories of the population, including in particular in rural areas, adequate health services including adequate medical attention in the event of sickness or accident’.202 The African Commission’s Guidelines and Principles on Economic, Social and Cultural Rights, for example, set out specific obligations towards ‘vulnerable groups, equality and non-discrimination’, which in the context of the right to health necessitate that national action plans prioritise these groups; access to health facilities goods and services, including medicines, are provided without discrimination, with national health insurance facilitating that access; and health indicators be disaggregated.203 Health systems should ‘respect cultural differences and ethnic diversity’.204 In addition, there is a recognition that there may be particular challenges faced by those living in rural areas to access medical services. Thus services, technologies and procedures ought to be available, accessible and acceptable.205

1. Older Persons The right to health includes ‘[a]‌access to humane and dignified care of the elderly’206 and particular attention should be paid to the specific health requirements of older persons. This necessitates States providing training for relevant health care professionals, as

198 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para lll(5). 199 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para ooo. 200 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para ppp. 201 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para rrr. 202 Guidelines on National Periodic Reports. 203 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 204 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 205 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 55. 206 Pretoria Declaration on ESCRs, para 7.

422

17. Article 16: Right to Health

well as a social support system and education on nutrition and exercise for older persons themselves.207

2. Prisoners In addition to recognising that States have increased obligations towards those in detention, the African Commission has called on States, as part of the right to health, to ensure that prisoners and those deprived of their liberty or detained are held under conditions which comply with human dignity and the ‘highest attainable standard of health’.208 Conditions of detention here include ‘adequate food, clothing, exercise, physical security, reading material, rehabilitation programmes and medical treatment. This should include access to trained medical personnel, essential drugs, and access to preventives measures against diseases’.209 Furthermore, detainees ought to have ‘access to sufficient, safe and acceptable water and sanitation’ and ‘be allowed to bath every day and should be provided with soap, sheets, and detergents for clothes’.210 States should recognise the specific health requirements of female detainees.211

3. Children As noted elsewhere,212 the rights of children have arisen in various contexts but they have not received particular attention from the African Commission. This is perhaps explained by the existence of the ACRWC and its Committee of Experts and a recognition of the importance of cooperation between this Committee and the African Commission.213 Yet, it was acknowledged that for many years there could have been greater interaction between the two bodies and at various points they have resolved to increase their cooperation.214 On occasion, nevertheless, the African Commission has used some of its own mechanisms to ask States questions on the rights of children and their health. So, for example, in their Article 62 reports States have been required to provide information on: ‘[m]‌easures taken to reduce the still-birth rate and infant mortality; [and] measures

207 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para jj. 208 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 209 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 210 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011. 211 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67. 212 Chapter 19 (Article 18). 213 Resolution on Cooperation between the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child in Africa, ACHPR/Res.144, 27 May 2009. 214 Report of the Brainstorming meeting on the African Commission, 20th activity report of the African Commission, Annex II: ‘The ACHPR is yet to finalise the item on its relationships between the other AU organs and institutions. As such, there are no formal relationship with the PAP, the ECOSOCC, the PSC, the African Court on Human and Peoples’ Rights, the African Committee on the Rights and Welfare of the Child’, para 63. Therefore, it recommended: ‘The ACHPR should establish formal relationship with the African Committee of Experts on the Rights and Welfare of the Child. This should be done in line with the necessity of rational utilisation of the resources for the promotion and protection in Africa’, para 66(f ).

L. Particular Categories of Individuals

423

taken for the healthy development of children’.215 This reflects provisions in the earlier drafts of the ACHPR, with Article 9 of the M’Baye Draft obliging States to: (a) Formulate and implement programmes in the field of health, nutrition and education as part of national development plans and to make these accessible to all children within the shortest possible time. (b) Give priority to the most deprived and vulnerable children, paying particular attention to disabled children in the expansion of essential services. (c) Expand day-care facilities with priority for the most needy and economically disadvantaged families.216

4. Persons with Disabilities The right to health includes ‘[a]‌ccess to humane and dignified care . . . for persons with mental and physical disabilities’217 such that it enables them to ‘full enjoyment of life’.218 States should provide ‘specific health services’ as required by individuals with disabilities whether those disabilities are psychosocial, intellectual or physical.219 There is a presumption in favour of integration of individuals into community health and independent living.220 This obliges States to take ‘special efforts to make appropriate services available, especially to persons living in rural areas and slums, and survivors of conflict’.221 Where individuals are in institutions their rights should be ensured and States take ‘particular efforts’ by regulation and monitoring in preventing abuses.222 If individuals who have psychosocial or intellectual disabilities are detained, they ought not to be held with the general prison population ‘but rather should be housed in such a way that they are provided with appropriate support and, treatment’.223 In the context of psychiatric institutions, mental health patients should be provided with ‘special treatment’ in line with the UN Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care.224 The seminal case of Purohit and Moore225 claimed the treatment of individuals detained in psychiatric institutions in the Gambia was contrary to the ACHPR. The Lunatics Detention Act (LDA) did not provide a definition of ‘lunatic’, nor safeguards for the treatment of their detention and this was in claimed to be in violation of the right health in Article 16 as well as Article Guidelines on National Periodic Reports, para 35. M’Baye Draft, Article 9. See also Article 11 of the M’Baye Draft: ‘States Parties undertake to take steps for the full realisation of this right; including: (a) The provision for the reduction of the stillbirth rate and infant mortality and for the healthy development of the child’. 217 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(ee). 218 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(ee). 219 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(ee). 220 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(ff). 221 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(ff). 222 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(gg). 223 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(hh). 224 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 225 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 215 216

424

17. Article 16: Right to Health

18(4) of the ACHPR which refers to special measures for the disabled. The African Commission held that the LDA scheme lacked ‘therapeutic objectives as well as provision of matching resources and programmes of treatment of persons with mental disabilities’ contrary to what was required by the two provisions of the ACHPR.226

5. Women As will be seen in Chapter 19 (Article 18), since the drafting of the Protocol on the Rights of Women in Africa the African Commission has expended considerable time in examining and developing standards around the rights of women on the continent. From the perspective of the right to health the focus has been on maternal health and sexual and reproductive rights, explicitly provided for in Article 14 of the Protocol, as well as violence against women. In earlier years, when the Protocol was being drafted, some attention was paid to FGM and harmful traditional practices.227 More generally, the African Commission has noted that principles of autonomy and non-discrimination should govern their right to health.228

a. Violence Against Women In its Principles and Guidelines on Economic, Social and Cultural Rights within the right to health, the African Commission has called on States to take preventive measures to address violence against women including criminalisation of rape, domestic violence and sexual assault; adequate punishment of offenders; community education and the counselling of men, as well as training of health care professionals and law enforcement officers when treating victims.229 Survivors of violence in conflict situations should receive ‘adequate support, affordable and accessible health-care services, including sexual and reproductive health’.230 A State ought to provide measures for the counselling and rehabilitation of survivors of such violence and alternative and safe housing for those leaving domestic violence situations.231 Sexual and gender-based violence can not only violate the right to health but also Article 5.232 Gender-based violence has been interpreted as including: physical and psychological acts committed against victims without their consent or under coercive circumstances, such as rape (including so-called ‘corrective rape’), domestic violence, verbal attacks and humiliation, forced marriage, isolation, dowry-related violence, trafficking for sexual exploitation, enforced prostitution, indecent assault, denial of reproductive rights including forced or coerced pregnancy, abortion and sterilisation, forced nudity, mutilation of sexual organs, virginity

Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 83. See Chapter 19 (Article 18) for further explanation. 228 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 229 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para. 230 Resolution on the Situation of Women and Children in Armed Conflict, ACHPR/ Res.283, 12 May 2014. 231 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para. 232 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 57. 226 227

L. Particular Categories of Individuals

425

tests, sexual slavery, sexual exploitation, sexual intimidation, abuse, assault or harassment, forced anal testing, or any form of sexual or gender based violence of comparable gravity.233

b. Maternal  Health Particular attention has been paid to standards around maternal health, in light of UN Plans of Action on Population and Development in 1994 and the 1995 Beijing Declaration and Platform for Action,234 and there is a recognition by the African Commission that the improvement of maternal and reproductive health is a ‘regional and international obligation’ which should be addressed by States individually and collectively.235 Indeed maternal mortality which is preventable is considered by the African Commission to be a violation of not only the right to health but also rights to life, dignity and equality.236 The Maputo Protocol requires States parties to ‘establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding’.237 In recognition of the importance it attached to the issue, the African Commission adopted Recommendations on Addressing Maternal Mortality in Africa in November 2008.238 They contain more general recommendations applicable to the right to health but relevant to the prevention of maternal mortality, and draw upon other documents such as the Abuja Declaration239 to require that States, for example, allocate a fifteenth of their budgets to the health sector; ensure that any privatisation does not remove the State’s responsibility around fulfilment of the right to health; and take into account in their policies and programmes the rights of poor and rural women to access basic health care.240 Further recommendations include that States adopt a human rights-based approach to reduce maternal mortality; women participate in policy developments; and provide staff and centres with trained and well equipped staff, as well as emergency transport.241 Ante-natal and obstetric services should be ‘free, available and accessible’;242 however, this is only ‘as much as practicable’. It has been argued elsewhere that Article 16 could be interpreted as providing for a right to emergency obstetric care.243 i. Abortion The African Commission has not been consistent as to the extent of the right to an abortion and there is still a lack of clarity on the grounds where abortion is considered permissible under the ACHPR. The issued was controversial during the drafting of the Maputo Protocol.244 233 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), March 2017, para 58. 234 Resolution on Maternal Mortality in Africa, ACHPR/Res.135, 24 November 2008. 235 Resolution on Maternal Mortality in Africa, ACHPR/Res.135, 24 November 2008. 236 Resolution on Maternal Mortality in Africa, ACHPR/Res.135, 24 November 2008. 237 Maputo Protocol, Article 14. 238 Recommendations on Addressing Maternal Mortality in Africa, 24 November 2008. 239 Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious diseases, 24–27 April 2001, OAU/SPS/ABUJA/3. 240 Recommendations on Addressing Maternal Mortality in Africa, 24 November 2008. 241 Recommendations on Addressing Maternal Mortality in Africa, 24 November 2008. 242 Recommendations on Addressing Maternal Mortality in Africa, 24 November 2008. 243 B. K. Twinomugisha, ‘Exploring judicial strategies to protect the right of access to emergency obstetric care in Uganda’, 7 AHRLJ (2007) 283–306, at 288. 244 See F. Banda, ‘Blazing a Trail: The African Protocol on Women’s Rights comes into force’, 50(1) JAL (2006) 72–84, at 82.

426

17. Article 16: Right to Health

As will be seen below, although the approach with respect to interpretation of the relevant provisions in the Protocol is relatively consistent, what is less apparent is the extent to which this same interpretation has been applied to those States who are not party to it. According to Article 14(2)(c) of the Protocol, abortion is permitted ‘in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’. States who, like Uganda for example, have only one of these exceptions to criminalisation (here, to protect the life of the mother), and not all of them, have been asked to amend their legislation to bring it in line with the Protocol.245 Article 14(2)(c) has been called ‘momentous’246 and the first time abortion is in a treaty.247 Yet it has also been criticised for its ‘crime and punishment’ approach.248 A 2014 General Comment on Article 14(2)(c) of the Protocol, among other provisions, details obligations of the State. Interpreting Article 14(2)(c), the General Comment states that women and health care professionals providing these services should not be prosecuted or disciplined ‘in the cases provided for in the Protocol’,249 thereby clarifying that such protection only accords to instances where abortion is carried out for one of the grounds listed in Article 14(2)(c). The inclusion of ‘mental health’ here is interesting and potentially broadens the scope and the African Commission has linked an interpretation of ‘mental and physical health’ with the WHO definition: ‘[S]‌tate of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.250 The African Commission has gone further to note that in considering whether to permit an abortion in such circumstances, ‘[t]he reasons put forward by the woman seeking an abortion must be taken into account, and States are required to ensure that the legal frameworks in place facilitate access to medical abortion when the pregnancy poses a threat to the health of the pregnant mother’, and thus that ‘the evidence of prior psychiatric examination is not necessary to establish the risk to mental health’.251 245 Report of the Joint Promotion Mission Undertaken to the Republic of Uganda by Commissioner Lucy Asuagbor Commissioner Faith Pansy Tlakula Commissioner Med S.K. Kaggwa & Commissioner Pacifique Manirakiza 25–30 August 2013, presented to the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, held 28 April–12 May, in Luanda, Republic of Angola, paras 71 and 244. 246 C. G. Ngwena, ‘Protocol to the African Charter on the Rights of Women: Implications for access to abortion at the national level’, 110 International Journal of Gynecology and Obstetrics (2010) 163–166, at 163. 247 C. G. Ngwena, ‘Protocol to the African Charter on the Rights of Women: Implications for access to abortion at the national level’, 110 International Journal of Gynecology and Obstetrics (2010) 163–166, at 163. 248 C. G. Ngwena, ‘Protocol to the African Charter on the Rights of Women: Implications for access to abortion at the national level’, 110 International Journal of Gynecology and Obstetrics (2010) 163–166, at 166. 249 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, paras 31 and 32. 250 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 38. See also R. Rebouché, ‘Health and reproductive rights in the Protocol to the African Charter: Competing influences and unsettling questions’, 16(1) Washington and Lee Journal of Civil Rights and Social Justice (2009) 79–112, at 110. 251 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 38.

L. Particular Categories of Individuals

427

With respect to threat to the woman’s life, the concept of a ‘safe abortion’ arises.252 So a woman’s life may be threatened if she has ‘no access to legal security procedures, which obliges them to resort to unsafe, illegal abortions’, or where abortions are performed in ‘unhealthy conditions’, with ‘unqualified or unspecialized service providers, or through abortions that are induced using dangerous procedures, products and objects’.253 There is consequently a need for appropriate training for health professionals,254 for law enforcement officials and the judiciary on the rights in the Protocol.255 Threats to the life of the foetus are those where the foetus ‘suffers from deformities that are incompatible with survival, so being forced to carry the pregnancy to term would constitute cruel and inhuman treatment’.256 Women who are being treated for disease, cancer or other diseases may be subject to treatments which ‘endanger the survival of the foetus’ and abortion in such circumstances would accordingly be permitted.257 Similarly, the rights of a woman to privacy and confidentiality will be violated if they are questioned by the police or judicial authorities, charged or detained on the grounds listed in Article 14(2)(c).258 When considering the African Commission’s statements on abortion generally under the ACHPR, and not specifically in relation to Article 14(2)(c) of the Protocol, its approach is inconsistent. On the one hand, it could be implied that the right to an abortion may not be limited to the situations listed in the Protocol. Hence, it has referred in its Principles and Guidelines on Economic, Social and Cultural Rights to the need for States to decriminalise abortion in all cases, and particularly legalise medical abortion in case of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’.259 Conversely, in an earlier resolution it noted that ‘every society should seek to protect the life of the mother and the child from conception, to delivery and beyond’;260 and addressing particular 252 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 19. 253 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 39. 254 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 58. 255 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 49. 256 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 40. 257 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 40. 258 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 34. 259 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(qqq). See also reference to the criminalisation of abortion, without clarifying any particular situation, as ‘impermissible’: Joint Statement by UN human rights experts*, the Rapporteur on the Rights of Women of the Inter-American Commission on Human Rights and the Special Rapporteurs on the Rights of Women and Human Rights Defenders of the African Commission on Human and Peoples’ Rights, 28 September 2015. 260 Resolution on Maternal Mortality in Africa, ACHPR/Res.135, 24 November 2008.

428

17. Article 16: Right to Health

States it ‘[c]‌ommends the provision of abortion for women, in cases where the life or health of the woman is at risk’.261 A 2016 statement on the Global Day of Action for Access to Safe and Legal Abortion makes reference to the Protocol but only in general terms and states simply that ‘[c]riminalizing abortion violates many basic human rights, including the right to: life, liberty, security, health, and freedom from torture. Criminal abortion laws discriminate on the basis of sex—they penalize a health service only women need’.262 On yet other occasions the African Commission has applied the test in the Protocol: calling on States, in a 2007 and a 2014 resolution, ‘to take adequate measures to provide effective access for women to reproductive health services, including access to lawful medical abortion in accordance with the Protocol’,263 and in the context of armed conflict, to ‘[h]armonize abortion laws with the Maputo Protocol to include access to safe abortion in cases of rape, incest and sexual assault’.264 ii. Involuntary Treatments Compulsory treatments have been condemned on a number of occasions, particularly noting the threat towards the use of them on persons living with HIV/AIDS,265 as well as women with disabilities, or those of a particular ethnic group.266 Such treatments include ‘forced abortions’,267 as well as involuntary sterilisations’, and those treatments which are ‘of an intrusive and irreversible nature without therapeutic purpose or to correct or alleviate disability’ can amount to torture or ill-treatment268 as well as violate the right to health.269 There should be ‘voluntary, ‘free’, ‘genuine and informed consent’270 for such procedures and this will not be the case if there are ‘financial or other incentives, misinformation, or intimidation tactics to compel an individual to undergo the procedure’.271 261 Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999–2010), February 2015, para 29. 262 Statement by the Special Rapporteur on the Rights of Women in Africa commemorating the Global Day of Action for Access to Safe and Legal Abortion, 28 September 2016. See also similarly, Press Release: Launch of the Campaign for the Decriminalization of Abortion in Africa: Women and Girls in Africa are Counting on Us to Save Their Lives!, 18 January 2016; Statement by Commissioner Lucy Asuagbor during launch of ACHPR Campaign for the Decriminalization of Abortion in Africa, 18 January 2016. 263 Resolution on the Health and Reproductive Rights of Women in Africa, ACHPR/Res.110, 30 May 2007. 264 Resolution on the Situation of Women and Children in Armed Conflict, ACHPR/ Res.283, 12 May 2014. 265 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 266 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 47. 267 Intersession Activity Report (November 2013 To April 2014) and Annual Situation of Torture and Ill- Treatment in Africa Report, presented to the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights Luanda, Angola, 28 April–12 May 2014, para 45. 268 Intersession Activity Report (November 2013–April 2014) and Annual Situation of Torture and Ill- Treatment in Africa Report, presented to the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights Luanda, Angola, 28 April–12 May 2014, para 45. 269 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. 270 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013. General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 47. 271 Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, ACHPR/Res.260, 5 November 2013.

M. State Obligations

429

Conversely the African Commission has stressed, in the context of obligations under the Maputo Protocol that ‘consent and involvement of third parties, including but limited to, parents, guardians, spouses and partners, is not required when adult women and adolescent girls want to access family planning/contraception and safe abortion services in the cases provided for in the Protocol’.272 There has been little litigation on these issues at the national level. However, in LM and Others v Government of the Republic of Namibia the High Court of Namibia held that the sterilisation of three women had been carried out without their consent, and obtaining consent during labour was not appropriate.273

c. Harmful Traditional Practices Harmful traditional practices have been the subject of the former OAU’s attention. It initiated a process to draft an Inter-African Convention on Harmful and Traditional Practices in parallel, but not at first in conjunction, with the creation of the Maputo Protocol.274 In the context of the right to health the African Commission has called on States to criminalise and discourage harmful traditional practices.275 FGM has received particular attention, with the African Commission defining it as a harmful practice ‘which affects the reproductive health of women’ and has called on States to eradicate it.276

M. State Obligations Although there have been arguments that the economic, social and cultural rights in the ACHPR including Article 16 are of immediate obligation, the African Commission appears to have changed its approach referring to the progressive realisation stance as adopted under the ICESCR and apparent in the earlier drafts of the ACHPR.277 So in Purohit and Moore v The Gambia: The African Commission would however like to state that it is aware that millions of people in Africa are not enjoying the right to health maximally because African countries are generally faced with the problem of poverty which renders them incapable to provide the necessary amenities, infrastructure and resources that facilitate the full enjoyment of this right. Therefore, having due regard to this depressing but real state of affairs, the African Commission would like to read into Article 16 the obligation on part of States party to the African Charter to take concrete and targeted

272 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 43. 273 Case 1603/2008, see C. Badul and A. Strode, ‘LM and Others v Government of the Republic of Namibia: The first sub-Saharan African case dealing with coerced sterilisations of HIV-positive women –Quo vadis?’, 13 AHRLJ (2013) 214–228. 274 See further Chapter 19 (on Article 18). See R. Murray, ‘Women’s Rights and the Organisation of African Unity and African Union: The Protocol on the Rights of Women in Africa’, in D Buss; A Manji, International Law: Modern Feminist Approaches, Hart Publishing, 2005, chapter 11, at pp.262–263. 275 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para dd. 276 Resolution on the Health and Reproductive Rights of Women in Africa, ACHPR/Res.110, 30 May  2007. 277 Article 11 of the M’Baye Draft stated: ‘Every person has the right to the enjoyment of the highest attainable standard of physical and mental health. To ensure this, States Parties undertake to take steps for the full realisation of this right’.

430

17. Article 16: Right to Health

steps, while taking full advantage of its available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind.278

Similarly, drawing again from the Committee on Economic Social and Cultural Rights of the UN, the African Commission has imposed ‘minimum core obligations’ on States, not just in the context of the right to health but also other economic, social and cultural rights.279 The particular obligations for the right to health mirror some of those, word- for-word, set out by the UN Committee in its General Comment No. 14.280 Those that are omitted are included elsewhere, even if not verbatim, in the African Commission’s Principles and Guidelines. It has also drawn upon and adopted other aspects of the approach of the UN Committee on Economic, Social and Cultural Rights, to note that the right to health includes four elements: ‘availability, accessibility, acceptability and quality, and impose three types of obligations on States –to respect, fulfil and protect the right’.281 States ought not pollute water, air and soil, but should ensure that third parties do not limit access to health services. Destroying livestock, farms and poisoning water supplies in the Darfur region of Sudan ‘exposed the victims to serious health risks and amounts to a violation of Article 16 of the Charter’.282 Privatisation should ‘not constitute a threat to the availability, accessibility, acceptability and quality of health facilities, goods and services’.283 As part of their obligations under the right to health, States ought to adopt a national ‘public health strategy and plan of action’284 which should cover all age groups and take an holistic approach to health. Using some of the provisions from the 2001 Abuja Declaration the African Commission requires that States set a target to allocate fifteen per cent of their annual budget to improving the health sector. The right to health should also be incorporated into poverty reduction strategies and development plans.285 The obligation to respect rights in the Maputo Protocol has been interpreted by the African Commission as necessitating that States ‘refrain from hindering, directly or indirectly, women’s rights and to ensure that women are duly informed on family planning/

278 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 84. Repeated similarly in Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 264. 279 S. F. Sacco, ‘A comparative study of the implementation in Zimbabwe and South Africa of the international law rules that allow compulsory licensing and parallel importation for HIV/AIDS drugs’, 5 AHRLJ (2005) 105–128, at 111. 280 Para 67 of the African Commission’s Principles and Guidelines, takes the wording from General Comment No. 14 of the CESCR, although not necessarily in the same order: Committee on Economic Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August 2000, para 43. 281 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 209; drawing on UN CESCR, General Comment No. 14. 282 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 212. 283 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(p). 284 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67(f ). 285 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 67.

N. Remedies

431

contraception and safe abortion services, which should be available, accessible, acceptable and of good quality’.286 The obligation to protect, under the Maputo Protocol, obliges States to take measures to prevent third parties interfering in the enjoyment of sexual and reproductive rights, and in particular for vulnerable groups (‘adolescent girls, women living with disabilities, women living with HIV and women in situations of conflict’).287 The State’s duty to promote includes creating the conditions that enable women to exercise and enjoy their sexual and reproductive rights such as ‘supporting women’s empowerment, sensitizing and educating communities, religious leaders, traditional chiefs and political leaders on women’s sexual and reproductive rights as well as training health- care workers’.288 The obligation to fulfil obligates States to adopt relevant laws and policies that ‘ensure the fulfilment de jure and de facto of women’s sexual and reproductive rights, including the allocation of sufficient and available resources for the full realization of those rights’.289

N. Remedies In most cases, as has been seen with other rights, no specific remedy is ordered in relation to the specific violation of Article 16.290

1. Guarantees of Non-repetition Finding violations of Article 16(1) in the context of sexual harassment during demonstrations, the African Commission called on the Egyptian government to amend its laws and to ratify the Maputo Protocol.291 In other cases it has called on the government to ‘bring its law into conformity with the Charter’,292 and in Purohit and Moore for the Gambian government to ‘[r]‌epeal the [LDA] and replace it with a new legislative regime for mental health in The Gambia compatible with the African Charter and international standards and norms for the protection of mentally ill or disabled persons as soon as possible’.293 286 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 42. 287 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 43. 288 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 44. 289 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014, para 45. 290 E.g. re treatment in detention, Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998. 291 Communication 323/06 Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. 292 Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, 31 October 1998. 293 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003.

432

17. Article 16: Right to Health

Violations including the right of health of individuals who are members of the Ogoni community, led the African Commission to call on the Nigerian State to ‘[stop] all attacks on Ogoni communities and leaders by the Rivers State Internal Securities Task Force and [permit] citizens and independent investigators free access to the territory’.294 Similarly in Darfur in Sudan, the State was required to undertake ‘major reforms of its legislative and judicial framework in order to handle cases of serious and massive human rights violations’, and finalise peace agreements.295

2. Investigation and Prosecution In the Ogoni case where oil exploration in the region resulted in violations to the right to health of individuals there, among other rights, the African Commission called on the government to conduct an investigation into these violations and prosecute relevant officials.296 Abuses including violations of the right to health encompassing destruction of livestock, crops and denial of access to water committed by members of the Janjaweed militia and military forces in Darfur ought to be investigated by the Sudanese government.297 Further, where there have been violations including rape resulting in Article 16 violations, the State was required to prosecute those responsible.298 Sexual harassment of women during a demonstration, resulting in violations of their Article 16(1) rights, necessitated the Egyptian government to bring the perpetrators to justice.299 The African Commission also ordered the State to investigate and prosecute those responsible for the torture of individuals whose right to health was violated as a result of their treatment during detention.300

3. Restitution Individuals held in psychiatric institutions in the Gambia under the Lunatics Detention Act, in violation of their right to health, were required to be ‘treated or released’, pending the establishment of an expert body to review their cases.301 The African Commission urged the State to provide all persons ‘suffering from mental health problems’ in the Gambia with ‘adequate medical and material care’.302 Where violations of the right to health, among others, were found in Darfur, the Sudanese government was required to provide restitution to the victims, although no further detail was provided as to what this should entail.303 294 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 295 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 296 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 297 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009. 298 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009. 299 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. 300 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014. 301 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 302 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 303 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229.

N. Remedies

433

4. Compensation Several cases has resulted in compensation being recommended by the African Commission for violations of the right to health as a result of pollution of local rivers and lands by oil exploration.304 ‘Adequate reparations’ were urged for the victims whose right to health had been violated because of damage to a dam, and the lack of essential services in hospitals which led to deaths of patients.305 Finding serious and massive violations of the ACHPR including the right to health, occasioned the African Commission calling for the ‘payment of a compensatory benefit to the widows and beneficiaries of the victims’ of the violations.306 Similarly, compensation has been awarded to individuals who have received treatment in detention which violated Article 16.307 This compensation has been required to be ‘adequate’,308 although in one case where female protesters were sexual harassed, the African Commission set out a specific amount of 57,000 Egyptian Pounds.309 As to what the compensation is meant to address, for those individuals who were sexually harassed it was for ‘the physical and emotional damages/traumas they suffered’,310 for others it was a ‘compensatory benefit’.311 Because the African Commission does not have clear guidelines on when it will award compensation, the reasons for doing so nor the criteria to determine the amount, it is difficult to make further analysis of the rationale of these decisions.

5. Other Some interesting remedies have been awarded in the context of environmental and health- related violations, with the African Commission, for example, calling on the Nigerian government, after oil exploration in Ogoniland impacted negatively on the rights of the Ogoni people, to ensure ‘that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the

304 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 305 Communication 227/99 Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 88. 306 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 307 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014. 308 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001; Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003; Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014. 309 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. 310 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. 311 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000.

434

17. Article 16: Right to Health

petroleum industry’.312 The State was also called upon to provide information on ‘health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations’.313

6. Report to the African Commission States have been required to report to the African Commission where violations have been found. Again, as with other rights, there is no consistency in the imposition of deadlines for a violation of the right to health and no indication of whether some remedies may necessitate a more urgent response. In the Ogoni case it required the Nigerian government to keep it informed on the actions it had taken to address the environmental issues in the area including the work of a Judicial Commission of Inquiry investigating the violations.314 Even in circumstances where one might imagine a shorter response may be required, such as where there have been violations of the right to health of individuals held in detention the earliest the State has been required to report back to the Commission has been within 180 days of being notified of the decision.315 In Purohit and Moore, involving the violation of the right of health of individuals held in psychiatric institutions in the Gambia, the government was simply asked to report in its next Article 62 report on the measures it had taken to implement the decision.316 Given that at this stage the government had only submitted its initial report (in 1994) and to date has yet to submit another one, does not convey the sense of urgency that one might expect. Similarly, finding sexual harassment of females during demonstrations in Egypt as a violation of their right to health, the government was again only required to report back within 180 days.317

O. Special Mechanisms: Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV Established in 2010 this Committee was initially given a mandate: To seek, request, receive, analyse and respond to reliable information from credible sources including individuals, community-based organisations, non-governmental organisations, specialised agencies, inter-governmental organisations, and State Parties, on the situation and rights of PLHIV and those at risk; To undertake fact-finding missions, where necessary, to investigate, verify and make conclusions and recommendations regarding allegations of human rights violations; 312 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 313 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 314 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 315 Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, 14 March 2014. 316 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003. 317 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275.

O. Special Mechanisms: Protection of the Rights of PLHIV

435

To engage State Parties and non-state actors on their responsibilities to respect the rights of people living with HIV and those proven to be vulnerable to these infections; To engage State Parties on their responsibilities to respect, protect and fulfil the rights of people living with HIV and those at risk; To recommend concrete and effective strategies to better protect the rights of people living with HIV and those at risk; To integrate a gender perspective and give special attention to persons belonging to vulnerable groups, including women, children, sex workers, migrants, men having sex with men, intravenous drugs users and prisoners; and To report regularly to the African Commission on Human and Peoples’ Rights.318

A later resolution appointed members of the Committee,319 and since then the composition has included a mixture of Commissioners and external experts.320 A work plan elaborates some ‘key activities’ including capacity building of CSOs, country visits, thematic meetings, research and a database of best practice.321 The Committee has been active, including undertaking missions to States;322 training;323 318 Resolution on the Establishment of a Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.163, 26 May 2010. 319 Resolution on the Appointment of Members of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.172, 24 November 2010. 320 Resolution on the Appointment of the Chairperson and Members of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.195, 5 November 2011. Resolution on the Extension of the Mandate of the Committee on the Protection of the Rights of People Living with HIV (PLWHIV), and Those at Risk, Vulnerable to and Affected by HIV in Africa, ACHPR/Res.220, 2 May 2012. Resolution on the Extension of the Mandate of the Committee on the Protection of the Rights of People living with HIV, and Those at Risk, Vulnerable to and affected by HIV in Africa, ACHPR/Res.279, 12 May 2014. Resolution Appointing an Expert Member for the Committee on the Protection of the Rights of People Living with HIV (PLHIV), and Those at Risk, Vulnerable to and Affected by HIV in Africa, ACHPR/Res.285, 29 July 2014. Intersession Activity Report (May 2014–April 2015) of Hon. Commissioner Lucy Asuagbor, Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, presented to the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015. Resolution on the Appointment of the Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res.325 (LVII) 2015, 18 November 2015. Resolution on the Renewal of the Mandate of Expert Members of the Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/Res. 352 (EXT.OS/XX) 2016, 18 June 2016. Resolution on the Renewal of the Mandate and Reconstitution of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, ACHPR/ Res. 383(LXI) 2017, 15 November 2017. 321 Intersession report to 51st Session. 322 E.g. to Uganda in August 2013 to follow up from a mission in July 2006. Combined Intersession Activity Report (April 2013–October 2013) of Hon. Commissioner Lucy Asuagbor, Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, presented to the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013. and to Kenya, see Intersession Report of the Committee on the Protection of the Rights of Persons Living with HIV/AIDS and Those at Risk, 50th Session of the African Commission on Human and Peoples’ Rights by Commissioner Reine Alapini Gansou, Chairperson of the Committee on the Protection of the Rights of Persons Living with HIV/AIDS (PLWHA) Those at Risk, Vulnerable to and Affected by the Virus, April–October, 2011. 323 Intersession Report of the Committee on the Protection of the Rights of Persons Living with HIV/AIDS and Those at Risk, 50th Session of the African Commission on Human and Peoples’ Rights by Commissioner Reine Alapini Gansou, Chairperson of the Committee on the Protection of the Rights of Persons Living with HIV/AIDS (PLWHA), Those at Risk, Vulnerable to and Affected by the Virus, April–October 2011.

436

17. Article 16: Right to Health

and a number of ‘regional consultative seminars’;324 as well as adopting press releases on situations of concern.325 In its various publications it has addressed recommendations to States, NHRIs as well as those living with HIV/AIDS.326 The Committee also produced the Study on ‘HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-based Responses to HIV’.327

324 E.g. Regional Consultative Seminar from 3–5 October 2013, in Dakar, Senegal, on the theme ‘Key Human Rights Issues Affecting Women Living with HIV in Africa’, Combined Intersession Activity Report (April 2013–October 2013) of Hon. Commissioner Lucy Asuagbor, Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, presented to the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013. 325 E.g. Press Release on the Country Visit to the Republic of Namibia, 20 April 2017. 326 60th Ordinary Session of the African Commission on Human and Peoples’ Rights, Intersession Activity Report of the Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV, presented by Honourable Commissioner Soyata Maïga, Vice-Chairperson of the Commission and Chairperson of the Committee, Niamey, 8–22 May 2017. 327 Resolution on the Need to Conduct a Study on HIV, the Law and Human Rights, ACHPR/Res.290, 29 July 2014. HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-based Responses, Report on the Study of the African Commission on Human and Peoples’ Rights, November 2017.

18. Article 17 Right to Education, Cultural Life and the Promotion of Morals and Traditional Values 1. Every individual shall have the right to education. 2. Every individual may freely take part in the cultural life of his community.

3. The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.

A. Introduction There is a lack of detail in the wording on these provisions, when compared with that provided in the M’Baye and Dakar Drafts.1 Although dealt together under one article, the right to education has been developed by the African Commission in its own right, without any real connection to the other aspects under Articles 17(2) and (3).

B. Article 17(1): Right to Education There is no clarity in the wording of the African Charter on Human and Peoples’ Rights (ACHPR) as to what the State obligation encompasses,2 so it is therefore welcome that the African Commission has elaborated on this in its Principles and Guidelines on Economic, Social and Cultural Rights. What’s more, the African Commission’s Working Group on Economic, Social and Cultural Rights has held workshops and organised missions to States to raise awareness of the right.3 Interestingly, Article 12 of the M’Baye Draft had a much more detailed provision: 1. Every person has the right to education, which shall be directed to the full development of his personality, and sense of dignity and which shall enable him to participate effectively in a free society. 2. States Parties shall, with a view to achieving this, provide: (a) Primary and secondary education in their different forms including technical and vocational secondary education which shall be made generally available and easily accessible to all by every appropriate means. (b) High[er] education made equally and easily accessible to all, on the basis of capacity, by every appropriate means. 1 See below; F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 189. M. Ssenyonjo, ‘Analysing the economic, social and cultural rights jurisprudence of the African Commission: 30 years since the adoption of the African Charter’, 29 Neth. Q. Hum. Rts. (2011) 358, 398. 2 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 190. 3 ‘Regional Workshop on the Right to Education for All’, Algiers, Algeria, 25–29 November 2013. Intersession Report, by Mr Béchir Khalfallah, Commissioner/ Chairperson of the Working Group on Economic, Social and Cultural Rights in Africa, 53rd Ordinary Session of the African Commission on Human and Peoples’ Rights, 9–23 March 2013, Banjul, The Gambia, para 9.

438

18. Article 17: Right to Education, Cultural Life and Values

(c) Respect the liberty of parents and legal guardians to choose for their children schools other than those established by public authorities, which conform to such minimum educational standards as may be approved by the state and to ensure the religious and moral education of their children in conformity with their own convictions.

It is not at all clear why this was not replicated in either the Dakar Draft or subsequently adopted ACHPR, although aspects of it have found their way into the jurisprudence of the African Commission. The Maputo Protocol’s provisions on education and training require States Parties to eliminate discrimination against women and guarantee equal opportunity and access, as well as eliminating stereotypes in textbooks, the curricula and the media. There are obligations to protect women and the girl-child from sexual harassment in schools and educational establishments; provide counselling to those who suffer abuses; and ensure there is gender sensitisation and human rights education at all levels.4 Further, there are positive obligations on States Parties to the Maputo Protocol to promote literacy, education and training for women and the enrolment and retention of girls in schools and other training establishments, and to provide programmes for those leaving school early.5 The African Charter on the Rights and Welfare of the Child (ACRWC) specifies for the right of every child to education.6 This education should be directed to ‘the promotion and development of the child’s personality, talents and mental and physical abilities to their fullest potential’.7 The education ought to be directed to respect for human rights and ‘the preservation and strengthening of positive African morals, traditional values and cultures’.8 The education should prepare children ‘for responsible life in a free society, in the spirit of understanding, tolerance, dialogue, mutual respect and friendship among all peoples, ethnic, tribal and religious groups’, among other values.9 States parties to the ACRWC should adopt measures to encourage the ‘regular attendance at schools and the reduction of drop-out rates’.10 There ought to be equal access to education for all, and States parties to the ACRWC should take particular measures for female, gifted and disadvantaged children.11 Under the ACRWC, the rights and duties of parents must be respected by the State, with the right to choose schools, including those not under the public authority, as well as religious and moral education ‘in a manner consistent with the evolving capacities of the child’.12 School or parental discipline should ensure that the child is treated with humanity and in accordance with their dignity.13 Girls who become pregnant at school should have the opportunity to continue their education ‘on the basis of their individual ability’.14 Although this level of detail in the ACRWC is simply omitted from the ACHPR, it is covered in part by the African Commission’s jurisprudence. The African Commission has thus recognised the fundamental importance of education. It is seen as central to ‘inculcating the values and corresponding behaviours in 4 Maputo Protocol, Article 12(1). Similar recommendations have also been made by the African Commission to all States, see e.g. Activity Report of Hon. Commissioner Lucy Asuagbor, Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, presented to the special 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, in commemoration of the 25th Anniversary of the Commission, Yamoussoukro, Côte D’Ivoire, 9–22 October 2012. 5 6 7 Maputo Protocol, Article 12(2). ACRWC, Article 11(1). ACRWC, Article 11(2). 8 9 10 ACRWC, Article 11(2). ACRWC, Article 11(2). ACRWC, Article 11. 11 12 13 ACRWC, Article 11. ACRWC, Article 11. ACRWC, Article 11. 14 ACRWC, Article 11.

B. Article 17(1): Right to Education

439

a civil society based on full respect for human and peoples’ rights, democracy, tolerance and justice’.15 Education enables individuals to find a way out of poverty and ‘obtain the means to participate fully in their community’.16 In particular, it plays a crucial role in ‘empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth’.17 From an individual perspective, it is a ‘fundamental right’, that ‘affects the growth, development and welfare of human beings, particularly children and youth’.18 Certain practices have been considered to impact on the right to education, including child marriage.19 The right in Article 17(1) covers pre-school, primary, secondary, tertiary, adult and vocational education and training.20 A number of values have been associated with the right to education, drawing heavily on the UN Convention on the Rights of the Child. For instance, in its Principles and Guidelines on the Implementation of Economic Social and Cultural Rights, the African Commission has noted that ‘education systems’ should be based on: the promotion and development of the child’s personality, talents and mental and physical abilities to their fullest potential, without discrimination; fostering respect for human rights and fundamental freedoms with reference to those set out in the provisions of various African instruments on human and peoples’ rights and international human rights declarations and conventions; the preservation and strengthening of positive African morals, traditional values and cultures; the preparation of the child for responsible life in a free society, in the spirit of understanding, equality, tolerance, dialogue, mutual respect and friendship among all peoples; the promotion and achievements of African unity and solidarity; the development of respect for the environment and natural resources; and the promotion of the child’s understanding of primary health care.21

There is a link here with the dignity of the individual as well as the impact on society as a whole. Hence, when setting out the measures taken ‘to promote the full realisation of the right of everyone to education’, their aim should be to achieve: ( a) The full development of the human personality and the sense of its dignity; (b) The strengthening of respect for human rights and fundamental freedom; (c) The development of human rights teaching; (d) The effective participation of all persons in a free society; (e) The promotion of understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups.22

Resolution on Human Rights Education, ACHPR/Res.6, 10 December 1993. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 69. 17 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 69. 18 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 69. 19 Resolution on the Need to Conduct a Study on Child Marriage in Africa, ACHPR/Res.292, 29 July 2014. 20 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 70. 21 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. Principally taken from Article 29 of the UN CRC, with some amendments, editions and deletions. 22 Guidelines for National Periodic Reports, para 46. 15 16

440

18. Article 17: Right to Education, Cultural Life and Values

In addition, more broadly, educational programmes should be: of a high quality and appropriate to the needs of society. Education must equip learners with the requisite skills and values to participate in and contribute to national and international development and employment opportunities. Education and training must be targeted at development based on African realities, and particularly towards the development of science and technology. School curricula should be linked to the labour market and society’s demands for technology and self-reliance.23

Education is a concept that has individual and societal importance. Corruption in the education sector has been the subject of a case before the Economic Community of West African States (ECOWAS)’s Court of Justice where it was alleged that government officials had misused and embezzled funds allocated for the education sector in violation of the right to education. The Court found that in order for a violation to have occurred there ‘must be a clear linkage between the acts of corruption and a denial of the right to education. In a vast country like Nigeria, with her massive resources, one can hardly say that an isolated act of corruption contained in a report will have such devastating consequence as a denial of the right to education, even though as earlier pointed out it has a negative impact on education’.24 Instead the matter should have been dealt with at the domestic level through civil and criminal law procedures.25 Some degree of attention has been paid by the African Commission to human rights education. This will be dealt with fully in Chapter 26 (Article 25).

1. Access to Education Access to education can encompass a range of factors. Education and educational institutions must be ‘physically and economically accessible to everyone’.26 This includes ‘the provision of finance, the building of schools and the provision of educational materials . . . establishing an adequate scholarship and/or fellowship system, ensuring continued education for teachers and instructors including education on human rights, and continuously improving the conditions of service and level of training of teaching staff’.27 States should also address ‘social, economic and cultural practices and attitudes that hinder access to education by girl-children’.28 In addition, accessibility entails ensuring the number of universities and schools can ‘meet the needs of the population’,29 with the African Commission noting the lack of schools in rural areas.30 23 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 24 ECW/CCJ/JUD/07/10, The Registered Trustees of the Socio-economic and Accountability Project (SERAP) v Nigeria & UBEC, 30 November 2010, para 19. 25 ECW/CCJ/JUD/07/10, The Registered Trustees of the Socio-economic and Accountability Project (SERAP) v Nigeria & UBEC, 30 November 2010, para 21. 26 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 27 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 28 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 29 Report of the Joint Human Rights Promotion Mission to the Republic of Chad, 11–19 March 2013. 30 Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, Adopted at 17th Extraordinary Session, 19–28 February 2015, Banjul, Gambia, para 48.

B. Article 17(1): Right to Education

441

Other factors that impact on access include fees, costs of uniform and other supplies. The African Commission has consequently called on governments to ensure ‘a fully cost- free education’.31 Particular attention should be paid to certain sections of the population, as will be seen below, where illiteracy is higher and school enrolment lower than the national average.32 Finally, States have an obligation to ‘facilitate the free movement of persons essential for the exchange of ideas and economic integration’.33 This requires them to ‘give priority to cooperation in the exchange of professional manpower, especially in education and training, and to adopt measures to reduce brain drain and to encourage qualified Africans living abroad to return’.34

2. Free Primary and Secondary Education The ACHPR provides no detail on the content of the right to education, in contrast to the reference in the ACRWC to ‘free and compulsory basic education’35 and to ‘encourag[ing]’ States parties to develop secondary education ‘in its different forms and progressively make it free and accessible to all’.36 The African Commission has in practice, adopted similar standards, for instance, recommending to governments that they ‘ensure that all children enjoy their right to a free and compulsory primary education’.37 Yet, there is inconsistency in its approach, with the statement that States ‘implement policies to eliminate or reduce the costs of attending primary school which include the provision of stipends, providing free or subsidised uniforms (or lifting of uniform requirements), provision of free textbooks, provision of free or subsidised transportation or free school meals to encourage the attendance of poor children at school’.38 This implies that free primary education is not obligatory. The reference, in the same Guidelines, to ‘the principle of compulsory primary education, free of charge for all’, and then ‘the progressive implementation of the principle of compulsory education free of charge for all’,39 are equally contradictory and perhaps reflect the overall lack of clarity that the African Commission has adopted towards State obligations in economic social and cultural rights and whether they have immediacy or have to be realised progressively.40 Thus, its reference to ‘minimum core obligations’ in its Principles and Guidelines on Economic Social and Cultural rights, and ‘progressive’ realisation suggests the adoption of the approach of the UN treaty bodies, despite the wording of the ACHPR. This

31 Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, Adopted at 17th Extraordinary Session, 19–28 February 2015, Banjul, Gambia, para 49. 32 Central African Republic: Research and Information Visit regarding Indigenous Populations/ Communities, 2007, para 4.4 33 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 34 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 35 36 ACRWC, Article 11. ACRWC, Article 11. 37 Report on the Human Rights Promotion Mission to the Central African Republic by Commissioners Bechir Khalfallah and Lucy Asuagbor (6–16 June, 2011). 38 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 39 Guidelines for National Periodic Reports, paras 56–57. 40 See Chapter 2 (Chapter on Article 1).

442

18. Article 17: Right to Education, Cultural Life and Values

inconsistency is problematic not least because many African States still do not offer free education at this level.41 For ‘children belonging to disadvantaged or vulnerable groups’, the African Commission has suggested that ‘special measures’ be adopted to ensure that they ‘enjoy free education at all levels’.42 It is notable that this refers to education being free at all levels, thus, beyond primary. Yet again, its approach is inconsistent. Noting, for example, the position of the Batwa in Rwanda, the African Commission considered whether the government had guaranteed not only free primary but also free secondary education for these children. It stated that these and ‘other vulnerable children are exempt from paying primary and secondary school fees’.43 Further confusion comes from the African Commission’s requirement that States ought to provide ‘access to affordable secondary and higher education’,44 implying that this does not need to be free at either of these levels. With respect to primary education, the African Commission has elaborated that children should not ‘be denied this right because of school fees or related costs of education. Special measures may be required to ensure that children belonging to disadvantaged or vulnerable groups receive free primary education’ and States should ‘progressively increase the amount of national resources allocated to education’.45 For secondary education, the African Commission has required it be ‘made generally available and accessible to all by all appropriate means, and in particular by the progressive introduction of free education. States shall ensure that secondary education is not dependent on a student’s apparent capacity or ability and that secondary education will be distributed throughout the State in such a way that it is available on the same basis to all’.46 Thus, whilst, in general it appears that this does not need to be free, States should take steps towards such and there should be no discrimination in what is provided.

a. Fellowship States have been asked to report on the establishment of ‘an adequate fellowship system for all types of education’, which should include ‘programmes of affirmative action designed to overcome obstacles such as all forms of discrimination or poverty’.47

b. Conditions of Teaching Staff A further element relevant to access to education at primary and secondary level is the requirement that States consider the ‘material conditions of teaching staff’. This encompasses their ‘working conditions, salaries, social security, career possibilities and continuing education for teaching staff’ in the public and private sectors; and their ability to ‘participate in the formulation of educational plans, both national and in the educational

41 See e.g. in relation to Cameroon, S. A. D. Kamga, ‘Realising the right to primary education in Cameroon’, 11 AHRLJ (2011) 171–193. 42 Report on the Human Rights Promotion Mission to the Central African Republic by Commissioners Bechir Khalfallah and Lucy Asuagbor (6–16 June, 2011). 43 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Rwanda, 1–5 December 2008. 44 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 45 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 46 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. See also Guidelines for National Periodic Reports, para 48. 47 Guidelines for National Periodic Reports.

B. Article 17(1): Right to Education

443

establishment in which they are employed, and preparation of curricula and teaching materials’.48

c. Choice of School A number of references have been made by the African Commission to the ‘right to choose schools’,49 or ‘the liberty’ to do so.50 In addition, there is a ‘liberty . . . to establish’ schools and educational institutions.51 These schools need to ‘conform to such minimum educational standards as may be laid down or approved by the State’.52 This is a right of parents and legal guardians, and is a right to ‘choose for their children schools other than those established by the public authorities’.53 Such instances may arise in line with religious or moral education,54 or the language of instruction.55

3. Tertiary and Adult Education Not a great deal has been said by the African Commission nor the African Court about the obligations of States with respect to higher education, with no assistance being given from the wording of the ACHPR.56 In one of its first decisions on communications the African Commission did hold, however, that in the context of a range of violations in what was at the time Zaire, ‘closures of universities and secondary schools’ for two years, was in violation of Article 17 and the right to education.57 No further reasoning was given in the decision. Although there is reference to the ‘right to higher education’,58 there is no requirement that higher education should be free, it should be ‘made generally available and accessible to all, on the basis of capacity, by all appropriate means’.59 States should grant ‘financial and other assistance to students in higher education’,60 and take steps towards it being free.61 Similarly, vocational and adult education should be ‘accessible and affordable’62 and adult literacy be a ‘fundamental aspect’ of the right to education.63 Any programmes Guidelines for National Periodic Reports, para 53. Guidelines for National Periodic Reports, para 54. 50 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 51 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71 and para 55. 52 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 53 Guidelines for National Periodic Reports, para 54. 54 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 55 Guidelines for National Periodic Reports, para 54. 56 In contrast to the ACRWC which requires that this should be made ‘accessible to all on the basis of capacity and ability by every appropriate means’, ACRWC, Article 11. 57 Communication 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, 4 April 1996. F. Coomans, ‘Justiciability of the right to education’, 2 Erasmus L. Rev. (2009) 427, 444. 58 Guidelines for National Periodic Reports, para 49. 59 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 60 Guidelines for National Periodic Reports, para 49. 61 Guidelines for National Periodic Reports, para 49. 62 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 63 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 48 49

444

18. Article 17: Right to Education, Cultural Life and Values

addressed to the latter ought to be aimed at ‘reducing inequalities within societies and enabling African peoples to better understand the problems of the modern world’, and institutions should be set up to train staff in adult education, this being ‘a continuing process’.64 Particular recommendations are made for States to use African national languages in adult education.65 Interestingly, some direction is given to States to ensure ‘academic freedom and institutional autonomy in all institutions of higher learning’,66 and in particular to protect and build upon Africa’s knowledge base. For example, States should ‘direct university and higher education towards the training and research needed to ensure Africa’s scientific and technological independence’, and enable higher education institutions and universities to ‘contribute to social, economic, cultural, scientific and human development through the training of high-level specialists and the intensification of research and engagement with policymakers and the public’.67

4. ‘Fundamental Education’ On one occasion the African Commission has made reference to the ‘right to fundamental education’ by which it appears to mean not only adult literacy but for those ‘persons who have not received or completed the whole period of their primary education’.68 States are required to provide information on what is available in their jurisdiction, although no further detail is given on what these specific obligations may be.

5. Education for Vulnerable Groups While education is often directed principally towards children, and the African Commission has called on States to ensure equal opportunities for recreational and leisure activities, eliminate harmful practices that are discriminatory and prohibit child marriage,69 particular attention needs to be paid to specific groups. Thus, States should ensure that education is ‘geared among other things to the need of specific groups such as women, children, refugees and internally displaced persons, victims of armed conflicts and other disadvantaged groups’,70 ‘young girls, children of low-income groups, children in rural areas, children who are physically or mentally disabled, children of immigrants and of migrant workers, children belonging to linguistic, racial, religious or other minorities, and children belonging to indigenous sectors of the population’.71 Not only should such children have ‘equal access to and progress in the educational system’, but special measures should be provided.72 These may include the provision of 64 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 65 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 66 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 67 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 68 Guidelines for National Periodic Reports, para 50. 69 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 70 Resolution on Human Rights Education, ACHPR/Res.6, 10 December 1993. 71 Guidelines for National Periodic Reports, para 47. 72 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights.

B. Article 17(1): Right to Education

445

‘psychosocial education for orphans and vulnerable children’,73 and ‘special schools and facilities for physically and mentally disabled children’.74 The specific challenges posed by intersectional vulnerabilities75 has not been fully grasped by the African Commission, it tending to focus on particular categories of individuals.

a. Girl-child There are numerous references by the African Commission over the years to the particular situation of the ‘girl-child’. This has included ensuring that States: guarantee equal opportunity and access in the sphere of education and training, promote the enrolment and retention of girls in schools and technical and vocational training institutions, promote the education of women, integrate gender sensitization and human rights education at all levels of education curricula, and promote education and training for women at all levels and in all disciplines, particularly in the fields of science and technology.76

More generally, States should ensure the accessibility of girls to education by adopting measures such as awareness raising of the importance of their education with parents and society; giving financial resources to families to ‘offset incidental costs for education’; and undertaking affirmative action in areas where women are under-represented.77 There is an obligation on States to create schools which provide enabling environments for girls to study, such as by including ‘sanitary facilities and safe environments where sexual violence and harassment are not tolerated including during transit to and from school’.78 It is presumed that if girls are provided with a right to education then this will have an impact on broader society, namely it is a ‘strategic investment for development and a catalyst to social progress’.79 Consequently, women and girls should be able to achieve ‘their full potential’ in education, with the African Commission noting they can be restricted in so doing because of ‘sexual violence, harassment, early marriage, maternal mortality, limited access to family planning and limited budget and infrastructure for education’,80 as well as domestic responsibilities81 and religious, political and cultural stereotypes.82 The effect of conflict on the right to education of girls has also been noted, citing, for example,

73 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 74 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 75 J. Nyanda, ‘Confronting the double marginalisation of girls with disabilities: Practical challenges for the realisation of the right to education for girls with disabilities under the Disability Act of Malawi’, 3 Afr. Disability Rts. Y.B. (2015) 109–134. 76 Statement by the Special Rapporteur on the Rights of Women in Africa on the Occasion of Pan-African Women’s Day, 31 July 2014. 77 Joint Statement on the International Day of the Girl Child. 78 Joint Statement on the International Day of the Girl Child. 79 Joint Statement on the International Day of the Girl Child. 80 Statement by the Special Rapporteur on the Rights of Women in Africa on the Occasion of Pan-African Women’s Day, 31 July 2014. Joint Statement on the International Day of the Girl Child. 81 Statement by the Special Rapporteur on the Rights of Women in Africa on the Occasion of Pan-African Women’s Day, 31 July 2014. Joint Statement on the International Day of the Girl Child; Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 82 Joint Statement on the International Day of the Girl Child. See also L. Elizabeth Chamblee, ‘Rhetoric or rights: When culture and religion bar girls’ right to education’, 44 Va. J. Int’l L. (2004) 1073, 1144.

446

18. Article 17: Right to Education, Cultural Life and Values

the kidnapping of the Chibok schoolgirls in Nigeria.83 Thus, their right also requires peace and security on the continent.84 States have been expected to provide girls with the opportunity to continue their education if they become pregnant.85 There is a ‘universal obligation’ to increase the enrolment of girls in schools, and ‘facilitate’ their access to education at ‘all levels of education and their right to a place in school, free of discrimination’.86 ‘Innovations’ that States could undertake to ensure gender equality include: breaking down the sex-segregation of school curricula and facilitating girls engagement in non- traditional areas such as mathematics, science and technology and non-feminised vocational skill areas; empowering girls through transforming the mode of delivery from didactic to constructivist approaches that allow girls to become active and confident, assertive learners; eliminating gender stereotypes that reproduce patriarchal norms from curricula, textbooks and teaching materials; and, instituting mandatory courses in teacher training programmes that expose teachers to awareness of the gender regime operating in schools and ways in which their classroom behaviours transmit and reproduce traditional gender socialisation of girls and boys.87

Specific recognition of addressing gender relationships in indigenous peoples’ culture has been made by the African Commission.88

b. Indigenous Peoples Thanks in large part to the work of its Working Group on Indigenous Populations/ Communities, the educational needs of indigenous people and their children have received particular attention by the African Commission. States have been required to adopt ‘affirmative action’ or a ‘higher duty in taking positive steps’,89 such as the provision of ‘mobile and full boarding schools should be introduced to ensure universal primary education. Appropriate educational curricula must be designed to meet the requirements of indigenous communities in order to preserve their language, culture, special history and spiritual legacies’.90 Further, in Kenya, the African Commission noted that the ‘design of the education curriculum, which is still the mainstream curriculum and not yet adapted to the concrete situation and cultural needs of indigenous communities’. There should be ‘an educational curriculum tailored to the specific needs, interests, history and knowledge system of indigenous communities, affects indigenous children in terms of retention in schools’.91 In addition, it has called on the government of the Republic of 83 Statement by the Special Rapporteur on the Rights of Women in Africa on the Occasion of Pan-African Women’s Day, 31 July 2014. 84 Statement by the Special Rapporteur on the Rights of Women in Africa on the Occasion of Pan-African Women’s Day, 31 July 2014. 85 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 86 Joint Statement on the International Day of the Girl Child. 87 Joint Statement on the International Day of the Girl Child. 88 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, adopted 2011. 89 Endorois, para 248. 90 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, adopted 2011. 91 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, adopted 2011. See also: ‘It must, however, be noted that the educational syllabus makes no reference to the Amazigh of Libya. This denial of a part of this people’s history belies the interest that Colonel Kadhafi shows in the Tuareg and forms a considerable moral prejudice in violation of the provisions of the African Charter on Human and Peoples’ Rights, particularly Article 3, which stipulates the equality of all. In fact, the Imazighen in general and the Tuareg in particular are prejudiced by the education system, which quite simply ignores their existence’, Report of the

B. Article 17(1): Right to Education

447

Congo to recognise ‘the need for an education system that takes the cultural specifics of “Pygmies” into account without isolating them further’.92 The African Commission has acknowledged the low level of enrolment and high illiteracy rates of children from indigenous peoples, due to the language of instruction in schools, discriminatory treatment by teachers and other children and the ‘lack of adaptation of the school system and school timetable to the cultural identities and practices of indigenous communities’.93 So it noted in Botswana that languages of instruction were in Setswana and English, that taking learners far from their families for educational purposes also had a negative impact on them, and the government lacked a specific education policy towards the Basarwa.94 The African Commission consequently recommended that the government promoted ‘access to education’ for indigenous children,95 that indigenous peoples be educated in their mother tongue ‘for at least the first five years of primary education’, the establishment of schools in each village; and teacher training.96 They should also be provided with free education until grade 12 (namely till the age of seventeen) and training for those who do drop out of school ‘in appropriate vocational activities such as carpentry, bricklaying and other professions such as nursing and tourist guides’.97

c. Children Affected by HIV/AIDS The African Commission prohibits discrimination in education against children ‘based on their real or perceived HIV status’ and requires States to ‘take steps to strengthen the ability of extended families to care for HIV/AIDS-affected children and provide them with formal schooling’.98

African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to Libya 11–25 August 2005 the African Commission on Human and Peoples’ Rights adopted this report at its 40th Ordinary Session, 15–29 November 2006, para 4.8. 92 Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to the Republic of Congo 5–19 September 2005, 2007, para 3.5. 93 Central African Republic: Research and Information Visit regarding Indigenous Populations/ Communities, 2007; Report of the African Commission’s Working Group on Indigenous Populations/ Communities Research and Information Visit to the Republic of Congo, 5–19 September 2005, 2007. 94 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Botswana 15–23 June 2005, 2008, para 14. 95 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Botswana 15–23 June 2005, 2008, para 14.See also Report of Research and Information Visit to the Democratic Republic of the Congo, 2009. 96 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Botswana 15–23 June 2005, 2008. See also Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to the Republic of Congo 5–19 September 2005, 2007. 97 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Botswana 15–23 June 2005, 2008. See also Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to the Republic of Congo 5–19 September 2005, 2007. 98 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. See also Activity Report of Hon. Commissioner Lucy Asuagbor, Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, Presented to the special 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, in commemoration of the 25th Anniversary of the Commission, Yamoussoukro, Côte D’Ivoire, 9–22 October 2012, para 20.

448

18. Article 17: Right to Education, Cultural Life and Values

d. Working Children The African Commission recognises that some children work, and has called on States to examine the relationship between education and child labour. They should provide ‘incentives to keep children in school, expanding educational opportunities for working children and making stronger efforts to remove children from the worst forms of child labour and to ensure their placement in appropriate educational programmes’.99

e. Detainees For juveniles, as well as other prisoners and individuals held in detention, the African Commission has recommended that they be provided with ‘formal and vocational education to increase their skills and capacities when they are reintegrated into society’.100

f. Displaced Persons and Children of Migrant Workers There has been recognition by the African Commission that displacement of populations within a State impacts on the right to education. For example: The massive displacement of the population from northern Mali to other parts of the country and abroad led to several students staying away from school. Even families that stayed behind were not spared. Schools were forced to close down due to lack of infrastructure as a result of destruction or the lack of teaching personnel who were forced to move to secure areas.101

In addition, States have been required to ‘facilitate integration of children of migrant workers into the local school system, particularly in respect of teaching them the local language whilst respecting their own mother tongue and culture’.102

g. Child Soldiers and Victims of War In recognition of the context of conflict on the continent103 and the well-documented impact this has on children and the right to education,104 the African Commission has required that children who are victims of war and child soldiers should be provided with free access to education and vocational training.105

h. Children with Disabilities Education for children with disabilities should be ‘inclusive’, free at primary level, and provided on an equal basis with others at secondary and tertiary levels.106 In order to 99 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 100 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. See also Mission Report of the Joint Promotion Mission to the Kingdom of Lesotho by Commissioner Pansy Tlakula & Commissioner Med S.K. Kaggwa, 3–7 September 2012. 101 Report of the Fact-Finding Mission to the Republic of Mali, 3–7 June 2013, para 63. 102 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 103 A. J. Isokpan and E. Durojaye, ‘Impact of the Boko Haram Insurgency on the Child’s Right to Education in Nigeria’, 19 Potchefstroom Elec. L.J. (2016) 1–43. 104 E.g. grave and massive violations committed by armed forces of States in the DRC was recognised as leading to a situation in which rights were violated, see Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 88. 105 Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, Adopted at 17th Extraordinary Session, 19–28 February 2015, Banjul, Gambia, para 49. 106 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights.

C. Articles 17(2) and (3)

449

achieve this inclusivity, States should put in place ‘individualised support measures’.107 There is literature indicating that some States have adopted policies which address the education of persons with disabilities.108

C. Articles 17(2) and (3) These provisions are not particularly unique to the ACHPR, and indeed, earlier drafts and later interpretations by the African Commission draw on the wording in the Universal Declaration of Human Rights (UDHR) and International Covenant on Economic, Social and Cultural Rights (ICESCR),109 as well as in the ACRWC. Article 17(2) has been criticised for being a ‘dangerous’ article and one which risks permitting only participation in cultural life which ‘in fact entails no more than the possibility of subscribing to an official cultural model’.110 In practice, however, this fear does not appear to have been warranted. Articles 17(2) and (3) are often dealt with together, without clarifying the distinction between them.111

1. Definition of ‘Culture’ and ‘Traditional Values’ The African Commission has attempted to define culture as: that complex whole which includes a spiritual and physical association with one’s ancestral land, knowledge, belief, art, law, morals, customs, and any other capabilities and habits acquired by humankind as a member of society—the sum total of the material and spiritual activities and products of a given social group that distinguish it from other similar groups. It has also understood cultural identity to encompass a group’s religion, language, and other defining characteristics.112

This is a broad approach which, according to one author, could ‘cover almost everything’.113 Thus: culture should be construed in its widest sense encompassing the total way of life of a particular group, including the group’s languages, symbols such as dressing codes and the manner the group constructs shelters; engages in certain economic activities, produces items for survival; rituals such as the group’s particular way of dealing with problems and practicing spiritual ceremonies;

107 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 108 A. I. Ofuani, ‘The right to economic empowerment of persons with disabilities in Nigeria: How enabled?’, 11 AHRLJ (2011) 639–658. 109 Article 27 UDHR; Article 15 ICESCR. 110 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 190. 111 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114 onwards. 112 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114 onwards. A. A. Adeyemi, ‘Indigenous peoples and the right to culture: The potential significance for African indigenous communities of the Committee on Economic, Social and Cultural Rights’ General Comment 21’, 11 AHRLJ (2011) 560–587; J. Oloka-Onyango, ‘Who’s watching Big Brother: Globalization and the protection of cultural rights in present day Africa’, 27 Hum. Rts. Q. (2005) 1245, 1273. E. S. Nwauche, ‘Protecting expressions of folklore within the right to culture in Africa’, 13 Potchefstroom Elec. L.J. (2010) 49, 93. 113 C. Romainville, ‘Defining the right to participate in cultural life as a human right’, 33(4) NQHR (2015) 405–436, at 409.

450

18. Article 17: Right to Education, Cultural Life and Values

identification and veneration of its own heroes or models and shared values of its members which reflect its distinctive character and personality.114

The odd mention is made of the AU’s African Cultural Charter for Africa, with its clauses referring to ‘the need to take account of national identities, cultural diversity being a factor making for balance within the nation and a source of mutual enrichment for various communities’, and to ‘recognize that African cultural diversity is the expression of the same identity; a factor of unity and an effective weapon for genuine liberty, effective responsibility and full sovereignty of the people’.115 In practice, discussion of culture and traditional values has arisen in a number of contexts. Firstly, with respect to indigenous peoples, the African Commission has noted: culture constitutes a way of life which is linked to their knowledge system and one that informs their strategy for survival. As traditional communities whose livelihood systems depend on the natural environment, indigenous peoples’ culture is imbued with the preservation of nature and the environment. Their lifestyle is in harmony with nature, and their culture informs and articulates their behavior towards nature. Culture thus constitutes a central element in the survival of indigenous peoples.116

The connection between land and culture is central, with the African Commission citing jurisprudence from other treaty bodies,117 as well as its own Working Group on Indigenous Populations/ Communities recognition that dispossession ‘threatens the economic, social and cultural survival of indigenous pastoralist and hunter-gatherer communities’.118 The concept of culture, where it has been referred to under the African human rights system, tends to be presented in a positive sense, highlighting African history, rather than something that ‘clashes with the universality of human rights’.119 However, it is with discussion of ‘traditional values’ where concerns are raised that they violate human rights. As Mutua notes, ‘all cultures suffer from this duality of the good and the bad’.120 Indeed, Ouguergouz has considered the phrase ‘morals and traditional values recognized by the community’ as an ‘obscure duty’.121 Exactly what are ‘traditional values’ has not been clarified by the African Commission nor the African Court. Indeed, ‘customary’ and ‘traditional values’ are sometimes referred to as a generic term which impacts on 114 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 179. 115 Cultural Charter for Africa, Articles 3 and 4, adopted 5 July 1976. Cited by the African Commission, e.g. in Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 242. 116 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, adopted 2011. 117 E.g. Human Rights Committee, General Comment 23 (50th Session, 1994), UN Doc. CCPR/C/ 21Rev.1/Add5, (1994), para 7, cited in Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 243. 118 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (adopted at the 28th Session, 2003), p.20. 119 E. S. Nwauche, ‘Protecting expressions of folklore within the right to culture in Africa’, 13 Potchefstroom Elec. L.J. (2010) 49, 93; see also Fareda Banda, Global standards: Local values, 17 Int’l J.L. Pol’y & Fam. (2003) 1, 27; and Ronald Thandabantu Nhlapo, ‘International protection of human rights and the family: African variations on a common theme’, 3 Int’l J.L. & Fam. (1989) 1, 20. 120 M. wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An evaluation of the language of duties, 35 VA. J. INT’L L. (1995) 339, at 354. 121 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 188.

C. Articles 17(2) and (3)

451

particular sectors of society including, in particular, African women.122 Reference to such concepts as Ubuntu have been made at various stages, but more in passing than in-depth analysis and its relationship with provisions in the ACHPR.123 ‘Positive African values’ have been mentioned as those ‘consistent with international human rights realities and standards’,124 and include those which ‘inspire and characterize the provision of mutual social and communal care and support, respect for older members of society and the passing of knowledge to younger population groups no matter how fast developing countries are becoming urbanised.’125 Communities have been called upon to protect, for example, ‘sacred natural sites and territories, play an essential role in preserving the traditional values of Africa, and require legal recognition and support to do so’.126 Further, recognition of traditional knowledge is also deserving of protection, particularly around medicines.127 Such positive values are seen in contrast to ‘harmful traditional practices’ which should be ‘eradicated’.128 Specific practices have been mentioned here, in particular female genital mutilation (FGM), but also others such as Trokosi,129 and early marriage,130 and ‘abortion, inheritance, marriage and access to land’.131 In addition, those practices which entrench discrimination should also be abolished,132 as should those which ‘predispose’ individuals to disease such as HIV/AIDS and TB.133 Indeed, the Maputo Protocol specifically in its Articles 1, 2 and 5 calls for the elimination of ‘harmful practices’, including all ‘cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men’, defining such practices as ‘all behaviour, attitudes and/or practices 122 M. Ssenyonjo, ‘Culture and the human rights of women in Africa: Between light and shadow’, 51 J. Afr. L. (2007) 39, 67. M. Ndulo, ‘African Customary Law, Customs, and Women’s Rights’, 18(1) Indiana Journal of Global Legal Studies (Winter 2011) 87–120. 123 See for general discussion, T. Metz, ‘African values and human rights as two sides of the same coin: A reply to Oyowe’, 14 AHRLJ (2014) 306–321; A. O. Oyowe, ‘Strange bedfellows: Rethinking ubuntu and human rights in South Africa’ 13 AHRLJ (2013) 103–124; T. Metz, ‘Ubuntu as a moral theory and human rights in South Africa’, 11 AHRLJ (2011) 532–559. 124 Pretoria Declaration on Economic, Social and Cultural Rights in Africa, 2004, para 9. Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 75. 125 Statement of the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa of the African Commission on Human and Peoples’ Rights, on the Occasion of the 25th International Day of Older Persons, 1st October 2015. 126 Resolution on the Protection of Sacred Natural Sites and Territories, ACHPR/Res. 372 (LX) 2017, 22 May 2017. 127 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 2004, para 67; see also Chapter 17 (Article 16). See L. Ferris, ‘Protecting traditional knowledge in Africa: Considering African approaches’, 4 AHRLJ (2004) 242–255. 128 Pretoria Declaration on Economic, Social and Cultural Rights in Africa, 2004, para 9. 129 Report of the Promotion Mission to the Republic of Ghana, 1–5 September, 2008, para 145. J. Y. Asomah ‘Cultural rights versus human rights: A critical analysis of the trokosi practice in Ghana and the role of civil society’ 15 African Human Rights Law Journal (2015) 129–149. 130 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, adopted 2011. 131 Intersession Report Maître Soyata Maiga Commissioner/Special Rapporteur on the Rights of Women In Africa, 46th Session of the African Commission on Human and Peoples’ Rights Banjul, November 2009, para 46. See in general, D. Cornell and K. Van Marle, ‘Exploring ubuntu: Tentative reflections’, 5 AHRLJ (2005) 195–220. 132 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, paras 37 and 42. 133 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14.2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, paras dd and zz.

452

18. Article 17: Right to Education, Cultural Life and Values

which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity’.134

2. A ‘Right to Culture’ Articles 17(2) and (3) have been interpreted as including a ‘right to culture’, although in reality reference is simply made back to the right to ‘take part in cultural life’.135 The right has both individual and community elements, and ‘refers not only to the enjoyment of cultural activities and access to materials but to participation, policy-making and artistic freedom’.136 It not only includes freedom from interference, but also the: freedom to create and contribute to culture, the freedom to choose in what culture(s) and cultural life to participate and the freedom to manifest one’s own culture. It also encompasses the freedom to disseminate one’s own culture and cultural values, the freedom to cooperate internationally, the right to participate in the definition, preparation and implementation of policies on culture and the enjoyment of other rights necessary for the enjoyment of the right to participate in cultural life.137

There is a close relationship here with freedom of expression.138

3. Language Linguistic rights have been considered to be an important part of Article 17(2) and a ‘key expression of ethnic identity’.139 The African Commission has noted that: language is an integral part of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and its activities. To deprive a man of such participation amounts to depriving him of his identity.140

Language is part of the ‘cosmology in which the interdependence of culture, nature and spirituality is fused and expressed in a language’ and so an attack on one aspect of this, language, is an ‘attack on their way of life’.141 Linguistic identity among a certain section of the population, such as Anglophones in southern Cameroon, have been found to be a ‘people’ due to their ‘separate and distinct identity. Identity is an innate characteristic within a people. It is up to other external people to recognise such existence, but not to deny it’.142 Maputo Protocol. Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, paras 73–74. 136 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 73. 137 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 138 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 139 Y. T. Fessha, ‘A tale of two federations: Comparing language rights in South Africa and Ethiopia’, 9 AHRLJ (2009) 501–523, at 501. 140 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 137. 141 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, adopted 2011. 142 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 179. 134 135

C. Articles 17(2) and (3)

453

Marginalisation of ‘culture and language’ of certain ethnic groups has been recognised in other States. For example, the African Commission noted that the Amazigh ethnic group had been neglected from mass media including television, the Tuareg language and alphabet were not taught, something the government attributed to difficulties of translation and lack of interest by people in promoting the languages in the country.143 The Commission has stated that freedom of expression imposes obligations on the State to among other things, ensure ‘access to the media and other means of communication, including by vulnerable or marginalized groups, such as women, children and refugees, as well as linguistic and cultural groups; the promotion and protection of African voices, including through media in local languages; and the promotion of the use of local languages in public affairs, including in the courts’.144 African national languages should be taught at primary school,145 although it has been noted on a number of occasions that this has not happened in practice in some African States.146 In addition, the State should protect languages, in particular of minority and indigenous communities, and safeguard them from extinction, through, for example, establishing agencies to promote them.147

4. State Obligations Articles 17(2) and (3) have both negative and positive aspects. With regard to the former, there is the right to participate without interference. In a case before the African Court there were allegations that the Ogiek population’s way of life in the Mau Forest in Kenya had been affected due to their eviction by the government. The Court recognised that they had ‘a distinct way of life centred and dependent on the Mau Forest Complex . . . they get their means of survival through hunting animals and gathering honey and fruits, they have their own traditional clothes, their own language, distinct way of entombing the dead, practicing rituals and traditional medicine, and their own spiritual and traditional values, which distinguish them from other communities living around and outside the Mau Forest Complex, thereby demonstrating that the Ogieks have their own distinct culture’.148 The Court held that the State had interfered with the Ogiek’s enjoyment of the right to culture.149 Not all interferences will necessarily amount to a violation if they can be justified in accordance with a legitimate aim and in line with Article 27 of the ACHPR.150 Where in this 143 Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to Libya, 11–25 August 2005. The African Commission on Human and Peoples’ Rights adopted this report at its 40th Ordinary Session, 15–29 November 2006. 144 Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 145 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 71. 146 E.g. Libya, see Report of the African Commission’s Working Group on Indigenous Populations/ Communities Research and Information Visit to Libya, 11–25 August 2005. The African Commission on Human and Peoples’ Rights adopted this report at its 40th Ordinary Session, 15–29 November 2006, at 14. 147 Kenya: Mission Working Group Indigenous Populations/Communities, 2010, adopted 2011. Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 148 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 182. 149 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 183. 150 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, paras 184 and 187.

454

18. Article 17: Right to Education, Cultural Life and Values

same case the Kenyan government claimed that the Ogiek had adapted their lifestyle such that they were no longer dependent on the Mau Forest, the African Court held that the State ‘has not sufficiently demonstrated that this alleged shift and transformation in the lifestyle of the Ogieks has entirely eliminated their cultural distinctiveness’, with a ‘static way of life’ not being a defining element of cultural distinctiveness.151 The African Court noted in particular that some of the changes affected by the Ogiek were due to their eviction from the Mau Forest.152 The Kenyan government also claimed that interference in cultural rights were justified as being in the public interest to preserve the Mau Forest given that the Ogiek’s way of life was having a negative impact on the Forest. Although such restrictions were considered to be within the ‘common interest’ in Article 27(2), this was insufficient on its own and the Court held that it will consider each case, there must be a ‘genuine need’ to protect this common interest, and the interference must be necessary and proportionate.153 Finding that there was insufficient evidence to support the argument that the restrictions on access to the Mau Forest were to preserve its ecosystem, and no specifics were given by the State as to which activities impacted on the Forest, there was no ‘objective and reasonable justification’.154 A violation of Articles 17(2) and (3) was held.155 Similarly, restricting the Endorois Community’s access to cultural sites preventing them from practising their rites and celebrations, was also held to violate Articles 17(2) and (3).156 A game reserve may be considered, for example, to be a legitimate aim, but the fact that the government did not ensure access ‘as of right’, to enable the Endorois community to celebrate festivals and rituals meant that the government’s actions were not proportionate. The activities of the Endorois were not considered to threaten the local ecosystem and no other alternative was given by the government to address the issues.157 Consequently: By forcing the community to live on semi-arid lands without access to medicinal salt licks and other vital resources for the health of their livestock, the Respondent State have created a major threat to the Endorois pastoralist way of life. It is of the view that the very essence of the Endorois’ right to culture has been denied, rendering the right, to all intents and purposes, illusory. Accordingly, the Respondent State is found to have violated Article 17(2) and 17(3) of the Charter.158

151 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 185. 152 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 186. 153 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 188. 154 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 189. 155 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 190. 156 E.g. Communication 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114. See Felix M. Ndahinda, Peoples’ rights, indigenous rights and interpretative ambiguities in decisions of the African Commission on Human and Peoples’ Rights, 16 Afr. Hum. Rts. L. J. (2016) 29, 57. 157 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, paras 249 and 251. 158 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, paras 249 and 251.

C. Articles 17(2) and (3)

455

There are also positive obligations under Article 17(2) and (3), such as to develop policies to protect cultural life.159 Thus, the duty to protect includes a prohibition on destruction or attempts to ‘deliberately weaken minority groups’.160 Furthermore, States should ensure ‘respect for, and protection of, their religious and cultural heritage essential to their group identity, including buildings and sites such as libraries, churches, mosques, temples and synagogues’.161 There is a ‘dual dimension’ to Article 17 as it has both an individual and collective element: ‘protecting, on the one hand, individuals’ participation in the cultural life of their community and, on the other hand, obliging the state to promote and protect traditional values recognised by a community’.162

5. Take Part in Cultural Life The ACRWC provides for considerably more detail regarding ‘participat[ing] freely in cultural life and the arts’,163 aspects of which had been visible in earlier drafts of the ACHPR, but not the final version. Thus, Article 13 of the M’Baye Draft read: Every person has the right: ( a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production [of ] which he is the author: States Parties shall take appropriate steps for the full realisation of the above, including: (i) Measures necessary for the conservation, development and the diffusion of science and culture; (ii) Respect for the freedom indispensable for scientific research and creative activity; (iii) Recognition of the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

Elements of this have been picked up by the African Commission in its interpretation of Article 17. States should provide funds to promote cultural development and participation, and have policies in place to promote such participation in centres, museums, libraries, theatres and cinemas.164 They should preserve ‘mankind’s cultural heritage’ although this has not been defined explicitly by the African Commission.165 In addition,

159 C. Romainville, ‘Defining the right to participate in cultural life as a human right’, 33(4) NQHR (2015) 405–436, at 408. 160 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 179. 161 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 241. African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 179. 162 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 241. This was reiterated by the African Court in African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 177. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 189. 163 ACRWC, Article 12. 164 165 Guidelines for national Periodic Reports. Guidelines for national Periodic Reports.

456

18. Article 17: Right to Education, Cultural Life and Values

measures should be taken by States to protect artistic creation and performance, and professional education in art and culture.166

a. Enjoy the Benefits of Scientific Progress Taking part in cultural life has been interpreted as States having obligations to enhance scientific participation and progress. This entails the ‘right to enjoy the benefits of scientific progress and its applications’ through measures which ensure that such progress is for the benefit of all persons and which ‘promote a healthy and pure environment’.167 States ought to take steps to ‘conserve, develop and diffuse science and culture at the constitutional level, within the national educational system and by means of the communications media’.168 Reference has been made to the ‘right to the freedom of scientific research and creative activity’ which includes ‘the right of everyone to the freedom indispensable for scientific research and creative activity’.169 There should be ‘free exchange’ of relevant information between various actors such as scientists, writers, creative workers and artists,170 as well as the encouragement of international contacts and cooperation through conferences and events.171

b. Protection of Moral and Material Interests of Authors Article 17 has also been interpreted to encompass the right of individuals to ‘benefit from the protection of moral and material interests resulting from any scientific, literary or artistic work of which he or she is the author’ which entails protection of intellectual property rights.172

c. National Plans, Policies and Systems States should adopt national policies which include measures for ‘safeguarding, protecting and building awareness of tangible and intangible cultural heritage, including traditional knowledge systems’ and recognise the diversity of cultures.173 Funds ought to be provided for the implementation of these policies and the necessary institutional infrastructure put in place.174

D. Remedies As with other Articles in the ACHPR, the specific remedy ordered does not address a particular right. In cases where Article 17 violations have been found, the following remedies have been provided.

167 Guidelines for national Periodic Reports. Guidelines for national Periodic Reports. Guidelines for national Periodic Reports, para 17. 169 Guidelines for national Periodic Reports, para 18. 170 Guidelines for national Periodic Reports, para 18. 171 Guidelines for national Periodic Reports, para 18. 172 Guidelines for national Periodic Reports, para 16. 173 Guidelines for national Periodic Reports. Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004). 174 Guidelines for national Periodic Reports. 166 168

D. Remedies

457

1. Restitution The Kenyan government was required to restitute the ancestral land to the Endorois and recognise their rights of ownership over it. The Endorois were to be provided with ‘unrestricted access’ to Lake Bogoria to enable them to practise their cultural rites.175

2. Compensation ‘Adequate compensation’ was required to be paid to the Endorois community ‘for all the loss suffered’ when they had been displaced from their ancestral lands impacting on their ability to access Lake Bogoria, central to their cultural practices.176 Similarly, in another case, where Article 17 was found to have been violated, among a range of other rights, ‘adequate reparations’ were ordered to be paid ‘for and on behalf of the victims’, the amount and procedure being determined ‘according to the appropriate ways to the Complainant State’.177

3. Engage in Dialogue Among the other recommendations made, the African Commission ordered the government of Kenya to ‘engage in dialogue with the complainants for the effective implementation of these recommendations’.178

4. Duty to Report The Kenyan government was required to report within three months on the implementation of the recommendations made with respect to the range of violations against the Endorois.179

5. Good Offices of the African Commission The African Commission has offered its good offices in the Endorois case to ‘assist the parties in the implementation of these recommendations’.180

175 E.g. Communication 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114 onwards. 176 E.g. Communication 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114 onwards. 177 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 178 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114. 179 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114. 180 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 24 November 2009, para 114.

19. Article 18 Protection of the Family, Rights of Women, Older Persons and Persons with Disabilities 1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.

3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.

A. Introduction A broad provision, ‘generous in spirit . . . lack[ing] in precision’,1 Article 18 covers a range of issues each of which have been developed more fully, especially the rights of women, under the Maputo Protocol, and the rights of persons with disabilities and older persons. Children’s rights have received comparatively little attention. Placing what are considered to be certain vulnerable groups in one provision was not the approach adopted in all of the earlier drafts of the African Charter on Human and Peoples’ Rights (ACHPR). In the M’Baye Draft of the Charter there was no separate provision akin to Article 18, and instead, reference was made to specific circumstances of women and children, in particular, throughout the instrument. So Article 5 provided that ‘men and women have equal economic, social and cultural rights’;2 and there should be ‘[f ]‌air wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work’.3 By the time of the Dakar Draft, protection for the family, women, children and the aged and disabled were placed in one provision: 1. The family shall be the natural unit and basis of society. It shall be protected by the state. 2. In its task as the keeper of the morals and traditional values recognized by a community, it shall be the duty of the state to assist the family. 3. The state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the child as stipulated in international declarations and conventions.

1 F. Ouguergouz, The African Charter of Human and People’s Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.192. 2 M’Baye Draft, Article 5. 3 M’Baye Draft, Article 6(3)(a)(i). See also Articles 8, 9, 11, 12, 25 and 19.

A. Introduction

459

4. Women and children shall have the right to special measures of protection in accordance with the requirements of their physical and intellectual well being. 5. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral condition.4 The fact that the ACHPR refers to women, children, older persons and persons with disabilities together results in the African Commission dealing with them collectively.5 It often considers them in the same breath without always distinguishing between the different experiences faced by these groups and individuals within them. Recognition of their particular vulnerabilities have arisen in a number of contexts.6 For example, there is reference to the fact that many violations take place against women and children during times of conflict,7 with the African Commission adopting resolutions specifically on this issue8 in light of UN Security Council resolutions.9 They suffer numerous violations to their dignity, life and freedom from discrimination, as well as sexual violence,10 and being abducted into militia groups as child soldiers or into sexual slavery.11 The African Commission has called on States to prevent such violence, provide support and healthcare for victims, conduct investigations into allegations of such violence and provide victims with adequate reparation and rehabilitation.12 The AU and international community is also requested to assist in finding solutions to conflict situations.13 Other circumstances raise particular challenges for women and children. For example, the African Commission has spent considerable attention on the impact of HIV/ AIDS on women and children specifically.14 It has, for example, called upon States to Dakar Draft, Article 18. E.g. Resolution on the Human Rights Situation in Uganda, ACHPR/Res.94, 5 December 2005. Press Release on the Promotion Mission of the African commission on Human and peoples’ Rights to the Republic of The Gambia, 25 April 2017. Guidelines and principles on ESCRs, ‘Interpretations’, para 1(1)(e). 6 See Grand Baie (Mauritius) Declaration and Plan of Action, 16 April 1999, paras 6, 7. 7 See N. Dyani, ‘Protocol on the rights of women in Africa: Protection of women from sexual violence during armed conflict’, 6 AHRLJ (2006) 166–187. 8 Resolution on the Situation of Women and Children in Armed Conflict, ACHPR/Res.283, 12 May 2014. Resolution ACHPR/Res.103 (XXXX) 06 of 29 November 2006 on the Situation of Women in the Democratic Republic of Congo and Resolution ACHPR/Res.111 (XXXXII)07 of 28 November 2007 on the Right to Remedy and Reparation for Women and Girls Victims of Sexual Violence. Resolution on the Human Rights Situation in Uganda, ACHPR/Res.94, 5 December 2005. See also Press Release on the Human Rights Situation in the Eastern Democratic Republic of Congo, 18 December 2012. 9 United Nations Security Council Resolutions 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), 1960 (2010), 2106 (2013) and 2122 (2013) on Women, Peace and Security. 10 Resolution on the Situation of Women and Children in Armed Conflict, ACHPR/Res.283, 12 May 2014; Concluding Observations and Recommendations on the Initial 1st, 2nd, 3rd and 4th periodic report of the Federal Democratic Republic of Ethiopia, 47th Ordinary Session, 12–26 May 2010, Banjul, The Gambia, para 61. Press Release on the Human Rights Situation in the Eastern Democratic Republic of Congo, 18 December 2012. 11 Resolution on the Human Rights Situation in Uganda, ACHPR/Res.94, 5 December 2005. 12 Resolution on the Situation of Women and Children in Armed Conflict, ACHPR/Res.283, 12 May 2014. Press Release on the Human Rights Situation in the Eastern Democratic Republic of Congo, 18 December 2012. 13 Press Release on the Human Rights Situation in the Eastern Democratic Republic of Congo, 18 December 2012. 14 Resolution on the Situation of Women and Children in Africa, ACHPR/ Res.66, 4 June 2004. Concluding Observations and Recommendations on the Initial 1st, 2nd, 3rd and 4th periodic report of the Federal Democratic Republic of Ethiopia, 47th Ordinary Session, 12–26 May 2010, Banjul, The Gambia, para 80. Press Release on the Promotion Mission of the African commission on Human and peoples’ Rights to the Republic of The Gambia, 25 April 2017. 4 5

460

19. Article 18: Protection of Family, Women, Older Persons

protect those living with HIV/AIDS from discrimination and address mother-to-child transmission.15 Similarly, migrant women and children have been noted for their ‘specific vulnerability’, with the African Commission calling on States only detaining undocumented migrants as a last resort and giving priority to alternative measures for families with children and those children who are unaccompanied, with their best interests being taken into consideration.16 Consideration of the balance to be achieved between traditional practices and the rights of women have arisen on a number of occasions before the African Commission.17 Whether the ‘positive African values consistent with international human rights’ and the ACHPR include child marriage, female genital mutilation (FGM) and other practices has been the subject of discussion,18 and indeed some of them are prohibited by the Maputo Protocol.19 In general, the African Commission has upheld only those ‘positive African values’ and called on States under Articles 17 and 18 to ‘[eradiate] harmful traditional practices that negatively affect human rights’, and ensure the ‘[p]‌articipation at all levels in the determination of cultural policies and in cultural and artistic activities’.20 Furthermore, practices which impact on the ‘welfare, dignity, normal growth and development’ of the child should be eliminated by the State, citing in particular ‘those customs and practices prejudicial to the health or life of the child . . . and . . . discriminatory to the child on the grounds of sex/gender or other status’,21 with child marriage sometimes being included here.22 Finally, consideration of women with children and in the context of the family in Article 18, it is argued, ‘in true patriarchal fashion, locates women’s rights in the context of family’.23 Yet, a more nuanced consideration of the ways in which the African Commission in particular has interpreted the ACHPR could be read as reflecting a ‘feminist’ perspective on international human rights law.24 A desire not to adopt the

15 Concluding Observations and Recommendations on the Initial 1st, 2nd, 3rd and 4th periodic report of the Federal Democratic Republic of Ethiopia, 47th Ordinary Session, 12–26 May 2010, Banjul, The Gambia, para 80. Press Release on the Country Visit to the Republic of Namibia, 20 April 2017. Guidelines and principles on ESCRs, para 67(yy). See E. Durojaye, ‘Addressing human rights concerns raised by mandatory HIV testing of pregnant women through the Protocol to the African Charter on the Rights of Women’, 52(1) JAL (2008)  43–65. 16 Resolution on the Situation of Migrants in Africa, ACHPR/Res. 333 (EXT.OS/XIX) 2016, 25 February 2016. 17 See also Chapter 18 (Article 17). 18 See e.g. D. R. Mekonnen, ‘The abolition of female circumcision in Eritrea: Inadequacies of new legislation’, 7 AHRLJ (2007) 389–411; and the practice of ukuthwala, see L. Mwambene and J. Sloth-Nielsen, ‘Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act’, 11 AHRLJ (2011) 1–22; C. Yusuk and Y. Fessha, ‘Female genital mutilation as a human rights issue: Examining the effectiveness of the law against female genital mutilation in Tanzania’, 13 AHRLJ (2013) 356–382. 19 See e.g. Article 5, Maputo Protocol, which lists FGM as a harmful traditional practice. 20 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 9. 21 Guidelines and principles on ESCRs, para 76(g). 22 Guidelines and principles on ESCRs, para 76(h). 23 T. Muranda, K. Mugo and C. Antonites, ‘HIV is not for me: A study of African women who have sex with women’s perceptions of HIV/AIDS and sexual health’, 14 AHRLJ (2014) 757–786 at 767. 24 See R. Murray, ‘A feminist perspective on reform of the African human rights system’, 2 AHRLJ (2001) 205–224. R. Murray, The African Commission on Human and Peoples’ Rights and International Law, Hart Publishing, 2000.

B. Articles 18(1) and (2): Rights of the Family

461

dichotomies prevalent in international law, and criticised by feminist scholars,25 offers something more holistic to the human rights legal system.

B. Articles 18(1) and (2): Rights of the Family By rendering the protection of women and children’s rights relative to those found in international instruments, one could, argues Ouguergouz, apply conventions, such as the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), to African States which are not party to them.26 Indeed, adopting an expansive attitude to this and Articles 60 and 61 (even if the latter are not always expressly cited) has enabled the African Commission to draw upon other treaty provisions, as well as jurisprudence from their bodies, to interpret provisions in the ACHPR including Article 18. Viljoen argues that the extent to which States are obliged, as a result of Article 18(3) to implement CEDAW depends on whether they are a State party to it.27 If so, this simply ‘serves to reiterate’ their CEDAW obligations, albeit an ‘unnecessary duplication’.28 If not, CEDAW becomes at the least legal standards that ‘inspire’.29 Article 18 will impose both positive and negative obligations on the State, including with respect to the former, ‘to assist the family towards meeting its needs and interests and to protect the same institution from abuse of any kind by its own officials and organs and by third parties’.30 This requires that there be no ‘arbitrary or unlawful interference with the family’. In one communication against Sudan, the African Commission held a violation of Article 18(1) as the State and Janjaweed militia had ‘forcefully evicted the victims from their homes, some family members were killed, others fled to different places, inside and outside the territory of the Respondent State’, a situation which the African Commission considered to threaten ‘the very foundation of the family and renders the enjoyment of the right to family life difficult’.31 The negative obligation is to ‘refrain from violating the rights and interests of the family’.32 States have been required to report on ‘measures to facilitate the establishment of a family’ such as grants or housing, or those which maintain or strengthen the family, including tax exemptions, child-care facilities.33

25 As explored in the seminal paper H. Charlesworth et al, ‘Feminist approaches to international law’ 85 AJIL (1995) 613. 26 F. Ouguergouz, The African Charter of Human and People’s Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.193. 27 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 270. 28 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 270. 29 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 270–271. 30 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 201, para 212. 31 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 216. 32 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 201, para 212. 33 Guidelines for National Periodic Reports, 1989, para 28.

462

19. Article 18: Protection of Family, Women, Older Persons

1. Concept of the Family It is perhaps not surprising, given the ‘very complex’ nature of the term,34 that neither the African Commission nor the African Court have defined ‘family’. Instead, perhaps reflecting the changing nature of political and social situations in Africa, such as poverty, unemployment and technological advances,35 they appear to apply the term to a variety of different forms. Indeed, they have not presumed that family necessarily equates with what might be perceived to be ‘traditional’ forms such as a polygamous relationship, or kinship structures.36 With whom an individual lives in terms of their ‘home’ has been used to refer to a family, although home here could include not only the building in which he or she lives, but also the village in which they reside.37 In one communication, suggesting that ‘family’ is wider than this, it was held that mass deportation of certain nationals from Angola to other States separated them from their families in violation of Article 18.38 The African Commission has also referred to ‘an extended family or kinship group’ in the context of protection of the family and marriage.39 In other situations, ‘family’ has been used to refer to those individuals who are related by marriage,40 spousal relationships,41 or spouses and children,42 although it does not appear to be restricted to that. Reference in some concepts to ‘spouses’ rather than ‘husband and wife’ suggest that a family of same-sex relationships could be protected under the ACHPR, although as has been discussed more fully in Chapter 3 (on Article 2), this is by no means clear-cut and the issue of marriage and same-sex relationships has been extremely controversial under the ACHPR given the high-profile nature of debates around sexual identity on the continent and in some States in particular. In one case where a man was expelled from Botswana, the African Commission agreed that the impact on his family life such that he had been separated from his seventeen- year-old daughter was a violation of Article 18(2).43 What these approaches focus less on, however, are the functions that a family unit can undertake, although, as will be seen in relation to the rights of the child below, a family in one form or another is central to a child’s protection and development.44

2. Deportations, Expulsion and Deprivation of Nationality Where individuals have been deported in violation of other provisions of the ACHPR, including the right to a fair trial, the African Commission has found, on occasion, that

34 E. Okon, ‘Towards defining the ‘right to a family’ for the African child’, 12 AHRLJ (2012) 373–393, at 374. 35 E. Okon, ‘Towards defining the ‘right to a family’ for the African child’, 12 AHRLJ (2012) 373–393, at 378. 36 E. Pretorius ‘Family life in South Africa’ in Roopnarine & Gielen, What is Family? (1990). 37 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 216. 38 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, Rencontre africaine des droits de l’Homme, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 17. 39 40 Guidelines on ESCRs, para 94. See Tunis Reporting Guidelines, para J. 41 42 Tunis Reporting Guidelines, para J. Tunis Reporting Guidelines, para J. 43 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 215. 44 E. Okon, ‘Towards defining the ‘right to a family’ for the African child’, 12 AHRLJ (2012) 373–393, at 384.

B. Articles 18(1) and (2): Rights of the Family

463

the deportation will also violate Article 18(1) as it ‘separated’ the victims from their families,45 or has ‘forcibly broken up the family unit’.46 The prohibition against deportation as a violation of Article 18 is not absolute. If the State can show some justification, then there may not be a violation of this provision.47 In the communication against Botswana where the individual was separated from his seventeen-year-old daughter, this was found to be a violation of Article 18(1) and (2). The African Commission cited the ‘sudden deportation’ within fifty-six hours, as well as the lack of ‘measures to provide a safety net to the daughter after the deportation of the victim’.48 Deportations may violate not only the rights of the family but also the ‘right to family life’ of the individual being deported as they deprive ‘him of his family, and his family, of his support’.49 In Amnesty International v Zambia, the Commission decided that forced expulsion is a violation of Article 18 of the Charter, depriving as it does ‘families of the men’s support, and this constitutes a violation of the dignity of a human being’, and having ‘forcibly broken up the family unit which is the core of society thereby failing in its duties to protect and assist the family as stipulated in Articles 18(1) and 18(2) of the Charter’.50 The African Commission has held that Article 18 in general ‘obliges States Parties to protect families, to ensure their physical and mental health, to assist them, to ensure the elimination of every form of discrimination against women, to ensure the protection of their rights and those of children, as stipulated in international conventions’.51 Where States have deprived individuals of nationality, the African Commission has found that this violated Article 18 as it has ‘destroyed the family unit’. In a case against Côte d’Ivoire, the Dioula ethnic group faced challenges in obtaining their Ivorian nationality which resulted in them being unable to obtain employment and restricted their ability to move around the country. The African Commission found that being unable to visit relatives in other parts of the country resulted in a ‘real risk of separation or dislocation of the family unit’ and therefore a violation of Article 18.52

3. Incommunicado Detention Holding an individual incommunicado has been held to violate Article 18 as he or she is ‘prevented from communicating with his family’.53 In one communication against Eritrea, individuals were held without being able to access lawyers or their families. The African Commission found a violation of Article 5 on the basis that they were held incommunicado

45 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, Rencontre africaine des droits de l’Homme, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997, para 17. 46 Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 59. 47 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 128. 48 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 214. 49 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 215. 50 Communication 212/98, Amnesty International v Zambia, 5 November 1999, paras 58–59. 51 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 178. 52 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016. 53 Communication 143/95-150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 15 November 1999, para 29. See also Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 123. See Chapter 7 (Article 6).

464

19. Article 18: Protection of Family, Women, Older Persons

and a violation of Article 18 as a ‘violation of the rights of both the detainees and their families to protection of family life’.54 There is thus a dual aspect to Article 18.

4. Mass Transfer The mass transfer of persons from one area of the country to another may violate Article 18(1).55

5. Right to Housing and Evictions A combination of the right to property and the protection of the family unit in Article 18(1) will result in a right to housing or shelter whereby the State will have an obligation against the ‘wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected’, as well as not to prevent individuals and communities from rebuilding homes that have been lost.56 Further duties on the State will be to respect, protect, promote and fulfil. Hence, the destruction of the villages and homes of the Ogoni people and preventing them, through intimidation and other means, from returning to their houses to rebuild them was found to be in violation of the right to shelter under Articles 14, 16 and 18(1).57

C. Article 18(3) and the Rights of Women It is perhaps this section of Article 18 which has received the most attention from the African Commission. As will be seen in Chapter 39 (Articles 63–68) for many Article 18(3) gave insufficient protection for the rights of women under the ACHPR, linking as it does women with the family,58 prompting the development and subsequent adoption of the Protocol on the Rights of Women in Africa (Maputo Protocol).59 This Protocol contains an extensive range of rights which track the order, in part, of the rights in the ACHPR, but in addition, draw heavily on CEDAW and other international and regional instruments. Although its initial purpose may have been to develop the rights in the ACHPR for women,60 the final product goes much further.61 As it is a separate Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 102. Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 81. 56 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, paras 60 and 61. See also Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009. 57 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, paras 61–63. See also Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, where the Commission condemned forced evictions and denial of nationality among other actions against the Nubian community as impacting on families and communities. It found a violation of Article 18 but without clarifying the basis on which it did so. 58 L. Kois ‘Article 18 of the African Charter on Human and Peoples’ Rights: A progressive approach to women’s human rights’, 3 East African Journal of Peace and Human Rights (1997) 92; M. N. Nsibirwa, ‘A brief analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’, 1 Afr. Hum. Rts. L.J. (2001) 40–63, at 41. 59 F. Banda, ‘Blazing a trail: The African Protocol on Women’s Rights comes into force’, 50(1) JAL (2006)  72–84. 60 For discussion, see Chapter 39 (Articles 63–68). 61 L. Amede Obiora and Crystal Whalen, What is right with Africa: The promise of the Protocol on Women’s Rights in Africa, 2 Transnat’l Hum. Rts. Rev. (2015) 153. 54 55

C. Article 18(3) and the Rights of Women

465

instrument requiring additional ratification by States, there is the delicate balance between ensuring that not all energies are invested developing women rights under the Protocol, as compared to the ACHPR, as the number of States to which the Protocol applies may be limited. This could result in ‘reinforcing the position of those who consider that Article 18 is completely ineffectual’.62 In reality what has occurred is that the process of developing the Protocol, as well as the related establishment of the Special Rapporteur on the Rights of Women, has ensured that the rights of women have remained as a very visible and regular item on the agenda of the African Commission’s work; the number of States, civil society organisations and others referencing the rights of women, and engaging around these issues with the African Commission has increased; and further resolutions have been adopted developing their rights under the ACHPR. While guidelines on State reporting,63 as well as General Comments on HIV and sexual and reproductive health have been elaborated by the African Commission for those States party to the Maputo Protocol,64 there has been a knock-on effect in terms of development of principles and standards around the rights of women under the ACHPR, specifically Article 18(3). Consequently, while Article 18(3) (together with Articles 2 and 3) appeared to be rather thin in terms of their protection for the rights of women, in fact they have provided the crucial hook upon which the jurisprudence and standard setting has been based. In parallel there have been developments at the Organisation of African Unity (OAU) and then African Union (AU) level (as well as at the sub-regional level65) aimed towards enhancing the rights of women. These include provisions in the Constitutive Act,66 the adoption of the Solemn Declaration on Gender Equality in Africa67 (the implementation of which is facilitated by the influential Gender Is My Agenda Campaign (GIMAC)),68 the AU Gender Policy,69 and the commitment by the AU to increase the quota of women in its various organs.70 While some of these initiatives relate to what is happening at the African Commission, this is not always the case. For example, the idea of developing a separate treaty on the Elimination of All Forms of Harmful Practices (HPs) Affecting the Fundamental Human Rights of Women and Girls progressed separately from the drafting

62 F. Ouguergouz, The African Charter of Human and People’s Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, p.195. 63 Guidelines for state reporting under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2010. See also J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6–7 August 2009, 9 AHRLJ (2009) 615–643. 64 General Comment on Article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 6 November 2012; General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14.2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014. 65 E.g. SADC Protocol on Gender and Development, signed August 2008; see M. Forere and L. Stone, ‘The SADC Protocol on Gender and Development: Duplication or complementarity of the African Union Protocol on Women’s Rights?’, 9 AHRLJ (2009) 434–458. 66 Article 4(1). 67 Assembly/AU/Decl 12 (III) Rev 1. (2004), Adopted by the Assembly of Heads of State, 8 July 1994. 68 This works by facilitating the holding of meetings for civil society organisations prior to the AU Assembly Summits: http://www.genderismyagenda.com/ 69 African Union Gender Policy. 70 E.g. Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament, CM/2198 (LXXIII), Annex I, Article 4(2). Decision on Mainstreaming Gender and Women’s Issues in the African Union, CM/Dec.683. See K. Stefiszyn, ‘The African Union: Challenges and opportunities for women’, 5 AHRLJ (2005) 358–386.

466

19. Article 18: Protection of Family, Women, Older Persons

of the Maputo Protocol until the OAU recognised the need for collaboration between the two initiatives71 resulting in an integrated document.72 Drafts of the African Charter suggest that rights of women and children were considered in the context of the ‘right of the family’, referring, for example, not to women per se but ‘the mother and the child’.73 Although the M’Baye Draft included in the provision on ‘freedom from slavery’ specific reference to the prohibition on ‘traffic in women’,74 this did not find its way into the ACHPR and indeed, beyond consideration of a few instances, such as during the World Cup in 2010 in South Africa,75 trafficking has received little attention by the African Commission and Court. Where it has considered the issue, the African Commission has noted that it requires a ‘global response’ and has called on governments to increase cross- border cooperation, put in place mechanisms that not only prevent trafficking and ‘address commercial sexual exploitation’ but also to assist victims.76 The background, as will be seen in Chapter 39 (Articles 63–68), to the adoption of the Maputo Protocol illustrates that its purpose was several-fold: providing an ‘African CEDAW’, ensuring rights in the ACHPR were articulated for women specifically, and providing reflecting the specificities of women’s rights on the continent. As a result, its content includes a broad range of rights, some of which are similar to or expand upon those in CEDAW and the ACHPR, and others which are less familiar or have not been so detailed before. It includes provisions on the elimination of discrimination,77 right to dignity,78 rights to life and security of the person,79 marriage,80 access to justice,81 participation in decision-making,82 right to peace,83 education, work and health,84 food security,85 housing,86 a healthy and sustainable environment and sustainable development,87 and particular protection for older women and those with disabilities.88 Provisions on elimination of harmful traditional practices and positive cultural context,89 protection of women in armed conflict,90 widows’ rights,91 inheritance92 and protection for women in 71 M. N. Nsibirwa, ‘A brief analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’, 1 Afr. Hum. Rts. L.J. (2001) 40–63. 72 Organisation of African Unity (OAU) Doc CAB/LEG/66.6 of 13 September 2000. 73 Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Report on the Draft African Charter presented by the Secretary-General at the 37th Ordinary Session of the OAU Council of Ministers, held in Nairobi, Kenya 15–21 June 1981. CM/1149 (XXXVII). Meeting of Experts for the Preparation of a Preliminary Draft of the African Charter on Human and Peoples’ Rights (Dakar, Senegal, 28 November–8 December 1979), Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul The Gambia 7–19 January 1981). 74 M’Baye Draft, Article 19. 75 Resolution on the Prevention of Women and Child Trafficking in South Africa during the 2010 World Cup Tournament, ACHPR/Res.165, 26 May 2010. 76 Resolution on the Prevention of Women and Child Trafficking in South Africa during the 2010 World Cup Tournament, ACHPR/Res.165, 26 May 2010. 77 78 Article 2, Maputo Protocol. Article 3, Maputo Protocol. 79 80 Article 4, Maputo Protocol. Articles 6 and 7, Maputo Protocol. 81 82 Article 8, Maputo Protocol. Article 9, Maputo Protocol. 83 84 Article 10, Maputo Protocol. Articles 12, 13, 14, Maputo Protocol respectively. 85 86 Article 15, Maputo Protocol. Article 16, Maputo Protocol. 87 Articles 18 and 19, Maputo Protocol. See E. H. Mengesha, ‘Reconciling the need for advancing women’s rights in Africa and the dictates of international trade norms: The position of the Protocol on the Rights of Women in Africa’, 6 AHRLJ (2006) 208–224. 88 89 Articles 22 and 23, Maputo Protocol. Articles 5 and 17, Maputo Protocol respectively. 90 91 Article 11, Maputo Protocol. Article 20, Maputo Protocol. 92 Article 21, Maputo Protocol. See e.g. C. E. Ukhun and N. A. Inegbedion, ‘Cultural authoritarianism, women and human rights issues among the Esan people of Nigeria’, 5 AHRLJ (2005) 129–147. Also, see the South African Constitutional Court decision, Shilubana & Others v Nwamitwa [2008] ZACC 9, considered

C. Article 18(3) and the Rights of Women

467

distress93 reflect contemporary challenges of particular relevance to Africa. Whilst on the whole it has been lauded as a positive contribution to the promotion and protection of the rights of women in Africa,94 it has received criticism for, among other things, its over- specificity, lack of clear guidance on implementation, and enforcement.95

1. Discrimination As is detailed under Article 296 much attention towards women from the African Commission has arisen in the context of non-discrimination. The earlier Guidelines on State reporting indeed directly linked what the State should report in its Article 62 reports to CEDAW articles and the latter’s implementation in the State.97

2. Women Human Rights Defenders Particular attention has been paid by the African Commission, as a result of the work of its Special Rapporteur, to women human rights defenders.98 It has recognised the distinct challenges they face including threats, intimidation, and difficulties with the environment in which they work. It has thus called on States to end impunity by adopting laws which protect their rights; address discrimination; and train the judiciary and other authorities on the risks they face.99

3. Health and Reproductive Rights Another common area with respect to the rights of women is health and reproductive rights,100 as noted in Chapter 17 (Article 16). Particular mention is made of, for example, prevention of maternal mortality in order to ensure protection of ‘the very foundation of the African family’;101 protection from coercive and forced treatment;102 maternity leave

‘revolutionary’ for gender equality: O. Mireku, ‘Customary law and the promotion of gender equality: An appraisal of the Shilubana decision’, 10 AHRLJ (2010) 515–523. See also Mmusi and Others v Ramantele and Others, MAHLB-000836-10, of the Botswanan High Court, as discussed in O. Jonas, ‘Gender equality in Botswana: The case of Mmusi and Others v Ramantele and Others’, 13 AHLRJ (2013) 229–244. Article 24, Maputo Protocol. E.g. F. Banda, ‘Blazing a trail: The African Protocol on Women’s Rights comes into force’, 50(1) JAL (2006)  72–84. 95 K. Davis, ‘The Emperor is still naked: Why the Protocol on the Rights of Women in Africa leaves women exposed to more discrimination’, 42 Vanderbilt Journal of Transnational Law (2009) 949–992. 96 97 Chapter 3. Guidelines for National Periodic Reports, para VII. 98 Resolutions ACHPR/Res.69 (XXXV) 04, ACHPR/Res.119 (XXXXII) 07, ACHPR/Res.196 (L) 11 and ACHPR/Res.273 (LV) 2014. 99 Resolution on Measures to Protect and Promote the Work of Women Human Rights Defenders, ACHPR/Res. 336 (EXT.OS/XIX) 2016, 25 February 2016. 100 M. Geldenhuys et al, ‘The African Women’s Protocol and HIV: Delineating the African Commission’s General Comment on articles 14(1)(d) and (e) of the Protocol’, 14 Afr. Hum. Rts. L.J. (2014) 681, at 685. R. Rebouché, ‘Health and reproductive rights in the Protocol to the African Charter: Competing influences and unsettling questions’, 16 Wash. & Lee J. Civ. Rts. & Soc. Just. (2009) 79. 101 Resolution on Maternal Mortality in Africa, ACHPR/Res.135, 24 November 2008. Subsequently addressed by the Human Rights Council in its resolution, Preventable Maternal Mortality and Morbidity and Human Rights, A/HRC/11/L.16/Rev 1, 16 June 2009, see E. Durojaye, ‘The Human Rights Council’s Resolution on Maternal Mortality: Better late than never’, 10 AHRLJ (2010) 293–308. 102 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, 19 December 2017. See further Chapter 17 (Article 16). 93 94

468

19. Article 18: Protection of Family, Women, Older Persons

and rights of working mothers;103 and HIV/AIDS.104 Article 14 of the Maputo Protocol, for instance, provides rights to ‘self-protection’ and to be protected against sexually transmitted diseases including HIV/AIDS and to be informed of one’s and partner’s health status, an approach which, it is argued, is ‘commendable and radical in nature’.105 It has also been suggested that this can be used as a ‘platform for advocacy’ to challenge criminalisation of sex and sexuality.106

4. Violence and Sexual Violence As noted in Chapter 3 (Article 2) and 17 (Article 16), specific mention has been made in the African system of the need to prevent violence against women,107 particularly sexual violence. Indeed, the Maputo Protocol is considered to contain ‘comprehensive provisions’ on violence against women.108 In one communication, where several female journalists were subject to sexual harassment during demonstrations in Cairo, the African Commission was asked to consider if the violence was gender-specific and thus also a violation of Article 18(3).109 Considering the testimonies provided by the complainants, it noted that ‘characteristics of violence commonly committed against women and men differ’, and the use of terms ‘slut’ and ‘whore’ were ‘not usually used against persons of the male gender, and are generally meant to degrade and rip off the integrity of women who refuse to abide by traditional religious, and even social norms’.110 In addition, touching a woman’s breasts and ‘private and sensitive parts’ left the Commission in ‘no doubt that the Victims were targeted in this manner due to their gender’.111 Finally, it also considered the allegations that one of the victims was threatened with being accused of being a prostitute if she did not withdraw her complaint, and found this to be gender-specific. The context of the situation and the position of women in the State may also be a factor, with the African Commission holding that there was ‘a form of systematic sexual violence targeted at the women participating or present in the scene of the demonstration’, noting in particular Egyptian society whereby ‘a woman’s virtue is measured by keeping herself physically and sexually unexposed except to her husband. The perpetrators were aware of the consequences of such acts on the Victims, both to themselves and their families, but 103 For example, rights of pregnant women to take paid maternity leave, and the obligation of States to take measures for working mothers, Guidelines on ESCRs, para 95. Guidelines on National Periodic Reports, 1989, para 29. 104 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, 19 December 2017. 105 E. Durojaye, ‘Advancing gender equity in access to HIV treatment through the Protocol on the Rights of Women in Africa’, 6 Afr. Hum. Rts. L.J. (2006) 188–207, at 195. J. Klugman, ‘Women’s health and human rights: Public spending on health and the military one decade after the African Women’s Protocol’, 14 AHRLJ (2014) 705–734. 106 J. Todd-Gher, ‘Policing bodies, punishing lives: The African Women’s Protocol as a tool for resistance of illegitimate criminalisation of women’s sexualities and reproduction’, 14 AHRLJ (2014) 735–756, at 738. 107 See e.g. F. Banda, ‘Building on a global movement: Violence against women in the African context’, 8 AHRLJ (2008) 1–22. 108 Maputo Protocol, Article 1, see F. Banda, ‘Building on a global movement: Violence against women in the African context’, 8 AHRLJ (2008) 1–22, at 1–2. 109 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013. 110 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 143. 111 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 144.

C. Article 18(3) and the Rights of Women

469

still perpetrated the acts as a means of punishing and silencing them from expressing their political opinions’.112 Other findings in the case were that Egypt had failed to protect the individuals not only by failing to investigate acts of the State and non-State actors, but also because the women had been targeted due to their political opinion.113 Article 18(3) in this case was used in conjunction with Article 2 throughout, with the gender-based violence considered as discrimination.114 Correspondingly, the ECOWAS Community Court of Justice in Dorothy Chioma Njemanze, Edu Orok, Justina Etim Plaintiffs, Amarachi Jessyford v The Federal Republic Of Nigeria, found the treatment experienced by the plaintiffs which involved sexual assaults and allegations they were sex workers was ‘gender- based violence’ in violation of Article 18(3) of the ACHPR, among others.115 It also held that using the word ‘prostitute’ or ‘Ashawo’ was ‘humiliating, derogatory and degrading’, contrary to Article 5 of the ACHPR, and that the police operation had been targeted at women specifically. There was thus evidence of ‘gender-based discriminatory treatment’ contrary to Articles 2, 3 and 18 of the ACHPR.116 In a similar vein, an African Commission’s resolution sets out the right to a remedy and reparation for female victims of sexual violence. This deplores ‘all forms of sexual violence against women and girls’, urging States to criminalise such, provide training to law enforcement officials and eradicate root causes of sexual violence,117 addressing concerns raised by others that what is needed goes beyond prosecution.118 States should also advance public awareness on the issue, deliver ‘efficient and accessible reparation programmes’ in which women ought to participate, and provide medical assistance and psychological support to victims.119

5. Marriage and Polygamy Marriage is often associated with women’s rights under the ACHPR and the Maputo Protocol.120 The M’Baye Draft of the African Charter included in the provision on the family a section on marriage, yet this not finding its way into the ACHPR which does not mention marriage at all. The M’Baye Draft also provided that marriage should be ‘entered into with the free consent of the intending spouses’ and there should be steps taken to ensure equality of rights of both spouses during marriage and in its dissolution.121 112 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 152. 113 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, paras 159, 155, 160 respectively. 114 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, paras 166–167. 115 Dorothy Chioma Njemanze, Edu Orok, Justina Etim Plaintiffs, Amarachi Jessyford v The Federal Republic of Nigeria, Suit No: ECW/CCJ/APP/17/14, Judgment No. ECW/CCJ/JUD/08/17. 116 Dorothy Chioma Njemanze, Edu Orok, Justina Etim Plaintiffs, Amarachi Jessyford v The Federal Republic of Nigeria, Suit No: ECW/CCJ/APP/17/14, Judgment No. ECW/CCJ/JUD/08/17. 117 Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence, ACHPR/Res.111, 28 November 2007. 118 See e.g. J. Mansfield, ‘Prosecuting sexual violence in the Eastern Democratic Republic of Congo: Obstacles for survivors on the road to justice’, 9 AHRLJ (2009) 367–408; C. Beninger, ‘Combating sexual violence in schools in sub-Saharan Africa: Legal strategies under regional and international human rights law’, 13 AHRLJ (2013) 281–301. 119 Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence, ACHPR/Res.111, 28 November 2007. 120 See also L. Mwambene, ‘Marriage under African customary law in the face of the Bill of Rights and international human rights standards in Malawi’, 10 AHLRJ (2010) 78–104. 121 M’Baye Draft, Article 8.

470

19. Article 18: Protection of Family, Women, Older Persons

Consequently, while there is no express mention of marriage in the ACHPR, the African Commission has picked up on a number of these issues in its interpretation of Article 18. It has elaborated that the right to protection of the family implies a right to marry.122 There should be ‘free and full consent’ to enter into marriage123 and equality between the partners in the marriage.124 Marriages ought to be registered in accordance with national law.125 Child marriage, namely below the age of eighteen, is prohibited,126 in part because it would appear that this may protect them against the risk of HIV exposure.127 A Joint General Comment of the ACHPR and the ACERWC on ending Child Marriage reiterates the prohibition ‘without exception’, and the importance of proper birth and marriage registration and age verification procedures, and retention of children in education, especially girls.128 Further in 2018 the African Court delivered its first judgment on the Maputo Protocol in a case alleging various violations of the Maputo Protocol and the African Charter on the Rights and Welfare of the Child. Mali’s Law No. 2011-087, establishing the Persons and Family Code, set the minimum age for marriage for girls at sixteen and boys at eighteen, with a particular exemption at fifteen if both parents consented, in the case of a boy, but only with the father’s consent in the case of a girl.129 Noting that both the ACRWC and the Maputo Protocol, Article 6(b), set the minimum age as eighteen, the African Court held the State was in violation of these provisions.130 Specific attention has been paid to the rights of persons with HIV/AIDS, including their right to marry and form a family under Article 18(1).131 States should also take measures to ‘promote the protection and development of family life’ including social security and tax benefits.132 Spouses should have equal rights with respect to property, nationality, during and at the dissolution of marriage, in adoption, custody and guardianship, and with respect to children, although these are subject to the best interest of the child.133

Guidelines on Economic, Social and Cultural Rights, para 94. Tunis Reporting Guidelines, para J. Guidelines on ESCRs, para 95. It has been suggested that practices such as ukuthwala may violate this provision, see L. Mwambene and J. Sloth-Nielsen, ‘Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act’, 11 AHRLJ (2011) 1–22. 124 125 Guidelines on ESCRs, para 94. Guidelines on ESCRs, para 95. 126 Tunis Reporting Guidelines, para J. Guidelines on Economic, Social and Cultural Rights, para 95. See also Resolution on the need to conduct a study on child marriage in Africa, ACHPR/Res.292, 29 July 2014. Concluding Observations and Recommendations on the Initial 1st, 2nd, 3rd and 4th periodic report of the Federal Democratic Republic of Ethiopia, 47th Ordinary Session, 12–26 May 2010, Banjul, The Gambia, para 18. 127 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, 19 December 2017, para 10. 128 Joint General Comment of the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on ending Child Marriage, section IV.A and B, paras 30–33. 129 The Matter of Association Pour le Progres et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v Republic of Mali, App. No. 046/2016, Judgment 11 May 2018. 130 The Matter of Association Pour le Progres et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v Republic of Mali, App. No. 046/2016, Judgment 11 May 2018, para 78. 131 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, 19 December 2017, para 10. 132 133 Guidelines on ESCRs, para 95. Guidelines on ESCRs, para 95. 122 123

D. Article 18(3) and the Rights of the Child

471

Concerns were raised in the drafting of the Maputo Protocol that the inclusion of the prohibition of polygamy would render adoption of the Protocol challenging.134 Rather inconsistently, with respect to obligations under the ACHPR, the African Commission has not gone as far as to hold in every instance that polygamy is prohibited per se, rather, ‘monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships, are promoted and protected’.135

6. Representation and Decision-making Increased attention by the AU to ensuring the participation of women in its structures of decision-making, has also been mirrored in part by the African Commission’s call on States to provide for positive measures to guarantee ‘better representation of women in elective positions’, although this is often cited in the context of Article 13 rather than Article 18 specifically.136

7. Rural Development, Labour Particular reference has been made to the vulnerabilities faced by rural women noting the ‘several forms of discrimination’ they face. Article 19 of the Maputo Protocol sets out measures to promote women’s access to land and control over resources and States have been called upon, under the ACHPR, to ‘devote additional financial resources to local and national programmes aimed at eliminating discrimination against women’ and ensure that ‘rural women have greater access to credit, training, skills development and extension services in order to reduce the level of poverty among women’.137 There is also recognition of the impact of the informal sector in terms of women’s situation at work.138

D. Article 18(3) and the Rights of the Child Just as women’s rights were more integrated across various provisions of earlier drafts of the ACHPR, rather than being in one single article, so a similar approach was taken with the rights of the child. The M’Baye Draft, for example, provided for equal rights of children born out of wedlock;139 special protections for children regardless of their parentage, protection from economic and social exploitation in the context of the right to work;140 and States should ensure the healthy development of the child under their obligations on the right to health.141 Reference to the rights of parents to choose the school and religion 134 M. N. Nsibirwa, ‘A brief analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’, 1 Afr. Hum. Rts. L.J. (2001) 40–63, at 46. 135 Tunis Reporting Guidelines, para J. See O. Jonas ‘The practice of polygamy under the scheme of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa: A critical appraisal’ (2012) 4 Journal of African Studies and Development 146. 136 Resolution on Elections in Africa, ACHPR/Res.174, 24 November 2010. 137 Statement by the Special Rapporteur on the rights of women in Africa on the occasion of the International Women’s Day, 6 March 2012. Press Release on the Question of International Women’s Day, 8 March 2008. Resolution on Women’s Right to Land and Productive Resources, ACHPR/Res.262, 5 November 2013. See also Framework and Guidelines on Land `Policy in Africa adopted by the African Union in 2009. 138 Press Release on the Question of International Women’s Day, 8 March 2008. 139 140 M’Baye Draft, Article 8(4). M’Baye Draft, Article 8(6). 141 M’Baye Draft, Article 11.

472

19. Article 18: Protection of Family, Women, Older Persons

for their children appeared in the articles on the right to education and freedom of conscience and religion.142 In the ACHPR the rights of the child, although appearing on the same basis as the rights of women, older persons and people with disabilities in Article 18, has received comparatively less attention by the African Commission and by States in their engagement with the ACHPR and its mechanisms.143 This can be explained by the existence of the separate instrument on children’s rights, the African Charter on the Rights and Welfare of the Child, with its own Committee. Where the African Commission has referenced children’s rights, these have tended to be raised together with the rights of women,144 although it has not created any specific mechanisms to deal with them,145 the issues being mentioned only within the course of its existing procedures such as State reporting. As the ACERWC has gained in experience and visibility, so the relationship between the two has developed. When the OAU transformed into the AU, both bodies were omitted from the list in Article 5 of the Constitutive Act prompting some joint efforts to ensure their recognition as organs of the AU. In parallel with attempts at greater integration in the AU structures, the African Commission and ACERWC have agreed on more cooperation.146 A resolution adopted in 2009 established a ‘formal relationship’ between the two bodies, designating the African Commission’s Special Rapporteur on the Rights of Women to collaborate with other actors around the rights of the child.147 Rights of the child have been identified under other articles of the ACHPR, rather than just under Article 18. For example, the death penalty on children is prohibited under Article 4 of the ACHPR, in line with other international instruments and jurisprudence.148 Children have a right to free and compulsory primary education under Article 17,149 with the African Commission reiterating the right of girls to education,150 and it has M’Baye Draft, Articles 12(c) and 25(4) respectively. See also Article 1 of the Maputo Protocol. E.g. in their State reports, see F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 265. 144 E.g. in the Maputo Protocol, etc. 145 The mandate of the Special Rapporteur on the Rights of Women did not initially include children’s rights. 146 Report of the meeting of the Brainstorming Meeting on the African Commission on Human and Peoples’ Rights (ACHPR), 9–10 May 2006, Corinthia Atlantic Hotel, Banjul, The Gambia, ‘The ACHPR should establish formal relationship with the African Committee of Experts on the Rights and Welfare of the Child. This should be done in line with the necessity of rational utilisation of the resources for the promotion and protection in Africa’, para 66(f ). See also Report of the Brainstorming/Consultative Meeting of AU Organs on their Working Relations, Ougadougou, Burkina Faso, September 2008; Intersession Activity Report by Commissioner Musa Ngary Bitaye during the Intersession of the 43rd and 44th Ordinary Sessions of the ACHPR. 147 Resolution on Cooperation between the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child in Africa, ACHPR/Res.144, 27 May 2009. 148 ICCPR, Article 6(5); UN CRC, Article 37(9). Communication 259/2002, Groupe de Travail sur les Dossiers Judiciaires Stratégiques v Democratic Republic of Congo, 10 March 2015, paras 71–72. Concluding Observations and Recommendations on the Initial 1st, 2nd, 3rd and 4th periodic report of the Federal Democratic Republic of Ethiopia, 47th Ordinary Session, 12–26 May 2010, Banjul, The Gambia, para 18. 149 State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), para D. See in more detail Chapter 18 (Article 17). 150 E.g. Joint Statement on the International Day of the Girl Child, 11 October 2013. Guidelines and principles on ESCRs, para 69. 142 143

D. Article 18(3) and the Rights of the Child

473

condemned the exclusion of pregnant girls from school on the basis that this undermined rights to education and to equality.151 The abduction of school girls in Yobe State Nigeria did receive the attention of the African Commission who noted that this violated their right to education under Article 17 of the ACHPR, Article 12 of the Maputo Protocol and Article 11 of the ACRWC, calling on the government to continue efforts to secure their release and the safety of students in and on their way to and from school.152 Particular reference is made to the impact of household labour on the right to education of the girl-child.153 Infant and maternal mortality is also mentioned on a number of occasions with States being required to reduce their rates through medical assistance and health care.154 There is also recognition of the distinct needs of refugee children who should be guaranteed protection in line with international law.155 The African Commission has in addition called on States to ensure protection against malaria for pregnant women and children under the age of five.156 Some traditional practices such as ‘almoudou’ and female genital mutilation are considered harmful to women and children.157 The African Commission has, early on in its existence, suggested that States should provide opportunities for children to develop their physical and psychological health.158 They ought to grant special measures to care and educate children separated from their mothers or family.159 On the one hand child labour is also forbidden under Article 15160 and efforts to criminalise it have been welcomed.161 However, the African Commission’s approach has not always been consistent,162 for example, requiring States to take measures ‘governing work by children and young persons, within the family, to ensure that such work is not dangerous to them, harmful to their moral or physical well-being or likely to hamper their normal physical, intellectual and psycho-social development’.163 Further it has stated that ought to provide a minimum age for employment, regular hours and prohibit or restrict night work.164 In most of these instances, Article 18 is simply not expressly raised at all.

Joint Letter of Appeal to the United Republic of Tanzania, 6 August 2017. Press Release on the alleged abduction of school girls in Yobe State, Federal Republic of Nigeria, 1 March 2018. 153 Guidelines and Principles on Economic, Social and Cultural Rights, para 75(q). 154 Guidelines and Principles on Economic, Social and Cultural Rights, para 68(rrr). See E. Durojaye, ‘Substantive equality and maternal mortality in Nigeria’, 65 J. Legal Pluralism & Unofficial L. (2012) 103–132. 155 Concluding Observations and Recommendations on the Initial 1st, 2nd, 3rd and 4th periodic report of the Federal Democratic Republic of Ethiopia, 47th Ordinary Session, 12–26 May 2010, Banjul, The Gambia, para 69. 156 Guidelines and principles on ESCRs, para 67(uu). 157 Resolution on the Situation of Women and Children in Africa, ACHPR/Res.66, 4 June 2004. 158 Guidelines for National Periodic Reports, 1989, para 30 and 35. 159 Guidelines for National Periodic Reports, 1989, para 30. 160 State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), para B. 161 Concluding Observations and Recommendations on the Initial 1st, 2nd, 3rd and 4th periodic report of the Federal Democratic Republic of Ethiopia, 47th Ordinary Session, 12–26 May 2010, Banjul, The Gambia, para 25. 162 For example, elsewhere the African Commission has stated that not all child labour may need to be criminalised: ‘prevent child labour through criminalisation in its worst forms’, Guidelines and Principles on Economic, Social and Cultural Rights, para 59(p). 163 Guidelines and Principles on Economic, Social and Cultural Rights, para 95. Guidelines for National Periodic Reports, 1989, para 30. 164 Guidelines for National Periodic Reports, 1989, para 30. 151 152

474

19. Article 18: Protection of Family, Women, Older Persons

The African Commission has consistently called on States to ratify the ACRWC as the ‘prime legal framework’ on the rights of the child.165 Its own lack of attention to children’s rights, the existence of another body which can receive communications and which also permits observer status by organisations specialising in children’s rights can perhaps explain the very limited number of communications which have been brought before the African Commission on the rights of the child. Of those which have, children’s rights have tended to be incidental to the issues,166 or mentioned only in passing.167 In one communication it was alleged a minor was taken out of his country of origin, Malawi, and forced to work in slavery-like conditions as a domestic servant in the Gambia. Although violations of Article 18(3) were claimed, among other rights, the communication was held inadmissible on the basis of failure to exhaust domestic remedies.168 The right to nationality has raised issues for children, with the African Commission noting Article 6 of the ACRWC requiring that each child should be registered immediately after birth and acquire a nationality of the State in which they are born unless they are not granted nationality of another State at the same time.169 States have been called upon to provide in their constitutions and legislation that all children have the right to nationality of the State in which they are born, and to ‘strengthen civil registration services to ensure the prompt registration of the births of all children on their territory, without discrimination’.170 Children’s rights have principally arisen in the context of family life. There should not be ‘undue interference’ in family life, although this is not absolute and such will be permitted if the ‘welfare of the children or any member of the family is threatened’.171 More specific requirements include that States provide support for spouses where a partner dies or is absent, to ‘care for and maintain their children’, or if they lose both parents then the State provides the care through adoption or fostering.172 Children should also be cared for by their parents and not separated from them and if they are, then they should be returned.173 Access ought to be granted to each parent in the event they are separated.174 All of this is subject to the child’s best interests. Spouses have equal rights and duties to children during marriage and if it ends, the State ensures that parents provide for children.175 Inter-country adoption is permissible but only as a last option, in the interests of the child and through a regulated process open to those who are resident of States party to the UNCRC or ACRWC.176 States should also facilitate engagement between children and parents living in different States, with particular recognition of the needs of families of migrant workers.177 165 Resolution on the Ratification of the African Charter on the Rights and Welfare of the Child, ACHPR/ Res.36, 5 May 1999. 166 E.g. Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 12 October 2013. 167 Communication 255/02, Garreth Anver Prince v South Africa, 4 December 2004, para 41. 168 Communication 207/97, Africa Legal Aid v Gambia (The), 7 May 2001. 169 Resolution on the Right to Nationality, ACHPR/Res.234, 23 April 2013. 170 Resolution on the Right to Nationality, ACHPR/Res.234, 23 April 2013. In another case relating to denial of nationality to the Nubian community in Kenya, the African Commission also found a violation of Article 18 but without articulating its reasoning, see Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015. 171 172 Guidelines on ESCRs, para 95. Guidelines on ESCRs, para 94. 173 174 Guidelines on ESCRs, para 95. Guidelines on ESCRs, para 95. 175 176 Guidelines on ESCRs, para 95. Guidelines on ESCRs, para 95. 177 Guidelines on ESCRs, para 95.

D. Article 18(3) and the Rights of the Child

475

The African Commission acknowledges that women and children take on ‘a disproportional share of child care and other domestic responsibilities within the family’ and this should not prevent them enjoying their rights.178 Finally, attention is also drawn to requiring that States avoid through ‘all efforts’ the imprisonment of mothers and if they so have to be detained with the child, this should be in specialist facilities and the best interests of the child should be considered.179 Beyond the family context, there are broader obligations on the State to protect children and youth through providing them with ‘opportunities and facilities for their healthy physical and psychological development without distinction or discrimination on account of birth, parentage, social origin or other conditions; and protection against ‘economic, social and all other forms of exploitation, neglect or cruelty and from being subject to trafficking’.180 Children ought to have access to HIV and health care services which should be provided without discrimination.181 Age of consent laws to access sexual and reproductive health services for adolescents and young persons appear to be permissible, although States are required to report on any challenges in their implementation.182 Furthermore, there is recognition of the youth which, while not mentioned in the ACHPR, have their own Charter under the AU, the African Youth Charter, which has been increasingly been referred to by the African Commission as ‘a comprehensive framework for the protection and promotion of the youth’.183 This treaty contains rights that are found in the ACHPR, as well as responsibilities,184 with similar wording, differing in its inclusion of a right to privacy,185 poverty eradication,186 and the detail provided, for example, with respect to participation,187 development of a youth policy,188 and youth in the diaspora,189 among others. Adopting a resolution on African youth in 2015, the African Commission acknowledged efforts by the AU,190 recognised that ‘the youth are the greatest resource and an asset for sustainable development, peace and prosperity’ and they ‘provide a unique contribution to the development of democracy and the rule of law in Africa’, but that they can be marginalised, have high illiteracy and unemployment rates and exposed to HIV/AIDS and violence. It thus called on States to create institutions to enable their participation and ‘take concrete steps to promote effective youth participation in the decision-making and government of their countries’, and provide resources to enable youth employment and entrepreneurship. They should also be protected from being enlisted in conflicts and terrorist activities.191 179 Guidelines on ESCRs, para 95. Guidelines on ESCRs, para 95. Guidelines on ESCRs, para 95. 181 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, 19 December 2017, para 12. 182 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, 19 December 2017, para 12. 183 Resolution on the Human Rights issues affecting the African Youth, ACHPR/Res. 347(LVIII) 2016, 20 April 2015. 184 Considerably more detailed than found in Articles 27–29 of the ACHPR, Article 26, African Youth Charter. 185 186 Article 7, African Youth Charter. Article 14, African Youth Charter. 187 188 Article 11, African Youth Charter. Article 12, African Youth Charter. 189 Article 21, African Youth Charter. 190 Goal 15 of the African Union Agenda 2063; NEPAD Strategic Framework for Youth. 191 Resolution on the Human Rights issues affecting the African Youth, ACHPR/Res. 347(LVIII) 2016, 20 April 2015. 178 180

476

19. Article 18: Protection of Family, Women, Older Persons

E. Disability Clustering disability with age in Article 18(4) of the ACHPR it is argued ‘curtailed the evolution of a full, nuanced and multi-faceted understanding of disability’.192 As noted in Chapter 3 (Article 2) there have been numerous initiatives at the AU level including the adoption of a Continental Plan of Action for the African Decade of People with Disabilities,193 although not all of these have been linked to the ACHPR and Article 18. Recognition by the AU organs and the African Commission that persons with disabilities in Africa face discrimination and poverty194 and are often marginalised in part due to cultural beliefs,195 with further abuse taking place against persons with certain disabilities, as some believe that, for example, using body parts of those with albinism196 or sex with a person with disabilities will cure HIV/AIDS.197 Development of a Draft Protocol on the rights of persons with disabilities has been considered as one way in which the issues can be addressed, and although a number of versions have been produced, this is still open for consultation.198 The latest draft, adopted in February in 2016,199 after providing for general definitions on discrimination, harmful practices, persons with disabilities, and reasonable accommodation, among others in Article 1, it then goes on to articulate general obligations which underpin the Protocol.200 This is followed by provisions on equality and non-discrimination and equal recognition of the law including legal capacity,201 right to life,202 liberty and security of the person and prohibition of torture,203 right to access justice,204 education, health, work and an adequate standard of living,205 and participation in political and public life.206 Others include freedom of expression and access to information,207 and right to family.208 Particular mention is made of women, children, youth and older persons with disabilities.209 Rights which are not included expressly in the ACHPR include those on harmful practices,210 ‘situations of risk’, such as during 192 S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. (2013) 219–249. See also F. Viljoen and J. Biegon, ‘The feasibility and desirability of an African Disability Rights Treaty’, 30(2) SAJHR (2014) 345–365. 193 AU Executive Council Resolution EX.CL/477 (XIV, January 2009. See also 1999–2009 African Decade for Persons with Disabilities, declared at AU 36th Assembly of Heads of State, Lomé, Togo, 2000, then extended to 2019. 194 B. Watermeyer, L. Swart, T. Lorenzo, M. Schneider and M. Priestley (eds), Disability and Social Change: A South African Agenda, Human Science Research Council Press (2006), Statement by the African Commission on the International Day of Persons with Disabilities—Theme ‘Break Barriers, Open Doors: for an inclusive society and development for all’, 3 December 2013. 195 S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. (2013) 219–249. 196 Resolution on the Attacks on Persons with Albinism in Malawi, ACHPR/Res. 337 (EXT.OS/XX) 2016, 18 June 2016. Statement by the Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa on the murder of Munghu Lugata, a forty-year-old woman with albinism in north- western Tanzania on 12 May 2014. 197 S. A. Djoyou Kamga, ‘The Rights of Women with Disability in Africa: Does the Protocol on the Rights of Women in Africa Offer Any Hope?, Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities (2011). 198 E.g. in Accra, 2009, and the latest version is April 2014, see http://www.achpr.org/news/2014/04/d121/. 199 Draft Protocol to The African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, Adopted at the 19th Extra-Ordinary Session of the African Commission on Human and Peoples’ Rights, held between 16–25 February 2016, in the Islamic Republic of The Gambia. 200 201 202 203 Article 2. Article 3 and Article 8 respectively. Article 4. Article 5. 204 205 206 Article 9. Articles 12 and 13; 15 and 16 respectively. Article 17. 207 208 209 Article 19. Article 21. Articles 22, 23, 24 and 25 respectively. 210 Article 6.

E. Disability

477

conflicts and emergencies,211 and the right to live in the community and accessibility,212 rehabilitation and habilitation,213 self-representation,214 and the right to participate in sports recreation and culture.215 States are required to collect the necessary statistical information and data,216 provide remedies for violations,217 and adopt measures to implement and monitor its compliance at the national level, including through the creation of national mechanisms akin to what is required in Article 33 of the CRPD.218 Article 62 reports under the ACHPR provide the mechanism by which the Protocol is to be monitored.219 Earlier drafts have already been considered as failing to include disabled peoples’ organisations in the drafting, as well as being criticised for their weak provisions around socio-economic rights and omissions on numerous aspects such as albinism.220 Other instruments such as the ACRWC,221 the African Youth Charter222 and the Maputo Protocol refer to the rights of persons with disabilities,223 although some have been critiqued for their medical approach to disability.224 The Maputo Protocol, for example, has a specific section dedicated to women with disabilities which requires States parties to ‘ensure the protection of women with disabilities and take specific measures commensurate with their physical, economic and social needs to facilitate their access to employment, professional and vocational training as well as their participation in decision-making’ as well as to ensure they are free from violence, discrimination and have a right to be ‘treated with dignity’.225 Another protocol on the rights of persons with disabilities would serve to ensure that greater protection is accorded to their specific circumstances that, it is argued, mainstreaming them under the other provisions of the ACHPR cannot achieve.226 In parallel, however, the African Commission has also consistently encouraged States to ratify the CRPD.227 The rights of persons with disabilities have been raised in the context of other rights in the ACHPR, such as deprivation of liberty,228 and the recommendation that States provide special measures to persons with disabilities under Article 2.229 Interaction has occurred between the African Commission’s special mechanism, a Working Group, and 212 213 214 Article 7. Articles 10 and 11 respectively. Article 14. Article 18. 216 217 218 219 Article 20. Article 27. Article 29. Article 28. Article 28. 220 S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. (2013) 219–249, at 224. 221 222 Article 13. Articles 2 and 24. 223 See also African Charter on Democracy, articles 8, 31 and 43; and AU Convention on Internally Displaced Persons in Africa, Articles 9(2)(c). 224 E.g. they cite: ‘Article 13 of the ACRWC which makes reference to ‘handicapped children’; Article 23 of the African Women’s Protocol which provides for ‘special protection of women with disabilities’; and Article 24 of the AYC which makes reference to ‘mentally challenged youth’. All these provisions overemphasise special measures at the expense of the overall rights of persons with disabilities’, H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African Charter and African Commission on Human and Peoples’ Rights’, Afr. Disability Rts. Y.B. (2014) 309–317, at 314. 225 Article 23 of the Maputo Protocol. 226 S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. (2013) 219–249 227 Statement by the African Commission on the International Day of Persons with Disabilities—Theme ‘Break Barriers, Open Doors: for an inclusive society and development for all’, 3 December 2013. 228 E.g. Resolution on the Right to Dignity and Freedom from Torture or Ill-Treatment of Persons with Psychosocial Disabilities in Africa, ACHPR/Res. 343(LVIII) 2016, 20 April 2016. See further Chapter 6 (Article 5). 229 Statement by the African Commission on the International Day of Persons with Disabilities—Theme ‘Break Barriers, Open Doors: for an inclusive society and development for all’, 3 December 2013. See also Article 23 of the Maputo Protocol. 211 215

478

19. Article 18: Protection of Family, Women, Older Persons

the AU organs and directorates dealing with these issues.230 Although certain aspects have received particular note, such as albinism, disabilities have tended to be dealt with in general terms and with all disabilities being considered together. This has enabled the Commission to develop standards around broader themes. Hence, specific reference has been made to accessibility as necessary to ensure the ‘full and equal participation in society’ of persons with disabilities as well as their ability to live independently.231 States are required immediately to ‘ensure that all facilities and services open or provided to the public are accessible to persons with disabilities’.232 Accessibility is physical: ‘to ensure that meetings in which the public participate are held in places accessible to persons with disabilities’,233 and broader than this: ‘that all information intended for the general public is disseminated in accessible formats and technologies appropriate to different kinds of disabilities’ and to promote the use of sign language at all levels.234 It is not just States that the African Commission has called upon to provide such but also the AU. In Communication 241/01, Purohit and Moore v The Gambia, the African Commission found that the Article 18(4) and the UN Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care required that mental health patients ‘as a result of their condition and by virtue of their disabilities . . . should be accorded special treatment which would enable them not only attain but also sustain their optimum level of independence and performance’.235 The Lunatics Detention Act in the Gambia did not define ‘lunatic’, provided no safeguards for diagnosis and detention, nor consent to or review of treatment, and no independent inspection of the unit in which individuals were held. This was found to violate not only Article 16 but also Article 18(4) as it lacked ‘therapeutic objectives’ and programmes and treatment of persons with mental disabilities.236 Increased attention on albinism by the African Commission has been seen as falling under Article 18(4) and coincides in part with activities at the UN level and appointment of an Independent Expert on the Enjoyment of Human Rights of Persons with Albinism in April 2015.237 Various resolutions have been adopted by the African Commission linking Article 2 and 18(4) and recognising the ‘widespread discrimination, stigma and social exclusion directed at persons with albinism’.238 It has endorsed a Regional Action 230 E.g. Activity Report of Commissioner Yeung Kam John Yeung Sik Yuen Intersession period, May 2008– November 2008, 10–24 November 2008, Abuja, Federal Republic of Nigeria. See also intersession report to 50th Ordinary Session. 231 Resolution on accessibility for persons with disabilities, ACHPR/Res.305 (EXT.OS/XVIII) 2015, 7 August 2015. 232 Resolution on accessibility for persons with disabilities, ACHPR/Res.305 (EXT.OS/XVIII) 2015, 7 August 2015. 233 Resolution on accessibility for persons with disabilities, ACHPR/Res.305 (EXT.OS/XVIII) 2015, 7 August 2015. 234 Resolution on accessibility for persons with disabilities, ACHPR/Res.305 (EXT.OS/XVIII) 2015, 7 August 2015. 235 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 81. 236 Communication 241/01, Purohit and Moore v The Gambia, 29 May 2003, para 84. 237 Resolution 23/13, of the Human Rights Council on attacks and discrimination against persons with albinism, General Assembly Resolution A/RES/69/170 establishing International Albinism Awareness Day on 13 June, and Resolution 28/06 of the Human Rights Council establishing the mandate of the Independent Expert on the Enjoyment of Human Rights of Persons with Albinism, 10 April 2015. 238 Resolution on the Regional Action Plan on Albinism in Africa (2017–2021), ACHPR/Res. 373 (LX) 2017, 22 May 2017. Joint Press Release by Chairpersons of the Working Group on Death Penalty, Extra- Judicial, Summary and Arbitrary Killings in Africa and the Working Group on the Rights of Older Persons and

F. Older Persons

479

Plan on Albinism in Africa (2017–2021) of the Independent Expert on the enjoyment of human rights by persons with albinism,239 and urged States to implement this Action Plan, and ‘to ensure the effective protection and promotion of the rights of persons with albinism and members of their families’.240 It has condemned ‘brutal and horrific attacks and killings’ of persons with albinism,241 and focused attention on specific States, such as Mali,242 Tanzania243 and Malawi,244 calling on the State to investigate and bring perpetrators to justice and provide remedies to the victims.245 States should also eliminate violence and discrimination against persons as well as increase education and public awareness.246 Since November 2013 States are required to report on the situation of persons with albinism in their Article 62 reports,247 although a brief survey of the reports which have been produced since then do not indicate any success.

F. Older Persons Just as women and children were liable to be dealt with together so, at least until recently, has there been a propensity to bundle older persons with persons with disabilities in line with Article 18(4) of the ACHPR. Hence, just as the African Commission has called on States to provide information on amenities available to persons with disabilities including HIV services, and to ensure that they can be accessed without discrimination, so the same should apply to older persons too.248 Indeed, it was initially suggested by the African Commission when it started to examine these issues that a Protocol for the rights of persons with disabilities and the ‘elderly’ be

Persons with Disabilities in Africa regarding the attacks and killings of Persons with Albinism in East Africa, 11 March 2015. A/HRC/37/57/Add.3, Annex, 19 December  2017. Resolution on the Regional Action Plan on Albinism in Africa (2017–2021), ACHPR/Res. 373 (LX) 2017, 22 May 2017; Resolution on the Attacks on Persons with Albinism in Malawi, ACHPR/Res. 349 (EXT. OS/XX) 2016, 18 June 2016; Resolution on the prevention of attacks and discrimination against persons with albinism, ACHPR/Res.263, 5 November 2013. 241 Joint Press Release by Chairpersons of the Working Group on Death Penalty, Extra-Judicial, Summary and Arbitrary Killings in Africa and the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa regarding the attacks and killings of Persons with Albinism in East Africa. 242 Resolution on the Attacks on Persons with Albinism in Malawi, ACHPR/Res. 349 (EXT.OS/XX) 2016, 18 June 2016. 243 Statement by the Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa on the murder of Munghu Lugata, a forty-year-old woman with albinism in north- western Tanzania on 12 May 2014, 26 May 2014. 244 Resolution on the Attacks on Persons with Albinism in Malawi, ACHPR/Res. 337 (EXT.OS/XX) 2016, 18 June 2016. 245 Resolution on the Attacks on Persons with Albinism in Malawi, ACHPR/Res. 349 (EXT.OS/XX) 2016, 18 June 2016. Resolution on the prevention of attacks and discrimination against persons with albinism, ACHPR/Res.263, 5 November 2013. 246 Resolution on the Attacks on Persons with Albinism in Malawi, ACHPR/Res. 349 (EXT.OS/XX) 2016, 18 June 2016; Resolution on the prevention of attacks and discrimination against persons with albinism, ACHPR/Res.263, 5 November 2013. Statement by the Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa on the murder of Munghu Lugata, a forty-year-old woman with albinism in north-western Tanzania on 12 May 2014, 26 May 2014. 247 Resolution on the prevention of attacks and discrimination against persons with albinism, ACHPR/ Res.263, 5 November 2013. 248 HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses, 19 December 2017, para 13. 239 240

480

19. Article 18: Protection of Family, Women, Older Persons

adopted. It has since changed its approach, as seen below, recognising that two separate instruments be created. Where it has focused on the rights of older persons in particular, this has tended to be in relation to specific contexts. For example, the African Commission has noted the impact of urbanisation on their rights, challenges with an increasingly ageing population in the continent;249 and States have been asked to report on measures put in place to protect older women against accusations of witchcraft.250 The Maputo Protocol also obliges States to protect ‘elderly’ women ‘and take specific measures commensurate with their physical, economic and social needs as well as their access to employment and professional training; ensure the right of elderly women to freedom from violence, including sexual abuse, discrimination based on age, and the right to be treated with dignity’.251 The AU for its part has adopted an AU Policy Framework and Plan of Action on Ageing.252 This combination of initiatives253 has spurred the development of a separate protocol on the rights of persons with older persons which would ‘ensure compliance of State Parties with the recommendations contained in the AU Policy Framework and Plan of Action on Ageing’. The African Commission thus appointed one of its members as a focal point to follow through on this proposal,254 and as noted in Chapter 3 (Article 2) and Chapter 39 (Articles 63–68), this culminated with a Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa being adopted by the AU in January 2016.

G. Remedies for Violations of Article 18 A violation of Article 18 is found with a violation of other provisions in the ACHPR, often Article 2,255 unless the Article 18 violation relates to, for example, not being able to access one’s family while in detention,256 or in one case serious and massive violations in Darfur involving the destruction of homes and villages. Here among the remedies recommended by the African Commission were that effective investigation be conducted into the abuses; legislation be amended; compensation ad restitution in general be provided and economic and social infrastructure be rehabilitated so as to enable individuals to return.257 Resolution on the Rights of Older Persons in Africa, ACHPR/Res.106, 30 May 2007 Consideration of Reports Submitted by States Parties under Article 62 of the African Charter on Human and Peoples’ Rights Concluding Observations and Recommendations on the Second and Combined Periodic Report of the Republic of Mozambique on the Implementation of the African Charter on Human and Peoples’ Rights (1999–2010), para 73. 251 Article 22, Maputo Protocol. 252 AU Policy Framework and Plan of Action on Ageing, HelpAge International and the African Union, July 2002, para 4.1. See also UN Economic Commission for Africa, African Centre for Gender and Social Development, Report on Ageing—Africa Region. See further Chapter 3 (Article 2). 253 See also Kigali Declaration, para 20. 254 Resolution on the Rights of Older Persons in Africa, ACHPR/Res.106, 30 May 2007. Resolution on the Establishment and Appointment of a Focal Point on the Rights of Older Persons in Africa, ACHPR/Res.118, 28 November 2007. 255 E.g. Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 256 E.g. Communication 143/95-150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 15 November 1999; Communication 275/03, Article 19 v Eritrea, 30 May 2007. 257 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 249 250

H. Special Mechanisms

481

Damages were recommended where individuals have been deported;258 for the impact on the Ogoni community of oil exploration in the area;259 for sexual violence against women in Egypt;260 and for the unlawful occupation of Burundian, Rwandan and Ugandan troops in the DRC.261 Other remedies used in relation to violations including those of Article 18 include that the State ensure its laws and practices comply with international law,262 specifically where nationality laws violated the ACHPR and the State was also required to ‘adopt more prompt legislative and administrative mechanisms to implement measures necessary for the recognition of Ivorian nationality by origin of the Dioulas through a simplified declaration procedure; to ensure that other victims acquire nationality through the most favourable mode by means of the successive legislations adopted since the establishment of nationality by applying principles of retroactivity and established rights and privileges’.263 This was in addition to ensuring an ‘effective and non-discriminatory birth registration system which makes the birth certificate as proof of nationality before the attainment of majority’.264

H. Special Mechanisms 1. Special Rapporteur on the Rights of Women The Special Rapporteur on the Rights of Women was one of the earliest special procedures, created as it was in 1999265 by the African Commission. The mandate was based on Articles 18(3) and 45(1)(a) of the ACHPR.266 Central to much of her work, and the Special Rapporteur has always been a woman, has been encouraging the ratification,267 and subsequent monitoring of the Maputo Protocol, even though there is no specific reference in it to the role of the Special Rapporteur.268 Indicating the close link between 258 Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale des ligues des droits de l’Homme, Rencontre africaine des droits de l’Homme, Organisation nationale des droits de l’Homme au Sénégal and Association malienne des droits de l’Homme v Angola, 11 November 1997. Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 244. Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000. 259 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 260 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 16 December 2011, para 273. 261 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 262 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 244. Communication 143/95-150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 15 November 1999. 263 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 206. See also Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, para 170. 264 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 206. 265 Resolution on the Designation of the Special Rapporteur on the Rights of Women in Africa, ACHPR/ Res.38, May 1999. 266 E.g. Resolution on the Renewal of the Mandate of the Term of the Special Rapporteur on the Rights of Women in Africa, ACHPR/Res.63, November 2003; Resolution on the Renewal of the Mandate and the Appointment of the Special Rapporteur on the Rights of Women in Africa, ACHPR/Res.112, November 2007. 267 E.g. Report on Intersession Activities of the Special Rapporteur on the Rights of Women In Africa, 39th Ordinary Session, African Commission on Human and Peoples’ Rights 11–25 May 2006, Banjul, The Gambia. 268 Resolution on the Appointment of the Special Rapporteur on the Rights of Women in Africa, ACHPR/ Res.154, November 2009.

482

19. Article 18: Protection of Family, Women, Older Persons

women’s rights and those of the child, again, she has also been tasked with collaborating with various actors around children’s rights, including with the African Committee of Experts on the Rights of the Child.269 Beyond the work around the Maputo Protocol other activities including undertaking promotional visits,270 organising and attending conferences,271 and highlighting situations around which urgent action is required.272 With respect to standard setting, this has included developing guidelines on State reporting,273 a General Comment on aspects of the Maputo Protocol,274 studies including on women in armed conflict,275 and campaigns on decriminalisation of abortion.276 Although she has collaborated with UN counterparts such as through sharing of information,277 she has noted that engagement with the AU Gender Directorate could be better.278

2. Working Group on Rights of Older Persons and People with Disabilities A focal point on the Rights of Elderly Persons in Africa was established in November 2007 and a Commissioner appointed to this position.279 The aim of creating this special mechanism was to convene an experts meeting in collaboration with the AU Commission, and to lead on the process of drafting a protocol on the rights of older persons.280 The 269 Resolution on Cooperation between the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child in Africa, ACHPR/Res.144, May 2009. 270 Intersession Activity Report Commissioner Angela Melo, Special Rapporteur of the Rights of Women in Africa, 40th Ordinary Session, African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 15–29 November 2006. 271 E.g. Intersession Activity Report Commissioner Angela Melo, Special Rapporteur of the Rights of Women in Africa, 40th Ordinary Session, African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 15–29 November 2006. 272 E.g. Intersession Report by Me Soyata Maiga Commissioner/Special Rapporteur on the Rights of Women in Africa Banjul, May 2009. 273 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14.2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; see Report on Intersession Activities of the Special Rapporteur on the Rights of Women in Africa, 39th Ordinary Session African Commission on Human and Peoples’ Rights, 11–25 May 2006, Banjul, The Gambia. Employed in e.g. DRC, Report to the African Commission on Human and Peoples’ Rights on the Implementation of the African Charter on Human and Peoples’ Rights from 2008 to 2015 (11th, 12th and 13th Periodic Reports) and of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, from 2005 to 2015 (Initial Report and 1st, 2nd and 3rd Periodic Reports), 2017. 274 Intersession Report by Commissioner Soyata Maiga, Special Rapporteur on the Rights of Women in Africa, 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, Luanda, Angola, 28 April–12 May 2014, para 32. 275 Resolution on the Situation of Women and Children in Armed Conflict, ACHPR/Res.283, May 2014. See also study on human rights situation of women in Africa, Report on Intersession Activities of the Special Rapporteur on the Rights of Women in Africa, 39th Ordinary Session African Commission on Human and Peoples’ Rights, 11–25 May 2006, Banjul, The Gambia. 276 See Intersession Activity Report (November 2015–April 2016) of Hon. Commissioner Lucy Asuagbor Special Rapporteur on the Rights of Women in Africa, Member of the Committee for the Prevention of Torture in Africa, Member of the HIV Committee, Presented to the 58th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, The Gambia, 6–20 April 2016. 277 Ibid, para 29. 278 Intersession Report of the Mechanism of the Special Rapporteur on the Rights of Women in Africa Since its Establishment Ms Soyata Maiga Commissioner, Special Rapporteur on the Rights of Women in Africa, 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights Yamoussoukro, Côte d’Ivoire, 9–22 October 2012, para 44 onwards. 279 Resolution on the Establishment and Appointment of a Focal Point on the Rights of Older Persons in Africa, ACHPR/Res.118, 28 November 2007. 280 Resolution on the Establishment and Appointment of a Focal Point on the Rights of Older Persons in Africa, ACHPR/Res.118, 28 November 2007.

H. Special Mechanisms

483

focal point was then later expanded into a Working Group which was also given the mandate to examine disabilities, reflecting the links made between them in the ACHPR. With this expanded role, so additional tasks were given to the mandate including holding meetings and undertaking research around the rights of these categories of individuals, and identifying good practices, among others. The Working Group is composed of both Commissioners and external experts.281 While the proposal to draft a protocol on the rights of older persons was enlarged in May 2009 to include the rights of persons with disabilities,282 in fact two protocols were subsequently developed. A Draft Protocol on the Rights of Older Persons was presented to the 48th Ordinary Session in November 2010,283 and that on disabilities was presented in February 2016 as being open for consultation.284 In practice, besides developing the draft protocol,285 its work has included making recommendations to States,286 although it does not appear to have undertaken visits to States other than perhaps when individual Commissioners on the Working Group have done so in other capacities,287 and has limited its statements and press releases to commemorative days.288

281 Resolution to Increase Members of the Working Group on Older Persons and People With Disabilities in Africa, ACHPR/Res.170, 24 November 2010. Resolution Re-Appointing and Appointing the Chairperson and Other Members of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.200, 5 November 2011. Resolution on the renewal of the mandate of the working group on the Rights of older persons and people with disabilities in Africa, ACHPR/Res.250, 5 November 2013. Resolution Appointing an Expert Member for the Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.269, 5 May 2014. Resolution on the Renewal of the Mandate and Reconstitution of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.312, 8 November 2015. Resolution on the Appointment of a New Expert Member of the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa, ACHPR/Res. 330 (EXT.OS/XIX) 2016, 25 February 2016. 282 Resolution on the Transformation of the Focal Point on the Rights of Older Persons in Africa into a Working Group on The Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.143, 27 May 2009. 283 Resolution Re-Appointing and Appointing the Chairperson and Other Members of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.200, 5 November 2011. 284 Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, Adopted at the 19th Extra-Ordinary Session of the African Commission on Human and Peoples’ Rights, held between 16–25 February 2016, in the Islamic Republic of The Gambia. 285 E.g. Intersession Report to 48th ordinary session, see http://www.achpr.org/sessions/48th/intersession- activity-reports/older-disabled/ 286 E.g. Draft Report of Commissioner Y. K. J. Yeung Sik Yuen, Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, Intersession period May 2009–November 2009. Intersession Activity Report of Commissioner Yeung Kam John Yeung Sik Yuen in his joint capacity as Commissioner and Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, 57th Ordinary Session of the African Commission on Human and Peoples’ Rights, 4–18 November 2015, Banjul, The Gambia. 287 E.g. promotional mission to Madagascar mentioned in capacity as Commissioner, see Intersession Activity Report of Commissioner Yeung Kam John Yeung Sik Yuen in his joint capacity as Commissioner and Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, 60th Ordinary Session of the African Commission on Human and Peoples’ Rights, 8–22 May 2017, Niamey, Niger. 288 E.g. Statement of the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa of the African Commission on Human and Peoples’ Rights, on the Occasion of the 25th International Day of Older Persons, 1 October 2015. Statement of the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa of the African Commission on Human and Peoples’ Rights, on the Occasion of the International Day of Persons with Disabilities, 3 December 2015. Statement of the Working Group on the Rights of Older Persons and Persons With Disabilities in Africa of the African Commission on Human and Peoples’ Rights, on the Occasion of the World Braille Day, 4 January 2016.

20. Article 19 Equality of Peoples All peoples shall be equal; they shall enjoy the same respect and shall have the same rights.

Nothing shall justify the domination of a people by another.

A. Introduction The first collective right in a list of rights for ‘peoples’, Article 19 has been little used. It tends to be cited, in the few communications in which it has arisen, along with other peoples’ rights. There is some indication that States themselves do not always understand what it means, as Uganda’s Article 62 report shows: Article 19: Non domination of a people by another. Uganda continues to abide by its constitutional obligations. The Constitutional Court of Uganda has pronounced itself on the issue of non-discrimination for all individuals in Uganda. In the Constitutional Petition No.2/2003 Fida and others Vs Attorney General, the Constitutional Court found that the grounds for divorce relating to men should stand equal as those relating to women. Constitutional matters of this nature have entrenched the equal rights of men and women in our society.1

The M’Baye Draft included the right to self-determination as one of the first articles,2 perhaps recognising the centrality of this particular peoples’ rights in the minds of the drafters. There was no right to peoples of equality in this Draft.

B. What is a ‘People’? The definition, or indeed lack of a definition of ‘a people’ in international law is well- covered ground, recognising the political implications of having set criteria which could ultimately lead to claims of secession and independence for groups thereby challenging existing State boundaries. As the African Commission has itself stated, it ‘is aware the controversial nature of the issue, due to the political connotation that it carries. That controversy is as old as the Charter. The drafters of the Charter refrained deliberately from defining it’.3 Although the right to self-determination is a relatively uncontested one per se in international law, albeit the extent of it may be, other collective rights have not found their way into other international instruments.4 This was thus another

1 The Republic of Uganda Periodic Report by the Government of Uganda to the African Commission on Human and Peoples’ Rights, Presented at the 49th Ordinary Session, Banjul, The Gambia, 28 April–12 May 2011. 2 Article 2, M’Baye Draft. 3 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 169. 4 B. G. Ramcharan, ‘Individual, collective and group rights: History, theory, practice and contemporary evolution’, 1 Int’l J. Group Rts. (1993) 27–43.

B. What is a ‘People’?

485

‘distinctive feature of the African Charter’,5 its inclusion of a range of rights for a people, and indeed one which has been suggested could provide a framework for the development of these collective rights by others.6 Articles 19–24 have consequently enabled the African Commission and the African Court, to advance jurisprudence around what a ‘people’ is. There is no reference to ‘minorities’ in the African Charter on Human and Peoples’ Rights (ACHPR), although the principle of non-discrimination in Article 2 will provide some recognition, as will the prohibition of mass expulsion (namely that aimed at ‘national, racial, ethnic or religious groups’) of non-nationals in Article 12(5) and its protection of the values of the community in Articles 17 and 18.7 The former Organisation of African Unity’s (OAU’s) Code of Conduct for Inter-African Relations reiterated that friendly relations ‘among our peoples . . . call for the protection of ethnic, cultural, linguistic and religion identity of all our people including national minorities’.8 A repeated and regular reference to ‘African peoples’ or the ‘people(s) of Africa’, in both the drafting history of the ACHPR9 as well as subsequently in OAU and African Union (AU) documents and those of the African Commission, appears to be more rhetorical than imposing any clear obligations or granting any specific rights. At first glance, certainly reading the earlier drafts of the African Charter, the concept of a people and the reason peoples’ rights were included to the extent that they were, comes from the post-colonial context.10 Yet whilst the African Commission and African Court have had to react to relatively few communications in which peoples’ rights, and Article 19 in particular, have been raised, as will be seen, it is with the development of the African Commission’s standards around indigenous peoples, initially so contentious, which has helped to spur the development of the concept of a people and these particular sets of rights. A ‘people’ in the self-determination context was said to enable the management of the decolonisation process where ‘people’ here were the population within the boundaries that had been created by former European colonial powers, the boundaries which, under the principle of uti possidetis, were fixed upon independence.11

Communication 253/02, Kevin Mgwanga Gunme et al v Cameroon, 29 November 2006, para 80. C. Wellman, ‘Solidarity, the individual and human rights’, 22 Hum. Rts. Q. (2000) 639–657, at 654. 7 R. Murray and S. Wheatley, ‘Groups and the African Charter on Human and Peoples’ Rights’, 25(1) HRQ (2003) 213–236, at 219–220. 8 Declaration on a Code of Conduct for Inter-African Relations, AHSG, 30th Ordinary Session, Tunis, Tunisia, 13–15 June 1994, para 4. 9 E.g. Article 46 of the M’Baye Draft included among the functions and powers of the African Commission that it should ‘develop an awareness of human rights among the peoples of Africa’. See also ‘Considering the Charter of the Organization of African Unity, in accordance with which `freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples’, Dakar Draft, preamble. 10 For example: the OAU ‘undertook since its establishment and, in accordance with its Charter, to “eradicate all forms of colonialism from Africa” ’. The Charter begins with these words: ‘Convinced that it is the inalienable right of all people to control their own destiny’, Address delivered by Leopold Sedar Senghor, President of The Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November to 8 December 1979. Reprinted in Issa G. Shivji, The Concept of Human Rights in Africa (1989) 121. 11 R. Murray and S. Wheatley, ‘Groups and the African Charter on Human and Peoples’ Rights’, 25(1) HRQ (2003) 213–236, at 214. 5 6

486

20. Article 19: Equality of Peoples

However, the inclusion of the term ‘people’ in the ACHPR was also considered to be ‘the embodiment of the African conception and philosophy of a person in society’,12 as noted in the Introductory Statement to the Dakar Draft: Peoples’ rights were stated beside individuals’ rights. The conception of an individual who is utterly free and utterly irresponsible and opposed to society is not consonant with African philosophy. The principle of peoples’ equality was asserted. It is opposed to every attempt made by one people to dominate another, no matter the importance attached to people.13

This was explained as follows: in Africa, Man is part and parcel of the group, some delegations concluded that individual rights could be explained and justified only by the rights of the community. Consequently, they wished that the Draft Charter made room for the Peoples’ Rights and adopt[ed] a more balanced approach to economic, social and cultural rights on the one hand and political and civil rights on the other.14

Relatedly, the concept of ‘solidarity’, also found at various points in the ACHPR and jurisprudence of the African bodies, has been said to encompass peoples’ rights, an approach which finds some resonance in the drafting history of the ACHPR.15 A further consideration and one which may not have been intended by the drafters of the African Charter, but which could be seen in subsequent interpretations by the African Commission and Court, is that ‘by separating the people from their state, does for collectivities what civil liberties do for individuals. It seeks to reserve a certain amount of political and economic space for peoples qua peoples’.16 Over time the African Commission and African Court have applied the term ‘people’ to a variety of different entities.17 Thus, a people can be the entire population of a State,18 an ‘indigenous people’,19 a particular ethnic group,20 or ‘different sections of national 12 R. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101, at 82. 13 Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev. 1, para I.3. Report of The Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Report on the Draft African Charter presented by the Secretary-General at the Thirty- seventh Ordinary Session of the OAU Council of Ministers, held in Nairobi, Kenya 15–21 June 1981. CM/1149 (XXXVII). Meeting of Experts for the Preparation of a Preliminary Draft of the African Charter on Human and Peoples’ Rights (Dakar, Senegal, 28 November–8 December 1979). 14 Annex II, Rapporteur’s Report, CAB/ LEG/ 67/ Draft Rapt. Rpt (II) Rev.4, para 10. Dakar Draft, Governing Principles, para 3. 15 The Governing Principles of the Dakar Draft, noted that ‘the Charter provides for peoples’ rights particularly for what people now agree to call “the rights of the third generation” or still “the rights of solidarity” namely: the right to development, the right to peace and the right to environment’. B. H. Weston et al., ‘Regional human rights regimes: A comparison and appraisal’, 20 Vand. J. Transnat’l L. (1987) 585, at 610–611. See also Chapter 28 (Articles 27–29). 16 R. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101, at 83. 17 See C. Baldwin and C. Morel, ‘Group Rights’ in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2006, 2nd Edition, Cambridge University Press, 2008, 244–288. 18 See e.g. Communication 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, 11 May 2000, para 72: the ‘Gambian people’; ‘the people of Togo’, Eighth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/8th, para 13; ‘the Somali people’, Resolution of the Peace and National Reconciliation Process in Somalia, ACHPR/Res.46, 11 May 2000. 19 Resolution on the Rights of Indigenous Peoples’ Community in Africa, ACHPR/Res.51, 6 November 2000. 20 S. A. Dersso, ‘The jurisprudence of the African Commission on Human and Peoples’ Rights with respect to peoples’ rights’, 6 AHRLJ (2006) 358–381, at 362.

B. What is a ‘People’?

487

community’.21 The African Court itself determines that ‘people’ covers ‘not only the population as the constituent elements of the State, but also the ethnic groups or communities identified as forming part of the said population within a constituted State . . . provided such groups or communities do not call into question the sovereignty and territorial integrity of the State without the latter’s consent’.22 Similarly, the African Commission has held that ‘distinct and identifiable groups of “peoples” and communities exist within the State Parties to the African Charter and each set of “peoples” and communities is entitled to enjoy internal legal equality vis-à-vis other “peoples” and communities within the same state’.23 Indeed, who is a people may vary depending on which right they are claiming.24 While neither the African Commission nor the African Court have been prepared to provide a definition of a people, they have identified certain ‘characteristics’ of a ‘people’ as well as characteristics of an ‘indigenous people’. With respect to the former, a people have been said to have ‘certain objective features attributable to a collective of individuals [which] may warrant them to be considered as a “people” ’.25 Drawing upon United Nations Educational, Scientific and Cultural Organization (UNESCO) documents as a ‘guide’, the African Commission has identified these features as being ‘a common historical tradition, a racial or ethnic identity, cultural homogeneity, linguistic unity, religious and ideological affinities, territorial connection, and a common economic life, it may be considered to be a “people”. Such a group may also identify itself as a people, by virtue of their consciousness that they are a people’.26 In one communication against Zambia amendments to the constitution required that anyone standing for President had to have both parents to be Zambian by birth or descent. This, it was alleged, violated Article 2 and 19 of the ACHPR. While the African Commission found that ‘any measure which seeks to exclude a section of the citizenry from participating in the democratic processes, as the amendment in question has managed to do, is discriminatory and falls foul of the Charter’ and so a violation of Article 2, it was not prepared to find a violation of Article 19. The applicability of this provision to the issue was ‘mistaken’ and would ‘require evidence that the effect of the measure was to affect adversely an identifiable group of Zambian citizens by reason of their common ancestry, ethnic origin, language or cultural habits’.27 Southern Cameroonians were found to be a people because they had a ‘distinct identity which attracts certain collective rights’. Furthermore, the African Commission also held that a people ‘may manifest ethno-anthropological attributes’ and that the Southern Cameroonians indicated ‘numerous characteristics and affinities, which include a common history, linguistic tradition, territorial connection and political outlook. More Guidelines on National Periodic Reports, 14 April 1989. African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 198. 23 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 114. 24 R. Gittleman, ‘The African Charter on Human and Peoples’ Rights: A legal analysis’, 22(4) Virginia Journal of International Law (1982) 667–714, at 681–682, re economic self-determination. 25 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 170. 26 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 170. 27 Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 73. S. A. Dersso, ‘The jurisprudence of the African Commission on Human and Peoples’ Rights with respect to peoples’ rights’, 6 AHRLJ (2006) 358–381, at p.374. 21 22

488

20. Article 19: Equality of Peoples

importantly they identify themselves as a people with a separate and distinct identity. Identity is an innate characteristic within a people. It is up to other external people to recognise such existence, but not to deny it’.28 Neither the ACHPR nor its interpretation by the African Commission and African Court, have considered that peoples’ rights in any way threaten or are not equal to individual rights.29 As was stated during the drafting of the ACHPR, there was a recognition ‘on the one hand that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection, and on the other hand that the reality and respect of peoples’ rights should necessarily guarantee human rights’.30 Further, peoples’ rights are, according to the African Commission: equally important as are individual rights. They deserve, and must be given protection. The minimum that can be said of peoples’ rights is that, each member of the group carries with him/her the individual rights into the group, on top of what the group enjoys in its collectivity, i.e. common rights which benefit the community such as the right to development, peace, security, a healthy environment, self-determination and the right to equitable share of their resources.31

Moreover, neither have a people been interpreted as the State per se, certainly not to the extent that it would result in a position where ‘peoples’ rights ‘might initially be treated as state rights’.32

C. Indigenous Peoples The African Commission was unwilling at first to use the phrase ‘indigenous people’, due to its perceived derogatory colonial nature,33 instead referring to ‘indigenous populations/communities’ for several years.34 Starting with its seminal report in 2000 recognising that groups such as the Hadzabe, Ogiek, Batwa/Pygmy, Yaka, San and Maasai face marginalisation, lack of access to ancestral lands, threats to their livelihoods among other violations,35 it has subsequently been progressive in dealing with their rights through its Working Group on Indigenous Populations/Communities and commitment of its

Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, paras 178–179. R. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101, at 86. 30 Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Report on the Draft African Charter presented by the Secretary-General at the Thirty-seventh Ordinary Session of the OAU Council of Ministers, held in Nairobi, Kenya 15–21 June 1981. CM/1149 (XXXVII). Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul The Gambia 7–19 January 1981), Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 22. 31 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 176. 32 R. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101, at 97. 33 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted, 28th ordinary session, Benin, November 2000, p.58. 34 E.g. Working Group on Indigenous Populations/Communities, established in November 2000. 35 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted, 28th ordinary session, Benin, November 2000. See also Resolution on Indigenous Populations/ Communities in Africa, ACHPR/Res. 334 (EXT.OS/XIX) 201625 February 2016; Resolution on the Rights of Indigenous Women in Africa, ACHPR/Res.190, 12 May 2011; Overview Report of the Research Project by the International Labour Organization and the ACHPR on the constitutional and legislative protection of the rights of indigenous peoples in twenty-four African countries, 2009. 28 29

C. Indigenous Peoples

489

members such that its standards and work in this area are now seen as one of the successes of the African Commission.36 While the African Commission has considered a ‘strict definition’ of indigenous people ‘neither necessary nor desirable’,37 it has set out ‘major characteristics’. Indeed, this was a useful technique when encouraging African States to agree to the adoption of the UN Declaration on the Rights of Indigenous Peoples.38 These characteristics include: their cultures and ways of life differ considerably from the dominant society and that their cultures are under threat in some cases to the extent of extinction’; ‘survival of their particular way of life depends on access and rights to their traditional land and the natural resources thereon’; ‘they suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society’; ‘They often live in inaccessible regions, often geographically isolated, and suffer from various forms of marginalization, both politically and socially’; ‘they are subject to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority’; ‘this discrimination, domination and marginalization violate their human rights as peoples/communities, threaten the continuation of their cultures and ways of life and prevent them from being able to genuinely participate in decision on their own future and forms of development’.39

The African Commission has thus stated it was not prepared to link the concept of indigenous with the colonial context, instead the focus should be on the following: - ‘self-definition as indigenous and distinctly different from other groups within a state’; - a ‘special attachment to and use of their traditional land whereby their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples’; - ‘an experience of subjugation, marginalization, dispossession, exclusion or discrimination because these peoples have different cultures, ways of life or modes of production than the national hegemonic and dominant model’.40 To this list it also added those employed by Erica-Irene Daes, former chair of the UN Working Group on Indigenous Populations, ‘the occupation and use of a specific territory’ 36 See e.g. The Research and Information Visit to the United Republic of Tanzania, 21 January–6 February, 2013, 21 September 2017; Report of the African Commission’s Working Group on Indigenous Populations/ Communities Regional Sensitization Seminar on the Rights of Indigenous Populations/Communities in Central and East Africa, 2012; Libya: Research and Information Visit regarding Indigenous Populations/ Communities, 2005; Research and Information Visit to Libya, 11–25 August 2005; The African Commission on Human and Peoples’ Rights adopted this report at its 40th Ordinary Session, 15–29 November 2006. 37 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted, 28th Ordinary Session, Benin, November 2000, at p.59. 38 Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples, adopted at its 41st Ordinary Session in May 2007, para 10. See R. Murray, ‘The UN Declaration on the Rights of Indigenous Peoples in Africa: The approach of the regional organisations to indigenous peoples’, in S. Allen and A. Xanthaki, Reflections on the UN Declaration on the Rights of Indigenous Peoples, Hart Publishing, 2011, chapter 19. 39 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted, 28th Ordinary Session, Benin, November 2000, at p.60 40 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted, 28th Ordinary Session, Benin, November 2000, at p.63.

490

20. Article 19: Equality of Peoples

and the ‘voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions’.41 Similarly, but not adopting exactly the same approach, the African Court, considering whether the Ogiek of Kenya were an indigenous people, ‘drew inspiration’ from the African Commission’s Working Group criteria and the UN Special Rapporteur on Minorities.42 It held that in identifying an indigenous people, the factors it would apply, which it considered to ‘generally reflect the current normative standards . . . in international law’43 would be: the presence of priority in time with respect to the occupation and use of a specific territory; a voluntary perpetuation of cultural distinctiveness, which may include aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions; self-identification as well as recognition by other groups, or by State authorities that they are a distinct collectivity; and an experience of subjugation, marginalisation, dispossession, exclusion or discrimination, whether or not these conditions persist.44

The Ogiek in Kenya were thus found to have had priority in time in using and occupying the Mau Forest and as their ancestral home, with a ‘strong attachment with nature, particularly land and the natural environment’ and their ‘survival . . . depends on unhindered access to and use of their traditional land and the natural resources thereon’.45 With respect to the second and third criteria, the African Court held that even though the Ogiek had a number of clans with their own names and locations, they did have their own language, despite being only spoken by a few, as well as ‘social norms and forms of subsistence which make them distinct from other neighbouring tribes’ by whom they are identified as being different.46 The forced evictions and assimilation as well as lack of recognition of their status as a tribe or indigenous people were considered to be evidence of subjection and marginalisation relevant to the fourth criteria.47 Indigenous peoples have, hence, been able to claim the rights in Articles 19–24 of the ACHPR.48

41 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted, 28th Ordinary Session, Benin, November 2000, at p.63. 42 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, paras 105–106. 43 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 108. 44 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 107. 45 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 109. 46 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 110. 47 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 111. 48 F. M. Ndahinda, ‘Peoples’ rights, indigenous rights and interpretative ambiguities in decisions of the African Commission on Human and Peoples’ Rights’, 16 African Human Rights Law Journal (2016) 29–57.

D. Relationship with Other Rights

491

D. Relationship with Other Rights 1. With the Principle of Non-discrimination in Article 2 On the one hand, it would appear on the face of the ACHPR, that equality of peoples is different from non-discrimination and equality for individuals. However, it is interesting to note that the text of the Dakar Draft in Article 2 provided ‘Every person and every people shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Convention without distinction as to race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any other status’.49 An explanation that the final ACHPR simply split the individual and peoples’ rights elements of this provision does not hold true as the Dakar Draft also included an Article 19 which mirrors the equivalent in the ACHPR, apart from the use of the plural ‘peoples’ instead of the singular at the opening of the final Article 19. At other stages in the Dakar Draft there is reference to ‘peoples’ rights’ in a way which could be read as equating to rights of individuals.50 Yet a collective element to Article 2 has been applied in practice. In the case against Kenya, the African Court examined the situation of the Ogiek people and found that the government had failed to recognise their status, as a people and a ‘distinct tribe’, and to grant them the same rights as to other groups, and that this amounted to ‘ “distinction” based on ethnicity and/or ‘other status’ in terms of Article 2 of the Charter’.51 Referring to the UN Declaration on the Rights of Persons belonging to Ethnic, Religious or Linguistic Minorities52 (although ironically it incorrectly cites the Declaration as the ‘Rights of People’ in the title) in its analysis of the treatment of Black Mauritanians in the context of Article 2, the African Commission held that ‘for a country to subject its own indigenes to discriminatory treatment only because of the colour of their skin is an unacceptable discriminatory attitude and a violation of the very spirit of the African Charter and of the letter of its Article 2’.53 It was not prepared to find a violation of Article 19.54 A joint report between the ACHPR and the International Labour Organization (ILO) in 2009, conversely, referring to this decision, notes ‘[t]‌his finding arguably leads to the conclusion that any law that discriminates against a people or an ethnic group would amount to a violation of Article 19’.55

Italics added. E.g. Article 12(2) of the Dakar Draft reads: ‘Every person shall have the right to leave the country in which he [resides] including his [own], and has the right to return to his country. This right may be subject to restrictions, enacted in law essential for the protection of national security, law and order, public health or morality or other peoples’ rights and freedoms which are compatible with the other rights recognized in the present Convention’ [my emphasis]. 51 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 142 and 146. 52 Resolution 47/135 of 18 December 1992. 53 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 131. 54 See below, section E. 55 Overview Report of the Research Project by the International Labour Organization and the ACHPR on the constitutional and legislative protection of the rights of indigenous peoples in twenty-four African countries, 2009, at 30. 49 50

492

20. Article 19: Equality of Peoples

2. With Other Individual Rights In their interpretation of individual rights in the ACHPR, the African Commission and African Court have read a collective dimension into them or applied the latter to the group itself. For example, the African Court has held that ‘although addressed in the part of the Charter which enshrines the rights recognised for individuals, the right to property as guaranteed by Article 14 may also apply to groups or communities; in effect, the right can be individual or collective’.56 Similarly, when considering the destruction of the houses and villages of the Ogoni people in Nigeria, as well as them being prevented from returning to rebuild their homes, the African Commission found ‘massive violations of the right to shelter’, contrary to Articles 14, 16 and 18(1) of the ACHPR.57 Interestingly, it was also willing to apply Article 4 not only to find a violation of the right to life of individual Ogonis through ‘widespread terrorisations [sic] and killings. The pollution and environmental degradation to a level humanly unacceptable has made it living in the Ogoni land a nightmare’.58 This could be read as implying that this impacted on their survival as a people: [t]‌he survival of the Ogonis depended on their land and farms that were destroyed by the direct involvement of the government. These and similar brutalities not only persecuted individuals in Ogoniland but also the whole of the Ogoni community as a whole. They affected the life of the Ogoni society as a whole.59

In the communication relating to the Southern Cameroonian people, it was alleged they had been marginalised and discriminated resulting in them demanding their right to self- determination.60 As will be seen in Chapter 21 (Article 20), the African Commission has permitted secession if it can be shown there were human rights violations ‘to the point that the territorial integrity of the State should be called to question’.61 While it was not prepared to go this far in the Cameroonian case, it was willing to find violations of both Articles 2 and 19, alongside other rights.62

E. Domination What reference there has been to Article 19 by the African Commission has tended to stress the ‘domination’ of one group over another. Indeed, Article 19 is referred to in this way on the webpage of Working Group on Indigenous Populations/Communities (‘protection against domination’)63 and in resolutions adopted on indigenous peoples.64 The Working Group has defined domination as being where a group: 56 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2007, para 123. 57 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 62. 58 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 67. 59 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 67. 60 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 192. 61 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 197. 62 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 197. 63 http://www.achpr.org/mechanisms/indigenous-populations/ 64 Resolution on the Rights of Indigenous Peoples’ Communities in Africa, ACHPR/ Res.51, 6 November 2000.

E. Domination

493

suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society . . . They are subject to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority. This discrimination, domination and marginalisation . . . threatens the continuation of their cultures and ways of life and prevents them from being able to genuinely participate in deciding on their own future and forms of development.65

There is nothing to suggest that this approach is not equally applicable to other peoples too. As the African Commission has held: post-colonial Africa has witnessed numerous cases of domination of one group of people over others, either on the basis of race, religion, or ethnicity, without such domination constituting colonialism in the classical sense. Civil wars and internal conflicts on the continent are testimony to that fact. It is incumbent on State Parties, therefore, whenever faced with allegations of the nature contained in the present communication, to address them rather than ignore them under the guise of sovereignty and territorial integrity.66

Applying Article 19 in the context of conflict and bringing ‘together the Somali people’, the African Commission appealed to them, as well as civil society and traditional and political leaders to ‘give priority to the national interest of maintaining the unity and integrity of Somalia’.67 In a series of early communications against Mauritania alleging the discrimination of Black ethnic Mauritanians, the complainants argued that this was the result of ‘a negation of the fundamental principle of equality of peoples’ under Article 19.68 The Commission was prepared to find violations of a range of articles in the ACHPR (including Articles 2 and 369) and ‘identified and condemned the existence of discriminatory practices against certain sectors of the Mauritanian population’. It also considered that ‘at the heart of the abuses . . . is the question of the domination of one section of the population by another’. It, however, found there to be insufficient information for a violation of Article 19.70 This is an odd conclusion, particularly when its reasoning under Article 2 implies a collective element. One is left wondering whether it was uncomfortable, particularly in one of its first decisions, to conclude that a section of society in Mauritania ‘dominated’ another and under a right which was not known and not found in other instruments. Instead, it was simpler to base its finding on the already well-established principle of non-discrimination. Perhaps one can partially explain the limited use of Article 19 if one views it in the historical context in which the ACHPR was adopted. The inclusion of peoples’ rights, in particular reference to equality between peoples, reflected the colonial and recent 65 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted, 28th Ordinary Session, Benin, November 2000. See also, K. N. Bojosi and G. M. Wachira, ‘Protecting indigenous peoples in Africa: An analysis of the approach of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 382–406. 66 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 182. 67 Resolution of the Peace and National Reconciliation Process in Somalia, ACHPR/Res.46, 11 May 2000. 68 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 142. 69 See above in section D.1. 70 Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 142.

494

20. Article 19: Equality of Peoples

post-colonial context of the continent. As more States gained independence its relevance became less apparent and it has either found use in discrimination against certain ethnic groups or where there is some colonial legacy which impacts on certain populations within the State. Where complainants alleged that Cameroon had ‘forcefully and unlawfully annexed’ Southern Cameroon over which it now exercised ‘a colonial sovereignty’,71 violations of Articles 19 and 20 were raised. The State, in response, argued that the African Commission could not deal with the matter as it related to ‘the process of decolonisation that took place in this State and under the auspices of the United Nations’.72 The African Commission agreed, in part, that it was not able to rule on the ‘ “illegal and forced annexation, or colonial occupation of Southern Cameroon by the Respondent State”, since they fall outside its jurisdiction rationae temporis’.73 Nevertheless, it was prepared to find that the ‘relocation of business enterprises and location of economic projects to Francophone Cameroon, which generated negative effects on the economic life of Southern Cameroon’ was a violation of Article 19.74 In an interesting take on the concept of domination of one people by another, Article 19 was employed by the complainants in one case to argue that money from oil revenue benefitted the capital of Angola and not the Cabinda area which was itself rich in oil. This was contrary to a Peace Accord that fifty per cent of the revenue would be returned to Cabinda. As a result, there was higher unemployment and infant mortality in the area. The African Commission found that in order to prove a violation of Article 19, it needs to be shown that ‘a given group or set of peoples who is in a position similar to another group or set of people has been or is being treated differently or that a given group or set of peoples who is in a position different to another group or set of people is treated similarly such that the “peoples” complaining suffer unfair and unjustifiable disadvantage that amounts to discrimination’.75 Consequently, equality necessitates that ‘groups who have suffered previous disadvantages or continue to suffer disadvantages within a state are entitled to some advantageous treatment especially where such groups bear an unequal part of the burden for the exploration of natural resources in that state’.76 While the State argued that it was only able to spend revenue in an area which had generated it, the African Commission disagreed noting that equality ‘requires the striking of a balance between a group’s claim to advantageous treatment or affirmative action and the legitimate expectation of other groups within the state to share in the resources of that state’, and thus the people of Cabinda should have received some of the revenue.77 It did not find that sufficient evidence had been provided by the complainants to indicate that the people of Cabinda had higher unemployment, poverty, infant mortality and disease to justify a finding of Article 19.78 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 151. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 153. 73 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 155. 74 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 162. 75 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 114. 76 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 117. 77 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 118. 78 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 119. 71 72

F. Special Mechanisms

495

Although the African Commission found a violation of Article 19, among several others, in the inter-State communication Democratic Republic of Congo v Burundi, Rwanda, Uganda,79 it did not provide any analysis on this provision. It did discuss, in the context of Articles 20 and 23, however, that the Respondent States had not acted in compliance with the UN Declaration on Friendly Relations, specifically, the principles against intervention in the affairs of another State; attempts or acts to overthrow a regime in another State; or occupation of another’s territory.80

F. Special Mechanisms The Working Group on Indigenous Populations/ Communities was established in 200081 after considerable discussion within the Commission and with the NGO the International Working Group on Indigenous Affairs (IWGIA) and representatives of indigenous peoples, which centred around the controversy, as noted above, in particular, of the term ‘indigenous’ and its French equivalent. The mandate of the Working Group initially was to ‘[e]‌xamine 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’, and then identify recommendations to monitor these communities.82 Added to this later were Terms of Reference which required it to obtain information from relevant sources on violations of the rights of indigenous communities, undertake country visits and cooperate with relevant international and regional organisations and institutions.83 Its activities include producing studies and reports84 as well as a newsletter entitled ‘Voice of the Indigenous’;85 highlighting particular issues or concerns with particular States in its intersession reports;86 undertaking missions, be they termed promotional, ‘research and information’ or ‘fact-finding’ visits;87 holding seminars to Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, paras 68, 76 and 77. 81 Resolution on the Rights of Indigenous Peoples’ Communities in Africa, ACHPR/ Res.51, 6 November 2000. 82 Resolution on the Rights of Indigenous Peoples’ Communities in Africa, ACHPR/ Res.51, 6 November 2000. 83 Resolution on the Rights of Indigenous Peoples’ Communities in Africa, ACHPR/ Res.51, 6 November 2000. 84 E.g. Overview Report of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries, with Centre for Human Rights at the University of Pretoria and the ILO. 85 Intersession Report of the Working Group on Indigenous Populations/ Communities in Africa, Commissioner Soyata Maïga, Chairperson of the Working Group, 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013. 86 E.g. Intersession Report, by Madam Soyata MAIGA, Chairperson of the Working Group on Indigenous Populations/Communities, 51st Session of the African Commission on Human and Peoples’ Rights, Banjul, Gambia, 18 April–2 May 2012. 87 E.g. to DRC, August 2009; to Republic of Congo in March 2010, Intersession Activity Report of the Chairperson of the Working Group on Indigenous Populations/Communities, 47th Ordinary Session; Intersession Report, by Madam Soyata MAIGA, Chairperson of the Working Group on Indigenous Populations/Communities, 51st Session of the African Commission on Human and Peoples’ Rights, Banjul, Gambia, 18 April–2 May 2012, para 19. 79 80

496

20. Article 19: Equality of Peoples

sensitise or train actors;88 issuing urgent appeals;89 and engagement with UN and regional counterparts.90 The Working Group has been renewed mostly every two years and its composition expanded and developed to include both Commissioners, ‘independent experts’ (from the initiating organisation IWGIA) as well as representatives of indigenous peoples.91

G. Remedies A violation of Article 19 has not arisen on its own, so is found in conjunction with other rights in the ACHPR, including individual rights. As with elsewhere, it is not possible to separate out the remedies ordered for a violation of specific rights. Finding discrimination against the people of Northwest and Southwest Cameroon on the basis of language, the African Commission required that the government abolish ‘all discriminatory practices’ against these people, halt accused individuals from being moved to Francophone areas for trial; that defendants be tried in the language they understand or interpreters be provided in courts; as well as national projects being located ‘equitably throughout the country . . . in accordance with economic viability as well as regional balance’.92 It also urged that companies that had suffered discrimination be paid compensation; and that the government enter into dialogue with the complainants.93 Interestingly, recommendations were also addressed to the complainants to transform themselves into political parties and ‘abandon secessionism and engage in constructive dialogue with the Respondent State on the Constitutional issues and grievances’, with the African Commission offering its good offices to the parties to find a solution.94 88 E.g. Report of the African Commission’s Working Group on Indigenous Populations/ Communities Regional Sensitization Seminar on the Rights of Indigenous Populations/Communities in Central and East Africa, 22–25 August 2011, Brazzaville, Republic of Congo; Final Communiqué of the Regional Sensitization Seminar on the Rights of Indigenous Populations/Communities in Central and East Africa, 22–25 August 2011, Brazzaville, Republic of Congo. See also Intersession Activity Report of the Chairperson of the Working Group on Indigenous Populations/Communities in Africa, Commissioner Musa Ngary Bitaye, to 49th Ordinary Session. 89 E.g. Maasai in Tanzania, Intersession Activity Report of the Chairperson of the Working Group on Indigenous Populations/Communities in Africa, Commissioner Musa Ngary Bitaye, to 49th Ordinary Session. 90 E.g. see Intersession Report of the Working Group on Indigenous Populations/Communities in Africa Commissioner Soyata Maiga, Chairperson of the Working Group, 53rd Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 9–23 April 2013. Intersession Activity Report of the Working Group on Indigenous Populations/Communities, Commissioner Soyata Maiga, Vice- Chairperson of the African Commission on Human and Peoples’ Rights; Chairperson of the Working Group, 58th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 6–20 April 2016. Intersession Report of the Working Group on Indigenous Populations/Communities in Africa, Commissioner Soyata Maiga, Chairperson of the Working Group, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015. 91 Ibid. Resolution on the Composition and Renewal of the Mandate of the Working Group on Indigenous Populations/Communities in Africa, ACHPR/Res.81, 5 December 2005. Resolution on the Appointment of a Commissioner as Member of the Working Group on Indigenous Populations/Communities in Africa, ACHPR/Res.98, 29 November 2006. Resolution on the Composition and Renewal of the Mandate of the Working Group on Indigenous Populations/Communities in Africa, ACHPR/Res.123, 28 November 2007. Resolution on the Renewal of the Mandate of the Working Group on Indigenous Populations/Communities in Africa, ACHPR/Res.155, 25 November 2009. Resolution on the Appointment of the Chairperson and Members of the Working Group of Indigenous Populations/Communities In Africa, ACHPR/Res.204, 5 November 2011. Resolution Appointing Expert Members for the Working Group on Indigenous Populations/ Communities in Africa, ACHPR/Res.237, 23 April 2017. Resolution on the Appointment of Expert Members of the Working Group on Indigenous Populations/Communities in Africa, ACHPR/Res. 329 (EXT.OS/XIX) 2016, 25 February 2016. Resolution on the Renewal of the Mandate and Reconstitution of the Working Group on Indigenous Populations/Communities in Africa, ACHPR/Res.382 (LXI) 2017, 15 November 2017. 92 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 93 94 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215.

21. Article 20 Peoples’ Right to Existence, Self-determination and Freedom from Foreign Domination 1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

A. Introduction As noted in the previous chapter, the concept of ‘peoples’ rights’ has its roots in part in the decolonisation of the African continent, and self-determination was considered to be an accepted legal right upon which such claims could be founded.1 As was highlighted in the drafting of the African Charter, ‘[t]‌he various delegations laid emphasis on the specificity of African problems with regard to human rights, . . . the total liberation of Africa from foreign domination, . . . and the need for a new economic and legal order, particularly the right to self-determination’.2 One of the primary emphases of the OAU’s work during the 1970s and 1980s was on safeguarding the newly found independence of African States and achieving independence for other African peoples. Hence, it is no surprise that the OAU accepted early on that self-determination in terms of decolonisation would still have to satisfy the principle of uti possidetis,3 despite the arbitrary way in which boundaries were drawn under colonisation;4 and in other contexts, self-determination was only going to be permitted if it did not challenge State sovereignty.5 1 Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November to 8 December 1979. Reprinted in Issa G. Shivji, The Concept of Human Rights in Africa (1989) 121. 2 Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Report on the Draft African Charter Presented by the Secretary-General at the 37th Ordinary Session of the OAU Council of Ministers, Held in Nairobi, Kenya 15–21 June 1981. CM/1149 (Xxxvii). Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia 7–19 January 1981), para 11. 3 Resolution on Border Dispute Among African States, AHG/Res. 16(I) (1964). See Klabbers & R. Lefeber ‘Africa: Lost between self-determination and uti possidetis’, in C. Brölmann et al (eds) Peoples and Minorities in International Law (1993). 4 Resolution AHG/Res.16(I), 21 July 1964. See also Algiers Declaration, OAU Doc. AHG/Decl.1 (XXXV). F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 244. 5 C. R. Ezetah, ‘Legitimate Governance and Statehood in Africa: Beyond the Failed State and Colonial Self-Determination’, in E. K. Quashigah and O. C. Okafor (eds), Legitimate Governance in Africa (The

498

21. Article 20: Peoples’ Right to Existence

For the African Commission, given it did not come into existence until 1987 by which time most African States were independent, decolonisation has mainly been referred to in an historical context and on only a few occasions.6 Instead, beyond a handful of examples such as South Sudan, its attention has been principally focused on internal forms of self-determination. It has, for example, acknowledged threats to a State’s existence from terrorism;7 and has received communications relating to Biafra.8 In addition, the right of peoples to ‘pursue their social and economic development’ in Article 20(1) has been mentioned in conjunction with Articles 21 and 24 in the context of the governance of natural resources.9 The State thus has an obligation ‘for ensuring natural resources stewardship with, and for the interest of, the population and must fulfill its mission in conformity with international human rights law and standards’; and should also ‘ensure participation, including the free, prior and informed consent of communities, in decision making related to natural resources governance’.10 This community participation, additionally, ought to be in determining ‘benefits from any development on their land or other resources or that affects them in any substantial way’.11 Where three States were found to have occupied the territory of the DRC, even though they said they were doing so to safeguard their national interests, the African Commission found not only a violation of Article 23 but that their ‘conduct . . . also constitutes a flagrant violation of the right to the unquestionable and inalienable right of the peoples of the Democratic Republic of Congo to self-determination provided for by Article 20 of the African Charter, especially clause 1 of this provision’.12 Interestingly, a communication was brought on behalf of the President and Deputy President of Kenya, Uhuru Kenyatta and William Ruto, alleging that their indictment by the International Criminal Court was contrary to the obligation of Kenya to eradicate all forms of colonialism from Africa.13 A violation of Article 20(1) was alleged, although no specifics are given in the decision of the grounds for this claim, and the African Commission decided not to seize the communication, without discussing the provision in detail.

Hague: Kluwer Law International, 1999) 419–459; I. Enemo, ‘Self-Determination as the Fundamental Basis of the Concept of Legitimate Governance under the African Charter on Human and Peoples’ Rights’, in E. K. Quashigah and O. C. Okafor (eds), Legitimate Governance in Africa, Kluwer Law International, 1999, 403–418. 6 E.g. Prisons in Mozambique Report on a Visit 14–24 December 1997 by Prof. E.V.O. Dankwa Special Rapporteur on Prisons and Conditions of Detention in Africa, p.8. 7 A. O. Muzan, ‘Insurgency in Nigeria: Addressing the causes as part of the solution’, 14 AHRLJ (2014) 217–243. See also Republic of Kenya, Combined 8th–11th Periodic Report on the African Charter on Human & Peoples’ Rights, November 2014, para 277. 8 E.g. Communication 273/03, Centre for Advancement of Democracy, Social Justice, Conflict Resolution and Human Welfare v Nigeria, 11 May 2005, closed due to lack of further information from the complainant. 9 E.g. Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/ Res.224, 2 May 2012. 10 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 11 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 12 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 67 and 77. 13 Communication 464/14, Uhuru Kenyatta and William Ruto (represented by Innocence Project Africa) v Republic of Kenya, 14 March 2014, para 5.

B. Right to Existence

499

States themselves have considered Article 20 to cover issues such as elections, representation in the legislature including devolution, as well as non-discrimination14 and claims for secession.15

B. Right to Existence Those writing about Article 20 and the right to existence of a people have linked it to the prohibition of genocide,16 although Ouguergouz argues that this provision ‘goes beyond a mere positive statement of the prohibition of genocide’.17 There have been relatively few occasions where the African Commission has identified a situation as amounting to genocide. Even in April 1994 during the genocide in Rwanda and at its session held at the same time, it was not prepared initially to use the term to describe what was happening in that State, instead referring to ‘serious and massive violations’, the ‘wanton killing of civilians and heinous acts’ and ‘massacre of innocent civilians’.18 It was only in November that year when mentioning a UN report which found genocide,19 where it employed the term. The African Commission, however, has not related genocide to Article 20 specifically. More generally, it has referred to genocide, as well as war crimes, crimes against humanity, and ethnic cleansing, in the context of torture,20 ending impunity,21 as well as the responsibility to protect, citing in particular the situations in Darfur, the DRC, Somalia, Chad and CAR, although not specifically stating that they amounted to such.22 It has thus, for example, called upon the UN and AU to provide the necessary facilities to enable their peace-keeping forces to ‘provide enhanced protection against the violation of International Humanitarian Law and the fundamental rights of the people of Somalia’.23 Similarly, although it did not appear to be prepared to go as far as to state that genocide had occurred in Darfur, it did call on the government to ‘allow the International Commission of Inquiry unhindered access to the Darfur region to enable it to thoroughly investigate alleged human rights violations with a view of further investigating as to whether or not genocide has occurred’.24 Specifically, the AU is permitted to intervene ‘in a Member 14 Republic of Kenya, Combined 8th–11th Periodic Report on the African Charter on Human & Peoples’ Rights, November 2014, paras 274–275. 15 E.g. from the Mombasa Republican Council (MRC) in Kenya, see Republic of Kenya, Combined 8th– 11th Periodic Report on the African Charter on Human & Peoples’ Rights, November 2014, paras 275–276. 16 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 222. R. N. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101, at 94. 17 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 216. 18 Resolution on the Situation in Rwanda, ACHPR/Res.8, 27 April 1994. 19 Resolution on Rwanda, ACHPR/Res.12, 3 November 1994. See also indirectly, Report of the Delegation of the African Commission on Human and Peoples’ Rights on its fact-finding mission to Burundi, 7–13 December 2015, 17 May 2016, para 2.2. 20 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), 11 May 2017, para 63. 21 Resolution on Ending Impunity in Africa and on the Domestication and Implementation of the Rome Statute of the International Criminal Court, ACHPR/Res.87, 5 December 2005. 22 Resolution on Strengthening the Responsibility to Protect in Africa, ACHPR/Res.117, 28 November  2007. 23 Resolution on Strengthening the Responsibility to Protect in Africa, ACHPR/Res.117, 28 November  2007. 24 Report of the African Commission on Human and Peoples’ Rights’ Fact-Finding Mission to the Republic of Sudan in the Darfur Region (8–18 July 2004), EX.CL/364 (XI), Annex III, para 138.

500

21. Article 20: Peoples’ Right to Existence

State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity’,25 and there is ‘[c]‌ondemnation and rejection of unconstitutional changes of governments’.26 On one occasion, the African Commission has made reference to ‘cultural genocide’ when considering the situation of the Basarwa indigenous people in Botswana. It noted that government ministries had ‘responded to allegations made by some sections of civil society that the relocation of the Basarwa from the CKGR was to make way for mining and mineral prospecting, allegations of torture and cultural genocide’,27 but without making any further comment. In so doing, it appears to go beyond the requirements of the Genocide Convention,28 and reflects developments around this concept particularly within the context of indigenous peoples.29 Yet it is not apparent from an examination of the travaux préparatoires of the ACHPR that genocide was in the mind of the drafters. Indeed, an explicit ‘right to existence’ of a people was not included in provisions on self-determination in the M’Baye nor Dakar Drafts.30 Rather, it may be that Article 20 and the right to existence was simply about independence for newly sovereign African States and for those peoples who had yet to achieve statehood. The OAU Charter referenced among its principles ‘[r]‌espect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence’,31 implying that ‘existence’ is tied with independent Statehood. The Constitutive Act of the AU, whilst not referring to a right to existence, nor to self- determination, does have among its objectives to ‘[d]efend the sovereignty, territorial integrity and independence of its Member States’;32 and ‘sovereign equality’ and ‘[r]espect of borders existing on achievement of independence’ among its Principles.33 Article 20 has been applied together with ‘the right to existence’ in the context of a referendum on the Western Sahara,34 as well as the situation between Sudan and the newly independent South Sudan, although it is unfortunate that there is no real analysis by the African Commission as to why the article was mentioned.35 Beyond this, overall, a ‘right to existence’ has been cited sparingly by the African bodies and it is the concept of ‘self- determination’ which has received consistent attention.

1. Self-determination a. External Self-determination The African Commission has noted that Article 20 of the Charter ‘has a particular historical context in the sense that it is one of the provisions of the Charter that was aimed at addressing the situation of Africans who remained under colonial domination at the

26 Constitutive Act, Article 4(h). Constitutive Act, Article 4(p). Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Botswana, 15–23 June 2005; the African Commission on Human and Peoples’ Rights adopted this report at its 38th Ordinary Session, 21 November–5 December 2005, 2008, para 13.58. 28 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 223. 29 See e.g. L. Kingston, ‘The Destruction of Identity: Cultural Genocide and Indigenous Peoples’, 14(1) Journal of Human Rights (2015) 63–83. 30 31 Article 2, M’Baye Draft; Article 20, Dakar Draft. OAU Charter, Article III(3). 32 33 Constitutive Act, Article 3(b). Constitutive Act, Articles 4(a) and (b). 34 Resolution on the Western Sahara, ACHPR/Res.45, 11 May 2000. 35 Resolution on the Situation Between Sudan and South Sudan, ACHPR/Res/219, 2 May 2012. 25 27

B. Right to Existence

501

time the Charter was drafted’.36 The applicability of the right to self-determination in the decolonisation context is not controversial in international law, nor before the African bodies. Yet what has been more challenging is its applicability, particularly when claiming secession, to other situations. The African Commission has consistently upheld the principle of uti possidetis and that self-determination will only be exercised ‘within the inviolable national borders of a State party by taking due account of the sovereignty of the State’.37 Thus, it is ‘obligated to uphold the sovereignty and territorial integrity’ of States which are members of the AU and party to the ACHPR.38 It does not permit secession, condemning, for instance, the unilateral declaration of independence by the National Movement for the Liberation of Azawad in Mali.39 Instead ‘[a]‌ctive steps towards the promotion and protection of minority rights and inter-ethnic tolerance are essential towards the prevention of secessionist movements in Africa’.40 The first case in which the African Commission dealt with external self-determination was the Katangese Peoples’ Congress v Zaire. Here the President of the Katangese Peoples’ Congress argued that it should be recognised as a liberation movement and that Katanga should be a separate independent State under Article 20(1). The African Commission, in a very brief decision,41 held that ‘[w]hether the Katangese consist of one or more ethnic groups is, for this purpose immaterial and no evidence has been adduced to that effect’.42 Instead, it set out ways in which self- determination could be exercised: ‘independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognisant of other recognised principles such as sovereignty and territorial integrity’.43 However, it did leave open the possibility of certain circumstances in which secession may be considered legitimate, namely ‘concrete evidence of violations of human rights to the point that the territorial integrity of [the State] should be called to question and . . . evidence that the people of Katanga are denied the right to participate in government as guaranteed by Article 13.1 of the African Charter’.44 Unless this could be shown, which in the case of the Katangese people it did not believe could be, then the latter are 36 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013. 37 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 41. See also Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples, Adopted by the African Commission on Human and Peoples’ Rights, at its 41st Ordinary Session held in May 2007 in Accra, Ghana, 2007, para 24. 38 Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March 1995, para 5. 39 Resolution on the Situation of the North of the Republic Mali, ACHPR/Res.217, 2 May 2012. 40 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 41 Which has been criticised for lacking reasoning, see M. Mhango, ‘Governance, peace and human rights violations in Africa: Addressing the application of the right to self-determination in post-independence Africa’, 5 Afr. J. Legal Stud. (2012) 199–214. 42 Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March 1995, para 3. 43 Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March 1995, para 4. 44 Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March 1995, para 5. See F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 244–245.

502

21. Article 20: Peoples’ Right to Existence

‘obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire’.45 Applying this test in a more recent communication, it was alleged that the State of Cameroon had occupied Southern Cameroon in violation of Articles 19 and 20.46 The State argued that the Commission did not have the competence to deal with decolonisation as this related to a UN plebiscite in the 1960s which was prior to the adoption and entry into force of the ACHPR.47 Holding that it was ‘obliged to uphold the territorial integrity of the Respondent State’ as it was a party to the Constitutive Act and the ACHPR,48 the African Commission considered itself unable to ‘envisage, condone or encourage secession, as a form of self-determination for the Southern Cameroons. That will jeopardise the territorial integrity of the Republic of Cameroon’.49 However, self-determination could be exercised in other ways. While the complainants alleged oppression of the Southern Cameroonians to the extent that they should be permitted to secede from Cameroon, the Katangese test, the African Commission was not able to find evidence of such violations given that they were represented in the National Assembly and in national institutions.50 They had consequently not been able to demonstrate that ‘oppression and domination’ had occurred.51 The State was required, nevertheless, to address the concerns of the Southern Cameroonians given that other rights in the ACHPR had been violated. The basis on which the African Commission has reasoned its approach towards particular situations is not always clear. For example, the African Commission has encouraged the referendum in the Western Sahara as way of resolving ‘the question of the right to self-determination of the Sahrawi People’,52 and it has noted the ‘immense suffering of the Sahrawi people’,53 and the ‘persistence of acts of human rights abuses in the occupied territory’.54 Yet, it has also considered that the issue of the Western Sahara ‘remains a matter of de-colonisation’.55 With reference to South Sudan the African Commission has noted its independence was a ‘good example of the exercise of a people’s right to self-determination’.56 In addition, although it considered arguments by separatist organisations with respect to the independence of Casamance from Senegal, the African Commission did not support their 45 Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March 1995, para 5. 46 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 152. See discussion, F. M. Ndahinda, ‘Peoples’ rights, indigenous rights and interpretative ambiguities in decisions of the African Commission on Human and Peoples’ Rights’, 16 African Human Rights Law Journal (2016) 29–57, at 51. 47 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, paras 154–155. 48 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 190. 49 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 190. 50 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 195. 51 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 197. 52 Statement by the African Commission on Human and Peoples’ Rights on the Trial and Sentencing of Twenty-Five Sahrawi Civilians by a Military Court in Morocco; Resolution on Western Sahara, ACHPR/ Res.45, 11 May 2000. 53 30th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/717 (XX), para 247. Promotional Mission Report of Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa in The Republic of the Sudan (from 30 March to 4 April 2003), para 24. 54 Resolution on the situation in the Sahrawi Arab Democratic Republic, ACHPR/Res.282, 28 April 2014. 55 Report of the Fact-Finding Mission to the Sahrawi Arab Democratic Republic (24–28 September 2012). 56 30th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/717 (XX), para 247. Promotional Mission Report of Commissioner Angela Melo, Special Rapporteur on the Rights of Women in Africa in the Republic of the Sudan (from 30 March to 4 April 2003), para 24.

B. Right to Existence

503

claims referring to the potential that such an acceptance would open the door for others in the State to make similar demands.57 Its reiteration in an Advisory Opinion, that claims by indigenous peoples to self- determination would only be exercised by not undermining the territorial integrity of States,58 helped to convince African States to support the adoption of the UN Declaration on the Rights of Indigenous Peoples.59

b. Internal Self-determination In addition to, for example, federalism, local government and other structures, as noted above, self-determination can be exercised in ways which do not impact on the boundaries of the existing State. i. Participation and Consent Firstly, the right can require that ‘all communities are allowed full participation in political activities . . . according to the choices they have made independently’.60 For indigenous peoples, for instance, the African Commission has stated that their right to self-determination61 encompasses the ‘management of their “internal and local affairs” and to their participation as citizens in national affairs on an equal footing with their fellow citizens’.62 It may also encompass ‘the right to local self-government, the right to recognition so as to be consulted in the drafting of laws and programs concerning them, to a recognition of their structures and traditional ways of living as well as the freedom to preserve and promote their culture’.63 Whilst, again, this ‘should not impact on the sovereignty of the State’,64 there should be participation in government and representation in ‘the management of their villages’.65 States may need to take affirmative action to achieve this.66 In addition, participation should also be encouraged ‘in the democratic process of 57 Report on Mission of Good Offices to Senegal of the African Commission on Human and Peoples’ Rights, (1–7 June 1996), Tenth Annual, Activity Report of the African Commission on Human and Peoples’ Rights, 1996–1997, ACHPR/RPT/10th, Annex VIII, para V.3.1. 58 Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples, Adopted by the African Commission on Human and Peoples’ Rights, at its 41st Ordinary Session held in May 2007 in Accra, Ghana, 2007, para 22. 59 R. Murray, ‘The UN Declaration on the Rights of Indigenous Peoples in Africa: The Approach of the Regional Organisations to Indigenous Peoples’, in S. Allen and A. Xanthaki, Reflections on the UN Declaration on the Rights of Indigenous Peoples, Hart Publishing, 2011, chapter 19. See also E. D. Titanji, ‘The right of indigenous peoples to self-determination versus secession: One coin, two faces?’, 9 AHRLJ (2009) 52–75, at 68. 60 Guidelines for National Periodic Reports. 61 African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No. 006/2012, 26 May 2012. 62 Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples, Adopted by the African Commission on Human and Peoples’ Rights, at its 41st Ordinary Session held in May 2007 in Accra, Ghana, 2007, para 26. 63 Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples, Adopted by the African Commission on Human and Peoples’ Rights, at its 41st Ordinary Session held in May 2007 in Accra, Ghana, 2007, para 27. Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 42. 64 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Rwanda, 1–5 December 2008. Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to Kenya, 1–19 March 2010, p.78. 65 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Rwanda, 1–5 December 2008, p.48. 66 Report of the African Commission’s Working Group on Indigenous Populations/Communities, Mission to the Republic of Rwanda, 1–5 December 2008, p.48.

504

21. Article 20: Peoples’ Right to Existence

national governance. This may include governance schemes that provide more power and authority to regional and local authorities and/or proportional representation systems’.67 Finally, the right to self-determination for indigenous peoples necessitates ‘prior informed consent’ for the exploitation of resources of their lands and use of their traditional knowledge.68 ii. Equal Opportunities A people should be ‘allowed equal opportunities in the economic activities of the country . . . according to the choices they have made independently’.69 States have an obligation to ensure peoples, including indigenous peoples, are not discriminated against ‘in their access to economic activities particularly the labour market, land and means of agricultural production, and to health services, education and other facilities’.70 iii. Elections and Unconstitutional Changes of Government As noted in Chapter 14 (Article 13), there is a close relationship between Article 13 and Article 20. Where elections, that had been determined as free and fair by national and international observers,71 were subsequently annulled, the African Commission, citing the right to self-determination called on the military government to ‘hand over the government to duly elected representatives of the people without unnecessary delay’.72 This is in line with the OAU and subsequently AU’s increasing attention to and condemnation of unconstitutional changes of government.73 Military coups, even if peaceful, are considered to be a violation of Article 10. As was held in relation to events in the Gambia in 1994: It is true that the military regime came to power by force, albeit, peacefully. This was not through the will of the people who have known only the ballot box since independence, as a means of choosing their political leaders. The military coup was therefore a grave violation of the right of Gambian people to freely choose their government as entrenched in Article 20(1) of the Charter.74

C. Article 20(2) and Article 20(3) While there has been very limited reference to liberation struggles in the colonial context and what there is has tended to be historic,75 what is less apparent is the extent to which 67 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 46. 68 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 44. 69 Guidelines for National Periodic Reports. 70 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 44. 71 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para 41. 72 Resolution on Nigeria, ACHPR/Res.11, 3 November 1994. 73 E.g. Decision on Unconstitutional Changes of Government in Africa CM/2166 (LXXII), Assembly of the Heads of State and Government/4th Ordinary Session of the AEC, AHG/Dec.150 (XXXVI) (12 July 2000). 74 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 73. 75 E.g. ‘We observe that Zimbabwean society is highly polarised. It is a divided society with deeply entrenched positions. The land question is not in itself the cause of division. It appears that at heart is a society in search of the means for change and divided about how best to achieve change after two decades of dominance by a political party that carried the hopes and aspirations of the people of Zimbabwe through the liberation struggle into independence’, ZIMBABWE, Report of the Fact-Finding Mission, June 2002.

C. Article 20(2) and Article 20(3)

505

these provisions (which were not included in the M’Baye Draft of the Charter76) apply to groups within a State who experience other forms of oppression.77 Thus, what does ‘free themselves’ mean in the context of self-determination (Article 20(2)), and with what assistance should third States provide them (Article 20(3))? On the one hand, ‘colonized and oppressed’ people appear to have been ‘singled out’ to be able to use ‘any means’ within international law to free themselves.78 Whether ‘colonised’ peoples are the same as ‘oppressed’ peoples is also to be questioned. If the provisions relate solely to those colonised then it should surely have been apparent by the drafters of the African Charter that they would quickly become obsolete, other than a requirement that African States should not assist any remaining colonial powers.79 The provisions could also apply to those under apartheid,80 but Ouguergouz considers that ‘it is hard to confine the application of [Article 20(2)] solely to peoples colonized or dominated by a white minority, without falsifying the text’.81 One possibility is that they should also pertain to situations such as genocide, and other serious or massive violations of rights.82 If this were to be the case, then it is suggested that a number of tests should be met. Firstly, there should be serious or massive violations which result in the people being unable to exercise internal self-determination. Secondly, the State should refuse to address such violations. Lastly, another State could then come to assist the oppressed people under Article 20(3).83 This latter requirement, it is argued, would present a ‘sword of Damocles, whose purpose would be prevent any serious violation by African leaders of the African Charter, an instrument which thus seems to form part of the gradual development of a new African public order’.84 Indeed, if Article 20(2) and (3) are to have contemporary relevance, then ‘oppression’ needs to have a ‘broad rather than narrow concept, related to misrule and misuse of authority and likely involving violations of one or more of the other substantive rights in the African Charter . . . such violations must be at least systematic and serious’.85 Some writers have argued that Article 20(2) has ‘a unique status in international law as the sole express ‘right to resist’,86 although Article 2(4) of the Arab Charter contains

Article 2, M’Baye Draft. S. Murphy, ‘Unique in international human rights law: Article 20(2) and the right to resist in the African Charter on Human and Peoples’ Rights’, 11 Afr. Hum. Rts. L.J. (2011) 465–594, at 471. 78 M. K. Addo, ‘Political Self Determination within the Context of the African Charter on Human and Peoples’ Rights’, 32 J. Afr. L. (1988) 182, 193, 182–193, at 186. 79 M. K. Addo, ‘Political self determination within the context of the African Charter on Human and Peoples’ Rights’, 32 J. Afr. L. (1988) 182, 193, 182–193, at 189. 80 M. K. Addo, ‘Political self determination within the context of the African Charter on Human and Peoples’ Rights’, 32 J. Afr. L. (1988) 182, 193, 182–193, at 189. 81 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 263. 82 F. Ouguergouz, The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 263–264. 83 F. Ouguergouz, The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 266. 84 F. Ouguergouz, The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 267. 85 S. Murphy, ‘Unique in international human rights law: Article 20(2) and the right to resist in the African Charter on Human and Peoples’ Rights’, 11 Afr. Hum. Rts. L.J. (2011) 465–494, at 483. 86 S. Murphy, ‘Unique in international human rights law: Article 20(2) and the right to resist in the African Charter on Human and Peoples’ Rights’, 11 Afr. Hum. Rts. L.J. (2011) 465–594, at 465. 76 77

506

21. Article 20: Peoples’ Right to Existence

a similar yet more limited provision.87 This does not appear to have been advanced as a specific right by the African Commission nor African Court. In fact, Article 20(2) and (3) have been raised on a very limited number of occasions. In one case it was alleged that the people of a province of Angola, Cabinda, had had their right to self-determination violated, in particular their right to social and economic development, as the government had prohibited organisations which ‘espouse a uniquely Cabindan point of view’,88 and those who campaigned for such self-determination were arrested. The State in response argued that the right had been upheld as democratic elections took place in which the people of Cabinda had participated, electing some deputies to the parliament, and there were also political and administrative structures in Cabinda protected by national laws.89 The African Commission, citing the wording of Article 20(2) and (3), held that the right to self-determination for colonised and oppressed to free themselves from domination and the right to assistance in liberation struggles ‘are reserved for colonised peoples’, and that ‘a distinct pre-colonial history by itself’ would not necessarily entitle a people to ‘unilaterally claim those rights contained vis-à-vis the Respondent State’.90 It continued by reiterating its previous decisions that self-determination had to be exercised within existing boundaries and respecting the territorial integrity of existing States parties to the ACHPR,91 and economic and social development could be acquired within an existing State ‘insofar as different groups and communities are represented in decision-making institutions of the given state’.92 No violation of Article 20 was found. Where one might have expected Article 20(2) to have been claimed, for example in relation to the situation of the Southern Cameroonians, it was not,93 but a reference to the serious violations that ‘oppression’ may imply arose when applying the Katanga test under Article 20(1).

D. Remedies Remedies that have been ordered by the African Commission and African Court for violation of Article 20, in conjunction with other rights, include the withdrawal of troops from the State’s territory; payment of ‘adequate reparations’ for victims of human rights abuses conducted by armed forces in the context of Burundi, Rwanda and Uganda’s activities in the DRC;94 and amendment of legislation after an unconstitutional change of government in the Gambia.95 For discrimination against Southern Cameroonians, although 87 ‘All peoples have the right to resist foreign occupation, Arab Charter of Human Rights, 22 May 2004, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005), entered into force 15 March 2008. 88 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 120. 89 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, paras 122–123. 90 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 125. 91 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 126. 92 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 126. 93 S. Murphy, ‘Unique in international human rights law: Article 20(2) and the right to resist in the African Charter on Human and Peoples’ Rights’, 11 Afr. Hum. Rts. L.J. (2011) 465–594, at 480–481. 94 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 95 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000.

D. Remedies

507

it was not willing to hold a violation of Article 20, the African Commission did call on the State to enter into a dialogue with the complainants and the complainants, in turn, to do the same and ‘abandon secessionism and engage in constructive dialogue with the Respondent State on the Constitutional issues and grievances’, offering the Commission’s good offices to mediate a solution.96

Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 214.

96

22. Article 21 Disposal of Wealth and Natural Resources 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoilation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on

mutual respect, equitable exchange and the principles of international law. 4. State Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity. 5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.

A. Introduction Earlier drafts of the ACHPR combined in one article, the right to self-determination with the ability to dispose of natural wealth and resources,1 reflecting perhaps, as Ouguergouz suggests, that the former is ‘inherent’ in the right to self-determination.2 In part this can be explained by the approach taken by UN General Assembly Resolutions several decades previously.3 Later versions, however, did not have this right at the start of the instrument, rather, at the end. Commenting on the Dakar Draft, Leopold Senghor explained: We are certainly not drawing lines of demarcation between the different categories of rights. We are not grading these either. We wanted to show essentially that beside civil and political rights, economic, social and cultural rights should henceforth be given the important place they deserve. We wanted to lay emphasis on the right to development and the other rights which need the solidarity of our states to be fully met: the right to peace and security, the right to a healthy environment, the right to participate in the equitable share of the common heritage of mankind, the right to enjoy a fair international economic order and, finally, the right to natural wealth and resources.4

Whereas self- determination has received considerable attention by the African Commission, this perhaps explains why Article 21 has received comparatively less. There

M’Baye Draft Article 2. F. Ouguergouz, The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 272. 3 GA Resolution 1803 (XVII); see F. Ouguergouz, The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 272. 4 Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal. Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November–8 December 1979. Reprinted in Issa G Shivji, The concept of human rights in Africa (1989) 121. 1 2

A. Introduction

509

are only a handful of cases and instances where Article 21 is referred to by the African Commission and African Court. The presumption in the drafting of Article 21, and reiterated by Article 21(5), is that the threat to this right would largely come from outside of the State and indeed outside of the continent, either in the form of neo-colonial influence by non-African States or international companies. Indeed, this colonial context is referenced on a few occasions by the African Commission when considering this Article: ‘[This] provision dates back to the colonial period during which the material and human resources of Africa had been greatly exploited by foreign powers, thus creating a tragedy for the Africans themselves, depriving them of their inalienable rights and land’.5 As a consequence, Africa and its resources are ‘still vulnerable to foreign misappropriation. The drafters of the [African] Charter obviously wanted to remind African governments of the continent’s painful legacy and restore co-operative economic development to its traditional place at the heart of African Society’.6 In addition, in its earlier 1989 Guidelines on State reporting, the African Commission simply requires States to provide information on ‘the basic legal framework to safeguard the country against international exploitation’,7 noting that Articles 21 and 22 ‘consist in ensuring that the material wealth of the countries are not exploited by aliens with no or little benefit to the African countries’.8 Similarly, the African Court also determined that ‘[i]‌t is generally accepted that, in the context of the struggle against foreign domination in all its forms, the Charter primarily targets the peoples comprising the populations of the countries struggling to attain independence and national sovereignty’.9 The challenge of balancing the impact of the legacy of colonisation with the responsibilities of African States themselves is recognised in the OAU’s Algiers Declaration in 1999: We do not intend, by the aforesaid, to shirk our own responsibility for the problems and difficulties still bedevilling our countries and the continent in general; rather, we wish to underscore the immensity of the efforts exerted by our respective countries, individually and collectively, to overcome the problems inherited from colonisation, ensure peace and stability on the continent, consolidate the hard-won national sovereignty, establish stable state institutions and promote an equitable and fair economic and social development in our countries.10

As to who has control over natural resources, as noted by Kiwanuka, albeit writing only a couple of years after the ACHPR came into force, some African constitutions at that stage provided that it was the State which had control,11 others that natural resources were for the ‘people’.12 The former, it is said, is in line with the 1974 Charter of Economic Rights Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 81. Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 56. Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 129. 7 Guidelines on National Periodic Reports, 1989, para 7. 8 Guidelines on National Periodic Reports, 1989, para 6. 9 Application 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, African Court on Human and Peoples’ Rights, Judgment of 26 May 2017, para 197. 10 Algiers Declaration, AHG/Decl.1 (XXXV). 11 R. N. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101, citing Article 4 of the Constitution of the Democratic Republic of Sao Tome and Principe, 1977. 12 Such as Benin, Congo and Egypt, see R. N. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101. 5 6

510

22. Article 21: Disposal of Wealth and Natural Resources

and Duties of States and UN General Assembly Resolution 1803.13 Yet Kiwanuka also cautioned against peoples’ rights being seen as State rights, where ruling powers use natural resources for their own benefits.14 Hence, ‘[t]‌he state would control the commanding heights of the economy so as to minimize leakage and benefit the people, that is, all the peoples. Under present circumstances, however, to achieve this goal, it is imperative that the state be controlled by the people-in the democratic sense’.15 In practice, however, where Article 21 has arisen in recent years is in relation to the treatment by African States of their own citizens, with the African Commission recognising that corruption, insecurity and governance impact on the management of natural resources.16 There has been a particular impact on rural communities and indigenous peoples.17 Article 21 is, as noted by the African Commission, ‘applicable in post colonial Africa in favour of groups within states to the extent that it triggers an obligation on the part of the State Parties to protect their citizens from exploitation by external economic powers’.18 Recognising this shift away from a State-centric approach, in a 2017 judgment against Kenya for its treatment of the Ogiek people, the African Court determined that the ACHPR deliberately did not define a ‘people’ so as to ‘permit a certain flexibility in the application and subsequent interpretation by future users of the legal instrument, the task of fleshing out the Charter being left to the human rights protection bodies’.19 Consequently, a ‘people’ could be not only the population, but also ethnic and other groups within the State.20 Similarly, the African Commission has interpreted Article 21 as the State holding the wealth ‘in trust’ for those within the State,21 as well as enabling groups (‘peoples’) within the State to hold the right themselves, without the two being incompatible.22 Consequently, where one communication alleged that decisions about natural resources took place in Luanda, the capital of Angola, and that the Cabinda people were not adequately consulted, the African Commission held that the State Parties to the ACHPR had a right to ‘supervise the disposal of wealth in the general interest of the state and its

1803 (XVII) of 1962. R. N. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101. 15 R. N. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101. 16 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 17 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 18 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 129. 19 Citing the Report of the Rapporteur, pp.4–5, paragraph 13, F. Ouguergouz, The African Charter of Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, 2003, at 205, fn.682. Application 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, African Court on Human and Peoples’ Rights, Judgment of 26 May 2017, para 196. 20 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, African Court on Human and Peoples’ Rights, Judgment of 26 May 2017, para 198. 21 ‘The State has the main responsibility for ensuring natural resources stewardship with, and for the interest of, the population’, Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012 (original italics). 22 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 130. 13 14

B. Non-State Actors

511

communities’.23 Where the right is vested in the State, held ‘in trust for the people’, the State exercises it ‘free from interference from any other African or non-African state’, in reference to Articles 21(4) and (5).24 However, it can also mean those ‘within an existing state can be beneficiaries of the right’ and in which case, the State has an obligation ‘to ensure that resources are effectively managed for the sole and equal benefit of the entire peoples of the state’.25 This will then require that it ‘involve’ peoples’ representatives in any decisions relating to the ‘management’ of wealth and natural resources.26 It is significant that Article 21(1) appears to be absolute (‘in no case must a people be deprived of it’) and this has been reiterated on one occasion where the African Commission stated that the right ‘shall not be denied under any circumstances’.27 There is a close relationship between Article 14—the right to property—and Article 22. Deprivation of a people’s right to disposal of their wealth and natural resources has also been recognised as having an impact on their right to development.28

B. Non-State  Actors Foreign exploitation in the context of Article 21, as recognised in Article 21(5), also arises from the activities of non-African companies.29 There is a recognition that their actions, particularly in the context of extractive industries, can impact on the environment and ecosystem in Africa.30 States are therefore required to prevent violations by such non-State actors.31

Where the Nigerian government permitted oil exploitation in Ogoniland by a consortium with Shell Petroleum Development Corporation (SPDC) (in which it was the majority shareholder), and its own company (the Nigerian National Petroleum Company (NNPC)), it was alleged that the government had failed to regulate the latter’s activities and in so doing had not engaged with the local Ogoni community in any decision- making that affected Ogoniland. The African Commission, drawing upon the Inter- American Court’s judgment in Velásquez Rodríguez,32 and that of the European Court of Human Rights in X and Y v The Netherlands,33 held that the State has an obligation to protect against the activities of non-State actors and it had failed to do so in this case. It 23 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 129. 24 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 130 and 132. 25 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 131. 26 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 131. 27 Resolution on the World Bank’s draft Environmental and Social Policy (ESP) and associated Environmental and Social Standard, ACHPR/Res.301 (EXT.OS/XVII) 20, 28 February 2014. 28 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 95. See Chapter 23 (Article 22). 29 Resolution on the Renewal of the Mandate of Expert Members of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.215, 2 May 2012. 30 Resolution on the renewal of the mandate of the working group on extractive industries, environment and human rights violations in Africa, ACHPR/Res.253, 5 November 2013. 31 Resolution on the renewal of the mandate of the working group on extractive industries, environment and human rights violations in Africa, ACHPR/Res.253, 5 November 2013. 32 Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988). 33 91 ECHR (1985) (Series A).

512

22. Article 21: Disposal of Wealth and Natural Resources

had ‘facilitated the destruction of Ogoniland’ and ‘given the green light to private actors, and the oil companies in particular, to devastatingly affect the well-being of the Ogonis’ in violation of Article 21 of the ACHPR.34

C. Wealth and Natural Resources ‘Wealth and natural resources’ has been interpreted as including, but not limited to, items such as gold, coffee, wood, livestock, and endangered animals,35 fish,36 and minerals such as phosphates.37 This does not conflict with the definition of ‘natural resources’ provided in the AU’s African Convention on the Conservation of Nature and Natural Resources.38 On one occasion the African Commission has also included ‘human resources’ in the context of discussing Article 21 but without going much further to define what it meant.39 It would appear to be ‘material wealth’,40 rather than ‘economic wealth’, that is included within ‘wealth’, although arguably the latter is covered by Article 21(5).41 Neither does it include ‘moveable and immovable property such as an individual’s property, which are merely ‘individual assets’.42 In this case, Communication 253/02, where Antonie Bissangou’s property and real estate was damaged by police and soldiers during riots and civil disturbances, the African Commission was willing to find a violation of Article 14 but not of Article 21. Interestingly, one interpretation of natural resources that the African Commission has applied in one resolution were those resources ‘required to maintain life itself ’, such as water, sanitation and food.43

D. Freely Dispose In the Endorois case, citing Articles 21(1) and (2), the complainants argued these rights had been violated on a number of grounds. Firstly, the Endorois had not been able to access resources in the Lake Bogoria region, including medicinal salt licks and fertile soil, which impacted on the health of their livestock. Secondly, they did not receive a share in

34 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 57. 35 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 36 Report of the Fact-Finding Mission to the Sahrawi Arab Democratic Republic (24–28 September 2012), para 34. 37 Report of the Fact-Finding Mission to the Sahrawi Arab Democratic Republic (24–28 September 2012), para 34. 38 African Convention on the Conservation of Nature and Natural Resources, adopted 7 March 2017, as at May 2018 not yet in force. Its Article V(1) defines natural resources as ‘renewable resources, tangible and non tangible, including soil, water, flora and fauna and non renewable resources’. This is a revision of the 1968 Convention whose Article III defined them simply as ‘renewable resources, that is soil, water, flora and fauna’. 39 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 129. 40 Guidelines on National Periodic Reports, 1989, para 6. 41 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 273. 42 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 82. 43 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012

E. Spoilation

513

the resources from mining on their land,44 nor in the potential wealth of the land such as money from tourism and mineral activities.45 Drawing upon Inter-American case law including the Saramaka case, the African Commission held that peoples have a right to use and enjoyment of the natural resources which are on the land but only if they are on traditionally owned lands and used for subsistence, cultural and religious activities.46 The State will have a number of obligations here. These include evaluating whether restricting the property rights is ‘necessary to preserve the survival of the Endorois community’.47 Although there was no specific attachment to ruby as a mineral, it was still a resource within their traditional lands. Therefore, ‘a people inhabiting a specific region within a state can claim the protection of Article 21’.48 There is a relationship with balancing the right to property in Article 14 and the ability of the State to restrict this and Article 21. In the case regarding the Ogiek in Kenya before the African Court, the applicant argued that Article 21 had been violated as the government had evicted the Ogiek from the Mau Forest and thereby firstly denied them access to resources in the Forest; and secondly, depriving them of benefits in the resources from logging concessions granted to others on their ancestral land without their consent.49 The African Court held that not only did the Ogiek have a right, under Article 14, to use their ancestral land, but also the right to ‘enjoy the produce of the land’ and that both ‘presuppose the right of access to and occupation of the land’.50 Consequently, these actions also violated Article 21 of the ACHPR ‘since the Ogieks have been deprived of the right to enjoy and freely dispose of the abundance of food produced by their ancestral lands’.51 It is crucial in these situations that Article 14, which provides a right to property, is read alongside Article 21, which rather provides a right to recover any property.52

E. Spoilation Not appearing in the Dakar Draft of the ACHPR,53 ‘spoilation’ has been defined by the African Commission as ‘a people stripped of their wealth and natural resources’.54 Easily 44 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 20. 45 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 46 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 263. 47 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 267. 48 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 267. 49 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, African Court on Human and Peoples’ Rights, Judgment of 26 May 2017, para 191. 50 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, African Court on Human and Peoples’ Rights, Judgment of 26 May 2017, para 201. 51 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, African Court on Human and Peoples’ Rights, Judgment of 26 May 2017, para 201. 52 C. Baldwin and C. Morel, ‘Group Rights’ in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2006, 2nd Edition, Cambridge University Press, 2008, 244– 288, at 266. 53 Article 21 of the Dakar Draft. 54 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 80.

514

22. Article 21: Disposal of Wealth and Natural Resources

understood in the colonial context, post-independence, however, what is important is that there is ‘an end to the haemorrhage of natural resources which provides substantial profits solely for the holder of the concession’.55 According to the African Commission in one case, spoilation could occur by ‘illegal exploitation/looting’.56 Here it drew upon evidence in a report of a UN Panel of Experts which examined the situation in the DRC and noted ‘stockpiles of minerals, coffee, wood, livestock and money that were available in territories conquered by the armies of Burundi, Rwanda and Uganda were taken, and either transferred to those countries or exported to international markets by their forces and nationals’; and ‘confiscation, extraction, forced monopoly and price-fixing. Of these, the first two reached proportions that made the war in the Democratic Republic of the Congo a very lucrative business’.57 It found that such was in violation of Article 21. Where there is ‘spoilation’, Article 21(2) will require that the State provides ‘restitution and compensation’. If it is indigenous land that is affected then the threshold at which limitations may be imposed by the State may be higher.58 In the Endorois case, it was alleged that the Kenyan government had displaced the Endorois indigenous community from their ancestral lands and as a result they could not access resources around Lake Bogoria.59 The State argued the Endorois had received money from the game reserve, for example, for schools and health facilities. In addition, it claimed that two of the three companies that were able to mine for rubies belonged to the local community with the other company having consulted the community and provided benefits such as road building.60 The African Commission, examining Article 14 and Article 21, disagreed with the State noting that there was a lack of evidence that the community had in fact benefitted from the activities on the land. Drawing upon Inter-American Court case of Saramaka v Suriname,61 the African Commission adopted the same test that a people not only have the right to use and enjoy their territory but also the right to use and enjoy the natural resources that are on or within the land.62 In terms of the limitations that the State can impose on the exercise of the right in Article 21, it has an obligation to consider whether any such restriction on property rights ‘is necessary to preserve the survival of the Endorois community’.63 Suggesting that an attachment to a particular mineral or

55 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 278. 56 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 94. 57 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, paras 92–93. See also UN Security Council Resolution 1457 (2003), 24 January 2003 on the Panel of Experts on the illegal exploitation of the natural resources of the Democratic Republic of Congo. 58 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 256. 59 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 268. 60 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, paras 252–253. 61 Case of the Saramaka People v Suriname, Judgment of 28 November 2007 (Preliminary Objections, Merits, Reparations, and Costs). 62 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 257. 63 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 267.

F. State Obligations

515

resource needs to be considered, the African Commission drew upon the Saramaka analysis, and that ‘the extraction of one natural resource is most likely to affect the use and enjoyment of other natural resources that are necessary for the survival’ of the indigenous people.64 Thus, even though the Endorois had no particular ‘attachment’ to ruby, they could still claim Article 21 protection.65 They should be able to freely dispose of wealth and natural resources, although the Commission does mention that this needs to be done ‘in consultation with’ the State implying a limitation not expressly mentioned in the ACHPR.66 With respect to the requirement to provide restitution and compensation, with no further analysis the African Commission found that the Endorois had not received either and consequently there was a violation of Article 21.67 Spoilation could occur if it is the intellectual property of a people, in particular an indigenous people, which is taken or exploited.68 Although the African Commission has recognised the ‘rights to traditional knowledge and intellectual property of local and indigenous communities’ in the context of climate change,69 for example, it has not explored this aspect in any great detail.70

F. State Obligations Sometimes citing Article 21 together with Article 22, the African Commission has interpreted these rights as requiring that States adopt a number of measures.71

1. To Establish Machinery to Monitor Exploitation? States should ‘[establish] machinery which would monitor the exploitation of natural resources by foreign companies and strictly contrasted to the economic and material benefit accruing to the country’.72 No further detail is provided on what that machinery should look like.

64 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 264. 65 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 267. 66 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 267. 67 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 267. 68 C. Baldwin and C. Morel, ‘Group Rights’ in M.D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2006, 2nd Edition, Cambridge University Press, 2008, 244– 288, at 267. 69 Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa, ACHPR/ Res.153, 25 November 2009. 70 See, however, the AU Convention on the Conservation of Nature and Natural Resources (revised), 2017, Article XVII which requires that States ‘take legislative and other measures to ensure that traditional rights and intellectual property rights of local communities including farmers’ rights are respected in accordance with the provisions of this Convention. The Parties shall require that access to indigenous knowledge and its use be subject to the prior informed consent of the concerned communities and to specific regulations recognizing their rights to, and appropriate economic value of, such knowledge’. 71 Guidelines on National Periodic Reports, 1989, para 6. 72 Guidelines on National Periodic Reports, 1989, para 6.

516

22. Article 21: Disposal of Wealth and Natural Resources

2. Consent and Participation Of particular relevance to Articles 21 and 2273 is the requirement that States consult those peoples whose wealth and natural resources will be exploited. There should be ‘free, prior and informed consent of communities in decision-making related to natural resources governance’.74 As the African Commission held in one communication it was crucial ‘to ensure that groups and communities, directly or through their representatives, are involved in decisions relating to the disposal of their wealth’.75 In Angola, in one communication relating to the involvement of the people of Cabinda, noting that they were represented in parliament, the African Commission agreed with the State that it ‘effectively manages natural resources for the benefit of all peoples in Angola’. It was not willing to find a violation of Article 21.76

3. Cooperate with OAU/AU and UN and Other African States As well as in the context of Article 21(4), States should also cooperate with the OAU (now AU) and ‘appropriate’ UN agencies on ‘the viability and profitability of ventures for exploitation of natural resources proposed by foreign companies’.77 This implies that foreign company involvement in exploitation of natural resources is not prohibited per se which given the circumstances of the continent is perhaps realistic given African States depend on this investment.78 Indeed, earlier drafts of the ACHPR included in Article 21(2) reference to the requirement that not only should free disposal be exercised on the basis of mutual respect but also ‘in fair, even and beneficial exchange with a view to achieving the new international economic order’,79 wording deleted from the final version. More generally, this international engagement is part of a recognition by the OAU and now AU that the legacy of colonisation has resulted in African States being at a disadvantage in international trade. The Algiers Declaration of the OAU in 1999, for example, called for a ‘mutually beneficial and genuine international partnership; a partnership based on a balance of interests and mutual respect; a partnership, the most crucial and immediate ingredients of which are the genuine democratisation of international relations, the renewal of multilateralism and consolidation of its instruments, the reorganisation of international cooperation based on sustained inter-dependence and the decline in national egoism’; as well as ‘a partnership that respects the unity of the continent and aims at the development of Africa, rather than using it as a mere reservoir of raw materials and market for manufactured goods; a partnership that enables Africa to achieve its integration, ensure its development for the benefit of its peoples and occupy its rightful

See Chapter 23 (Article 22). Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 75 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 129. 76 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013. 77 Guidelines on National Periodic Reports, 1989, para 6. 78 S. Gutto, Responsibility and Accountability of States, Transnational Corporations and Individuals in the Field of Human Rights to Social Development: A Critique, in Third World Legal Studies Association, Human Rights and Development, 175, 180–181 (1984); R. N. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101. 79 Dakar Draft, Article 21(2). 73 74

F. State Obligations

517

place on the international scene for the mutual and inclusive benefit of the International Community as a whole’.80 Not a great deal of further detail has been provided by the African Commission or African Court on this issue, although in a resolution in 2014, the Commission considered the impact of the World Bank’s Environmental and Social Safeguards Policy and associated Environmental and Social Standards (ESS) on the rights of indigenous peoples in Africa, urging the World Bank to revise its policy by removing the ‘opt-out’ clause and consulting indigenous peoples and stakeholders to ensure its compliance with international and regional human rights instruments.81 In more general terms, States have also been required, through investment agreements and trade regulation, to respect human rights when exploring natural resources.82

4. Taxation Another mechanism that the African Commission urges States adopt to prevent exploitation by foreign companies is the imposition of ‘adequate taxation on all income’ from these companies.83 Royalties on minerals could also be considered.84 In 2013 the African Commission adopted a Resolution on Illicit Capital Flight from Africa in which it acknowledged that illicit flight capital by multinational organisations and individuals resulted in huge financial loss to the continent and that States needed to ‘develop and implement robust and efficient tax collection systems’ and to ‘examine their national tax laws and policies towards preventing illicit capital flight in Africa’.85

5. Encouragement of National Activities States should ‘encourage’ national businesses and ‘entrepreneurship, either in the private or public sector’.86 This can be done through providing loans.87

6. Equitable Distribution There has been some suggestion, linked with Articles 21 and 22, that States should ensure ‘equitable distribution of income from natural resources’.88 This has included cooperating at the international and regional levels to ensure the ‘right of everyone to be free from hunger in particular through equitable distribution of food supplies in relation to need and to those affected in situations of insecurity’.89 It is not only the equitable distribution of resources which has been referred to, but also the requirement to distribute the income from resources.90 This will be dealt with further in Article 22 (Chapter 23). Algiers declaration, AHG/Decl.1 (XXXV). Resolution on the World Bank’s draft Environmental and Social Policy (ESP) and associated Environmental and Social Standard, ACHPR/Res.301 (EXT.OS/XVII) 20, 28 February 2014. 82 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 83 Guidelines on National Periodic Reports, 1989, para 6. 84 Guidelines on National Periodic Reports, 1989, para 6. 85 Resolution on Illicit Capital Flight from Africa, ACHPR/Res.236, 23 April 2013. 86 Guidelines on National Periodic Reports, 1989, para 6. 87 Guidelines on National Periodic Reports, 1989, para 6. 88 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 3. 89 Resolution on the Right to Food and Food Insecurity in Africa—ACHPR/Res. 374 (LX) 2017, 22 May 2017. 90 Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 3. 80 81

518

22. Article 21: Disposal of Wealth and Natural Resources

7. Corruption The impact of corruption on natural resources has been recognised by the African Commission, calling on States to criminalise corruption and ensure ‘asset recovery and repatriation of illicitly expatriated capital.91

G. Remedies Article 21 provides under Article 21(2), in effect, its own remedies for a violation, namely for lawful recovery of property and adequate compensation. On a mission to Libya, the Working Group on Indigenous Populations/Communities noted the lack of consultation of the Imazighen peoples who lived in oil-rich regions of the State. Considering that this was the result of their own lack of information or ‘a fear of expressing themselves’, the Working Group stated that the State should have ‘compensated for this failure’ in order not to violate Article 21, among other rights.92 As to whether this compensation is financial or otherwise is not clear from the report. Beyond this, as Article 21 has arisen in very few communications, and a violation of Article 21 found in even less, there have been only a couple of instances where the African Commission has had to pronounce on the remedies that arise from such.93 Again it is not possible to separate out which remedy related to Article 21 specifically, given the practice of the African Commission not to link specific remedies with rights, and that violations of other provisions in the ACHPR have been found on both the occasions in which an Article 21 violation was also held. However, compensation has featured in all three cases. Where the Article 21 rights of the Endorois people in Kenya were found to have been violated, the African Commission recommended that not only should the State recognise their rights of ownership and restitute their ancestral land, perhaps in line with Article 21(2) (although this was not expressly mentioned when making these recommendations); but also that they have ‘unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle’.94 ‘Adequate compensation’ was also required to be paid to ‘the community for all the loss suffered’, as well as that they should receive royalties ‘from existing economic activities and ensure that they benefit from employment possibilities within the reserve’.95 The African Commission offered its good offices to assist them in implementing the recommendations.96 Similarly, in the earlier case against Nigeria which found violations against the Ogoni people for the impact of oil exploitation in Ogoniland, the African Commission called on the government to ‘ensure protection of the environment, health and livelihood of the 91 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 92 Report of the African Commission’s Working Group On Indigenous Populations/Communities, Research and Information Visit to Libya 11–25 August 2005 The African Commission on Human and Peoples’ Rights adopted this report at its 40th Ordinary Session, 15–29 November 2006, pp.32–33. 93 Until the Ruling on Reparations in the Judgment against Kenya in App. No. 006/2012, it is not known what the African Court’s approach will be to remedies for an Article 21 violation. 94 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 95 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 96 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009.

H. Special Mechanisms

519

people of Ogoniland’ by requiring it to undertake a number of measures. These included payment of ‘adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government sponsored raids, and undertaking a comprehensive cleanup of lands and rivers damaged by oil operation’; as well as ensuring that ‘appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the petroleum industry; and [p]‌roviding information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations’.97 In the inter-State communication brought by the DRC against Burundi, Rwanda and Uganda, the African Commission urged the Respondent States to abide by their international legal obligations under not only the ACHPR but also the UN Charter, OAU Charter and the UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States, as well as to ‘withdraw . . . troops immediately from the Complainant’s territory’.98 ‘Adequate reparations’ needed to be paid ‘for and on behalf of the victims of the human rights by the armed forces of the Respondent States while the armed forces of the Respondent States were in effective control of the provinces of the Complainant State, which suffered these violations’.99

H. Special Mechanisms The establishment of a Working Group on Extractive Industries was in part prompted by a recognition of the role that non-State actors played with respect to the environment and violations of rights as identified by the Working Group on Indigenous Populations/ Communities.100 Created in 2009 and composed of both Commissioners and external experts,101 it has been given the mandate to examine ‘the impact of extractive industries’ on the continent and the issues around the right of peoples to dispose of their wealth and natural resources and to a general satisfactory environment, including violations by 97 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 98 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 98. 99 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 98. 100 Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.148, 25 November 2009. See study on ‘The Role of Non- State Actors in the Violation of Human and Peoples’ Rights in Africa: The Quest for a New Paradigm’. 101 Resolution to Increase the Membership of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.175, 24 November 2010. Call for Applications for the Nomination of Expert Members to serve on the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, 24 March 2011. Resolution Appointing the Chairperson and Members of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/ Res.198, 5 November 2011. Resolution appointing Expert Members for the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.268, 12 May 2014. Resolution on the Appointment of the Chairperson and Reconstitution of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa and Renewal of its Mandate, ACHPR/Res.321, 18 November 2015. Resolution on the Renewal of the Mandate of the Expert Members of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res. 353 (EXT.OS/ XX) 2016, 18 June 2016.

520

22. Article 21: Disposal of Wealth and Natural Resources

non-State actors.102 Its activities have included issuing urgent calls to States;103 making recommendations, through its intersession reports, to States;104 undertaking promotional105 and research and information and informal missions to States;106 being required to carry out studies on climate change and illicit flight of capital;107 and, akin to other special mechanisms, developing guidelines for State reporting.108 It is perhaps not surprising that there has been some collaboration with the UN Working Group on Business and Human Rights.109

102 Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.148, 25 November 2009. 103 Report of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, by Pacifique Manirakiza, Commissioner, Report Presented on the Occasion of the 25th Anniversary of the African Commission on Human and Peoples’ Rights Commemorated as Part of the 52nd Ordinary Session of the Commission, Yamoussoukro, Côte d’Ivoire, 9–22 October 2012. 104 Report of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, by Pacifique Manirakiza, Commissioner, Report Presented on the Occasion of the 25th Anniversary of the African Commission on Human and Peoples’ Rights Commemorated as Part of the 52nd Ordinary Session of the Commission, Yamoussoukro, Côte d’Ivoire, 9–22 October 2012. Inter-Session Report, (November 2012–April 2013), Commissioner Pacifique Manirakiza, Presented at the 53rd Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 9–23 April 2013. 105 Press Release on the Promotion Mission to The Kingdom of Swaziland, 3 March 2016. 106 E.g. to Zambia and South Africa, respectively Inter-Session Report, (November 2013–April 2014), Commissioner Pacifique Manirakiza, Presented at the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, Luanda, Angola, 28 April–12 May 2014; Inter-Session Report (May–October 2013) Commissioner Pacifique Manirakiza, Presented at the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013. 107 E.g. Resolution on Climate Change in Africa, ACHPR/Res.271, 12 May 2014; Resolution ACHPR/ Res.236 (LIII) 2013 on the illicit flight of capital from Africa, adopted during the 53rd Ordinary Session held from 9 to 23 April 2013. 108 Resolution on Developing Reporting Guidelines with Respect to the Extractive Industries—ACHPR/ Res. 364(LIX) 2016, 4 November 2016. 109 Report of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, by Pacifique Manirakiza, Commissioner, Report Presented on the Occasion of the 25th Anniversary of the African Commission on Human and Peoples’ Rights Commemorated as Part of the 52nd Ordinary Session of the Commission, Yamoussoukro, Côte d’Ivoire, 9–22 October 2012. Intersession Report, (May– October 2013) Commissioner Pacifique Manirakiza, Presented at the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013.

23. Article 22 Right to Development 1. All peoples shall have the right 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.

2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

A. Introduction The drafting history of the ACHPR reveals the origins of the concept of the right to development, which eventually also found its way into the 1986 UN Declaration on the Right to Development,1 being developed in both quarters by African jurists.2 Premised on a post-colonial agenda to ensure control over natural resources for newly independent African peoples, as well as a new economic world order,3 as Leopold Senghor stated in his address at the experts meeting preparing the draft ACHPR in Dakar in 1979: We wanted to lay emphasis on the right to development and the other rights which need the solidarity of our states to be fully met: the right to peace and security, the right to a healthy environment, the right to participate in the equitable share of the common heritage of mankind, the right to enjoy a fair international economic order and, finally, the right to natural wealth and resources.4

The resulting Dakar draft itself reflected this in its preamble, noting that ‘it is henceforth essential to pay a particular attention to the right to development’.5 This focus remains crucial, apparent in one of the key commitments of States under the 2002 New Partnership for Africa’s Development (NEPAD), which was to place States ‘individually and collectively, on a path of sustainable growth and development and, at the same time, to participate actively in the world economy and body politic on equal footing’;6 and the Objectives, Standards, Criteria and Indicators for African Peer Review Mechanism cite UN. Doc. A/RES/41/128, 4 December 1986. Such as Kebab Maye, see K. Maye, ‘Le droit au développement comme un droit de l’homme’ in Revue internationale des droits de l’homme (1972), cited in R. L. Barsh ‘The right to development as a human right: Results of the Global Consultation’ 13 Human Rights Quarterly (1991) 322. U. Umozurike, ‘The African Charter on Human and Peoples’ Rights’, 77(4) AJIL (1983) 902–912, at 906. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 298. 3 Charter of Economic Rights and Duties of States, UN GA res 3281 (XXIX). 4 Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November to 8 December 1979. Reprinted in Issa G Shivji ,The concept of human rights in Africa (1989) 121. 5 [Dakar Draft] African Charter on Human and Peoples’ Rights, Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev. 1, preamble. 6 New Partnership for Africa’s Development (NEPAD), Declaration on Democracy, Political, Economic and Corporate Governance, AHG/235 (XXXVIII), para 2. 1 2

522

23. Article 22: Right to Development

among their standards and indicators the ACHPR.7 More recently, it is reflective in the AU’s Agenda 2063, which envisions among its aspirations ‘[a]‌prosperous Africa based on inclusive growth and sustainable development’, namely: Africa shall be a prosperous continent, with the means and resources to drive its own development, with sustainable and long-term stewardship of its resources. A continent where poverty is eradicated in one generation and shared prosperity is built through social and economic transformation of the continent through manufacturing, value addition and science and technology- driven innovation. The African people shall have a high quality of life, a high standard of living, sound health and well-being. The African people shall be well educated and highly skilled, with science, technology and innovation being the bedrock of its inclusive educational systems. The blue and ocean economy shall be major contributors to continental transformation and accelerated economic growth. Africa’s agriculture will be modern and productive, using science, technology, innovation and indigenous knowledge. Africa shall have environmentally sustainable and climate resilient economies and communities.8

Although the African Peer Review Mechanism (APRM) processes have, until recently, stood separately from activities of the African Commission, the appointment of one of the Commissioners as focal point for collaboration with the APRM,9 and a Memorandum of Understanding signed between the two bodies in May 2018,10 promises greater integration. Article 22 itself has received relatively little attention by the African Commission and African Court which could be attributed in part to a lack of similar provisions under other international treaties. Consequently, those litigating were not aware of the justiciability of the right to development, and those engaging with the African Commission been less familiar with its content. Although Article 22 treats the right to development as a separate right,11 some of the interpretations by the African Commission imply that the right to development can also be a combination of other rights.12 As to whether the right to development is contingent on the respect for other rights may be one reading, indeed, as the preamble to the Dakar Draft of the ACHPR noted:

7 Objectives, Standards, Criteria and Indicators for African Peer Review Mechanism (‘The APRM’), NEPAD/HSGIC-03-2003/APRM/Guideline/OSCI, 9 March  2003. 8 African Union, Agenda 2063: The Vision For 2063, para 1. 9 Resolution on the Cooperation between the African Commission on Human and Peoples’ Rights and the African Peer Review Mechanism, ACHPR/Res.168, 24 November 2010. 10 Final Communiqué of the 62nd Ordinary Session of the African Commission on Human and Peoples’ Rights, 25 April–9 May 2018, Nouakchott, Mauritania, para 38. 11 S. A. D. Kamga and C. M. Fombad, ‘A critical review of the jurisprudence of the African Commission on the Right to Development’, 57 J. Afr. L. (2013) 196; S. A. D. Kamga ‘The right to development in the African human rights system: The Endorois case’, 2 DeJure (2011) 381 at 383–385. Vienna Declaration and Programme of Action, 14–25 June 1993: UN GA A/Conf.157/23 12 July 1993; I Shivji The Concept of Human Rights in Africa (1989, Codesria Book Series); E. Bello, ‘Article 22 of the African Charter on Human and Peoples’ Rights’ in E. Bello and B. Adjibola (eds) Essays in Honour of Judge Taslim Olawale Elias, Martinus Nijhoff, 1992, at 462. M. A. Tadeg, ‘Reflections on the right to development: Challenges and prospects’, 10 AHRLJ (2010) 325–344. 12 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. See more generally, M Haile, ‘Human rights, stability and development in Africa: Some observations on concept and reality’, 24(3) Virginia Journal of International Law (1984) 575–615; N. J. Udombana, ‘The third world and the right to development: Agenda for the next millennium’, 22 HRQ (2000) 753–787.

A. Introduction

523

Convinced that it is henceforth essential to pay a particular attention to the right to development, and that the promotion of this right implies respect for other fundamental human rights recognised and guaranteed by conventions, laws, regulations and customs in force in states.13

Although in a subsequent draft, referencing amendments to previous versions, it moves closer to the right being a combination of other rights: After an amendment this paragraph was redrafted as follows: “Convinced that 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 universality, and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights”.14

The right has individual and collective dimensions, both in terms of how it has been interpreted by the African Commission, but also reflective in its origins. As Keba Maye commented, ‘development is the right of all’, those holding it being ‘at once individuals, peoples and States’.15 Yet Article 22 is clearly placed in the group of rights of peoples and is termed as such.16 Indeed, the complainants in one communication raised this issue on the basis that not only had the development rights of the Dioula ethnic group as a people been violated, but also the ‘personal development’ rights of Dioula individuals because they had not been able to make a ‘life plan’, a concept formulated by the Inter-American Court of Human Rights.17 The African Commission held that Article 22, despite being termed a peoples’ right, ‘cannot adequately interpret the right to development as being solely and exclusively collective’.18 For the individual, it is their ‘self-fulfilment’ which is also relevant to the development of the people, and indeed, at times ‘the development of the peoples and the individual may be concomitant’.19 Therefore, the denial of nationality for the Dioulas resulted in them being: unable to obtain the legal recognition necessary for, as is the case of all modern organized societies, the enjoyment of a set of advantages. This lack of recognition of nationality as legal status also prevented them from participating in the shaping and enjoyment of the socio-economic development witnessed by Côte d’Ivoire since independence. With regard to the Dioulas in particular, the impossibility to be recognized as Ivorians prevented them from accessing public jobs, participating in public and political life by voting in elections and getting voted for. This, in turn, hinders every possibility for them to decide with other Ivorians choices relating to the destiny of the Ivorian nation as well as to enjoy the fruits of its social, political, economic and cultural. The Commission considers that due to these multiple denials, a human potential has inevitably been destroyed, ambitions have been dashed, entire lives have been shattered, not only for the individuals, but also for the Dioulas as a community within the big Ivorian community. This has obviously led to an 13 [Dakar Draft] African Charter on Human and Peoples’ Rights, Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev. 1. 14 Second Session of Oau Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia 7–19 January 1981), para 25. 15 Maye, ‘Le droit au développement comme un droit de l’homme’ in Revue internationale des droits de l’homme (1972) 503–534, at 515. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 299. 16 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 306. 17 In Loyza Tamayo v Peru, Inter-American Court of Human Rights, Judgment of 17 September 1997, Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 185. 18 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 183. 19 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 183.

524

23. Article 22: Right to Development

incalculable loss of a life plan, an accumulated loss of generation to generation over the decades. The Commission concludes on a serious violation of the right to development under the provisions of Article 22 of the Charter.20

So in another communication relating to violations of the Darfurian people in Sudan, analysis of Article 22 appears to centre around the fact that other civil and political rights and economic, social and cultural rights had been violated: By displacing the people they had been unable to ‘engage in economic, social and cultural activities’ and their children’s right to education had been limited resulting in violations of economic, social and cultural rights as well as civil and political rights which the African Commission then explained resulted in a violation of Article 22.21

Sometimes the right to development is mentioned in a rhetorical sense, with little analysis of its content. For example, it has been referred to in the context of the unilateral declaration of independence by the National Movement for the Liberation of Azawad in Mali, in connection with the impact of the situation on the right to peace and security and development;22 and in relation to fighting in the DRC.23 On numerous occasions the African Commission, as the OAU and AU, has referred to ‘sustainable development’,24 although it has not articulated any clear distinction between this and ‘development’. Yet, also apparent in the interpretations of the African Commission is that the right to development is a stand-alone right. Much of the consideration of Article 22 has arisen in the context of indigenous peoples’ rights, prompted by the sustained engagement of organisations such as IWGIA and Minority Rights Group resulting in the establishment of the Working Group on Indigenous Populations/Communities25 and key litigation before the African Commission and African Court.26 The focus has tended to be on African States’ activities towards indigenous peoples in their own jurisdictions. However, the impact of the policies of global institutions including the World Bank on the rights of these peoples and in particular their right to development has been recognised. So in a 2014 resolution the African Commission commented upon the World Bank’s draft Environmental and Social Policy (ESP) and associated Environmental and Social Standard (ESS), being concerned with the possibility for governments to opt out of applying ESS7 which was to ‘ensure that the development process fosters full respect for the human rights, dignity, aspirations, identity, culture, and natural resource-based livelihoods of Indigenous Peoples’. States could opt out if a project was considered to Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, paras 185–186. Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 224. 22 Resolution on the Situation of the North of the Republic Mali, ACHPR/Res.217, 2 May 2012. 23 Resolution on the Human Rights Situation in the Democratic Republic of Congo, ACHPR/Res.241, 24 July 2013. Also, Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/ Res.224, 2 May 2012, para 1. 24 E.g. Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/ Res.224, 2 May 2012, para 1. Resolution on the Renewal of the Mandate of the Working Group on Economic Social and Cultural Rights in Africa, ACHPR/Res.193, 5 November 2011. See Relaunching Africa’s Socio and Economic Development: The Cairo Agenda for Action, AHG/Res.236(XXXI), Annex, paras 10(b)–(e). 25 See Chapter 20 (Article 19). 26 E.g. Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009; African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017. 20 21

A. Introduction

525

create a serious risk of increasing ethnic tension, civil strife or ‘where the identification of culturally-distinct groups as envisioned in this ESS is inconsistent with the provisions of the national constitution’.27 The African Commission considered that such an option would dilute the safeguards for indigenous peoples and encourage States to violate international and regional obligations on human rights.28 It consequently called on the World Bank to align its policies with international and regional protections for indigenous peoples; remove the opt-out clause; consult stakeholders including indigenous peoples; and ensure that any revisions ‘contribute to supporting the development of a relevant legal framework for the indigenous peoples in Africa’.29 Underpinning the ability of a people to realise their right to development is peace and democracy.30 The African Commission has recognised, for example, the impact of ‘statelessness’ in Somalia, and noted that a ‘democratically elected government’ is required to ensure the right to development.31 In addition, it has considered that war and conflict, in general terms, impacts on the right to development of the ‘civilian population’.32 Similarly, the suppression of the rights of minorities leads to under-development and conflict. Indeed, as Minority Rights Group note: Mainstreaming minority rights in development co-operation will not only provide for improved human development for persons belonging to minorities; enforcement of minority rights can mean better development for all as a result of more democratic governance, greater stability and new policies to target development funds more effectively.33

Other threats to the right to development that have been recognised, albeit more often in passing, include corruption.34 The AU Convention on Preventing and Combating Corruption acknowledges ‘the negative effects of corruption and impunity on the political, economic, social and cultural stability of African States and its devastating effects on the economic and social development of the African peoples’, and that ‘corruption undermines accountability and transparency in the management of public affairs as well as socio-economic development on the continent’, and, among its objectives and principles, the need to promote ‘socio-economic development’.35 The African Commission and the African Court have proved wrong those who questioned the justiciability of the right to development as a key challenge in articulating such a right and who described it (and indeed other peoples’ rights in the ACHPR) as ‘lofty 27 Resolution on the World Bank’s draft Environmental and Social Policy (ESP) and associated Environmental and Social Standards (ESS), ACHPR/Res.301, 28 February 2014. 28 Resolution on the World Bank’s draft Environmental and Social Policy (ESP) and associated Environmental and Social Standard (ESS), ACHPR/Res.301, 28 February 2014. 29 Resolution on the World Bank’s draft Environmental and Social Policy (ESP) and associated Environmental and Social Standard (ESS), ACHPR/Res.301, 28 February 2014. 30 New Partnership for Africa’s Development (NEPAD), Declaration on Democracy, Political, Economic and Corporate Governance, AHG/235 (XXXVIII). K. Appiagyei-Atua, ‘Minority rights, democracy and development: The African experience’, 12 AHRLJ (2012) 69–88. 31 Resolution of the Peace and National Reconciliation Process in Somalia, ACHPR/Res.46, 11 May 2000. 32 Resolution on the Situation of Human Rights in Africa, ACHPR/Res.14, 3 November 1994. 33 ‘Minority Rights Group International, Minority Rights and Development: Overcoming exclusion, discrimination and poverty’ (2002) executive summary of paper submitted to the UN Working Group on Minorities, E/CN.4/Sub.2/AC.5/2002/WP.6. 34 E.g. Resolution on the Impact of the Ongoing Global Financial Crisis on the Enjoyment of Social and Economic Rights in Africa, ACHPR/Res.159, 25 November 2009. 35 African Union Convention on Preventing and Combating Corruption, adopted 1 July 2003, preamble and Articles 2(4) and 3(4).

526

23. Article 22: Right to Development

ideals and laudable aspirations rather than enforceable rights’.36 They have found a violation of this provision in a handful of cases.

B. Who Owns the Right in Article 22 and the Duty Bearer As has been seen in Article 19, the African Commission’s and African Court’s interpretation of the concept of a people is a fluid one, encompassing at various points the population of a State, an indigenous community, as well as a particular ethnic group. This has implications in the context of development. Indeed, many situations where Article 22 has been raised have related to the rights of indigenous peoples. In a communication against Sudan, the African Commission agreed that the people of Darfur, composed of three ‘major tribes . . . of black African origin’, were a ‘collective’ who were subject to marginalization and suffered ‘underdevelopment’.37 The African Court held that the Ogiek of Kenya, an indigenous people, were also entitled to the right to development.38 In another communication the African Commission refused to agree with the complainants that the State of Angola had a policy of ‘Angolanisation’ of a region of Angola, Cabinda, which impacted on the right of the Cabindan people to development in Article 22, finding no evidence of such a policy.39 It is clear from the wording of Article 22(2) and the Commission’s jurisprudence, that it is the State which ‘bears the burden for creating conditions favourable to a people’s development’, where the people is within the jurisdiction of the State.40 Of interest, however, is whether other States are responsible for the development of peoples outside of their jurisdiction, and whether a people is the State itself to whom the duty will be owed by other States and the international community, namely to what extent the right has both a national and an international dimension.41 Thus, does the threat to a right to development come from outside the State, and indeed, outside of the continent? Certainly, earlier interpretations by the African Commission of Articles 21 and 22 of the ACHPR suggest that this is the case: These rights consist in ensuring that the material wealth of the countries are not exploited by aliens to no or little benefit to the African countries. Establishment of machinery which would 14 monitor the exploitation of natural resources by foreign companies and strictly contrasted to the economic and material benefit accruing to the country. Cooperation with the Organization of African Unity and the appropriate United Nations Agencies on the viability and profitability of ventures for exploitation of natural resources proposed by foreign companies. Insistence on adequate taxation on all income derived by foreign companies in the reporting state. Adherence 36 E. Bondzie-Simpson, ‘A critique of the African Charter on Human and People’s Rights’, 31 Howard L.J. 643 (1988) 643, at 657. 37 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 219–223. 38 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, para 208. 39 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013, para 64. 40 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 298. 41 Maye, ‘Le droit au développement comme un droit de l’homme’ in Revue internationale des droits de l’homme (1972) 503–534.

B. Who Owns the Right in Article 22 and the Duty Bearer

527

to compensatory ideas like payment of mineral royalty, etc, in addition to taxation. Cooperation with other African states in removing economic exploitation of African countries by international monopolies. Measures taken to encourage national entrepreneurship, either in the private or public sector, including such matters as provision of facilities for loan capital for industrial utilisation of local natural resources and wealth.42

As was noted with respect to natural resources and Article 21, the African Commission has held that the State will hold such in trust for the people.43 Yet what is still relevant, is the extent to which the State should itself be the bearer of the right to development in relation to other States. As Kiwanuka states: ‘An entity less than the state cannot effectively contest the right to development in the international arena’.44 In fact, the African Commission has paid little attention to this issue, although in one communication it alluded to the duties of States to ‘individually or collectively ensure the exercise of the right to development’.45 As this communication related to the activities of three States in the DRC, it is not clear if the African Commission was making a statement about the particular context or a broader comment on State obligations under Article 22. In addition, the origins of the right to development both in the ACHPR and in international law drew on the need to ensure an international economic order which was fair and equitable.46 Earlier versions of the ACHPR noted, that ‘States shall have the duty, separately or in co-operation with others to ensure the exercise of the right to development’.47 Yet in the meeting drafting the ACHPR in January 1981 it is implied that the duty to ensure the right to development was held by ‘Africans’.48 Given the colonial context, the rational explanation is that this is referring to African States (as opposed to ‘Europeans’). Indeed, Article 22(2) talks about the obligation being ‘collective’ or ‘individual’,49 and the role of the international community towards ensuring sustainable development has been reiterated by the OAU and AU.50 NEPAD stressed the primary role of the African States and not their reliance on other States, being ‘anchored on the determination of African States to extricate themselves and the continent from the malaise of underdevelopment and exclusion in a globalising world’.51 In 2009 the AU and the African Guidelines on National Periodic Reports, para 6. See Chapter 22 (Article 21). See Chapter 22 (Article 21). 44 R. Kiwanuka, ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’, 82(1) AJIL (1988) 80–101, at 96. 45 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 95. 46 UN GA Res. 32 (130); F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 309. 47 [Dakar Draft] African Charter on Human and Peoples’ Rights, Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev. 1, Article 22(2). 48 Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul The Gambia 7–19 January 1981): ‘For their right to existence, equality, liberation if oppressed, free disposal of wealth and natural resources, overall satisfactory environment, economic, social and cultural development, Africans will be obliged to ensure the exercise of the right to development’. 49 W. Benedek, ‘Peoples’ Rights and Individuals’ Duties as Special Features of the African Charter on Human and Peoples’ Rights’, in P. Kunig, W. Benedek and C. R. Mahalu, Regional Protection of Human Rights by International Law: The Emerging African System—Documents and Three Introductory Essays, Nomos Verlagsgesellschaft, 1985, 59–94. 50 Lomé Declaration, AHG/Decl.2 (XXXVI), para 11, of the preamble. 51 NEPAD Policy Document, para 1. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 314. R. Murray, Human Rights in Africa: From the OAU to the AU, Cambridge University Press, 2004, chapter 8. 42 43

528

23. Article 22: Right to Development

Commission reflected on the impact of the global financial crisis on development in Africa, with the African Commission, for example, noting the ‘decreasing global demand of basic commodities produced in Africa, reduce the volume of private and public capital flow into Africa and diminish the competitiveness of the economies of Member States’.52 States should not only undertake actions themselves, such as ‘eradicate corruption, mismanagement of financial resources and all other similar vices in order to afford much needed transparency and accountability necessary for economic growth and external investment and to create a conducive environment for the reduction of poverty and underdevelopment through the adoption of principles of good governance’, but also ‘intensify existing cooperation efforts between Member States through the harmonisation of macro-economic policies, acceleration of economic integration within regional economic communities and strengthening of financial regulatory mechanisms and to ensure that the improvement in the enjoyment of economic and social rights by its citizens is central to any bilateral or multilateral trade and economic agreements entered into’.53 Similarly, stressing the obligations not only of African States but also their role in a global environment, the AU Assembly of Heads of State called not only on African States themselves to, ‘in the drive to reduce the impact of the economic and financial crisis, intensify their cooperation to harmonise their fiscal and macro-economic policies, accelerate the implementation of economic integration programmes and strengthen the financial markets’ regulatory mechanisms’, but also on the ‘G8 member countries tasked with the responsibility to reform the international financial system, to associate the African Union, represented by its Chairperson and the Chairperson of the Commission, in the negotiations of the enlarged G20’.54

C. Concept of Development ‘Development’ appears to mean many things. On the one hand, according to the meeting of experts on the Dakar Draft of the ACHPR, it was ‘the understanding that what people basically needed was not to die of starvation’.55 It can also encompass, for example, housing and choice of where to live,56 or more broadly ‘economic marginalization and lack of economic infrastructure’.57 Leopold Senghor, during the drafting of the ACHPR, took an expansive approach: Development is first and foremost a change of the quality of life and not only an economic growth required at all costs, particularly in the blind repression of individuals and peoples. It means the full development of every man in his community, in the way freely chosen by the latter. The definition 52 Resolution on the Impact of the Ongoing Global Financial Crisis on the Enjoyment of Social and Economic Rights in Africa, ACHPR/Res.159, 25 November 2009. See also Declaration of the Abuja Food Security Summit by the Assembly of Heads of State and Government, FS/Decl (I), 7 November 2006. 53 Resolution on the Impact of the Ongoing Global Financial Crisis on the Enjoyment of Social and Economic Rights in Africa, ACHPR/Res.159, 25 November 2009. 54 Decision on the Financial and Economic Crisis and the Negotiations on the Reform of the International Financial System, Assembly/AU/Dec.217(XII), at paras 4 and 6. See also at the same Summit, Addis Ababa Declaration on the International Financial Crisis, Assembly/AU/Decl.2(XII). 55 [Dakar Draft] African Charter on Human and Peoples’ Rights, Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev. 1. 56 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 278. 57 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 206.

C. Concept of Development

529

my friend Malcolm Adiseshish proposed to us corresponds to our own conception of development: `a form of humanism; a moral and spiritual fact, both material and practical; an expression of man as a whole meeting his material needs (food, clothes, shelter) as well as his moral requirements (peace, compassion, freedom, charity) . . . ’. In this conception, development, the right of peoples, respects man and his freedoms. African civilisation, like all other ancient civilisations, always respected man. Homo sacrae res homini Seneca proclaimed. Nit moodi garag u nit ‘man is man’s remedy’ says a Senegalese proverb. The two thoughts stem from the same basic principle: from the humanism to which we are still attached and cultivate in this country. Room should be made for this African tradition in our Charter on Human and Peoples’ Rights, while bathing in our philosophy, which consists in not alienating the subordination of the individual to the community, in co-existence, in giving everyone a certain number of rights and duties.58

The African Commission has interpreted the right to development as having ‘two prongs’: ‘constitutive and instrumental, or useful as both a means and an end’.59 A violation of either will violate Article 22 and thus the State has an obligation to satisfy both elements.60 The African Commission took ‘note’ of the complainant’s arguments in one case that there were five elements of the right: ‘it must be equitable, non-discriminatory, participatory, accountable, and transparent, with equity and choice as important, over-arching themes in the right to development’.61 However, given that not all of these aspects have received further interpretation by the African Commission or Court, it is not clear if this approach is the rule that will be applied by the two bodies.

1. Freedom of Choice Drawing upon existing international standards, the African Commission has found that the State should provide freedom of choice for a people regarding where they wish to live.62 Where the Endorois did not consider they had any choice to remain in Lake Bogoria given the violence that confronted them when they tried to go there, the African Commission held that the Respondent State should have ‘allowed conditions to facilitate the right to development’ as this would have enabled the Endorois to benefit from the game reserve. The forced evictions did not provide them with their choice of where to live.63

2. Cultural Development The ‘indiscriminate dumping of and or mass burial of victims’ killed in the eastern province of the DRC were considered by the African Commission to be a violation of the 58 Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November to 8 December 1979. Reprinted in Issa G Shivji, The concept of human rights in Africa (1989) 121. 59 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 277. 60 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 277. 61 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 277. 62 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 278. 63 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 279.

530

23. Article 22: Right to Development

right of the Congolese people to ‘cultural development’ in Article 22.64 No further analysis is provided in the decision. Taking another interpretation, Mauritius’ Article 62 periodic report refers to a number of activities for ‘cultural development’ under Article 22 including ‘[p]‌articipation in reading, artistic and cultural activities [and] . . . [a]ssistance . . . to local artists’.65

D. Common Heritage of Mankind Article 22(1) indicates the ‘common heritage of mankind’ that all peoples should have a right equally to enjoy. This concept has a long history, emerging in the 1950s, and which encapsulates the idea, according to Fatsah Ouguergouz, that ‘natural resources . . . are at risk of depletion through uncontrolled exploitation and that the legal regime of the spaces in which they are found needs to be redefined so that they benefit both countries currently lacking the material means to gain access to them and future generations too’.66 In legal terms, those attempting to interpret it have stressed the need for resources not to be appropriated, to their use, to their being equitably shared, and to their appropriate management,67 some of the factors which, we have seen, appear to be integral to the way in which the right to development has been formulated by the African Commission. The African Commission has not clarified what this phrase entails, although others have offered interpretations that cover the sea-bed, space, Antarctica, natural resources,68 and interestingly that it could encompass concepts such as communal ownership over land particularly in the African context.69

E. State Duties On one occasion the African Commission appears to treat the right to development as a right which has both immediate and progressive obligations, with the former including a duty ‘to at least create the opportunities and environment conducive to the enjoyment of the said right’.70 States will need to ensure that the right is ‘respected, protected and promoted’.71 These principles have not, however, been expressly and consistently applied 64 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 87. 65 Sixth to Eighth Combined Periodic Report of the Republic of Mauritius on the Implementation of the African Charter on Human and Peoples’ Rights (May 2009–December 2015), Prime Minister’s Office, Republic of Mauritius, March 2016, para 182. 66 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 321. See K. Basler, The Concept of the Common Heritage of Mankind in International Law, Martinus Nijhoff, 1998. A. Kiss, ‘The common heritage of mankind: Utopia or reality’, 40 Int’l J. (1985) 423; E. Egede, ‘The common heritage of mankind and the Sub-Saharan African native land tenure system: A clash of cultures in the interpretation of concepts in international law’, 58 J. Afr. L. (2014) 71. 67 C. C. Joyner, ‘Legal implications of the concept of the common heritage of mankind’, 35 ICLQ (1985); E. Egede, ‘The common heritage of mankind and the Sub-Saharan African native land tenure system: A clash of cultures in the interpretation of concepts in international law’, 58 J. Afr. L. (2014) 71. 68 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 323. 69 E. Egede, ‘The common heritage of mankind and the Sub-Saharan African native land tenure system: A clash of cultures in the interpretation of concepts in international law’, 58 J. Afr. L. (2014) 71. 70 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 183. See also, Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 206. 71 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 183.

E. State Duties

531

to all communications or contexts in which Article 22 has arisen. Other duties have been identified by the African Commission.

1. Participation, Consultation and Consent Key elements of the right to development that have been stressed numerous times by the African Commission and African Court are the requirements of participation in decision- making about development; consultation of the people; and their free prior and informed consent.

a. Participation The African Commission has held that ‘closely allied to the right to development is the issue of participation’.72 The African Charter on Popular Participation in Development and Transformation, adopted in 1990 by the Economic Commission for Africa, defines ‘popular participation’ as ‘the empowerment of the people to effectively involve themselves in creating the structures and designing the policies and programmes that serve the interests of all as well as to effectively contribute to the development process and share equitably in its benefits’.73 In a similar vein, the African Commission has stated elsewhere that there should be community participation74 in decision-making which concerns ‘prioritisation and scale of, and benefits from any development on their land or other resources. or that affects them in any substantial way’.75 This participation should be ‘transparent, maximum and effective’.76 In the Endorois case, although the State claimed that the community was represented in the decision-making mechanisms in the management of the ancestral land, the African Commission agreed with the complainants that such participation was not, in line with the UN Declaration on Development,77 namely ‘active, free and meaningful’ participation which results in the community’s ‘empowerment’ and whereby their ‘capabilities and choices’ improve.78

b. Consultation and Consent Consultations should involve the community affected, whether this is, for instance, the Endorois in Kenya, or the Imazighen in Libya.79 Where the World Heritage Committee and UNESCO had inscribed Lake Bogoria in Kenya, a site of particular cultural significance to the indigenous people, on the list of World Heritage Sites, the African Commission noted that this has been done without the ‘free, prior and informed consent’ 72 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 289. 73 E/ECA/CM/16/RES/691(XXV), para  7. 74 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012, para 2. 75 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012, para 2. 76 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012, para 2. 77 Article 2(3) of the UN Declaration on Development, A/RES/41/128, 4 December 1986. 78 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 283. 79 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009; see also Report of the African Commission’s Working Group on Indigenous Populations/Communities Research and Information Visit to Libya, 11–25 August 2005, adopted at its 40th Ordinary Session, 15–29 November 2006, pp.32–33.

532

23. Article 22: Right to Development

of the indigenous peoples located there.80 There is some suggestion that such consultation should take place through the representative institutions of the people themselves.81 The failure to involve them in the decision-making process and to obtain their consent was found by the African Commission to be a violation of their right to development in Article 22.82 The government of Kenya was required to consult indigenous people ‘especially when dealing with sensitive issues as land’.83 The African Commission set out what was required for adequate consultation. Firstly, members of the community should be informed of the proposals; and secondly, they ought be given an ‘opportunity to shape the policies or their role, in this case, in the game reserve’.84 Thirdly, there needs to be some recognition of the potential inequality of the respective positions of the community and the State, especially, as was the situation with the Endorois, if they are illiterate.85 Fourthly, the State should ensure any consultation process enabled the community representatives to be ‘fully informed of the agreement’, and ‘participate in developing parts crucial to the life of the community’.86 Furthermore, the State must ‘accept and disseminate information’ and maintain ‘constant communication’ between the parties.87 Consultations ought to be in good faith, ‘through culturally appropriate procedures and with the objective of reaching an agreement’.88 In the Endorois case, the African Commission found that the Endorois had not provided their consent before the land was designated as a game reserve, they did not clarify the consequences of this designation, and the Endorois had a legitimate expectation that they would be able to use the land for religious and medicinal purposes even post eviction.89 In line with, for example, standards adopted by the UN Expert mechanism on the Rights of Indigenous Peoples’,90 ‘[f ]‌ree, prior and informed consent’, which is ‘according [the peoples’] customs and traditions’ should be obtained where there a project which has a ‘major impact’ on the peoples’ land.91 80 Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Begonia as a World Heritage site, ACHPR/Res.197, 5 November  2011. 81 Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Begonia as a World Heritage site, ACHPR/Res.197, 5 November  2011. 82 Also noted here: Intersession Activity Report of the Chairperson of the Working Group on Indigenous Populations/Communities in Africa Commissioner Musa Ngary Bitaye, 2011, p.8. Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Begonia as a World Heritage site, ACHPR/Res.197, 5 November 2011, para 1. 83 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 281. 84 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 281. 85 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 281. 86 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 282. 87 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 289. 88 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 289. 89 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 290. 90 Advice No. 2, 2011, ‘Indigenous peoples and the right to participate in decision-making’, A/HRC/ EMRIP/2011/2, Annex, 26 May 2011; see Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Begonia as a World Heritage site, ACHPR/Res.197, 5 November 2011. 91 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 291.

G. Article 24, the Environment and Climate Change

533

Similarly, the African Court held that Article 22 should be read ‘in light of ’ Article 23 of the UN Declaration on the Rights of Indigenous Peoples, namely that they ‘have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions’. Consequently, the eviction of the Ogiek from the Mau Forest, which ‘adversely impacted on their economic, social and cultural development’, without their effective consultation thereby prevented them from being able to determine programmes on their health and housing, among other issues. This violated Article 22 of the ACHPR.92 Undertaking human rights impact assessments may be one way of ensuring participation, consultation and consent.93

F. Benefit Sharing and Equitable Distribution of Resources The right to development has been interpreted as requiring that a people should have ‘an equitable distribution of the benefits’94 and such should be ‘mutually acceptable’.95 In the context of the Endorois, for example, this meant the benefits included ‘reasonable equitable compensation’96 from the exploitation of the game reserve from which they had been displaced.97 Drawing upon the Saramaka case before the Inter-American Court of Human Rights,98 the African Commission noted that the right to development should ensure that the ‘well-being of the community’ is not decreased as a result of any activity.99

G. Article 24, the Environment and Climate Change Given the wording of Article 24, with its reference to this being ‘favourable to their development’, it is inevitable that there is a close relationship between the right to development and the environment. This has arisen in a number of contexts.

92 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, Judgment, 26 May 2017, paras 209–211. 93 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012, para 4. 94 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 297. 95 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 296. 96 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 296. 97 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 297. 98 Inter-American Court of Human Rights, Case of the Saramaka People v Suriname, (ser. C) No. 172, Judgment of November 28, 2007, 99 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 294.

534

23. Article 22: Right to Development

1. Indigenous Peoples and the Environment Citing the Inter-American Court’s judgment in Yakye Axa,100 particularly regarding the relationship of the community with the land and the impact of their possession on development, the African Commission held that access to clean drinking water and the ability of the Endorois’ animals to graze had been impacted due to loss of their ancestral land.101 Similarly, recent attention has been paid by the African Commission to sacred natural sites and it has called on governments to ‘recognise sacred natural sites and territories, and their customary governance systems’ and respect their ‘intrinsic value’.102

2. Climate Change Through various initiatives the African Commission has appreciated the impact of climate change on various sectors of the African population, in particular indigenous peoples. It has noted, therefore, that climate change is ‘principally the result of emissions of greenhouse gases, which remain relatively high in developed countries’ citing its concern that various international agreements on the issue did not make sufficient reference to human rights standards, particularly for indigenous, local or vulnerable communities.103 Consequently, it has urged the AU Assembly to ensure that any texts include relevant safeguards and principle such as ‘free, prior and informed consent, be included into any adopted legal text on climate change as preventive measures against forced relocation, unfair dispossession of properties, loss of livelihoods and similar human rights violations’; and ‘special measure of protection’ for vulnerable groups.104

H. Mechanisms States have been called on to establish ‘independent monitoring and accountability mechanisms’ in the context of extractive industries. These should ensure that human rights are justiciable and such industries and companies are accountable in the host State and where they are legally registered.105

I. Sanctions/Embargoes In 1998, the Secretary General of the OAU noted that: besides their political, economic and psychological impact, they (the sanctions) continue to have a harsh impact on the people. The paradox is that they enrich the rich and impoverish the poor, without effectively producing the desired results . . . It would, perhaps, be appropriate to review the 100 Inter-American Court of Human Rights Case of the Yakye Axa Indigenous Community v Paraguay, Series C no 125, Judgment of June 17, 2005. 101 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 288. 102 Resolution on the Protection of Sacred Natural Sites and Territories, ACHPR/Res. 372 (LX) 2017, 22 May 2017. 103 Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa, ACHPR/ Res.153, 25 November 2009. 104 Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa, ACHPR/ Res.153, 25 November 2009. 105 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012, para 3.

I. Sanctions/Embargoes

535

question of the sanctions, in such a way as to minimise the suffering of the people, maximise and make effective the pressures on the intended target.106

Before the African Commission the impact of sanctions on the right to development was considered in one communication. Here it was alleged that the embargo imposed by several States on Burundi after a retired military official had overthrown the government, was in violation of Articles 4, 17(1) and 22 of the ACHPR, and with respect to the latter, specifically due to the embargo preventing nationals from accessing sea and air transportation.107 One of the Respondent States, Tanzania, argued that Burundi was violating political rights and that it was ‘difficult to conceive that it is possible to enjoy economic and socio-cultural rights without enjoying the fundamental rights, which are the political rights that condition the others’, and that the embargo had been imposed after a summit of the Great Lakes Region and was subsequently endorsed by the then OAU and the UN Security Council.108 The African Commission focused not on the process by which the embargo was reached, but rather on whether the embargo was ‘excessive and disproportionate, is indiscriminate and seeks to achieve ends beyond the legitimate purpose’.109 It referred to other international standards to note that sanctions cannot be ‘open-ended’ and their effects need to be monitored, with measures taken to ‘meet the basic needs of the most vulnerable populations or they must be targeted at the main perpetrators or authors of the nuisance complained of ’.110 In this case, as the sanctions were ‘targeted in that a list of affected goods was made’, they were not indiscriminate.111 It also acknowledged that there was a monitoring committee and regular observations and adjustments had been made in response. In the same communication the African Commission accepted that sanctions may have valid purposes such as to resolve a dispute, recognising that States may have a ‘legitimate interest in a peaceful and speedy resolution of the dispute’.112 Writing of this case, Dr Olinga has criticised the African Commission for its ‘grave oversight’ in failing to provide a ‘detailed analysis’ particularly around whether the ‘social needs of the most vulnerable populations compromised’, and whether the sanctions had in fact focused on the main perpetrators of the coup d’état.113

106 CM/2034 (LXVIII), 68th Ordinary Session of the Council of Ministers, Ouagadougou, 1–6 June 1998), cited in Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 76. 107 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003. 108 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, paras 25 and 69. 109 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 75. 110 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 75. 111 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 76. 112 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 77. 113 A. D. Olinga, ‘The embargo against Burundi before the African Commission on Human and Peoples’ Rights (Note on Communication 157/96, Association for the Preservation of Peace in Burundi v Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia)’, 5 AHRLJ (2005) 424–432.

536

23. Article 22: Right to Development

J. Remedies There are only a handful of communications where an Article 22 violation has been found. Remedies include, in the context of conflict situations, extensive rehabilitation of ‘economic and social infrastructure’,114 the creation of a national reconciliation process to address long-term causes and ensure ‘equitable allocation of natural resources to the various provinces’,115 and finalisation of peace agreements.116 As is shown above, integral to the right is the requirement to consult and to compensate those affected. It is thus not surprising that in communications in which Article 22 has been listed among those rights violated, States have been required to provide these as reparation.117 In the Endorois case, for example, among the recommendations addressed to the Kenyan government were that it pay ‘adequate compensation for all the loss suffered’, as well as royalties ‘from existing economic activities and ensure that they benefit from employment possibilities within the reserve’; and to ‘[e]‌ngage in dialogue with the Complainants for the effective implementation of these recommendations’.118 In other contexts, a government was required to ‘return the lands or compensate the victims who would have been expropriated through the application of the rural land law and implement prompt and effective measures for the purposes of an effective implementation of new Reforms’.119 The usual requirement that States report back within 180 days and that the African Commission may offer its good offices to the parties in implementation of the recommendations, have also arisen in these communications.120

K. Special Mechanisms The mandate of the Working Group on Indigenous Populations/Communities included consideration of ‘the promotion of cultural development and identity (Article 22)’.121 The ‘right to sustainable development’ is also considered to be part of its mandate.122 The 114 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 115 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 116 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. 117 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 229. Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003. 118 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, November 2009. See Human Rights Implementation Centre, Amicus Curiae Submission in Relation to the Implementation of Communication 276/03, Centre For Minority Rights Development (Kenya) and Minority Rights Group (on Behalf of Endorois Welfare Council) v Kenya, presented to the African Commission on Human and Peoples’ Rights by the Human Rights Law Implementation Project (Human Rights Implementation Centre University of Bristol; Human Rights Centre University of Pretoria; Human Rights Centre University of Essex; Law School, Middlesex University), November 2016. 119 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 207. 120 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009; Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 207. 121 Resolution on the Rights of Indigenous Peoples’ Communities in Africa, ACHPR/Res.51, 6 November 2000. See further on this Working Group, Chapter 20 (Article 19). 122 Resolution on the Renewal of the Mandate of the Working Group on Economic Social and Cultural Rights in Africa, ACHPR/Res.193, 5 November 2011.

K. Special Mechanisms

537

Working Group on Extractive Industries, Environment and Human Rights Violations examines the impact of such industries particularly on Articles 21, and 24, the right of peoples’ to dispose of their wealth and natural resources and the right to a satisfactory environment.123 Article 22 was not considered part of its remit, although inevitably in the course of reflecting on, for instance, the activities of non-State actors and businesses, and climate change, it has made reference to this provision. As noted above, the African Commission also created a focal point to facilitate engagement with the APRM.

123 Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.148, 25 November 2009.

24. Article 23 Right to Peace and Security 1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organisation of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, State Parties to the present Charter shall ensure that:

a. any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State Party to the present Charter; b. their territories shall not be used as bases for subversive or terrorist activities against the people of any other State Party to the present Charter.

A. Introduction Considered to be an unusual provision in an international treaty, the right to peace and security has been used on relatively few occasions by the African Commission and others litigating before or engaging with the Commission and the African Court. Rhetorically, peace is crucial to the protection of human rights, cited on numerous occasions by the Organisation of African Unity (OAU) and African Union (AU) organs,1 and central to their principles and objectives.2 Therefore the AU is to ‘[d]‌efend the sovereignty, territorial integrity and independence of its Member States’; and ‘[p]romote peace, security, and stability on the continent’;3 and at least six of the Union’s Principles relate to peace and security.4 Indeed, whether the right to peace in Article 23(1), as a collective right, is little more than a ‘reaffirmation of certain general principles of international law’ such as prohibition of aggression, non-interference in internal affairs, sovereignty and

1 Conference on Security, Stability, Development and Cooperation in Africa. Solemn Declaration, AHG/ Decl.4 (XXXVI), July 2000. Conflict Management Mechanism, the OAU Declaration on the establishment of a Mechanism for Conflict Prevention, Management and Resolution (Cairo Declaration), Adopted by the 29th Ordinary Session of the Assembly of Heads of State and Government of the OAU, held in Cairo, Egypt, 28–30 June 1993; Grand Bay Declaration, First OAU Ministerial Conference on Human Rights, 16 April 1999. 2 K. Kindiki, ‘The normative and institutional framework of the African Union relating to the protection of human rights and the maintenance of international peace and security: A critical appraisal’, 3 AHRLJ (2003) 97–117. 3 Article 3 of the Constitutive Act. 4 E.g. ‘Peaceful resolution of conflicts among Member States of the Union through such appropriate means as may be decided upon by the Assembly; Prohibition of the use of force or threat to use force among Member States of the Union; Non-interference by any Member State in the internal affairs of another; The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity; Peaceful co-existence of Member States and their right to live in peace and security; The right of Member States to request intervention from the Union in order to restore peace and security’, Article 4 of the Constitutive Act.

B. Article 23(1)

539

territorial integrity,5 is debatable when one considers the approach taken by the African Commission. The OAU and AU organs as well as the African Commission have adopted resolutions and declarations over the years which recognise the impact of various aspects of security and peace on the continent, such as around the use of weapons,6 prevention of terrorism,7 and coups d’états. Earlier drafts of the African Charter on Human and Peoples’ Rights (ACHPR) adopted the same wording as Article 23, although omitted paragraph 2,8 and there is very little discussion in the travaux préparatoires on this provision.9 To whom the right belongs does not appear to be particularly problematic, with Article 23 granting this to a people, with the term having the potential to be interpreted not only as those within the jurisdiction of the State, but also the population of a State as a whole.10 The relationship between the AU organs is an obvious one. This is in light of Article 3(4) of the Constitutive Act, a provision often cited by the African Commission,11 and particularly its Peace and Security Council,12 which has increasingly requested the African Commission to undertake investigations and missions to States where there is conflict.13

B. Article 23(1) As noted above, the interpretation by the African Commission of Article 23(1) appears to reinforce general principles of international law. The principles here include those prohibiting aggression, non-interference in the internal affairs of other States, respect for State sovereignty and territorial integrity, and the duty to resolve disputes peacefully. Indeed, cited by the parties among the communications and by the African Commission are Articles 33 and 51 of the UN Charter; the UN General Assembly Resolution on the Definition of Aggression; and the UN General Assembly Declaration of Principles

5 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 338. 6 E.g. Decision on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons, OAU Assembly, AHG/Dec.137 (XXXV), July 1999. Algiers Declaration, AHG/Dec.1 (XXXV), July 1999. 7 Convention on the Prevention and Combating of Terrorism, adopted July 1999. 8 Dakar Draft, Article 23. 9 Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November to 8 December 1979. Reprinted in Issa G. Shivji, The concept of human rights in Africa (1989) 121. [Dakar Draft] African Charter on Human and Peoples’ Rights, Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev. 1. Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 66. 10 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 353. 11 E.g. Resolution on the human rights situation in the Republic of South Sudan, ACHPR/Res.265, 14 March 2014. Resolution on the African Union and the African Charter on Human and Peoples’ Rights, ACHPR/Res.52, 7 May 2001. 12 Peace and Security Protocol, Article 19. See F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 208–209. 13 E.g. to Burundi, see Peace and Security Council Communique, PSC/PR/Comm.(DLI), 17 October 1995; Peace and Security Council’s communiqué PSC/PR/COMM.(DLVII), 13 November 2015; Resolution on the urgency for undertaking Fact-finding Mission to Burundi, ACHPR/Res.310, 18 November 2015. To Côte d’Ivoire in 2004, see AU Doc. PSC/AHG/Comm.(X). A. Jegede, ‘The African Union peace and security architecture: Can the Panel of the Wise make a difference?’, 9 AHRLJ (2009) 409–433.

540

24. Article 23: Right to Peace and Security

of International Law Concerning Friendly Relations and Cooperation among States.14 Hence, where the DRC alleged illegal occupation of its territory by Burundi, Rwanda and Uganda, the African Commission found a violation of Article 23 by applying the following provision from this latter Declaration: No State or group of States has the right to intervene directly or indirectly, for any reason whatever [sic], in the internal or external affairs of any other States. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law . . . Also no State shall organise, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State or interfere in civil strife in another State.15

The occupation by the three States of the territory of the DRC was considered to be ‘impermissible’ and the interest of the DRC ‘would be better protected within the confines of the territories of the Respondent States’.16 Furthermore, by failing to settle the dispute in a peaceful manner consistent with Article 33 of the UN Charter, the African Commission also found a violation of Article 23.17 When expressing concern around the harassment and safety of journalists and media practitioners the African Commission has cited Article 23. By referring to the fact that such violations are occurring within conflict situations, it notes that ‘killings, attacks and kidnapping of journalists, which are contrary to international humanitarian and human rights law, are often committed in an environment of impunity’ and goes on to urge all parties to the conflict to respect not only Article 9 rights but also to ‘guarantee their safety and security in accordance with international humanitarian law’.18 This could imply that the collective here which is owed the right is journalists or media practitioners as a group. But this would be a rather odd interpretation which is not generally aligned with the approach that has been taken by the African Commission when interpreting what is a ‘people’ for the purposes of the rights in the ACHPR. More coherent, therefore, may be an interpretation which links peace with respect for the rule of law and human rights, of which freedom of expression is one element, in the context of situations of conflict. Exactly what amounts to a threat to peace and security has not been articulated by the African Commission. While the threshold to be reached is not clear, it has cited Article 23 when noting, for example, that ‘the loss of life and human suffering as well as the worsening humanitarian situation resulting in unabating displacement of people and the ensuing flow of refugees into neighboring countries’ in Burundi;19 and in South 14 Res. 2625 (XXV), adopted by the UN General Assembly on 24th October 1970; Communication 227/ 99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 29. 15 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 68. 16 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 76. 17 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, at 75. See on the situation in DRC, A. M. B. Mangu, ‘The conflict in the Democratic Republic of Congo and the protection of rights under the African Charter’, 3 AHRLJ (2003) 235–263. 18 Resolution on the Safety of Journalists and Media Practitioners in Africa, ACHPR/Res.185, 12 May 2011. Resolution on the Attacks against Journalists and Media Practitioners in Somalia, ACHPR/Res.221, 2 May 2012. 19 Resolution on the urgency for undertaking Fact-finding Mission to Burundi, ACHPR/Res.310, 18 November 2015.

B. Article 23(1)

541

Sudan (albeit it not being a party to the ACHPR at the time), ‘reports of serious and massive human rights violations, including the extra-judicial killing of civilians and captured soldiers, massive displacements and arbitrary detentions, mostly on ethnic grounds . . . the attacks against the civilian population, and the discovery of mass graves in some parts of the country’.20 In a recent press release highlighting concerns with the situation in Cameroon, the African Commission, citing Article 23 among other rights of the ACHPR, noted: brutal crackdowns on legitimate and peaceful protests by lawyers, teachers and members of civil society of the English-speaking regions of North-West and South-West, who called for the preservation of the Anglophone legal and educational systems in their regions, an end to marginalisation, and for better management of the regions by the State in terms of development and infrastructure. The Commission is particularly concerned about the deployment of soldiers in these regions, the disproportionate use of force against unarmed civilians, and the intermittent shutdown of means of communication such as Internet connection. The Commission is deeply concerned about reports of cases of enforced disappearance, arbitrary detention under deplorable conditions, prohibition of peaceful demonstrations, and constant insecurity leading to the displacement of more than 5,000 Anglophone Cameroonians to Nigeria since the beginning of the crisis without means of subsistence and access to basic necessities. The Commission strongly condemns the ongoing violence and human rights violations in Cameroon, in particular the militarisation of the English-speaking regions and the disproportionate use of force against the population.21

An early decision in a communication against Mauritania found that attacks on Mauritanian villages, whether the perpetrators were government agents or rebel groups, was a violation of ‘the right to live in peace and security’, citing Article 23.22 All of these situations suggest that it is a combination of violations affecting a wide number of individuals within the State often within a conflict situation. The relationship between Article 23 and serious and massive violations, in Article 58, however, could be inferred but has never been fully articulated by the African Commission. For those States that have been the subject of conflict situations, when reporting on Article 62 they have cited, for example, resolution of conflicts in the State through ceasefire agreements, disarmament, and reforms of defence forces such as army and the police.23 Where the State has not recently experienced a conflict, they may consider peace and security to be rather broader, encompassing elements of democracy and respect for

20 Resolution on the human rights situation in the Republic of South Sudan, ACHPR/Res.265, 14 March 2014. Similarly, ‘The violence perpetrated since the beginning of the crisis, the intimidation and harassment by the Imbonerakure and government security forces as well as grenade attacks in civilian areas such as market places and bars have caused insecurity to and destabilized the civilian population. These together with the emergence of an atmosphere of fear 49 described in the following paragraphs fundamentally negate the right to peace and security guaranteed under Article 23 of the African Charter’, Report of the Delegation of the African Commission on Human and Peoples’ Rights on its fact-finding mission to Burundi, 7–13 December 2015, 17 May 2016, para 141. 21 Press Release on the human rights situation in Cameroon, 29 January 2018. 22 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 140. 23 Republic of Burundi, African Charter on Human and Peoples Rights, First Implementation Report, Bujumbura, September 2010.

542

24. Article 23: Right to Peace and Security

human rights, as well as its international relations. For example, Namibia’s report notes that it: is one of the few countries in Africa that has consistently enjoyed peace and stability. The country is ranked 51st in the world, 2nd in southern Africa according to Global Peace Index (GPI) of 2013, with virtually no civil strife resulting from political turmoil. Democracy has expanded to a level where the country now has 15 political parties, which all vied for votes during the last elections in 2009. Political tolerance is visible in the various debates about important national programmes, while hate speech, racism or tribalism is discouraged and condemned by most institutions. Foreign relations and peace keeping: Namibia practices a policy of non-alignment as outlined in article 96 of the Namibian Constitution. Namibia also encourages the settlement of international disputes by peaceful means. Since 1994, Namibia has participated in both regional and international peace keeping missions of the United Nations. During May 2013, Namibia deployed additional Namibian police officers to Sudan to be part of the UN peace keepers in that country where they have been serving for the past 8 years.24

The activities in one State may impact on the right to peace and security of peoples in another, particularly neighbouring States.25 In response to conflict situations, the African Commission has called upon not only the State in which the violations are taking place, but also all parties or ‘all concerned political stakeholders’ to engage in dialogue to bring about a peaceful solution;26 and, in Somalia, ‘Somali members of the civil society, the people of Somalia, traditional and political leaders in Somalia to adhere to the peaceful settlement of their differences and to give priority to the national interest of maintaining the unity and integrity of Somalia’.27 The international community has been asked to provide assistance to support reconciliation processes.28 The responsibility to protect has been reiterated by the African Commission (and the African Union),29 albeit not necessarily in direct reference to Article 23. It has commended States which have contributed troops towards facilitating peaceful solutions in African States; condemned activities of rebel groups; called on parties to pursue ceasefires; and on the UN and AU to establish peacekeeping missions in, for example, Darfur, Congo and Libya, among others.30 States have an obligation, in accordance with the Kampala Convention on internally displaced persons, if unable to provide assistance themselves, to ‘facilitate international humanitarian assistance. In other words, it incorporates the principle of the responsibility to protect’.31 More specifically, in the context of Republic of Namibia’s 6th Periodic Report on the African Charter on Human and People’s Rights, 2015. Resolution on the urgency for undertaking Fact-finding Mission to Burundi, ACHPR/Res.310, 18 November 2015. 26 Resolution on the urgency for undertaking Fact-finding Mission to Burundi, ACHPR/Res.310, 18 November 2015. Resolution on the human rights situation in the Republic of South Sudan, ACHPR/Res.265, 14 March 2014. 27 Resolution of the Peace and National Reconciliation Process in Somalia, ACHPR/Res.46, 11 May 2000. 28 Resolution of the Peace and National Reconciliation Process in Somalia, ACHPR/Res.46, 11 May 2000. 29 ‘Ezulwini Consensus’, where the African Union at its 7th Extraordinary Session of the Executive Council1 of 1–8 March 2005, in Addis Ababa, Ethiopia. See S. Gumedze, ‘The African Union and the responsibility to protect’, 10 AHRLJ (2010) 135–160. 30 Resolution on Strengthening the Responsibility to Protect in Africa, ACHPR/Res.117, 28 November 2007. Press Release on Situation of Human Rights Defenders in Democratic Republic of Congo, 14 September 2010. Press Statement on the Human Rights Situation in North Africa, 25 February 2011. Resolution on Human Rights in Conflict Situations, ACHPR/Res. 332 (EXT.OS/XIX) 2016, 25 February 2016. 31 Bahame Tom Mukirya Nyanduga, Activities as Commissioner, intersession report to the 46th Session, para 9. 24 25

C. Article 23(2)

543

the right to life, ‘[a]‌s part of their broader duty to secure the conditions for dignified life, States have a particular responsibility to protect the human rights, including the right to life, of individuals or groups who are frequently targeted or particularly at risk’.32 A relationship between the ACHPR and humanitarian law has been referenced albeit more in passing.33 The lack of clarity has led the International Committee on the Red Cross (ICRC), for example, to try to work with the African Commission to develop further this connection. Interestingly, however, in one communication the African Commission did find that the ‘besieging’ of a hydroelectric dam was prohibited by Article 23 of the Hague Convention (II) with Respect to the Laws and Customs of War on Land and in violation of Article 23 of the ACHPR.34 No further reasoning is provided in the decision.

C. Article 23(2) In contrast to the first paragraph of the Article, Ouguergouz considers Article 23(2) to provide the ‘only concrete obligation’ in the provision.35 Again, whether this adds anything to existing international law on the non-intervention in internal affairs and State sovereignty, is to be questioned.36 As to what amounts to ‘subversive activities’ may be assisted by Article 3 of the AU’s Convention Governing Specific Aspects of Refugee Problems in Africa: Prohibition Of Subversive Activities 1. Every refugee has duties to the country in which he finds himself, which require in particular that he conforms with its laws and regulations as well as with measures taken for the maintenance of public order. He shall also abstain from any subversive activities against any Member State of the OAU. 2. Signatory States undertake to prohibit refugees residing in their respective territories from attacking any State Member of the OAU, by any activity likely to cause tension between Member States, and in particular by use of arms, through the press, or by radio.

Interestingly, an early 1965 Declaration on the Problem of Subversion adopted by the OAU’s Assembly of Heads of State and Government, helps to clarify the origins of Article 23(2) and from where the subversive threats were most likely to emanate. It is worth outlining it in full: Desirous of consolidating the fraternal links that unite us, 32 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2005, para 11. 33 Resolution on the Promotion and Respect of International Humanitarian Law and Human and Peoples’ Rights, ACHPR/Res.7, 10 December 1993; Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 64. E.g. ‘the series of violations alleged to have been committed by the armed forces of the Respondent States fall within the province of humanitarian law’, para 69. Resolution on the human rights situation in the Republic of South Sudan, ACHPR/Res.265, 14 March 2014: ‘concerned about the humanitarian consequences of the situation in South Sudan’. 34 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 84. 35 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 348. 36 UN GA. Res.2131 (XX); OAU Charter, Article III(5); and Constitutive Act, Articles 3 and 4; F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 348.

544

24. Article 23: Right to Peace and Security

Solemnly Undertakes: 1. Not to tolerate, in conformity with article 3, paragraph 5, of the Charter, any subversion originating in our countries against another member state of the Organization of African Unity; 2. Not to tolerate the use of our territories for any subversive activity directed from outside Africa against any member states of the Organization of African Unity; 3. To oppose collectively and firmly by every means at our disposal every form of subversion conceived, organised or financed by foreign powers against Africa, the OAU or its member states individually; 4. (a) To resort to bilateral or multilateral consultation to settle all differences between two or more member states of the Organization of African Unity; (b) To refrain from conducting any press or radio campaigns against any member states of the Organization of African Unity, and to resort instead to the procedure laid down in the Charter and the Protocol of Mediation, Conciliation, and Arbitration of the Organization of African Unity; 5. (a) Not to create dissension within or among member states by fomenting or aggravating racial, religious, linguistic, ethnic, or other differences; (b) To combat all forms of activity of this kind; 6. To observe strictly the principles of international law with regard to all political refugees who are nationals of any member states of the Organization of African Unity; 7. To endeavour to promote, through bilateral and multilateral consultations, the return of refugees to their countries of origin with the consent of both the refugees concerned and their governments; 8. To continue to guarantee the safety of political refugees from non-independent African territories, and to support them in their struggle to liberate their countries.37

It is thus a threat from outside the continent which is perceived at this stage to be particularly relevant, with support to refugees necessary also as part of the decolonisation and liberation struggles and in the broader context of African unity. Namibia’s Periodic Report submitted under Article 62 of the ACHPR cites the powers of the Ministry of Home Affairs and Immigration to declare a refugee, asylum seeker or foreign national as a threat if they engage in subversive activities, citing a case of two US citizens for ‘recruiting Namibian citizens to go and work as security guards in Iraq and Afghanistan’.38 The Republic of Botswana claimed that it was permitted to deport Kenneth Good, an Australian national, after he had written an article critical of the government, on the basis that Article 23(1) and Article 12(2) and (4) allowed restrictions to freedom of movement to protect national security.39 Holding that Article 12(4) enabled a State to expel those who were not nationals even if they were lawfully admitted into the State, there needed to be legislation in place to regulate such expulsion. This needed to be compatible with international human rights law, such as the ability to be heard before a court.40 Whereas the activities of refugees have been considered, in practice before the African Commission and Court, less of a threat, more contemporary concerns have arisen with terrorism. The AU’s Convention on the Prevention and Combating of Terrorism defines a terrorist act in Article 1(3) as: 37 Declaration on the Problem of Subversion, AHG/Res. 27(II) 1965, reprinted in 5 International Legal Materials 138 (1966) and in Gino J. Naldi (ed) Documents of the Organization of African Unity (1992) 57. 38 Republic of Namibia’s 6th Periodic Report on the African Charter on Human and People’s Rights, 2015. 39 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 59. 40 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 203.

C. Article 23(2)

545

(a) any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or (ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or (iii) create general insurrection in a State. (b) any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i) to(iii).41

The African Commission’s Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa draw upon the AU Convention but do not make any reference to Article 23.42 In a 2005 Resolution it did, however, recognise that: the acts, methods and practices of terrorism in all its forms and manifestations are activities aimed at the destruction of human rights, fundamental liberties and democracy, constitute a threat to territorial integrity, the security of States and seek to destabilise legally constituted Governments’; and called on African States to ‘take the necessary measures to reinforce their activities of cooperation in order to prevent and combat terrorism’ and ‘ensure that the measures taken to combat terrorism fully comply with their obligations under the African Charter on Human and Peoples’ Rights and other international human rights treaties, including the right to life, the prohibition of arbitrary arrests and detention, the right to a fair hearing, the prohibition of torture and other cruel, inhuman and degrading penalties and treatment and the right to seek asylum.43

A communication alleging that an embargo imposed on Burundi by States of the Great Lakes Region was in violation of a number of provisions of the ACHPR including Article 23 was brought on the basis that three of the Respondent States had supported terrorist militia.44 Tanzania, one of these three States, argued in response that whilst it had welcomed refugees from Rwanda and Burundi, it did not permit them to carry out military activities against them.45 Centring its reasoning around Article 21 of the ACHPR and whether the embargo was lawful, the African Commission decided that it had been adopted and endorsed by the UN Security Council and a Summit of the Great Lakes Region, and the interference in the internal affairs of the State was legitimate in accordance with international procedures.46 Furthermore, sanctions may be ‘imposed to bring about a peaceful resolution of a dispute. It is self-evident that Burundians were in dispute

41 Convention on the Prevention and Combating of Terrorism, adopted by OAU Assembly of Heads of State, 14 June 1999. 42 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, adopted 15 May 2015. 43 Resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, ACHPR/Res.88, 5 December 2005. 44 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 2. 45 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 26. 46 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 78.

546

24. Article 23: Right to Peace and Security

among themselves and the neighbouring states had a legitimate interest in a peaceful and speedy resolution of the dispute’.47 As a result there was no violation of Article 23.

D. Remedies In one communication where a violation of Article 23 was found the African Commission called on the Respondent States, when addressing all the violations, to abide by the relevant international law obligations on peaceful settlement of disputes and friendly relations, withdraw their troops from the DRC with immediate effect; and pay reparations ‘for and on behalf of the victims of the human rights by the armed forces of the Respondent States while the armed forces of the Respondent States were in effective control of the provinces of the Complainant State, which suffered these violations’.48

47 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 77. 48 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003.

25. Article 24 Right to General Satisfactory Environment All peoples shall have the right to a general satisfactory environment favourable to their development.

A. Introduction The novelty of the inclusion of such a right in a treaty, the ‘vague and ambiguous’ wording,1 and whether it would be more than aspirational were concerns associated with Article 24. The provision has, unfortunately, not received as much attention as some of the other substantive provisions. Where the African Commission has used this Article it has taken a progressive and expansive approach and found violations of the right, proving its justiciability.2 The fact that a number of African States have entrenched environmental rights in their constitutions, according to Murombo, ‘places the environment within its proper legal framework and shows a commitment to sustainable development’, giving it the same status as other human rights.3 For example, section 24 of the South African Constitution provides that: Everyone has the right—(a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.4

Similarly, a number of chapters of the Kenyan Constitution of 27 August 2010 reflect a ‘paradigm shift’ towards the importance of environmental rights.5

1 M. van der Linde and L. Louw, ‘Considering the interpretation and implementation of article 24 of the African Charter on Human and Peoples’ Rights in light of the SERAC communication’, 3 AHRLJ (2003) 167–187, at 174. 2 See also the infamous Grootboom case in South Africa, Government of the Republic of South Africa & Others v Grootboom & Others 2000 11 BCLR 1169 (CC) 1184; Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744; 1996 10 BCLR 1253 (CC) para 78. 3 T. Murombo, ‘The utility of environmental rights to sustainable development in Zimbabwe: A contribution to the constitutional reform debate’, 11 AHRLJ (2011) 120–146, at 125. T. Madebwe ‘A rights-based approach to environmental protection: The Zimbabwean experience’, 15 African Human Rights Law Journal (2015) 110–128. 4 Constitution of the Republic of South Africa, as adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly. See E. de Wet and A. du Plessis, ‘The meaning of certain substantive obligations distilled from international human rights instruments for constitutional environmental rights in South Africa’, 10 AHRLJ (2010) 345–376. 5 J. K. Bosek, ‘Implementing environmental rights in Kenya’s new constitutional order: Prospects and potential challenges’, 14 AHRLJ (2014) 489–508, at 507.

548

25. Article 24: Right to Satisfactory Environment

Article 24 needs to be considered in the broader context of traditional African practices which saw the environment as central to religious and cultural lives,6 and also reflected in initiatives by the former OAU and AU organs and sub-regional bodies.7 Treaties (such as the Convention on the Conservation of Nature and Natural Resources,8 and the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa),9 resolutions and decisions10 over the years, while not necessarily always referring explicitly to Article 24, show an ongoing awareness of environmental issues being a key concern for the continent and their relationship with human and peoples’ rights.11 For example, the Revised African Convention on Nature and Natural Resources includes the wording of Article 24 as one of its Principles;12 refers to the concept of sustainable development;13 and in its Article XVI sets out ‘procedural rights’ including access and participation of the public to information on the environment and decision-making, and access to justice. Additional provisions recognise ‘traditional rights’ of local communities and indigenous peoples including access to knowledge, prior informed consent if that knowledge is to be used, and the participation of communities in processes relating to natural resources.14 Although Article 24 of the ACHPR refers to a right to a ‘general satisfactory’ environment, reference has been made interchangeably to an environment which is ‘healthy’,15 (a term employed during the drafting of the ACHPR16), ‘clean and safe’,17 and ‘safe satisfactory’.18 Additionally, sometimes the word ‘environment’ is used in a more rhetorical sense by the African Commission, as a general concept which does not relate to Article 24 but to other rights.19 6 E. P. Amechi, ‘Enhancing environmental protection and socio-economic development in Africa: A fresh look at the right to a general satisfactory environment under the African Charter on Human and Peoples’ Rights’, 5(1) Law, Environment and Development Journal (2009) 58, at 62. 7 E.g. SADC Treaty, ‘Member States agree to co-operate in the areas of . . . natural resources and the environment’, Article 24 of the SADC Treaty. 8 Adopted 15 December 1968, came into force 16 June 1969. A revised Convention was adopted in 2017. See for discussion, M. van der Linde, ‘A review of the African Convention on Nature and Natural Resources’, 2 AHRLJ (2002) 33–59. 9 Adopted 30 January 1991, came into force 22 April 1998. 10 Algiers Declaration, AHG/Decl.1 (XXXV). 11 See R. Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge University Press, 2004, chapter 8, and pp.256–259. 12 Article III(1). 13 Article XIV. See also M. van der Linde, ‘A review of the African Convention on Nature and Natural Resources’, 2 AHRLJ (2002) 33–59. 14 Article XVII. 15 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 52. 16 Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November to 8 December 1979. Reprinted in Issa G. Shivji, The Concept of Human Rights in Africa (1989) 121. See also Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Report on the Draft African Charter presented by the Secretary-General at the 37th Ordinary Session of the OAU Council of Ministers, held in Nairobi, Kenya 15–21 June 1981. CM/1149 (XXXVII). 17 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 51. 18 Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa, ACHPR/ Res.153, 25 November 2009. 19 E.g. under the right to work: ‘Promote a social environment that is conducive to business creation, opportunities for self-employment, entrepreneurship, and the development of cooperatives’, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 59(f ).

B. Concept of the Environment

549

There is some indication that the right has an individual element: ‘the environment affects the quality of life and safety of the individual’.20 Citing Article 24, the High Court of Kenya also found, in a case relating to pollution of a public water source with raw sewage that ‘[i]‌t is quite evident from perusing the most important international instruments on the environment that the word life and the environment are inseparable and the word life means much more than keeping body and soul together’.21 Similarly, the Economic Community of West African States (ECOWAS) Court of Justice, examining the situation in the Niger Delta in 2012, and applying Article 24 of the ACHPR, held that ‘[t]he environment is essential to every human being. The quality of human life depends on the quality of the environment’.22 Interestingly, while Article 24 may not have been expressly cited that often, the concept of the environment has been interpreted as integral to the guarantee of other rights in the ACHPR. An illustration of this is the seminal communication brought by the Centre for Minority Rights Development in Kenya and Minority Rights Group against Kenya which alleged the conservation of areas of Kenya as game reserves impacted on rights of indigenous peoples, specifically the Endorois. Although Article 24 was not raised by the complainants as one of the rights violated, the African Commission drew upon UN Special Rapporteur reports to note the loss of indigenous peoples’ land, forests and natural resources.23

B. Concept of the Environment Environment concerns in the African context could mean many things including deforestation, mining, farming, but also land, minerals and fishing,24 clean water and air and prevention of pollution,25 flora and fauna and access to traditional plants and medicines, and natural resources.26 A brief look at Article 62 reports submitted by States suggests a similarly broad approach,27 as do earlier resolutions adopted by the former OAU organs: providing of clean food and water for human beings and livestock; preservation and utilisation of Africa’s natural resources and in the environmental interests of the continent; transfer of technologies from industrialised countries to developing regions which should henceforth take into consideration new environmental norms; incidence of environment on trade patterns and development; threats to human environment in southern African introduced by apartheid, racist and colonial practices.28

20 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 51. 21 Waweru v Republic, 2007 AHRLR 149 (KeHC 2007), 2 March 2006, para 40. 22 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, para 100. 23 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 May 2009, at paras 245 and 293 in particular. 24 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 25 See C. Peter, ‘Taking the environment seriously: The African Charter on Human and Peoples’ Rights and the environment’, 3 Review of the African Commission on Human and Peoples’ Rights (1993) 39. 26 See Chapter 23 (Article 22). 27 E.g. Eritrea’s report mentions climate change, marine, land, waste disposal, and energy, under Article 24, Eritrea: Initial National Report (1999–2016), Prepared on the African Charter on Human and People’s Rights (ACHPR), 28 March 2017, The State of Eritrea, Ministry of Foreign Affairs, para 366. 28 Resolution on Environment, CM/Res.262(XVIII).

550

25. Article 24: Right to Satisfactory Environment

Environmental issues have been linked, under the ACHPR, with other rights, in particular economic, social and cultural rights. Therefore, States are required to ensure within the context of the right to health, ‘that national development plans and programmes are designed towards the realisation of a healthy environment that is conducive to the right to health, for example in matters relating to water resources management and sanitation’.29 Further, when considering housing, States should take measures to ensure vulnerable populations ‘are guaranteed equal access to land, adequate housing or shelter and to acceptable living conditions in a healthy environment’.30 Developing a right to water, this has been also associated with Article 24 specifically, with the African Commission articulating that this includes not only water that is safe, sanitation and protection against pollution and wastage, but also monitoring of aquatic ecosystems, and the adoption of ‘comprehensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations’.31 There is inevitably a close relationship between natural resources and the environment, although the two have not been precisely defined by the African Commission or African Court. Consideration of the interpretations of Articles 22 and 24 of the ACHPR imply that natural resources will be part of the environment with the latter being a broader concept also encompassing other issues. Thus, while the African Commission, for its part, has not provided a definition of ‘environment’ it has similarly taken an expansive approach, for example, through its work around extractive industries including mining, oil, gas, and timber extraction, and their impact on the ecosystem.32 Article 24 has been raised by complainants in cases on oil exploration and its use for development, with alleged resulting impacts on the population in, for example, Cabinda in Angola, and the Ogoni in Nigeria, when there have been oil spills and claims that any revenue has not been shared appropriately with the local population.33

C. State Obligations Although environmental rights are considered to have both procedural and substantive obligations,34 and certainly both can be discerned from the jurisprudence of the African Commission and African Court, they have not been articulated in these categories. Furthermore, similar formulations are used by the African Commission as it does with other rights, namely by referring to obligations (albeit separately) to respect, promote and protect the right. 29 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 67(q). 30 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 79(p). 31 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, paras 87–92. See further Chapter 17 (Article 16). 32 Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.148, 25 November 2009. 33 Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola, 5 November 2013; Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001. For discussion of the latter see K. S. A. Ebeku, ‘The right to a satisfactory environment and the African Commission’, 3 AHRLJ (2003) 149–166. 34 E. P. Amechi, ‘Enhancing environmental protection and socio-economic development in Africa: A fresh look at the right to a general satisfactory environment under the African Charter on Human and Peoples’ Rights’, 5(1) Law, Environment and Development Journal (2009) 58, at 63.

C. State Obligations

551

The obligations of the State under Article 24, according to the ECOWAS Court of Justice, are expansive: Article 24 of the Charter thus requires every State to take every measure to maintain the quality of the environment understood as an integrated whole, such that the state of the environment may satisfy the human beings who live there, and enhance their sustainable development. It is by examining the state of the environment and entirely objective factors, that one judges, by the result, whether the State has fulfilled this obligation. If the State is taking all the appropriate legislative, administrative and other measures, it must ensure that vigilance and diligence are being applied and observed towards attaining concrete results.35

It will not be sufficient to adopt legislation; it must be enforced and put into practice. Again, the ECOWAS Court of Justice held: This means that the adoption of the legislation, no matter how advanced it may be, or the creation of agencies inspired by the world’s best models, as well as the allocation of financial resources in equitable amounts, may still fall short of compliance with international obligations in matters of environmental protection if these measures just remain on paper and are not accompanied by additional and concrete measures aimed at preventing the occurrence of damage or ensuring accountability, with the effective reparation of the environmental damage suffered.36

Consequently, even though it was prepared to recognise that the Nigerian government had put in place various measures including the adoption of legislation to address environmental degradation in the Niger Delta Region of the country, the degradation had continued. It therefore held that: there has been a failure on the part of the Federal Republic of Nigeria to adopt any of the “other” measures required by the said Article 1 of African Charter to ensure the enjoyment of the right laid down in Article 24 of the same instrument. From what emerges from the evidence produced before this Court, the core of the problem in tackling the environmental degradation in the Region of Niger Delta resides in lack of enforcement of the legislation and regulation in force, by the Regulatory Authorities of the Federal Republic of Nigeria in charge of supervision of the oil industry.37

Further obligations that the African Commission has articulated under Article 24 include the obligation to promote ‘conservation’.38 Exactly what this entails was not explored further, but the Commission has stated on other occasions that education systems should be directed towards ‘the development of respect for the environment and natural resources’.39 Obligations to protect include, relating to the right to health, both individuals and peoples ‘against environmental, industrial and occupational hazards, preventing air, land

35 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, para 101. 36 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, para 105. 37 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, paras 107–108. 38 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 52. 39 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 71(f ).

552

25. Article 24: Right to Satisfactory Environment

and water pollution and alleviating the adverse effects of urban development, industrialisation, and global warming on ecosystems, livelihood and food security’.40 The activities of non-State actors have arisen particularly under the Working Group on Extractive Industries, Environment and Human Rights Violations. It has made recommendations to States to: develop policies, regulatory and institutional framework that will enhance transparency, accountability, sustainability, and governance of the sector in the most efficient and cost-effective approach [and] [a]‌dopt suitable Regional Policy Guidelines touching on issues such as Environmental and Social Impact Assessment for any new ventures in the extractive sector; adopt dynamic Regional Policy Guidelines touching on issues such as working conditions, rights of laborers and responsibilities of companies (towards the employees and the community as a whole); Ensure that the substantive rights of citizens who may be implicated in the extraction of natural resources are protected. These include, in particular, their rights to property, culture, religion, health, and physical well-being; Ensure that there is accountability and transparency, provision of information to citizens, consultation and consent prior to extractions, and commit to upholding their freedom of expression.41

It has also addressed recommendations to other actors, including stakeholders to ‘[c]‌reate community awareness on transactions in the extractive industry sector; [p]rovide capacity building to local manpower to ensure that the rights of people to utilize their resources, as enshrined in the African Charter are guaranteed’;42 as well as to extractive companies themselves. Here the Working Group has noted they have responsibilities and an ‘obligation to conduct their activities in a transparent and accountable manner, while respecting national, regional and international norms and standards’, with whom it has offered to have constructive dialogues.43 States have been called upon to establish ‘independent monitoring and accountability mechanisms that ensure that human rights are justiciable and extractive industries and investors legally accountable in the country hosting their activities and in the country of legal domicile’, as well as provide for environmental impact assessments.44 The latter is already a common feature in many African countries.45 The obligation to prevent further includes that the State ‘take reasonable and other measures to prevent pollution and environmental degradation’.46 The African Commission has also held that States should

40 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 67(s). 41 Intersession Report (May 2014–April 2015) Commissioner Pacifique Manirakiza, presented at the 56th Ordinary Session of African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, para 37. 42 Intersession Report (May 2014–April 2015) Commissioner Pacifique Manirakiza, presented at the 56th Ordinary Session of African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, para 37. 43 Intersession Report (May 2014–April 2015) Commissioner Pacifique Manirakiza, presented at the 56th Ordinary Session of African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015. 44 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012. 45 E.g. South Africa, see UN Economic Commission for Africa, Review of the Application of Environmental Impact Assessment in Selected African Countries, 2005. See also BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs, 2004, 5, SA 124 (SW). 46 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 52.

D. Development and the Environment

553

‘secure an ecologically sustainable development and use of natural resources’,47 although without articulating precisely what this entails. In the first communication to properly address Article 24, citing this provision and the right to the best attainable state of health in Article 16, the African Commission noted that these rights imposed a negative obligation on the State to ‘desist from directly threatening the health and environment of their citizens’, as well as to adopt ‘largely non- interventionist conduct . . . not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual’.48 Furthermore, the combined effect of Articles 16 and 24 require the government: ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.49

Although the African Commission agreed that the government of Nigeria ‘has the right to produce oil’, it should use the income to ‘fulfil the economic and social rights of Nigerians’.50

D. Development and the Environment The wording of Article 24 explicitly links the environment and development, as Leopold Senghore noted in his speech during the Dakar meeting drafting the African Charter: ‘The notion of environment alluded to meets the concern of Africans since the environment involved is a global environment favourable to development’.51 This is a relationship not without controversies.52 However, as seen in relation to Article 22,53 the two provisions have been used in a way which reflects the ‘interdependence between human rights and development’,54 rather than being mutually exclusive,55 particularly in the context of indigenous peoples. Indeed, two key communications addressing the impact on the lands of indigenous peoples in Kenya did not raise Article 24 at all, rather citing other 47 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 52. 48 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 52. 49 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 54. 50 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001, para 54. 51 Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November–8 December 1979. Reprinted in Issa G. Shivji, The Concept of Human Rights in Africa, Codesria Book Services, University of Virginia, 1989, 121. 52 M. van der Linde and L. Louw, ‘Considering the interpretation and implementation of article 24 of the African Charter on Human and Peoples’ Rights in light of the SERAC communication’, 3 AHRLJ (2003) 167–187, at 176. T. Maluwa, International Law in Post-Colonial Africa, Martinus Nijhoff Publishers, 1999, chapter 12. 53 Chapter 23 (Article 22). 54 Resolution on a Human Rights-Based Approach to Natural Resources Governance, ACHPR/Res.224, 2 May 2012 55 See also Botswana’s Article 62 report notes its ‘commitment to the sustainable management of natural resources’, Republic of Botswana, Second and Third Report to the African Commission no Human and Peoples’ Rights (ACHPR). Implementation of the African Charter on Human and Peoples’ Rights, 2015, p.69.

554

25. Article 24: Right to Satisfactory Environment

provisions of the ACHPR including Article 22. Thus, access to the ‘natural environment’ has been ‘inextricably linked’ to religious and cultural practices for indigenous peoples.56 In addition, applying procedural rights, the African Commission has affirmed that the prior informed consent of indigenous peoples should be obtained by the State before exploiting the resources of their lands or using their traditional knowledge so that both the State and non-State actors ‘respect the rights of peoples to a satisfactory environment’.57 In Application 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, the African Court was required to consider whether the eviction of the Ogiek people from the Mau Forest on the grounds that this was necessary to preserve the ecosystem and that their presence there was causing degradation. The Court found that there was no evidence that their being in the Forest had such an impact, with information from other sources attributing the cause of the degradation to other actors and activities such as logging.58 It did not consider that allocation of the land in the Mau Forest to indigenous peoples such as the Ogiek was incompatible with ‘the preservation of the natural environment’.59

E. Disposal of Waste and Pollution Disposal of waste and associated pollution has featured on the OAU and AU’s organs agendas resulting in various resolutions and the adoption of the Bamako Convention. The obligation of States to take steps, in the context of the right to health, to improve ‘all aspects of environmental and industrial hygiene’ appeared in earlier drafts of the ACHPR,60 but did not find its way into the final version. The African Commission has, to a lesser extent than the political organs, recognised the impact of industry and waste on the environment and called on States, for example, to create ‘a system to monitor effective disposal of waste in order to prevent pollution’.61 They should undertake activities not only themselves but also ‘in cooperation with other African States’.62 Such activities should include prohibition and penalising the disposal of waste in Africa by companies, including ‘international dumping of toxic waste or other wastes from industrialised countries’, implying, certainly in the late 1980s, that the threat would come principally from outside the continent.63 The content of these obligations, is however, still rather ambiguous and, as Amechi notes, ‘does not answer the question of the degree of pollution and ecological degradation that the States are obliged to prevent’.64

56 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, Judgment of 26 May 2017, para 164. See also Chapter 9 (Article 8). 57 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011, para 44. 58 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, Judgment of 26 May 2017, para 130. 59 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, Judgment of 26 May 2017, para 145. 60 61 M’Baye Draft, Article 11. Guidelines for National Periodic Reports, 1988, para 11. 62 Guidelines for National Periodic Reports, 1988, para 11. 63 Guidelines for National Periodic Reports, 1988, para 12. 64 E. P. Amechi, ‘Enhancing environmental protection and socio-economic development in Africa: A fresh look at the right to a general satisfactory environment under the African Charter on Human and Peoples’ Rights’, 5(1) Law, Environment and Development Journal (2009) 58, at 66.

G. Remedies

555

F. Climate Change Reflecting developments in the international arena, and an appreciation that Africa is particularly vulnerable to the effects of climate change,65 despite its contribution to, for example, greenhouse gas emissions being comparatively low,66 the African Commission has similarly observed the impact of climate change on the environment and Article 24, leading to it undertaking a study specifically to address the issue.67 Indeed, African States have themselves noted, as Eritrea’s periodic report under Article 62 articulated, a ‘causal link’ between health, environment and climate.68 Hence, climate change is ‘principally the result of emissions of greenhouse gases, which remain relatively high in developed countries’, criticising the failure of international agreements and negotiations to make reference to human rights standards and in particular the rights of indigenous peoples and noting that this could impact on particularly vulnerable groups. The African Commission has called on the AU Assembly of Heads of State to lead on ensuring that such standards, including ‘special measure of protection’ for vulnerable groups are including in these documents.69 This call for ‘regionalising’ the problem, by placing it in the hands of African States as a collective, has been advanced as the way forward.70 Indeed documents such as the Algiers Declaration on Climate Change71 and ministerial conferences held on the environment72 do illustrate some indication of a common position, although whether it is sufficient and whether it adequately includes human rights standards has been questioned by some.73

G. Remedies Finding that Nigeria had violated a number of provisions of the ACHPR, including Article 24, with respect to oil exploration in the Ogoniland region, the African Commission called on the government to ‘ensure protection of the environment, health and livelihood of the people of Ogoniland’ by, among other things: • Ensuring adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government sponsored raids, and undertaking a comprehensive cleanup of lands and rivers damaged by oil operations; • Ensuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil Intergovernmental Panel on Climate Change, Fourth Assessment Working Group II Report, 2007. With the exception of South Africa, see W. Scholtz, ‘The promotion of regional environmental security and Africa’s common position on climate change’, 10 AHRLJ (2010) 1–25, at 2. 67 Resolution on Climate Change in Africa, ACHPR/Res.271, 12 May 2014. 68 Eritrea: Initial National Report (1999–2016), Prepared on the African Charter on Human and People’s Rights (ACHPR), 28 March 2017, The State of Eritrea, Ministry of Foreign Affairs, para 366. 69 Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa, ACHPR/ Res.153, 25 November 2009. 70 W. Scholtz, ‘The promotion of regional environmental security and Africa’s common position on climate change’, 10 AHRLJ (2010) 1–25. 71 Decision on the African Common Position on Climate Change, Assembly/ AU Dec.236/ XII, February 2009. 72 See http://www.unep.org/ROA/amcen/. 73 See e.g. A. Mumma, ‘The poverty of Africa’s position at the climate change negotiations’, 19 UCLA Journal of Environmental Law and Policy (2000–2002) 198. W. Scholtz, ‘The promotion of regional environmental security and Africa’s common position on climate change’, 10 AHRLJ (2010) 1–25, at 21. 65 66

556

25. Article 24: Right to Satisfactory Environment

development is guaranteed through effective and independent oversight bodies for the petroleum industry; and • Providing information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations.74 This is one of the earliest examples of its expansive approach to reparations in its communications perhaps reflecting the breadth of the concept of environment and the far- reaching impact the activities of the government had on the Ogoni people. Yet the inability of the government to implement this decision, and not assisted by the lack of clarity on who should be defined as a ‘victim’ in such situations, led in part to a 2012 case before the ECOWAS Court of Justice whereby it acknowledged violations in the Niger Delta Region including ‘continuous environmental degradation [with] devastating impact on the livelihood of the population’.75 The Court of Justice stated that the Plaintiff had not identified a particular victim or victims to whom any award of monetary compensation could be paid. Recognising that there were challenges with awarding such a reparation in a case such as this as it raised issues of: justice, morality and equity: within a very large population, what would be the criteria to identify the victims that deserve compensation? Why compensate someone and not compensate his neighbour? Based on which criteria should be determined the amount each victim would receive? Who would manage that one [b]‌illion [d]ollars?76

Rather than awarding compensation to individuals, it held that it should be seen as ‘a collective benefit adequate to repair, as completely as possible, the collective harm that a violation of a collective right causes’.77 The Court dismissed the prayer for monetary compensation and instead simply ordered Nigeria to ‘[t]‌ake all effective measures, within the shortest possible time, to ensure restoration of the environment of the Niger Delta; [t]ake all measures that are necessary to prevent the occurrence of damage to the environment; [t]ake all measures to hold the perpetrators of the environmental damage accountable’.78 In so doing it unfortunately repeats the previous vagueness of the African Commission’s decision over a decade earlier.

H. Special Mechanisms As noted in Chapter 22 (Article 21), the African Commission’s Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, has a specific remit to ‘Examine the impact of extractive industries in Africa within the context of the African Charter on Human and Peoples’ Rights; [r]‌esearch the specific issues pertaining 74 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 26 October 2001. 75 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, para 114. 76 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, para 115. 77 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, para 116. 78 ECOWAS Court of Justice, SERAP v Federal Republic of Nigeria, Judgment No ECW/CCJ/JUD/18/12, 14 December 2012, para 121.

H. Special Mechanisms

557

to the right of all peoples to freely dispose of their wealth and natural resources and to a general satisfactory environment favorable to their development; [u]ndertake research on the violations of human and peoples’ rights by non-state actors in Africa’, with a view to making recommendations for the ‘prevention and reparation of violations of human and peoples’ rights by extractive industries in Africa’.79

79 Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.148, 25 November 2009. See also Resolution Appointing the Chairperson and Members of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.198, 5 November 2011; Resolution on the Renewal of the Mandate of Expert Members of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.215, 2 May 2012; Resolution on the renewal of the mandate of the working group on extractive industries, environment and human rights violations in Africa, ACHPR/Res.253, 5 November 2013.

26. Article 25 Human Rights Teaching, Education and Publication State Parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms

contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.

A. Introduction There are relatively little references to Article 25 in the findings of the African Commission, African Court, other sub-regional bodies, national courts and literature. One explanation for this may be that the provision is rather general, relates to other rights in the ACHPR and does as such, provide a right, rather a State obligation. Furthermore, there is an inevitable overlap here with Article 1.1 Indeed, the African Commission has alluded to Article 25 making it ‘a binding duty of the States to promote and ensure the respect of the rights and freedoms contained in the Charter’.2 There is nothing equivalent in the M’Baye Draft and Article 25 of the Dakar Draft is exactly as was finally adopted in the ACHPR.

B. Human Rights Education One of the principle areas in which Article 25 has been used is to develop ‘human rights education’. The concept of human rights education has received considerable attention in literature and at the international and regional level, but there is no clear definition of what it entails.3 There is also recognition that there can be little information available on human rights among the population as well as government bodies in African States4 and the African Commission has been criticised for failing to be ‘active’ and paying ‘limited’ attention to the issue.5 On occasion, in conjunction with the right to education in Article 17,6 the African Commission has noted the importance of human rights education as a ‘prerequisite for 1 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, pp.52–53. 2 Resolution on the Need for the Conduct of a Study on Freedom of Association in Africa, ACHPR/ Res.151, 25 November 2009. 3 J. C. Mubangizi ‘Human rights education in South Africa: Whose responsibility is it anyway?’ (2015) 15 African Human Rights Law Journal 496–514. 4 J. C. Mubangizi ‘Human rights education in South Africa: Whose responsibility is it anyway?’ (2015) 15 African Human Rights Law Journal 496–514. N. Horn ‘Human rights education in Africa’ in A. Bösl & J. Diescho (eds), Human Rights in Africa: Legal Perspectives on Their Protection and Promotion (2009) 60. 5 J. C. Mubangizi ‘Human rights education in South Africa: Whose responsibility is it anyway?’ (2015) 15 African Human Rights Law Journal 496–514, at 503. S. A. Yeshanew, ‘Utilising the promotional mandate of the African Commission on Human and Peoples’ Rights to promote human rights education in Africa’, 7 Afr. Hum. Rts. L.J. 191 (2007). 6 Resolution on Human Rights Education, ACHPR/Res.6, 10 December 1993.

B. Human Rights Education

559

the effective implementation of the African Charter on Human and Peoples’ Rights and other international human rights instruments’.7 So States have an obligation to include human rights at ‘all levels of education curricula’,8 in all public and private level curricula,9 in ‘schools and universities’,10 and in the training of law enforcement officials, the medical profession, public officials and others ‘who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment’.11 In the same context, the ‘general public’ should also be ‘made aware about human rights’.12 Prison guards should receive human rights education so that they will respect the rights of prisoners, as well as prisoners themselves on ‘their duties and responsibilities’.13 Yet, beyond these examples, relatively little attention has been paid to tailored education for particular sectors of society.14 There is some implication that the education needs to be more than cursory, with reference in one report to concerns over the ‘limited number of hours’ given to human rights education and recommendations made that the hours be increased.15 It can be implied that the right imposes an obligation to ‘disseminate the rights, freedoms and duties under the Charter, especially through human rights education’.16 In addition, human rights education encompasses education around the ACHPR and the African Commission and the international human rights system.17 The Maputo Protocol specifically requires States to ‘integrate gender sensitisation and human rights education at all levels of education curricula including teacher training’.18 The African Commission has addressed recommendations around the implementation of human rights education to other actors. For example, after a promotional mission to Botswana, it called on civil society to provide human rights education to the 7 Resolution on Human Rights Education, ACHPR/Res.6, 10 December 1993. See J. C. Mubangizi ‘Human rights education in South Africa: Whose responsibility is it anyway?’ (2015) 15 African Human Rights Law Journal 496–514. 8 Statement by the Special Rapporteur on the Rights of Women in Africa on the Occasion of Pan-African Women’s Day, 31 July 2014. 9 Resolution on the African Commission on Human and Peoples’ Rights, AHG/Res. 227 (XXIX), published in the Commission’s 6th Annual Activity Report, 1992–1993; Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), para 8. 10 Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, Adopted at 17th Extraordinary Session, 19–28 February 2015, Banjul, Gambia, para 49. 11 Resolution on Human Rights Education, ACHPR/Res.6, 10 December 1993. 12 Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, Adopted at 17th Extraordinary Session, 19–28 February 2015, Banjul, Gambia, para 49. 13 Prisons in Benin, Report on a Visit, 23–31 August 1999, By Prof. E.V.O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa, Series IV, No. 6, recommendations para 5. 14 E.g. L. Frost, ‘Human rights education programs for indigenous peoples: Teaching whose human rights?’, 7 St. Thomas L. Rev. 699 (1995). 15 15th Extraordinary Session, 7–14 March 2014, Banjul, The Gambia, Consideration of Reports Submitted by States Parties under Article 62 of the African Charter on Human and Peoples’ Rights, Concluding Observations on the 3rd Periodic Report of the Republic of Cameroon, para 60. 16 Report of the African Commission’s Working Group On Indigenous Populations/Communities Mission to the Republic of Rwanda, 1–5 December 2008, italics added. The Report refers to Article 26, although it would seem Article 25 was intended. 17 47th Session of the African Commission on Human and Peoples’ Rights, 12–26 May 2010/Banjul, The Gambia, Intersession Report Prepared my Me Reine Alapini-Gansou, Chairperson of the African Commission on Human and Peoples’ Rights, November 2009–May 2010. 18 Maputo Protocol, Article 12(1)(e).

560

26. Article 25: Human Rights Teaching and Education

population.19 In so doing it implies that the responsibility to carry out human rights education falls not only on government, but also national human rights institutions (NHRIs) and civil society.20 Overall, therefore, attention to human rights education has been rather generalised, requiring simply that States (and on occasion, others), educate various sectors of the population in human rights. Little reference is made to the more nuanced discussions around how human rights is taught,21 what precisely is taught, at what levels, and the implicit presumptions on which it is based.22 Through its promotional mandate, it has been argued that the African Commission could play a much more active role.23

C. National Human Rights Institutions It is perhaps through the focus on national human rights institutions (NHRIs) which has contributed most to the development of Article 25, even if this provision is not mentioned much beyond the initial resolutions creating affiliated status, and thereby facilitating the development of a relationship with the African Commission. The decision to adopt the 1998 Resolution by the African Commission came on the back of developments since 1992, increased attention to them at the regional level, participation of some NHRIs in the Commission’s sessions,24 and the first and second conference of African NHRIs in Yaoundé in February 1996 and Durban in July 1998 respectively.25 Indeed the latter recommended that a relationship should be developed with the African Commission.26 With the adoption of the Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa in October 1998 the mechanism by which NHRIs could engage with the African Commission was created.27 This cooperation was reiterated at the following session in April 1999 in the Grand Bay Mauritius Declaration and Plan of Action which also urged States to establish independent and adequately resourced

19 Report on the African Commission’s Promotional Mission to Burkina Faso (22 septembre–02 octobre 2001), DOC/OS(XXXIII)/324b/i. 20 JC Mubangizi ‘Human rights education in South Africa: Whose responsibility is it anyway?’ (2015) 15 African Human Rights Law Journal 496–514. 21 E.g. see F. Viljoen, ‘Contemporary challenges to international human rights law and the role of human rights education’, 44 De Jure (2011) 207. 22 L. Frost, ‘Human rights education programs for indigenous peoples: Teaching whose human rights?’, 7 St. Thomas L. Rev. 699 (1995). 23 S. A. Yeshanew, ‘Utilising the promotional mandate of the African Commission on Human and Peoples’ Rights to promote human rights education in Africa’, 7 Afr. Hum. Rts. L.J. 191 (2007). 24 E.g. the Nigerian National Human Rights Commission, see O. O. Okafor and S. C. Agbakwa, ‘On legalism, popular agency and “voices of suffering”: The Nigerian National Human Rights Commission in context’, 24(3) HRQ (2002) 662–720, at 708. 25 The Yaoundé Declaration, adopted at the First African Conference of National Institutions for the Promotion and Protection of Human Rights, meeting in Yaoundé, Cameroon, 5–7 February 1996; The Durban Declaration, adopted by the Second Conference of African National Institutions for the Promotion and Protection of Human Rights, Durban, South Africa, 1–3 July 1998. 26 The Durban Declaration, adopted by the Second Conference of African National Institutions for the Promotion and Protection of Human Rights, Durban, South Africa, 1–3 July 1998, para 14. 27 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998.

C. National Human Rights Institutions

561

NHRIs.28 NHRIs are now, rhetorically at least, seen as ‘an essential partner in the implementation of the Charter at National Level’.29 The basis for engaging with NHRIs has come from both Article 25 and 26. In its Resolution which established the mechanism of affiliated status, for example, the African Commission referenced Article 26 and the duty of States to ‘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’, noting that ‘the use of the word “allow” suggests not just encouraging and promoting the establishment of National Institutions but also developing a mutually cooperative relationship in order to “promote and ensure, through teaching, education and publication, respect for the rights and freedoms contained in the present charter” (Article 25)’.30 As with the Paris Principles, various issues have also been stressed by the African Commission. These include their independence and pluralist composition.31 Provided that it is in line with these requirements, it is ‘the right of each state to establish, according to its sovereign prerogatives and within the most appropriate legislative framework, a national institution charged with the promotion and protection of human rights’.32 Thus, any legislation establishing NHRIs should conform with international human rights standards,33 and any such institution should be Paris Principles-compliant.34 Over the years more and more NHRIs have been created by States,35 although their compliance with international and regional standards is on many occasions debatable,36 either because they lack the necessary degree of independence from government, or because they Grand Bay (Mauritius) Declaration and Plan of Action, 16 April 1999, paras 15 and 23. Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 30 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. See also ‘which had been laid down to guarantee the enjoyment of the rights stipulated in Articles 25 and 26 of the African Charter; Guarantee the independence of the National Human Rights Commission to ensure that the latter operates on the basis of the Paris Principles; Guarantee security for the Human Rights Defenders in the exercise of their duties’, Concluding Observations on Algeria’s 3rd and 4th Periodic Report 2001–2006, 10 February 2014, 42nd Ordinary Session. 31 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 32 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 33 E.g. Concluding Observations on Nigeria’s 3rd and 4th Periodic Report, 1 September 2008, 44th Ordinary Session. 34 Concluding Observations on Central African Republic Initial and Cumulative Report 1988–2006, 12 February 2014, 39th Ordinary Session; Concluding Observations on Mauritania’s 8th and 9th Periodic Reports 2002–2005, 16 February 2012, 37th Ordinary Session. 35 E.g. B. R. Dinokopila, ‘Bringing the Paris Principles home: Towards the establishment of a National Human Rights Commission in Botswana’, 14 U. Botswana L.J. 45 (2012); L. Chiduza, ‘The Zimbabwe Human Rights Commission: Prospects and challenges for the protection of human rights’, 19 Law Democracy & Dev. 148 (2015). T. Pegram, ‘Diffusion across political systems: The global spread of national human rights institutions’, 32 Hum. Rts. Q. 729 (2010). T. Thipanyane, ‘Strengthening constitutional democracy: Progress and challenges of the South African Human Rights Commission and Public Protector’, 60 N.Y.L. Sch. L. Rev. 125 (2015). H. S. Kanzira ‘The independence of national human rights bodies in Africa: A comparative study of the CHRAJ, UHRC and SAHRC’ (2002) 8 East African journal of Peace and Human Rights 176. C. Idike ‘Deflectionism or activism? The Kenya National Commission on Human Rights in focus’ (2004) 1 Essex Human Rights Review 43. 36 Human Rights Watch, Protectors or pretenders? Government human rights commissions in Africa, Human Rights Watch, 1 January 2001. See also E. Durojaye, ‘Turning paper promises to reality: National human rights institutions and adolescents’ sexual and reproductive rights in Africa’, 26 Neth. Q. Hum. Rts. 547 (2008), para 4.2. 28 29

562

26. Article 25: Human Rights Teaching and Education

‘are just set up by African governments to hoodwink donors and the international community into believing that such governments have any regard for human rights’.37 The African Commission has noted that the ‘central mission’ of NHRIs is in ‘an advisory role to the government, parliament and other relevant bodies and authorities involved in giving opinion and making recommendations on all issues related to the promotion and protection of human rights’.38 Less attention has been paid to NHRI engagement with civil society.39 The 1998 Resolution required that the NHRI be established by law, constitution or decree, be within a State party to the ACHPR, and conform with the Paris Principles.40 Once granted, affiliate status would give an NHRI the right to be invited to and be represented at the public sessions of the African Commission, participate ‘in deliberations on issues which are of interest to them’ and submit proposals to the Commission.41 They can suggest items for the session’s agenda,42 and be sent the activity report of the African Commission,43 as well as submit shadow reports to Article 62 State reports.44 In practice, NHRIs have the ability to make a statement on all items of the Commission’s agenda, with the exception of the examination of State reports under Article 62. NHRIs, in return for these privileges, are required to submit a report every two years on the activities they have undertaken to promote and protect the rights in the ACHPR and have the broader responsibility to ‘assist the Commission in the promotion and protection of human rights at national level’.45 In a Resolution in May 2017 the African Commission adopted new criteria for the granting of affiliate status. This set out that a written application should be made in which the NHRI should indicate ‘that they work for the realisation of the objectives of the African Charter on Human and Peoples’ Rights (the African Charter)’.46 The application should consist of a formal letter, the law establishing the institution, documentation showing how it conforms to the African Commission’s criteria, and its sources of funding.47 The original criteria were repeated (that it be duly established by law); be a national institution of a State party to the ACHPR (although with the addition that it would be ‘other specialised human rights institution’);48 and adding further aspects of the Paris Principles 37 E.g. J. D. Mujuzi, ‘The Uganda Human Rights Commission and the promotion and protection of the right of freedom from torture’ (1997–2006), 5 Int’l J. Civ. Soc’y L. 97 (2007), at 114. 38 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 39 L. Sewanyana, ‘Building strategic partnerships between NGOs and national human rights institutions (NHRIs): Human rights in conflict and counter-terrorism situations’, 3 E. African J. Hum. Rts. & Democracy 53 (2005). 40 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 41 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 42 Rule 32(3)(e) and Rule 63(1), Rules of Procedure of the African Commission. 43 Rule 59(3), Rules of Procedure of the African Commission. 44 Rule 75(5), Rules of Procedure of the African Commission. 45 Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 46 Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa, ACHPR/Res. 370 (LX) 2017, 22 May 2017, para 1. 47 Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa, ACHPR/Res. 370 (LX) 2017, 22 May 2017, para 3. 48 Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa, ACHPR/Res. 370 (LX) 2017, 22 May 2017, para 2.

C. National Human Rights Institutions

563

such as that: ‘its independence shall be guaranteed by law’; it have ‘as broad a mandate as possible, capable of promoting, protecting and monitoring human rights through various means’; should ‘be characterized by effective functioning’; should be ‘adequately funded and not subject to financial control’; ought to ‘be accessible to the general public’; and be ‘composed of diverse membership representative of the society’.49 The same obligations and privileges provided by the 1998 Resolution remained unchanged. Over the years NHRIs have attended sessions of the African Commission, although this participation has rightly been described as ‘erratic’,50 and as at the 61st Ordinary Session in November 2017 the number of those who have affiliate status stood at twenty- seven.51 Applications for affiliate status that have been rejected have tended to be because the necessary documentation has not been provided, although the African Commission now has a rule that it will only grant affiliate status from one institution per State.52 NHRIs without affiliate status can attend sessions as observers.53 NHRIs are now among those who give speeches at the opening ceremony, indicative of the African Commission’s perception of them as among one of the key actors in the African human rights system. Reference has been made to them by some of the special mechanisms of the African Commission (the mandate on the Special Rapporteur on Human Rights Defenders includes that he or she will ‘cooperate and engage in dialogue with Member States, National Human Rights Institutions, relevant intergovernmental bodies, international and regional mechanisms of protection of human rights defenders, human rights defenders and other stake holders’);54 and where public calls have been made for new expert members of the special mechanisms NHRIs have been encouraged to apply,55 (albeit without success). Various attempts have been made, albeit not consistently, for NHRIs to feed into consultation processes.56 An African Network of NHRIs (NANHRI) has a visible ongoing presence at the African Commission’s sessions and acts as an interlocutor between the Commission and NHRIs. There have been examples of impact with the submission of a communication by the Chadian NHRI,57 and the involvement, for example, of the Kenyan NHRI in monitoring and encouraging the implementation of the Endorois decision.58 49 Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa, ACHPR/Res. 370 (LX) 2017, 22 May 2017, para 2. 50 B. R. Dinokopila, ‘Beyond paper-based affiliate status: National human rights institutions and the African Commission on Human and Peoples’ Rights’, 10 Afr. Hum. Rts. L.J. 26 (2010), p.41. 51 Final Communiqué of the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017, para 39. 52 Rule 67(3), Rules of Procedure of the African Commission. See discussion around SAHRC and Commission on Gender Equality in South Africa, see. N. Mbelle, ‘The role of non-governmental organisations and national human rights institutions at the African Commission’, in M.D. Evans and R. Murray, The African Charter On Human And Peoples’ Rights: The System In Practice, 2nd Edition, Cambridge University Press, 2008, chapter 8. 53 Rule 67(4), Rules of Procedure of the African Commission. 54 Resolution on the Protection of Human Rights Defenders In Africa, ACHPR/Res.69, 4 June 2004. 55 E.g. Call for Applications for the Nomination of Expert Members of the Working Group on Economic, Social and Cultural Rights in Africa, 5 June 2014. 56 E.g. around the Commission’s Rules of Procedure, see Resolution on the Nomination and Composition of the Working Group on Specific Issues related to the Work of the Commission, ACHPR/Res.150, 25 November 2009. 57 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995. 58 Resolution Calling on the Republic of Kenya to Implement the Endorois Decision, ACHPR/Res.257, 5 November 2013.

564

26. Article 25: Human Rights Teaching and Education

Despite these ad hoc examples, there is continual reference to the need for them to engage more fully in the work of the African Commission, by both the Commission itself as well as NHRIs.59 Reasons given in the past that try to explain this limited engagement include the time taken to process applications for affiliate status, a failure to formalise the relationship in the African Commission’s Rules of Procedure, and frustrations with the manner in which sessions of the African Commission are organised.60 The increasingly complex and inter-related nature of NHRIs work,61 engaging as some do in carrying out other roles such as national preventive mechanisms under the UN Optional Protocol to the Convention Against Torture (OPCAT) and the national frameworks under the UN Convention on the Rights of persons with Disabilities,62 has been touched upon by the African Commission in various contexts,63 but not fully explored. One is thus left with the impression that the inclusion of NHRIs in the work of the African Commission, across all its different mechanisms, is an untapped potential.

See also ‘Civil society and national human rights institutions’, 13 Int’l J. Not-for-Profit L. 5 (2011). R. Murray, The Role of National Human Rights Institutions at the International and Regional Levels: The Experience of Africa, Hart Publishing, Oxford, 2007, pp.51–55. 61 See e.g. W. Zambara, ‘Africa’s national human rights institutions and the responsibility to protect’, 2 Global Resp. Protect 458 (2010). 62 Article 33 of the CRPD. See M. Birtha, ‘Nothing about CRPD monitoring without us: A case study on the involvement of the disability movement in policy-making in Zambia’, 1 Afr. Disability Rts. Y.B. 115 (2013). 63 E.g. through the work of its CPTA, re OPCAT, see the CPTA’s Intersession activity report to 47th Session, May 2010. 59 60

27. Article 26 Independence of the Courts and Establishment of National Institution State 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.

A. Introduction Article 26 has arisen on relatively few occasions when compared to Article 7, the provision with which it is most often associated and the one in which it tends to operate in its shadow. Therefore, the first part of Article 26—discussion around the independence of courts and tribunals—is discussed principally under Article 7, as Article 26 tends to be added on, sometimes it would appear as an afterthought, to bolster Article 7 reasoning. The second paragraph of Article 26, however, does add a different dimension which is not captured in the same way through Article 7. More generally, the African Commission has linked the independence of courts with economic development, sustainable democracy,1 and respect for the rule of law: It is impossible to ensure the rule of law, upon which human rights depend, without guaranteeing that courts and tribunals resolve disputes both of a criminal and civil character free of any form of pressure or interference. The alternative to the rule of law is the rule of power, which is typically arbitrary, self-interested and subject to influences which may have nothing to do with the applicable law or the factual merits of the dispute. Without the rule of law and the assurance that comes from an independent judiciary, it is obvious that equality before the law will not exist.2

It has, on a few occasions on its missions, reminded States of their obligations and the importance of an independent judiciary.3 It has called on African judges themselves to organise meetings to exchange experiences on creating an independent and ‘efficient’ judiciary.4 According to the African Commission, Article 26 encompasses a number of elements.5 The first relates to independence of the courts, the second to the establishment of national institutions.

1 Resolution on the Respect and the Strengthening on the Independence of the Judiciary, ACHPR/Res.21, 4 April 1996. See B. K. Twinomugisha, ‘The role of the judiciary in the promotion of democracy in Uganda’, 9 AHRLJ (2009) 1–22. 2 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 118. 3 E.g. Report of the Promotion Mission of the Committee for the Prevention of Torture in Africa to the Islamic Republic of Mauritania, 26 March–1 April 2012, para 69; Report of the Promotional Mission to the Kingdom of Lesotho 3–7 April 2006, para 209. 4 Resolution on the Respect and the Strengthening on the Independence of the Judiciary, ACHPR/Res.21, 4 April 1996. 5 See Guidelines For National Periodic Reports, 1998.

566

27. Article 26: Independence of the Courts

B. Relationship with Article 7 Given that in most contexts where Article 26 is raised it is in combination with Article 7 and the right to a fair trial, it is interesting to explore the rationale behind separating out, for this right at least, the right of the individual with related obligations of the State. Article 7, one may presume in the way in which it is written (although not how it is interpreted in practice), could just apply to criminal matters and thus Article 26 adds a more rounded obligation relating to all courts and tribunals. Origins of the Charter also support this reading, with the M’Baye Draft Article 21 setting out a right to a fair trial solely in the context of criminal proceedings, and in its Article 32 a ‘right to judicial protection’, namely that: [e]‌veryone has the right to simple and [prompt] recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognised by the Constitution or laws of the state concerned or by this Charter, even though such violation may have been committed by persons acting in the course of their official duties.

The States Parties undertake: (a) to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; (b) to develop the possibilities of judicial remedy; and (c) to ensure that the competent authorities shall enforce such remedies when granted.6 Indeed it is unfortunate that some of the content of this provision including around remedies, did not find its way expressly into the final text of the ACHPR. In its interpretation of Article 26, the reasoning the African Commission provides tends to be less detailed than one finds with Article 7. Sometimes one is left with the impression that Article 26 is ‘tacked on’ to Article 7, for example, where Article 26 is cited and a violation found, but any discussion around the independence of the courts takes place under Article 7.7 In some communications it is not clear why an Article 26 violation is not alleged by the complainants8 or if it is, then subsequently not found. For example, in a case against Ethiopia, Article 26 was among the list of rights initially alleged in this case, but the decision notes that some of these allegations listed were then dropped because of lack of evidence. However, neither Article 7 nor Article 26 is among these.9 The African Commission found a violation under Article 7(1)(d), and the right to be tried within a reasonable time, in relation to changes to the court system by the government resulting in dismissal of judges and resultant delays in trying the individuals.10 Article 32 M’Baye Draft. E.g. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011. 8 E.g. Communication 278/03, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 4, which alleged trial by military court, from which there was no appeal and whose impartiality and independence were contested. The case was held inadmissible. 9 ‘It says that in paragraph two of the brief on Admissibility it had alleged violations of Articles 1, 2, 3, 5, 6, 7(1)(a), (b), (c), (d), 7(2), 25 and 26 of the African Charter and the right to privacy guaranteed under the international conventions to which the Respondent State is a party to. It states that in spite of its efforts and the fact that the violations appear very probable, it has not been able to get evidence to support some of the alleged violations. It has therefore decided to drop its previous claim that Articles 3, 5, 6 and 7(2) are violated for lack of evidence. It states that it will only argue violations of Articles 1, 2, 7 (1) (b) (d) of the African Charter’, Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, para 123. 10 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, para 240. 6 7

C. Relationship with Admissibility Conditions

567

In one communication against Egypt allegations of Article 7(1)(a) and 26 were made on the basis that the victims in the case did not have a right to an impartial investigation and appeal.11 The African Commission found that while the investigation had not been impartial, the particular victims did have a right to an appeal and therefore there was no violation of Article 7(1)(a). There was, however, a violation of Article 26 as there were ‘procedural deficiencies that affected the final decision’ that was taken by the investigating body depriving the victims of an ‘effective and impartial investigation’.12 In another communication against Ghana, the African Commission found that a series of measures taken by the government amounted to interference in the independence of the judiciary with respect to the case of the constitutionality of the Fast Track High Court, in violation of Article 26 of the ACHPR. There was, however, no violation of Article 7 as the individual was eventually tried by this Court and raised no specific issues of its independence.13 The African Commission has held that Article 26 is ‘inextricably linked’ to the right to a fair trial in Article 7,14 ‘the necessary appendix of Article 7’,15 that Article 7 is ‘complemented by’ the duty in Article 26,16 and the latter ‘reiterates the right enshrined in Article 7’ but Article 26 is ‘even more explicit about States Parties’ obligations’.17 Article 7 thus examines the individual right, with Article 26 which focuses on ‘the institutions which are essential to give meaning and content to that right. This Article clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual’s rights against the abuses of State power’.18 Beyond this, in practice, there would appear to be no difference between the concepts of ‘independence’ in Article 26, and ‘impartiality’ in Article 7: the African Commission has considered them to be ‘one and the same’.19 There is some suggestion that Article 26 includes ‘access to an appropriate court’20 but this has not been dealt with in any detail and standards around access have fallen under Article 7.

C. Relationship with Admissibility Conditions On a number of occasions complainants have sought to argue that the requirement to exhaust domestic remedies should be waived as the national judiciary were not 11 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 222. 12 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, paras 236–238. 13 Communication 322/2006, Tsatsu Tsikata v. Republic of Ghana, para 161. 14 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 146. 15 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 77. 16 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v. Egypt, 3 March 2011, para 123. 17 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995. 18 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995. Reiterated in Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 117; and in Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, paras 5 and 15. 19 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 80. 20 Communication 281/03 Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 76.

568

27. Article 26: Independence of the Courts

independent.21 In one communication22 the complainants relied on a previous decision of the African Commission in which it found that the judiciary was not independent in Cameroon.23 The African Commission held that this decision ‘cannot be taken to mean that all Complainants bringing Complaints against the Republic of Cameroon should be exempted from complying with Article 56(5) of the African Charter’, but that each case should be considered separately.24 Where allegations in communications have been around the lack of an independent judiciary, a State has argued that the complaint is written in language which is disparaging and insulting and should be inadmissible under Article 56(3).25 The Ghanaian government noted that the statement in the communication by the complainant: ‘Far from guaranteeing the independence of the Court in relation to my trial, the Government of Ghana has shown an irrevocable determination to have me found guilty by hook or crook and incarcerated’, was disparaging and insulting to Ghana and its judiciary.26 This was successful with the African Commission finding, in this case, that ‘the purpose of its mandate is to consider complaints alleging such perceived judicial bias and prejudice, and undue interference by the executive with judicial independence, in accordance with Article 7 of the Charter’.27

D. Independence of the Courts The African Commission has set out a number of elements which are essential for the independence of the courts. The constitution should guarantee judicial independence,28 as indeed many do,29 and judicial bodies should be created by law.30 A judiciary must be ‘independent of external, especially executive influence31 and the State should ‘refrain from taking any action which may threaten directly or indirectly the independence and the security of judges and magistrates’.32 Where the President of the State could suspend a case before its submission to the Supreme State Security Emergency Court, render its decisions final, and commute, change, suspend or cancel its rulings or order a retrial or

See Chapter 34 (Article 56). Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon, 13 December 2014. 23 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. 24 Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon, 13 December 2014, para 19. 25 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, paras 46 and 47. See also Chapter 34 (Article 56). 26 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 42. 27 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 46. 28 L. Madhuku, ‘Constitutional protection of the independence of the judiciary: A survey of the position in Southern Africa’, 46 J. Afr. L. 232 (2002). 29 E.g. the Ghanaian Constitution, 1992, section 125(3); Constitution of the Republic of South Africa, 1996, s 165. 30 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 31 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 146. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, paras 193 and 206. Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 79. 32 Resolution on the Respect and the Strengthening on the Independence of the Judiciary, ACHPR/Res.21, 4 April 1996. 21 22

D. Independence of the Courts

569

release of defendants, the African Commission found that this was executive interference in violation of Article 7,33 and Article 26. Independence also relates to the ‘actual or apparent impartiality’ of the court.34 It may be that a combination of measures could lead to a violation, where one of them alone would not. The African Commission noted, in Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, that measures by the government including a ‘targeted appointment’ of an appeal court judge, ‘a strategic reconstitution’ of the Supreme Court bench, and a press release issued by the Office of the Minister for Presidential Affairs announcing the nomination of the appeal court judge, when ‘considered together as a series of concerted and escalated actions towards a desired outcome . . . constitute tacit escalated interference with the independence of courts by the executive’.35 The result was a perceived lack of independence.36

1. ‘Courts’ In one communication it was alleged that a number of States had violated the right of a victim to access the SADC Tribunal under Articles 7 and 26.37 The African Commission found that Article 7 did not impose an obligation on States to ensure access to an international tribunal, the SADC Tribunal.38 Therefore, while the two provisions should be ‘read together’, reference to ‘courts’ in Article 26 did not include international courts, only ‘national judicial organs’, which are ‘akin’ to those in Article 7,39 and those which ‘exercise compulsory jurisdiction over individuals who have no possibility of opting out of the coverage of the judicial authority of those courts’.40 Consequently, there was no corresponding duty on the State to guarantee the independence of the SADC Tribunal.41 On occasion, the African Commission has implied that Article 26 obligations extend not just to the judiciary but also the legal profession. For example, in a Resolution on Uganda, referring to Article 26, it called on the government to ‘guarantee the independence of the Judiciary and the integrity of the members of the legal profession, in order to ensure impartiality in rendering justice, without intimidation or interference’.42

2. Competence and Jurisdiction The judicial bodies should have the power to determine issues within their competence ‘on the basis of the rule of law and in accordance with proceedings conducted in the 33 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 207. 34 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 146. Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 81; Communication 334/ 06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 206. 35 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 155. 36 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 159. 37 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 116. 38 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 142. 39 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 144. 40 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 144. 41 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 144. 42 Resolution on the Human Rights Situation in Uganda, ACHPR/Res.94, 5 December 2005, para 7.

570

27. Article 26: Independence of the Courts

prescribed manner’.43 Their jurisdiction should extend to ‘all issues of a judicial nature’ and they should have the ‘exclusive’ jurisdiction to decide if the issue is within its competence.44 Judicial bodies must be independent from the executive45 and consequently there should not be ‘any inappropriate or unwarranted interference with the judicial process nor shall decisions by judicial bodies be subject to revision except through judicial review, or the mitigation or commutation of sentence by competent authorities, in accordance with the law’.46

3. Process of Appointments The African Commission has set out that the process of appointments to judicial bodies should be ‘transparent and accountable’ and ideally by an independent body.47 Not all instances where the executive appoints the judiciary will be in violation of Article 26.48 The ‘sole’ criteria should be the ‘suitability’ of the individual based on their ‘integrity, appropriate training or learning and ability’49 and ‘purely on merit and qualifications’.50 The appointment process ought be non-discriminatory, however, States can determine a minimum and maximum age, minimum experience, and require that only nationals are eligible for judicial office.51 ‘Appropriate training or learning’ such that they can ‘adequately fulfil their functions’ are required before appointment to judicial office.52 Drawing upon the UN Human Rights Committee General Comment No. 32,53 the African Commission has held that there was no violation of Article 26 simply by the Attorney General of Ghana stating his intention to seek a review of a Supreme Court decision.54 Neither was a statement by the spokesperson to the President of Ghana that the Supreme Court ruling was ‘strange’ and ‘all legal means’ should be used to reverse it, found to be a violation of Article 26.55 However, as happened in one communication against Ghana: when an appointment is made in contemplation of a specific case which would be lodged by the appointing authority or its agent to the court to which such an appointment is made, the appearance of independence of such a court is seriously impaired. In such a case, the ordinary citizen, and the

43 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 44 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 45 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 46 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 47 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 48 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 158. 49 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 50 See Guidelines For National Periodic Reports, 1998. 51 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 52 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 53 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 147. 54 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 148. 55 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 149.

D. Independence of the Courts

571

Complainant in this Communication, would reasonably view the appointment as a targeted measure to secure an anticipated outcome.56

The independence of the judiciary is, according to the African Commission, related to the doctrine of separation of powers.57 Independence of the judiciary has been interpreted by drawing upon not only UN Human Rights Committee jurisprudence but also documents such as the UN Basic Principles on the Independence of the Judiciary. Where the Head of State retains power to remove judges, the African Commission found that this ‘seriously undermines’ judicial independence and is contrary to the doctrine of the separation of powers, and was a violation of Article 26.58 Similarly, as was the case in Cameroon, if the President and justice minister are Chair and Vice Chair of the Higher Judicial Council which has powers to appoint and discipline magistrates, the judiciary will not be considered to be independent, the situation being exacerbated by the fact that other members of this Council did ‘not provide the necessary “checks and balance” against the Chairperson’, namely the Head of State.59

4. Security of Tenure, Promotion, Suspension and Dismissal There is a requirement that judges have security of tenure.60 This should be guaranteed by law, as should ‘adequate remuneration, pension, housing, transport, conditions of physical and social security, age of retirement, disciplinary and recourse mechanisms and other conditions of service of judicial officers’.61 They should also be provided with ‘decent living and working conditions to enable them maintain their independence and realise their full potential’62 and ought not be appointed for a fixed term.63 Promotion needs to be based on ‘objective factors’. Removal or suspension of judicial officers should only be for ‘gross misconduct incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties’,64 and on the recommendation of a ‘special commission appointed for the purpose of investigating the misconduct’.65 Hence, where over one hundred judges were dismissed from office because they contested the creation of special and military courts and tribunals, the African Commission found that this ‘deprive[d]‌courts of the personnel qualified to ensure that they operate impartially thus denies the right to individuals to have their case heard by such bodies’.66 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 211. 58 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, paras 56–58. 59 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 211. 60 Resolution on the Respect and the Strengthening on the Independence of the Judiciary, ACHPR/Res.21, 4 April 1996. 61 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 62 Resolution on the Respect and the Strengthening on the Independence of the Judiciary, ACHPR/Res.21, 4 April 1996. 63 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 64 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 65 See Guidelines For National Periodic Reports, 1998. 66 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 69. 56 57

572

27. Article 26: Independence of the Courts

Any disciplinary hearings or procedures dealing with suspension or removal should comply with fair trial guarantees.67 The law should also set out any complaints and disciplinary procedures and the former should be dealt with ‘promptly, expeditiously and fairly’.68

5. Immunities and Freedoms Members of the judiciary should be entitled to various immunities and freedoms. These include immunity from civil and criminal proceedings ‘for improper acts or omissions in the exercise of their judicial functions’.69 Their rights to freedom of expression, belief, association and assembly should be ensured but they need to ‘conduct themselves in accordance with the law and the recognized standards and ethics of their profession’.70 They can form and join professional associations and other organisations that promote their interests, training and status, and can also create monitoring mechanisms which examine their performance and ‘public reaction to the justice delivery processes of judicial bodies’.71 These mechanisms, however, should be independent and composed of ‘equal part of members the judiciary and representatives of the Ministry responsible for judicial affairs’.72

6. Adequate Resources There is an obligation under Article 26 for States to provide judicial bodies with ‘adequate resources for the performance of their functions’, consulting the judiciary when preparing and implementing its budget.73

7. Training and Legal Education Article 26 requires that appropriate education and training be provided to the judiciary, including ‘the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of accused persons, victims and other litigants and of human rights and fundamental freedoms recognized by national and international law’, and in ‘racial, cultural and gender sensitisation’.74 Specialised institutions should be created for this purpose and the training ought to be continuous.75 67 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 68 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 69 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 70 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 71 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 72 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. 73 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections A and B. Resolution on the Respect and the Strengthening on the Independence of the Judiciary, ACHPR/Res.21, 4 April 1996. 74 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section B. 75 African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section B.

D. Independence of the Courts

573

Beyond the judiciary, and according to the African Commission’s earlier Guidelines for National Periodic Reports, Article 26 requires States to ensure the ‘[e]‌establishment of a legal educational system designed to protect human and peoples’ rights and respect for the rule of law’; and a ‘legal educational system directed at training independently- minded lawyers’.76

8. State Obligation to Comply with Court Orders Where States have refused to comply with their domestic court orders, for example, by deporting an individual and failing to produce him before the court when a court order was made to the contrary,77 the African Commission has found a violation of Article 26 (often in conjunction with Article 7). The African Commission premised this on the basis of upholding the rule of law and that this cannot be achieved unless courts are able to act without interference. Consequently, the ‘courts need the trust of the people in order to maintain their authority and legitimacy. The credibility of the courts must not be weakened by the perception that courts can be influenced by any external pressure’.78

9. Military and Special Tribunals Military and special tribunals have been dealt with fully in Chapter 8 (Chapter 7). On a few occasions, although not all,79 Article 26 has also been used in this context.80 So a military court composed of military officers was found not to offer any ‘guarantees of independence, impartiality and equity’ and therefore was in violation of Articles 7 and 26.81 Similarly, the trial and conviction of journalists by a Special Military Tribunal which was presided over by a military officer who was a member of the body who confirmed the sentence, was in violation of these two articles.82

See Guidelines For National Periodic Reports, 1998. Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 120. 78 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 119. See also Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 74. 79 Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria, 22 March 1995, para 14. 80 E.g. Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999, paras 17–21. 81 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 89. See also Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, paras 91–95. 82 Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999, para 17. See also Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009, para 85. See also Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 66; Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 100; and in general African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003. 76 77

574

27. Article 26: Independence of the Courts

E. 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 This aspect of Article 26 has been developed in conjunction with Article 25 and the establishment of national human rights institutions (NHRIs) by States at the national level. States have been encouraged, by the African Commission, to create such institutions83 and, as is seen in Chapter 26 (Article 25) the African Commission, through its affiliate status procedure, has enabled NHRIs to engage with it.84 However, on one occasion, the African Commission has noted that this aspect of Article 26 could also refer to the establishment of courts, as well as ‘institutions which also have the mandate to create mechanisms for protection. Essentially, the Respondent State has a duty to provide the structures and mechanisms necessary for the exercise of the right to fair trial’.85 This is slightly broader than the court process and also relates to the right to a remedy. So in this communication, for instance, it noted that Article 26 obliged the Egyptian government to have provided ‘an efficient criminal law remedy’ to those who had been the subject of sexual violations and physical assaults.86 This is not the same as giving reasons for failure to prosecute the perpetrators; rather that there should have been ‘mechanisms that were put in place after the incidences to afford protection and redress to the Victims, and even to prevent future occurrences of such violations’.87

F. Remedies In all of its decisions, with the exception of two, the African Commission has found a violation of Article 26 while also finding a violation of Article 7. Given the practice of the Commission not to relate specific remedies to particular rights, the remedies mirror those in relation to Article 7. As seen in Chapter 8 (Article 7), these have been broad and include releasing individuals from detention,88 ordering a re-trial,89 not transferring individuals from Anglophone areas to trial in Francophone areas,90 reforming the court structures and composition,91 respecting court decisions,92 or in one case, not implementing

See Guidelines For National Periodic Reports, 1998. Resolution on the Granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31, 31 October 1998. 85 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 234. 86 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 239. 87 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 239. 88 Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999; Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 233. 89 Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999. 90 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 91 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215; Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 233. 92 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 121. 83 84

F. Remedies

575

death sentences,93 paying compensation,94 and more generally, guaranteeing the independence of its courts,95 and complying with its obligations in the ACHPR96 to bring its laws in line with the treaty.97 As with other violations found, States are required to report back to the Commission on the measures taken to implement the recommendations, often within 180 days.98 In one of the cases where the African Commission found a violation of Article 26 but not a violation of Article 7, it required that the State amended its laws in line with the ACHPR, compensated the victims and investigated the violations with the aim of bringing the perpetrators to justice.99 In the other decision it simply held that the finding of a violation was sufficient remedy, reiterating the obligation of the State to guarantee the courts’ independence.100

93 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 233. 94 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009; Communication 334/06 Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 233. 95 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009. 96 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999. 97 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000; Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000; Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005; Communication 281/03 Marcel Wetsh’okonda Koso and others v Democratic Republic of the Congo, 27 May 2009; Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 233. 98 E.g. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 3 March 2011, para 233. 99 Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December 2011, para 275. 100 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 162.

28. Articles  27–29 Individual Duties Article 27 1. Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community. 2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest. Article 28 Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance. Article 29 The individual shall also have the duty: 1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.

2. To serve his national community by placing his physical and intellectual abilities at its service. 3. Not to compromise the security of the State whose national or resident he is. 4. To preserve and strengthen social and national solidarity, particularly when the latter is strengthened. 5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to his defence in accordance with the law. 6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society. 7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society. 8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

A. Introduction Despite this separate chapter in the African Charter on Human and Peoples’ Rights (ACHPR) entitled ‘duties’, being seen as one of the unusual features of the ACHPR, the inclusion of individual duties within a human rights treaty is not something unique to the African instrument, being found as they are in the Universal Declaration of Human Rights (UDHR),1 and American Declaration of the Rights and Duties of Man.2 But, the ACHPR is considered the ‘first human rights document to articulate the concept in

Article 29. OAS Doc. OEA/Ser.L/V/.1.4, Rev.XX. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, pp.394–401. 1 2

A. Introduction

577

any meaningful way’,3 with the African Charter on the Rights and Welfare of the Child subsequently including a similar level of detail and repeating some of the wording in the ACHPR.4 Individual duties are, however, one of the most contested and criticised aspects of the ACHPR, certainly in earlier writings, principally based on concerns that they would be abused by States,5 and on an erroneous understanding of the duty in socialist thought, namely the State as the subject of international law with ‘human rights, therefore, . . . conditioned on the interest of the state and the goals of communist development’.6 Contrast this with pre-colonial Africa where the main beneficiaries of individual duties were considered to be not the State but the family and community.7 Indeed, many writers draw upon pre-colonial contexts to explain the relationship between duties and rights on the continent8 and the inclusion of duties was seen as one way in which the ACHPR reflected an ‘African’ perspective on human rights. As was noted in presenting the Dakar draft of the ACHPR, these illustrate the ‘African philosophy of law’ and the aim of the drafters was not ‘to copy simply and purely what was done in other regions or at world level’.9 Earlier drafts of the ACHPR provide a useful illustration of the context of the individual duties sections. Article 37 of the M’Baye Draft states: 1 . Every person has responsibilities to his family, his community, and mankind. 2. The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.

This gives an indication that the concept of duties is, as Mutua and others have argued, reflective of the centrality of the community and family, not in fact an attempt to dilute the rights provided for in Articles 2–24. Therefore, in ‘traditional African societies, there 3 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’, 35 Virginia Journal of International Law (1995) 339–380, at 364. K. Quashigah, ‘Scope of individual duties in the African Charter’ in M. Ssenyonjo, The African Human Rights System: 30 Years after the Adoption of the African Charter on Human and Peoples’ Rights, Martinus Nijhoff, 2011, 119–134. 4 Article 31 reads: ‘Every child shall have responsibilities towards his family and society, the State and other legally recognized communities and the international community. The child, subject to his age and ability, and such limitations as may be contained in the present Charter, shall have the duty: (a) to work for the cohesion of the family, to respect his parents, superiors and elders at all times and to assist them in case of need; (b) to serve his national community by placing his physical and intellectual abilities at its service; (c) to preserve and strengthen social and national solidarity; (d) to preserve and strengthen African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and to contribute to the moral well-being of society; (e) to preserve and strengthen the independence and the integrity of his country; (f ) to contribute to the best of his abilities at all times, and at all levels, to the promotion and achievement of African Unity’. See J. Sloth-Nielsen and B. D. Mezmur, ‘A dutiful child: The implications of Article 31 of the African Children’s Charter’ 52 Journal of African Law (2008) 159. 5 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339–380, at 359. See also C. Flinterman and E. Ankumah, The African Charter on Human and Peoples’ Rights, in T. Buergenthal, Guide to International Human Rights Practice, Hurst Hannum, 1992. 6 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339–380, at 372. See also B. Saul, ‘In the shadow of human rights: Human duties, obligations, and responsibilities’ 32 Colum. Hum. Rts. L. Rev. (2001) 565, at 592–593. 7 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ (1995) 35 Virginia Journal of International Law 339–380, at 373. 8 T. Fernyhough, ‘Human Rights and Precolonial Africa’, in R. Cohen et al, Human Rights and Governance in Africa, University Press of Florida, 1993. A. A. An’Naim and F. M. Deng, Human Rights in Africa, Cross Cultural Perspectives, Brookings Institute, December 2010. 9 Dakar Draft, Introduction, Governing Principle.

578

28. Articles 27–29: Individual Duties

is no opposition between rights and duties or between the individual and the community. They blend harmoniously’.10 As Leopold Senghor noted when the M’Baye Draft was adopted: Room should be made for this African tradition in our Charter on Human and Peoples’ Rights, while bathing in our philosophy, which consists in not alienating the subordination of the individual to the community, in co-existence, in giving everyone a certain number of rights and duties. In Europe, human rights are considered as a body of principles and rules placed in the hands of the individual, as a weapon, thus enabling him to defend himself against the group or entity representing it. In Africa, the individual and his rights are wrapped in the protection the family and other communities ensure everyone. . . . Rights in Africa assume the form of rite which must be obeyed because it commands. It cannot be separated from the obligations due to the family and other communities. Therefore, contrary to what has been done so far in other regions of the world, provision must be made for a system of `Duties of Individuals’, adding harmoniously to the rights recognised in them by the society to which they belong and by other men.11

Indeed, some African constitutions contain similar provisions, imposing on their citizens, for example, in Burundi, ‘responsibilities towards the Family, towards Society, towards the State and the other Public Authorities’;12 and in Mali ‘to provide support in the event of a natural disaster, work, defence of the fatherland, the duty to honour all civic obligations and particularly to pay one’s taxes, the duty of respecting the Constitution’.13 The government of Seychelles has also confirmed the relationship between rights and duties: they cannot be considered ‘self-existent categories apart from each other and from human behavior in general, therefore the only possible way to guarantee human rights is the establishment of duties also’.14 As Mutua articulated: Individual rights cannot make sense in a social and political vacuum, devoid of the duties assumed by individuals. . . . The sacralisation of the individual and the supremacy of the jurisprudence of individual rights in organized political and social society is not a natural, ‘transhistorical’ or universal phenomenon, applicable to all societies, without regard to time and place.15

The Burundian Constitution notes ‘rather than viewing individual rights and individual duties as opposing forces, the current concept of an individual centred notion of human rights needs to be ‘informed’ with an ‘African contribution that entwines duties and rights’.16 Just as peoples’ rights have been interpreted by the African Commission and African Court as not undermining the concept of individual rights, so it is argued ‘the realization of individual rights can find their fullest expression and fulfilment only within

Dakar Draft, Introduction. Address delivered by Leopold Sedar Senghor, President of the Republic of Senegal, Address delivered at the opening of the Meeting of African Experts preparing the draft African Charter in Dakar, Senegal 28 November–8 December 1979. Reprinted in I. G. Shivji The concept of Human Rights in Africa (1989) 121. 12 Article 63, Burundi Constitution, see Republic of Burundi, African Charter on Human and Peoples Rights, First Implementation Report, Bujumbura, September 2010. 13 Mali Periodic Report to the African Commission on Human and Peoples’ Rights relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, para 365. 14 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 15 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ (1995) 35 Virginia Journal of International Law 339–380, at 340. 16 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ (1995) 35 Virginia Journal of International Law 339–380, at 344. 10 11

A. Introduction

579

the context of the community. The conception of an individual who is utterly free, such as to be irresponsible and opposed to society, is not consonant with African philosophy’.17 Duties in Articles 27–29 could hence ‘be read as intended to recreate the bonds of the pre-colonial era among individuals and between individuals and the state’,18 and as reflecting the idea of ‘group centred individuals’,19 relevant when one considers their relationship with peoples’ rights in the ACHPR.20 In fact, the fears of those writing in the earlier years of the ACHPR’s existence, that Chapter II of the ACHPR ‘gives the reader the impression that the Charter is giving with one hand and taking away with the other’,21 have not in fact been realised. Instead, as will be seen below, Article 27(2) has been interpreted in a way so as to draw in principles from other regional and international systems to clarify the specific circumstances in which rights can be limited, and the other duties provisions have received relatively little attention. Therefore, an interpretation of perhaps what one may have considered to be the crux of individual duties, namely that individuals, rather than the State, have responsibilities towards fellow human beings, one’s family, community and the country in which one lives, have not been the focus of the African Commission’s attention, nor yet, that of the African Court. It is possible that both the African Commission and Court and those litigating before them have shied away from advancing these duties, save those instances where a State has, unsuccessfully, attempted to use them to limit rights. There have been occasions where the African Commission has fallen into employing the same unhelpful dialogue of ‘Western’ versus ‘African’ (for example, noting in the context of Articles 28 and 29 that ‘[s]‌ome of these valuable traditional duties might have been treated lightly in some African countries because of the overwhelming Western influence in the past colonial days’.22) It is a shame that the opportunity that the ACHPR offers in Articles 27–29 to influence a ‘new direction in the thinking of human rights’,23 has not been fully exploited. Just as Mutua argues, so others suggest that the duties provisions in the ACHPR can inform international human rights law more generally and ‘provide insight into the way norms can be shaped, shared, and adapted by States on the periphery or semi-periphery of the international legal system’.24 Although not explicitly referring to Articles 27–29, the African Commission’s call on non-State actors to uphold the rights in the ACHPR could be seen as another way in 17 O. Okere, ‘The protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A comparative analysis with the European and American systems’ (May, 1984) 6(2) Human Rights Quarterly 141–159, at 145. C. R. M. Dlamini, ‘Towards a regional protection of human rights in Africa: The African Charter on Human and Peoples’ Rights’ 24 Comparative and International Law Journal of South Africa (1991) 189–203. 18 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’35 Virginia Journal of International Law (1995) 339–380, at 368. 19 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339–380, at 361. 20 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339–380, at 376. 21 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.379. 22 Guidelines for National Periodic Reports, April 1989. 23 K. Gyan, ‘The duty (responsibility) of the individual in the African Charter on Human and People’s Rights as it relates to international human rights’ 21 U. Ghana L.J. (2000–2002) 156, at 188. 24 F. B. Del Valle and K. Sikkink, ‘(Re)Discovering duties: Individual responsibilities in the age of rights’ 26 Minn. J. Int’l L. (2017) 189, at 238. See also J. A. M. Cobbah, ‘African values and the human rights debate: An African perspective’ 9 HRQ (1987) 309.

580

28. Articles 27–29: Individual Duties

which it has developed the concept of individual duties. It has noted, for example, the ‘direct responsibility’ of lawyers and journalists ‘for ensuring human rights protection’;25 made recommendations to manufacturers of anti-personnel mines to be ‘conscious of the dangers and destructions caused by the use of their products’;26 and urged ‘all political parties and others concerned in South Africa to accept the results of the election if it is declared to be substantially free and fair by the Independent Electoral Commission’.27 While others have attempted to clarify the content of the provisions, suggesting that they can be divided into ‘general duties’ and ‘special duties’,28 or ‘direct and indirect’ duties,29 or indeed that Article 27 ‘introduces the legal edifice relating to individual duties, as a general statement of the duties and the following Articles as providing an exhaustive enumeration and explanation of them’,30 the fact remains that there has been little analysis from the African Commission and African Court which confirms or denies whether these specific duties are legal or simply moral.31 One of the consequences of this relative silence on these provisions, beyond Article 27(2), is evidence of a lack of clarity among States at least as to what the duties actually entail. An analysis of the State reports under Article 62 reveal differing interpretations of the duties, and it has not gone unnoticed by the African Commission that some States have omitted them entirely from their reports.32 Indeed, Malila’s analysis of the coverage of individual duties in State reports is insightful, citing a question from Lesotho that it would ‘appreciate guidance of the African Commission . . . on [Articles 27, 28 and 29] as we do not seem to comprehend exactly what is required of us’.33 It has been argued that the duties are so vague as to be unenforceable.34 Further, even on the few occasions where obligations or recommendations have been addressed in specific instances to individuals and non-State actors, the African Commission has no means to enforce their implementation beyond inclusion in its resolutions, press releases and 25 Programme of Activities 1992–1996, Sixth Activity Report of the African Commission, ACHPR/RPT/ 6th, at para II.A. See also R. Murray, The African Commission on Human and Peoples’ Rights and International Law, Hart Publishing, 2000, at 77–83. 26 Resolution on Anti-Personnel Mines, ACHPR/Res.18, 22 March 1995. 27 Resolution on South Africa, ACHPR/Res.9, 22 April 1994. 28 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.384, et seq, and 412–421. 29 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339–380, at 368. 30 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.401. 31 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.380. See also M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 278. 32 Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, Adopted at the 12th Extraordinary Session, 30 July–4 August 2012, Algiers, Algeria, para 23; Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Botswana, 47th Session, 12–26 May 2010, paras 30 and 49. 33 Lesotho, 1st Periodic Report, examined at the 31st Ordinary Session, May 2002, see M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation Submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 316. 34 K. Gyan, ‘The duty (responsibility) of the individual in the African Charter on Human and People’s Rights as it relates to international human rights’ 21 U. Ghana L.J. (2000–2002) 156, at 184. See also B. Saul, ‘In the shadow of human rights: Human duties, obligations, and responsibilities’ 32 Colum. Hum. Rts. L. Rev. (2001) 565, at 593. M. Malila, The Place of the Individuals’ Duties in International Human Rights

B. Article 27

581

other statements. Indeed, its mandate in Article 45 refers only to promotion and protection of rights, not duties.35 Neither the African Commission nor the African Court has permitted communications to be brought against entities other than State parties. For example, where private individuals along with State officials in Nigeria were accused of smuggling, contrary to numerous provisions of the ACHPR, Articles 27 and 29 were cited by the complainant. The African Commission focused only, in finding the communication inadmissible, on the actions of the State actors.36 Instead, the presumption is that such duties may be enforced at the domestic level and thereby ‘their enshrinement in the African charter does not therefore place any additional burden on the individual’.37 As to whether they should be provided for in national legislation, Malila cautions against an obligation on States to ‘replicate these duties in their domestic law’, given that there is no express requirement in the ACHPR on them to do so.38

B. Article 27 Ouguergouz considers that Article 27(1) has ‘no great legal significance precisely because of its general nature’ and is therefore a ‘framework provision’.39 An examination of some State reports where Article 27 is mentioned is illuminating. The Kenyan State report interprets it as requiring that ‘[e]‌veryone in Kenya is expected to observe the important national values and principles of governance whenever they apply the Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. The national values and principles of governance include––(a) patriotism, (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized’.40 The Seychelles government notes in the context of this Article that relevant provisions in the constitution provide for duties of citizens ‘to uphold and defend this Constitution and the law; b) to further the national interest and to foster national unity; c) to work conscientiously in a chosen profession, occupation or trade; d) to contribute towards the well-being of the community; e) to protect, preserve and improve the environment; and f ) generally, to strive towards the fulfilment of the aspirations contained in the Preamble of this Constitution’.41 In an innovative twist, Femi Falana argued before the African Court that Articles 27(1) and 29(7) provided him with locus standi before the African Court as ‘he has standing in Law: Perspectives from the African Human Rights System, Dissertation Submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 278. 35 F. B. Del Valle and K. Sikkink, ‘(Re)Discovering duties: Individual responsibilities in the age of rights’ 26 Minn. J. Int’l L. (2017) 189, at 227. 36 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005. 37 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.416. 38 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation Submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 319. 39 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.413. 40 Republic of Kenya, Combined 8th–11th Periodic Report on the African Charter on Human and Peoples’ Rights, November 2014, para 307. 41 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004.

582

28. Articles 27–29: Individual Duties

public interest litigation since he has a duty to promote public interest litigation in the area of human rights’.42 Unfortunately this specific issue was not answered by the Court. While Article 27(1) has largely been ignored by the African Commission and Court, the same cannot be said of Article 27(2). This provision has been applied when interpreting the phrase ‘within the law’ in the other rights provisions of the ACHPR. For example, this phrase under Article 9(2) ‘provides a leeway to cautiously fit in legitimate and justifiable individual, collective and national interests as grounds of limitation’.43 In one case the African Commission held that laws that applied only to one individual or organisation ‘raise the serious danger of discrimination and lack of equal treatment before the law’ and would not be ‘within the law’.44 Despite concerns that the individual duties chapter in the ACHPR would be used to undermine rights in fact this is not the focus of jurisprudence on Article 27(2) at least. As the African Commission has stated on a number of occasions: any restriction on rights may ‘never have as a consequence that the right itself becomes illusory’.45 Instead, where States have attempted to use Article 27 to limit rights, the African Commission, and more recently the African Court, have used Article 27(2) in particular to incorporate the rules and principles employed in other regional and international systems into the ACHPR. Consequently, ‘[t]‌he only legitimate reasons for limitations to the rights and freedoms of the Charter are found in article 27(2)’.46 The rights in the ACHPR are to be ‘exercised with due regard to the rights of others, collective security, morality and common interest’.47 The African Commission, followed by the African Court, has drawn heavily upon European Court and other regional and international treaty bodies’ findings to hold that rights can only be limited if the restrictions meet a number of conditions. Firstly, they need to be provided by law.48 Secondly, limitations must be for a legitimate purpose,49 ‘serve a general purpose’ or for a ‘rational and legitimate purpose’.50 Where South Africa’s restrictions on the use and possession of cannabis were aimed not only at eliminating cannabis use, abuse and trafficking, but also because it was a ‘dependence- producing substance’, the African Commission found that this was a legitimate purpose, Femi Falana v African Union, App. No. 001/2011, para 30. Communication 313/05, Kenneth Good v Botswana, 26 May 2010, para 188. Communication 323/ 06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 243. African Court on Human and Peoples’ Rights, In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, para 129. 44 Communication 140/94, 141/94, 145/95, Constitutional Rights Project, CLO and Media Rights Agenda v Nigeria, 5 November 1999, paras 43–44. 45 Communication 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, October 1998; Communication Communications 140/94, 141/94, 145/95, Constitutional Rights Project, CLO and Media Rights Agenda v Nigeria, 5 November 1999, para 42. 46 Communications 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, October 1998, paras 68 and 69. Before the African Court, see African Court on Human and Peoples’ Rights, In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, para 134. 47 Communication 140/94, 141/94, 145/95, Constitutional Rights Project, CLO and Media Rights Agenda v Nigeria, 5 November 1999, para 41. 48 Communication 313/05, Kenneth Good v Botswana, 26 May 2010. African Court on Human and Peoples’ Rights, In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, para 125. 49 African Court on Human and Peoples’ Rights, In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, paras 133–134. 50 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 40. 42 43

B. Article 27

583

under Article 27(2), to limit the right of a Rastafarian to freedom of religion under Article 8.51 Any restrictions should also be ‘necessary in a democratic society’ (or ‘absolutely necessary’,52 or ‘necessary and in a democratic society’),53 and for a pressing social need.54 Limitations need also be proportional to the aim being sought55 and they should not be discriminatory.56 As with the European Court, so the African Commission is also influenced by the existence of an ‘international consensus’ on the issue. Where an Australian national teaching at the University of Botswana had his contract terminated having been expelled from Botswana, on the basis that he wrote an article criticising the government and that Botswana was a poor example of African presidential succession, the African Commission held that the right to information was a ‘widely recognised right in international and regional human rights law’, mentioning Article 19 UDHR, ICCPR: there seems to be an international consensus among States on the content of the right to freedom of expression. This consensus similarly extends to the need to restrict the right to freedom of expression to protect the rights or reputation of others, for national security, public order, health or morals. Freedom of expression is not therefore an absolute right, it may be restricted for the reasons mentioned above but such restrictions should be necessary and have to be clearly provided by law.57

The grounds listed here on which the right can be restricted are not stated explicitly in the ACHPR. Similarly, reference has been made, on occasion, to ‘the margin of appreciation doctrine’ although this is more ad hoc than consistent and has been used to ‘inform’ the ACHPR.58 The phrase ‘other legally recognised communities’ in Article 27(1) has not been interpreted specifically by the African Commission nor African Court.59 The Dakar Draft contained slightly different wording: ‘other communities recognised by the Constitution and the law’60 which perhaps gives some perspective on what this phrase was intended to encompass. What is interesting is that Article 27(2) has been used to interpret limitations on ‘all rights’ in the ACHPR, not just those which may include their own limitation clause, and hence has also been referred to in the context of economic, social and cultural rights. Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 43. Communication 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, October 1998; Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 44. Communications 140/94, 141/94, 145/95, Constitutional Rights Project, CLO and Media Rights Agenda v Nigeria, 5 November 1999, para 44. 53 Resolution on Adoption of Declaration of Principles of Freedom of Expression in Africa, 2002, para II.2, and IV. 54 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 40; Resolution on Adoption of Declaration of Principles of Freedom of Expression in Africa, 2002, para II.2, and IV. Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, para 243. African Court on Human and Peoples’ Rights, In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, paras 139 onwards. 55 African Court on Human and Peoples’ Rights, In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, para 153. 56 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, paras 43–44. 57 Communication 313/05, Kenneth Good v Botswana, 26 May 2010, paras 186–187. 58 Communication 225/02, Gareth Anver Prince v South Africa, 7 December 2004, para 51. 59 Guidelines for National Periodic Reports, April 1989 simply repeats the wording of the provision. 60 Article 27 Dakar Draft; Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Report on the Draft African Charter presented by the Secretary-General at the 37th Ordinary Session of the OAU Council of Ministers, held in Nairobi, Kenya, 15–21 June 1981, CM/1149 (XXXVII). 51 52

584

28. Articles 27–29: Individual Duties

C. Article 28 Comments on this provision suggest that it requires little more than ‘pleasant neighbourliness . . . more or less a soft general code of conduct devoid of legal effect’.61 Other writings are more critical, arguing Article 28 has been crafted ‘in far too general terms to oblige the individual to do anything other than respect his fellows and, consequently, their rights; any other requirement is of no more than moral value’.62 The African Commission has made very little reference to Article 28, except in its earlier Guidelines on State Reporting. Here it interpreted the duty ‘to respect and consider’ others without discrimination as a negative obligation to ‘abstain from discrimination’, as well as a positive duty to ‘maintain relations conducive to promoting, safeguarding and reinforcing mutual respect and tolerance’.63 This appears to reflect what Ouguergouz considered as ‘an original use of the principle of non-discrimination considering that it occurs in the context of relations between individuals’.64 This theme of applicability of principles of non-discrimination to private individuals is also adopted by the government of Seychelles where it refers to this duty in Article 28 as ‘relating to the principles of non-discrimination and equal protection of the law (Articles 2 and 3 of the ACHPR)’ and that they are protected in domestic law. It envisages this covering issues such as equality and non-discrimination in employment, equality of opportunities, but also expectations on public servants such as maintaining ‘political impartiality’ and the requirement that ‘serve all members of the public with dignity and respect regardless of their own political affiliation or that of the members of the public’.65 The government also recognises it has obligations in this regard, thereby it committed itself to ‘encourage in Seychellois an awareness of national identity and respect for the individual’.66 The African Commission has repeated the wording of Article 28 in the context of post-apartheid xenophobia in South Africa.67 Similarly, the Kenyan State report cited under Article 28 the case of Rose Wangui Mambo and Limuru Country Club,68 which held that a private club’s byelaw excluding women from a golf committee was discrimination and contrary to Article 27 of the Kenyan Constitution;69 and Mali’s Article 62 report similarly noted Article 2 of the 1992 Constitution of Mali which provides that ‘all Malians are born and are free and equal in 61 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation Submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 293. 62 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.415. 63 Guidelines for National Periodic Reports, para 6. 64 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.402. 65 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 66 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 67 Opening Statement by the Director for Political Affairs of the African Union Commission, Dr. Khabele Matlosa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, 8 May 2015. 68 Constitutional Petition No.160 of 2013. 69 Republic of Kenya, Combined 8th–11th Periodic Report on the African Charter on Human and Peoples’ Rights, November 2014, para 310.

D. Article 29

585

terms of rights and duties. Any discrimination based on social origin, colour, language, race, sex, religion and public opinion is prohibited’.70

D. Article 29 Ouguergouz considers Article 29(7) to be a ‘general duty’ in that it ‘imposes certain duties of conduct on the individual, without actually specifying how he is to perform them’.71 Indeed, where there is concern that the duties will unduly restrict rights, it has been pointed out that the wording of the rights provisions in the ACHPR protects against such infringements.72 The duties here are dealt with according to the categorisation suggested by Quashigah.73

1. To the Family The centrality of the family as the ‘basic social unit’ of African society is reflected not only in Articles 27–29 but also across the ACHPR.74 The concept of the family is not just limited to one’s immediate family but also in its ‘extended form’.75 Duties to the family in Article 29(1) are ‘very general; as such they do not really impose any additional burden on the African individual, who is traditionally bound by such obligations and who, in general, has no difficulty in honouring them’.76 There is the question as to whether such obligations are simply moral, have an ‘indispensable economic utility’,77 or impose legal duties. Of the very few instances where Article 29(1) has been raised at the national level, this indicates firstly the responsibility of parents towards the care of their children.78 For example, Viljoen cites a case before the Constitutional Court of Benin where an individual was found to be in violation of Article 29(1) of the ACHPR for failing to ‘ensure the upkeep and education of his children’.79 The government of Seychelles has noted under Article 29 of the Family Civil Code of Seychelles Act, 1/01/1976, Laws 70 Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, para 362. 71 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.415. 72 E.g. Article 29(2) and freedom of movement, and Article 12(2) respectively; and Article 29(6) and the prohibition against forced labour in Article 5: W. Benedek, ‘Peoples’ Rights and Individuals’ Duties as Special Features of the African Charter on Human and Peoples’ Rights’, at 89. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.417. 73 K. Quashigah, ‘Scope of individual duties in the African Charter’ in M. Ssenyonjo, The African Human Rights System: 30 Years after the adoption of the African Charter on Human and Peoples’ Rights, Martinus Nijhoff, 2011, 119–134 74 E.g. K. Gyan, ‘The duty (responsibility) of the individual in the African Charter on Human and People’s Rights as it relates to international human rights’, 21 U. Ghana L.J. (2000–2002) 156. 75 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.404. 76 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.404. 77 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’35 Virginia Journal of International Law (1995) 339–380, at 370. 78 Article 53(1) of the Constitution of Kenya. See Republic of Kenya, Combined 8th–11th Periodic Report on the African Charter on Human and Peoples’ Rights, November 2014, para 308. 79 F. Viljoen, International Human Rights Law in Africa, p.251, citing Okpeitcha v Okpeitcha (Benin Constitutional Court), BnCC 2001, Decision DCC 96-024, 26 April 1996, para 10.

586

28. Articles 27–29: Individual Duties

of Seychelles 1996 Article 203 that ‘[t]‌he spouses jointly, by mere fact of the marriage, undertake the obligation to maintain and bring up their children’. Similarly, Article 212 reads: ‘The Spouses owe to each other faithfulness, support, assistance and care’; and Article: 204: ‘A child is not entitled to enforce by a legal action against his father or mother a right to be set up in marriage or business or in any other way’.80 The Maputo Protocol reflects similar obligations in its Article 6 which requires that States enact legislation to guarantee that ‘a woman and a man shall jointly contribute to safeguarding the interests of the family, protecting and educating their children’.81 The Constitutional Court of South Africa in one case held that ‘[t]he obligation to care for family members is a vital and fundamental value in African social system’.82 Conversely, children (although it is not always clear here if this is those under the age of eighteen or simply the offspring of individuals) hold responsibilities towards their parents and family. As Mali’s State report notes: ‘[t]‌he observation of a good conduct of the child towards his parents and all other members of the family, the respect due to elderly persons and his superiors are generally rules which are taught by parents and the African society to children. The Malian legislation on the child is also replete with this code of conduct’.83 Other members of a family may also have duties. For example, Burundi cites, under Article 29, its Persons and Family Code of 1981 which ‘describes in detail the obligations of each member of the Family’, as well as a Code on Matrimonial, Inheritance and Liberalities Systems which enhances ‘the protection of Families, in particular where inheritance by girls is concerned’.84 Further, Seychelles provides legislation whereby ‘the children shall be bound to maintain their father and mother or other ascendants who are in need’; ‘A child during his minority owes honour and respect to his father and mother’; ‘He shall remain under their authority until his majority or emancipation’; and ‘The authority of the parents shall be exercise in the interest of the child’, as evidence of its compliance with Article 29.85 ‘Parents’ are sometimes equated with ‘family’ in the context of this provision.86 ‘Parents’ can be interpreted differently. As Ouguergouz notes, ‘[i]‌n the broad sense, it refers to the traditional African family structure and, in that case, it is hard, where material assistance is concerned, to imagine other obligations on the individual than moral ones which respect to this parentela as a whole’.87 Instead, he considers that ‘parents’ should ‘be understood stricto senso (father and mother), even if in most African legal systems the duty to maintain applies to a much wider category of persons’.88 His interpretation 80 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 81 Maputo Protocol, Article 6(i). 82 Bhe & Others v Khayelitsha Magistrate & Others 2005 1 SA 580 (CC) para 166. 83 Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, para 369. 84 Republic of Burundi, African Charter on Human and Peoples’ Rights, First Implementation Report, Bujumbura, September 2010. 85 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 86 Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, para 368. 87 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.405. 88 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.405.

D. Article 29

587

does not include same-sex relationships. Although it has not been raised under Article 29 specifically, the African Commission has on a number of occasions now noted the importance of non-discrimination against individuals on the basis of their sexual or gender identity and the importance of protecting them against violence.89 However, it has not gone further to require that States protect same-sex relationships per se. For example, its Special Rapporteur on Human Rights Defenders while condemning Nigeria for passing the Same Sex Marriage (Prohibition) Act in July 2014 did so on the basis of concerns about the impact the Act had on increasing violence and discrimination towards the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, around penalties for defenders of this community and the fact that they limited ‘public debate on this crucial issue’.90 In general, where there has been reference by the African Commission to Article 29 and duties towards the family, the specific tasks that individuals should be undertaking under this provision are not clear. Earlier drafts of the African Charter make reference to the duty of an individual to ‘feed and help [his parents] in case of need’,91 a slight but distinct variation on the final article in the ACHPR, and one which has been repeated by, for example, Burundi when reporting under Article 62.92

2. To Society Articles 29(2) and (7) require that individuals serve their ‘national community by placing his physical and intellectual abilities at its service’, and preserve cultural values in relations with ‘other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society’. Again there is a lack of clarity from the provisions on how precisely these duties should be carried out, although it is possible that Article 6 of the Cultural Charter for Africa could provide assistance93 setting out, as it does, the requirement that States create a national cultural policy and use means such as introducing ‘African culture’ into educational curricula, teaching in national languages, training staff, establishing relevant institutions, sensitising citizens and financing cultural programmes.94 It has been suggested by others, including a former member of the African Commission, albeit writing in a personal capacity, that the purpose of this particular provision may be ‘stemming the “brain drain” ’ from Africa’.95 89 Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, ACHPR/Res.275, 12 May 2014. See also Chapter 3 (Article 2). 90 Press Release on the Implication of the Same Sex Marriage [Prohibition] Act 2013 on Human Rights Defenders in Nigeria, 6 February 2014. 91 Dakar Draft, Article 29. 92 ‘[E]‌ach Burundian has the responsibility of protecting the harmonious development of the Family and of working for its cohesion and respect, of respecting his parents at all times, of feeding and assisting them at all times’, Republic of Burundi African Charter on Human and Peoples Rights, First Implementation Report, Bujumbura, September 2010. 93 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.407. 94 Cultural Charter for Africa, adopted 5 July 1976, came into force 19 September 1990, Article 6(1)(a) and (2). 95 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 296.

588

28. Articles 27–29: Individual Duties

It is instructive that interpreting a similar provision in the African Charter on the Rights and Welfare of the Child (ACRWC), its Committee of Experts on the Rights and Welfare of the Child held that such responsibilities were contingent on the State having respected the rights in the Children’s Rights Charter: Children of Nubian descent who have been born in Kenya are subject to the requirement of their serving their national community by placing their physical and intellectual abilities at the service of the nation, as well as preserving and strengthening social and national solidarity and the independence and integrity of his country. Although it cannot be suggested that the fulfilment of these duties is contingent upon the of their status as nationals and their identity as children of Kenya, the fulfilment of Article 31 responsibilities highlights the reciprocal nature of rights and responsibilities, which reciprocity is not fulfilled when Article 6 rights are not respected by the State concerned. The Committee wishes to emphasise that national solidarity and African unity are best achieved in an environment which eschews discrimination and denial of rights.96

Finally, the Constitutional Court in South Africa linked the concept of Ubuntu with duties, holding that ‘[a]‌sense of community prevailed from which developed an elaborate system of reciprocal duties and obligations among the family members. This is manifest in the concept of ubuntu—umuntu ngumuntu ngabantu—a dominant value in African traditional culture. This concept encapsulates communality and the inter-dependence of the members of a community’.97

3. To the State It is here more so than with other duties where most concerns have been raised that imposing obligations on individuals towards the State, particularly Article 29(2), (3) and (5), risks rights being diluted. They are perhaps less threatening when considered in the context of post-colonial Africa and a desire to protect the newly acquired sovereignty and statehood. As Mutua notes independence, security and territorial integrity, ‘are inspired by the continent’s history of domination and occupation by outside powers over the centuries. They duties represent an extension of the principle of self-determination, used in the external sense, as a shield against foreign occupation’.98 It has been argued that the duty in Article 29(3) not to ‘compromise the security of the State whose national or resident he is’, is addressed to nationals and non-nationals, perhaps in particular, ‘political refugees not living in their country or origin and who are the most likely to engage in criticism of the latter or subversive activities against it; it could at the same time be understood as a duty of the political refugee towards the country in which he lives’.99 In practice, while reporting on this obligation Mali has cited the relevant provision in its constitution that ‘defence of the homeland is the duty of every citizen’, it being a crime

96 ACERWC, Decision 002/09, IHRDA and Open Society Justice Initiative (OSJI) (on behalf of children of Nubian descent in Kenya) v Kenya, 22 March 2011, para 66. See also ACERWC, The Centre for Human Rights (University of Pretoria) and la Rencontre Africaine pour la Défense des Droits de l’Homme (Senegal) v Government of Senegal, Decision No. 003/Com/001/2012, para 29. 97 Bhe & Others v Khayelitsha Magistrate & Others 2005, 1 SA 580 (CC) para 163. 98 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339–380, at 370–371. 99 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.410.

D. Article 29

589

imprisonable by life or carrying the death sentence,100 and with this responsibility being ‘more pronounced than the military’.101 Kenya has noted the duty of ‘everyone . . . to maintain public order and national security’ with the Penal Code including offences of ‘treason, inciting mutiny, administering unlawful oaths to commit offences’,102 the provisions have not been used by the African Commission to limit rights. ‘Security of the State’ has been interpreted by the African Commission as requiring that governments should ensure that legislation and policies, for example, around State Secrets Act in Ghana ‘which place unnecessary restrictions on access to information be amended to ensure easy access to information with due regard to the security of the State’.103 It has also recognised that ‘terrorism in all its forms and manifestations are activities aimed at the destruction of human rights, fundamental liberties and democracy, constitute a threat to territorial integrity, the security of States and seek to destabilise legally constituted Governments’, but yet called on States to ensure any action they take complies with their international human rights obligations and referenced Article 23 of the ACHPR and Articles 3(h) and 4(o) of the Constitutive Act, and not individual duties in the African Charter.104 The obligation of an individual to ‘serve his national community’ in Article 29(2)105 has been read by the government of Seychelles, for example, as including ‘the productive input of all sectors of society’ in order to achieve ‘national development’.106 It has also noted the participation in civil society organisations and cited legislation such as the Public Finances Act, 1/01/1997 (Share and Care Fund Notice, 1999) Defence Act, 1/ 01/1981, Laws of Seychelles 1996, which assists individuals who may not obtain assistance under government programmes; and establishes the military in the country who are required to perform in the public interest.107 This would appear to equate ‘national community’ with the country or State, but imply some form of civic engagement. The phrase ‘territorial integrity’ is found not only in the former Organisation of African Unity (OAU) Charter108 but also among one of the objectives of the African Union (AU).109 Links have been made by the African Commission between territorial integrity 100 Law No. 01-079 of 20 August on the Criminal Code of Mali, Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, para 373. 101 Article 22 of the Constitution of the Republic of Mali, see Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, paras 377–378. 102 Republic of Kenya, Combined 8th–11th Periodic Report on the African Charter on Human and Peoples’ Rights, November 2014, para 313. Similarly the Seychelles report also refers to legislation dealing with spies, sedition, treason and defamation of the President, see Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights, Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 103 Report of the Promotion Mission to the Republic of Ghana, 1–5 September 2008, Recommendations, para 190(j). 104 Resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, ACHPR/Res.88, 5 November 2005. 105 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.409. 106 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples’ Rights, pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 107 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples’ Rights, pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 108 109 Article II of the OAU Charter. Article 3(b) of the Constitutive Act.

590

28. Articles 27–29: Individual Duties

and Article 23 of the ACHPR, for example, by calling on the AU and others to promote good governance in Mali and ‘preserve’ its territorial integrity110 in the context of what it considered to be ‘the illegal occupation of parts of northern Mali by the various armed groups, and strongly condemns all human rights violations committed in Mali and all attempts at the Balkanization of the country which undermine the country’s territorial integrity, national unity and social cohesion, as well as the peace of the populations’.111 It called upon the AU and international community to find a solution ‘towards restoring peace, the territorial integrity and political stability of the Republic of Mali’.112 More generally, State sovereignty and territorial integrity has been upheld by the African Commission post-colonisation. As noted in the Katanga case which has been cited and upheld subsequently: The Commission believes that self-determination may be exercised in any of the following ways independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognisant of other recognised principles such as sovereignty and territorial integrity. 5. The Commission is obligated to uphold the sovereignty and territorial integrity of Zaire, member of the OAU and a party to the African Charter on Human and Peoples’ Rights. 6. In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in government as guaranteed by Article 13.1 of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.113

In none of these situations is any reference made to Article 29 or individual duties. Instead the responsibilities have been imposed on the States parties as the following illustrates: The Commission is aware that post-colonial Africa has witnessed numerous cases of domination of one group of people over others, either on the basis of race, religion, or ethnicity, without such domination constituting colonialism in the classical sense. Civil wars and internal conflicts on the continent are testimony to that fact. It is incumbent on State Parties, therefore, whenever faced with allegations of the nature contained in the present communication, to address them rather than ignore them under the guise of sovereignty and territorial integrity. Mechanisms such as the African Commission were established to resolve disputes in an amicable and peaceful manner. If such mechanisms are utilised in good faith, they can spare the continent valuable human and material resources, otherwise lost due to conflicts fighting against ethnic, religious domination or economic marginalisation.114

In this case relating to the allegations of discrimination against southern Cameroonians which resulted in one aspect of the communication claiming Article 20 and their right Report of the Fact-Finding Mission to the Republic of Mali, 3–7 June 2013. Statement by the African Commission on the Present Human Rights Situation in Mali, 18 January 2013. See also Resolution on the Situation of the North of the Republic Mali, ACHPR/Res.217, 2 May 2012. Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, paras 73–76. See further Chapter 24 (on Article 23). 112 Statement by the African Commission on the Present Human Rights Situation in Mali, 18 January 2013. See also Resolution on the Situation of the North of the Republic Mali, ACHPR/Res.217, 2 May 2012. Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, paras 73–76. See further Chapter 24 (on Article 23). 113 Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March 1995, para 4. 114 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 181. 110 111

D. Article 29

591

to self-determination had been violated as the government had not permitted secession of southern Cameroon, the African Commission noted that itself, without evidence of ‘massive violations’ of the ACHPR, was ‘obliged to uphold the territorial integrity of the Respondent State. As a consequence, the Commission cannot envisage, condone or encourage secession, as a form of self-determination for the Southern Cameroons. That will jeopardise the territorial integrity of the Republic of Cameroon’, instead noting that secession was not the only option for realising the right to self-determination: ‘autonomy within a sovereign state, in the context of self-government, confederacy, or federation, while preserving territorial integrity of a State party, can be exercised under the Charter’.115 What is interesting is that although Article 29 was not cited in this communication and neither was any reference made to individual duties, the African Commission in addition to recommendations made to the State, also called on the complainants ‘to transform into political parties; to abandon secessionism and engage in constructive dialogue with the Respondent State on the Constitutional issues and grievances’, placing its good offices with the parties to ‘mediate an amicable solution and ensure the effective implementation of the above recommendations’.116

4. ‘African  Unity’ A phrase synonymous with post-colonial Africa, reflected in the titles of the regional organisations and used frequently, it is again perhaps no surprise that the term would be present somewhere in an instrument adopted on the continent in the 1980s. Indeed, it is found not only in Article 29(8) but also in Article 21(4), and although not expressly referred to in the preamble, it does note the ‘aspirations of African peoples’ and a need for a better life for them, ‘African civilization’, and the ‘total liberation of Africa’, recognising the shared and collective history. Yet the requirement that each individual ‘contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity’ has been considered ‘certainly the strangest’ duty, it being, as Ouguergouz notes: quite hard to see how the individual could perform this duty other than by virtue of obligations to refrain; for instance, the obligation to refrain from all propaganda for war or the advocacy of national, racial or religious hatred, or the obligation to refrain from all subversive acts directed against a Member State of the OAU.117

As no reference has been made by the African Commission nor Court to this provision, it is illustrative to consider how others have used it. In an opening statement by the African Union Commission’s (AUC’s) Director for Political Affairs, he linked xenophobia and African unity: Article 29(8) of the Charter also provides that individuals must promote the achievement of African unity and integration. Xenophobia works against African unity and continental integration. It undermines the spirit of Pan-Africanism and African Renaissance. It is an affront to the African spirit of Ubuntu. This Session needs to issue a clear statement against xenophobia.118 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 190. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 215. 117 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.411. 118 Opening Statement by the Director for Political Affairs of the African Union Commission, Dr. Khabele Matlosa, 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, 8 May 2015. 115 116

592

28. Articles 27–29: Individual Duties

Burundi related the provision to the commitment by the State itself to the AU as an organisation and its membership of sub-regional organisations, as well as respect for the territorial integrity of its neighbour States and the principle of non-aggression.119 Mali takes a similar approach, equating this provision with its own strategy of ‘partial surrender or total sovereignty with any African State in order to achieve African unity’, through joining regional organisations, the establishment of a National Commission for African Integration,120 and a National Week of African Integration’ consisting of folk tales, sporting activities and African food specialities.121 Certainly States’ interpretations of this provision appear to be more about their own duties than those of individuals within their jurisdiction.

5. Social and National Solidarity It has been said that there is ‘nothing inherently sinister about [Article 29(4)]; it merely repeats a duty formerly imposed on members of pre-colonial communities’.122 Academic writers have tied solidarity to the struggle against apartheid,123 or even ‘third generation rights’.124 Indeed, Winks argues that all peoples rights are rights of solidarity because ‘the existence and equality of peoples, as well as their self-determination and sovereignty over their natural resources, cannot be fully realised without compassion and co-operation across borders, not only by states but by other peoples, persons and corporations’.125 Although there has been no interpretation of this provision by the African Commission and African Court, reference to either Article 29(4) or the concept of ‘national solidarity’ by African States reveal a greater connection with economic social and cultural rights, than perhaps with peoples’ rights. So some governments in Africa have ministries of ‘national solidarity’ which are connected with social welfare.126 Mali also cited in its periodic report under Article 62, in reference to this duty in Article 29(4), laws relating to compulsory health insurance for civil servants, the military, parliamentarians and others,127 and coverage of expenses for healthcare treatment for those unable to pay.128 119 Republic of Burundi African Charter on Human and Peoples’ Rights, First Implementation Report, Bujumbura, September 2010. 120 Decree No. 00-195/P-RM of 19 April 2000. 121 Article 117 of the Constitution, Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001– 2011, December 2011, paras 383–387. 122 M. wa Mutua, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law 339–380 (1995) at 368. 123 B.E. Winks, ‘A covenant of compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples’ Rights’, 11 AHRLJ (2011) 447–464, at 450. 124 B. E. Winks, ‘A covenant of compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples’ Rights’, 11 AHRLJ (2011) 447–464, citing K. Vašák, ‘A 30-year struggle: The sustained efforts to give force of law to the Universal Declaration of Human Rights’, 30 The UNESCO Courier (1977) 29. C. Wellman, ‘Solidarity, the individual and human rights’, 22 Hum. Rts. Q. (2000) 639; K. Vašák, ‘Pour une troisieme generation des droits de I’homme’ in C. Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles, Springer, 1984. 125 B. E. Winks, ‘A covenant of compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples’ Rights’, 11 AHRLJ (2011) 447–464, at 454. 126 E.g. Burkina Faso, Togo, Senegal. 127 Law No. 09-015 of 26 June 2009. See Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011. 128 Law No. 09-030 of 27 July 2009. See Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011.

D. Article 29

593

The wording of Article 29(4) in the version given on the African Commission’s own website refers to ‘[t]‌he duty to preserve and to strengthen social and national solidarity, particularly when the latter is strengthened’.129 This is a little odd and perhaps a typographical error if one examines the version on the AU website which replaces ‘strengthened’ with ‘threatened’,130 particularly as this is also what is found in earlier drafts of the ACHPR.131 Interpreting a similar provision in the ACRWC, its Committee of Experts noted in the context of the recruitment and use of children in armed conflicts, that the rights of the child are ‘not contingent upon them fulfilling their “duties”, since duties are given their rightful place in children’s rights lexicon if they are viewed as inter-dependently co- existing with and as reinforcing rather than invading rights’.132 Consequently, the distinction between social and national solidarity cannot be confirmed, although one should note that an early State report referred to ‘[s]‌ocial solidarity is the basis of national unity; the family is the nucleus of the community and is founded on religion, nationality and patriotism’.133

6. ‘African Cultural Values’ The Dakar Draft’s provision here was stronger, requiring that the duty of individuals was not just to ‘contribute’ to the promotion of the moral wellbeing of society, but specifically to ‘subscribe’ to, suggesting some form of commitment.134 In practice, so far, whether this change in wording makes any real difference is academic. The importance of ‘traditional African values’ is found not only in the section on individual duties but, as can be seen from the travaux préparatoires, is apparent in the Charter as a whole: by the special importance attached to the protection of the family, the preservation of moral values, the definition of the respective rights and duties of peoples and individuals, and the determination of a legal context most favourable to the exercise of the fundamental rights and freedoms of man, for prior to the preparation of Conventions on human rights those rights and freedoms existed, and were respected in African traditions.135

Earlier drafts of the ACHPR referred only to ‘African cultural values’136 and it was not until the final version where ‘positive’ was inserted. Further explanation of what amounts to ‘positive African values’ is found in Chapter 18 (Article 17).

http://www.achpr.org/instruments/achpr/, emphasis added. https://au.int/sites/default/files/treaties/7770-treaty-0011_-_african_charter_on_human_and_peoples_ rights_e.pdf 131 Dakar Draft, Article 29. 132 ACERWC, Decision 1/2005, Michelo Hunsungule & Others (on behalf of children in Northern Uganda) against Uganda, 19 April 2013, para 59. 133 134 Libya, 1st Periodic Report, 1986–1991, 1 January 1992, p.18. Dakar Draft, Article 29. 135 Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Report on the Draft African Charter presented by the Secretary-General at the 37th Ordinary Session of the OAU Council of Ministers, held in Nairobi, Kenya, 15–21 June 1981. CM/1149 (XXXVII). Meeting of Experts for the Preparation of a Preliminary Draft of the African Charter on Human and Peoples’ Rights (Dakar, Senegal, 28 November–8 December 1979). Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia, 7–19 January 1981). 129

130

136

Dakar Draft, Article 29.

594

28. Articles 27–29: Individual Duties

As to what are ‘African’ values could be misinterpreted as ‘certain things are African and others are not’ presupposing a rather ‘static’ view of African traditions.137 Whether ‘female genital mutilation’ (FGM) (as it is termed by the Maputo Protocol138) is an ‘African value’ that is worthy of protection is controversial. On the one hand, as Malila notes, FGM in some African cultures is considered an important rite of passage from girlhood into womanhood, and it is seen by those who practise it ‘as a right and an obligation . . . which enables them to full social integration’.139 A reading of Article 29(7) and its focus on ‘positive’ African values could consider FGM as being justified.140 Yet, on the other, it is deemed to be contrary to international human rights values. The African Commission, and the AU, certainly on this particular issue and not without considerable debate during the drafting of the Maputo Protocol, has adopted the latter stance, requiring States Parties to the Protocol to prohibit the practice through legislation with the ultimate aim towards its eventual eradication.141 Conversely, homosexuality is considered to be, according to the Executive Council of the AU, contrary to ‘African values’,142 based in part on the argument that such practices were imported by colonialism,143 a contention flawed in evidence given that not only were same-sex relationships recognised in pre-colonial African societies,144 many of the related criminal laws were introduced by European colonisers. This issue has been a considerable challenge for the African Commission, with it clearly struggling to determine its own thoughts on the issue, adopting resolutions condemning the violence against

137 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 326. B. Saul, ‘In the shadow of human rights: Human duties, obligations, and responsibilities’ 32 Colum. Hum. Rts. L. Rev. (2001) 565, at 593. Wolfgang Benedek, ‘Peoples’ Rights and Individuals’ Duties as Special Features of the African Charter on Human and Peoples’ Rights’, in (eds) Philip Kunig et. al., Regional Protection of Human Rights by International Law, Nomos Verlagsgesellschaft, 1985, 59, 63. 138 Article 5 of the Maputo Protocol. 139 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 237. See also UN General Assembly Resolution 2000; I. Iweriebor, ‘Brief reflections on clitorodectomy’, 3 African Update: Female Circumcision in Africa (1996). 140 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 247. 141 Article 5 of the Maputo Protocol. For further discussion see Chapters 18 and 19 (on Articles 17 and 18). 142 ‘REQUESTS the ACHPR to take into account the fundamental African values, identity and good traditions, and to withdraw the observer status granted to NGOs who may attempt to impose values contrary to the African values; in this regard, REQUESTS the ACHPR to review its criteria for granting Observer Status to NGOs and to withdraw the observer status granted to the Organization called CAL, in line with those African Values’, Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.887(XXVII), para 7. 143 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 254–265. 144 S. O. Murray and W. Roscoe, Boy-Wives and Female Husbands: Studies in African Homosexuality, Palgrave, 1998; S. Tamale, ‘Homosexuality is not un-African’, 26 April 2014, Aljazeera, http://america. aljazeera.com/opinions/2014/4/homosexuality-africamuseveniugandanigeriaethiopia.html; R. Murray and F. Viljoen, ‘Towards non-discrimination on the basis of sexual orientation: The normative basis and procedural possibilities before the African Commission on Human and Peoples’ Rights and the African Union’, 29(1) HRQ (2007) 86–111.

D. Article 29

595

individuals on the basis of their sexual orientation and identity, as noted above, but on the other having a public and divisive debate around the Coalition for African Lesbians’ application for observer status on the basis that its ‘activities . . . do not promote and protect any of the rights enshrined in the Charter’.145 Even though this status was granted, its subsequent willingness to bow to further calls from the AU and ultimately withdraw this status in 2018146 illustrates not only its lack of confidence in itself as an independent body, but undermines its commitment to advancing the rights in the ACHPR for all African populations. This specific duty in Article 29(7) is owed in respect of an individual’s ‘relations with other members of the society’, albeit the Dakar Draft referred to ‘with his fellow beings’ implying that it relates to how individuals interact with each other. States, perhaps in their confusion over what these individual duties mean, in their interpretation of this Article have seen it as imposing duties on themselves, by, for example, ‘the preservation of the cultural heritage and values of the Seychellois people’ through ratifying relevant international treaties protecting cultural heritage;147 Mali’s organisation of various national, regional and international festivals on crafts and tourism;148 and Kenya’s commitment to guaranteeing individuals the right to use the language, and to participate in the cultural life, of the person’s choice’,149 with its Department of Culture undertaking ‘programmatic initiatives to support the development of the diverse cultural expressions in the country’.150

7. Taxes Article 29(6), requiring an individual to ‘work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society’151 is perhaps one of the more concrete provisions in this chapter (in the words of Ouguergouz: ‘its content is clear and its wording calls for no particular comment’152), yet again it has received no attention by the Court and only limited by the African Commission. Noting that States can raise resources to progressively realise economic social and cultural rights and this can be done through taxation, the African Commission here referred to the ‘duty of the individual to pay taxes imposed by the African Charter implies that there is an obligation on the State to institute an effective and fair taxation system and a budgeting process that ensures that

145 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 261. 146 Decision on the Report on the Joint Retreat of the Permanent Representatives’ Committee (PRC) and the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.1015 (XXXIII), para 6. 147 Article 39 of the Constitution of Seychelles. Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights, Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 148 Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, paras 380 and 381. 149 Article 44 of the Constitution of Kenya. 150 Republic of Kenya, Combined 8th–11th Periodic Report on the African Charter on Human and Peoples’ Rights, November 2014, para 312. 151 The Dakar Draft refers to ‘possibilities’ rather than ‘competence’, Article 29(6). 152 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.408.

596

28. Articles 27–29: Individual Duties

economic, social and cultural rights are prioritised in the distribution of resources’.153 The Seychelles government, in its Article 62 report, cites in the context of this provision, pension schemes for all workers who are citizens of the country,154 as well as legislation governing liability for taxation over goods and services.155 Mali’s constitutional provision which provides ‘the right to employment . . . be equal for all’ and that ‘every citizen has a duty to work but one may only be restricted to specific employment in the case of fulfilment of a service of exceptional public interest, equal for all according to the conditions defined by law’, as well as its Labour Code, Statute on Civil Servants and Child Protection Code as evidence of implementation of Article 29(6).156 Both the African Commission as well as States, therefore, place individual duties within the context of ensuring protection of the substantive rights in the ACHPR. As to whether this duty entails an ‘obligation to work’,157 the African Commission has made no such comment, although Mali has referred to its own constitution which requires that ‘every citizen must work towards the common good. He must fulfil all his civic responsibilities, in particular by making monetary contributions’.158

E. Conclusion Overall, what little interpretation there has been of Articles 27–29 indicate that concerns with States using these provisions to undermine rights have not been realised. While Article 27(2) has been employed relatively frequently by the African Commission and African Court not to dilute rights, but to enhance their protection, the other provisions have received hardly any attention. There is clearly still considerable confusion around exactly what they mean resulting in them remaining largely rhetorical. The African Commission has not, from the very little that it has said on these provisions, fallen into an ‘all or nothing’ approach which, as Malila notes ‘either take the concept of individuals’ duty wholesale and massage it in global praise, or to offer critical condemnation of all private duties as if they are homogenous’.159 Instead, it has dealt with them separately and certainly through Article 27, developed them beyond broad aspirational values. Yet when compared with the other provisions of the ACHPR the analysis and attention paid to these three articles is comparably scant. 153 Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, October 2011, para 15. 154 Taxes Seychelles Pension Scheme Act, 16/01/1991; Seychelles Pension Scheme Act Seychelles Pension Scheme Regulations, 23/01/1998, Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 155 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights, pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004, 1 January 2004. 156 Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001–2011, December 2011, paras 371–372. 157 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, p.408. 158 Article 23 of the Constitution, see Mali Periodic Report to the African Commission on Human and Peoples’ Rights Relating to the Implementation of the African Charter on Human and Peoples’ Rights, 2001– 2011, December 2011, para 379. 159 M. Malila, The Place of the Individuals’ Duties in International Human Rights Law: Perspectives from the African Human Rights System, Dissertation submitted in fulfilment of the requirements for the award of the degree of Doctor of laws (LLD) in the Faculty of Law, University of Pretoria, January 2017, at 269.

29. Articles  30–40 The African Commission on Human and Peoples’ Rights Article 30 An African Commission on Human and Peoples’ Rights, hereinafter called “the Commission”, shall be established within the Organisation of African Unity to promote human and peoples’ rights and ensure their protection in Africa. Article 31 1. The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience. 2. The members of the Commission shall serve in their personal capacity. Article 32 The Commission shall not include more than one national of the same State. Article 33 The members of the Commission shall be elected by secret ballot by the Assembly of Heads of State and Government, from a list of persons nominated by the State Parties to the present Charter. Article 34 Each State Party to the present Charter may not nominate more than two candidates. The candidates must have the nationality of one of the State Parties to the present Charter. When two candidates are nominated by a State, one of them may not be a national of that State. Article 35 1. The Secretary General of the Organisation of African Unity shall invite State Parties to the present Charter at least four months before the elections to nominate candidates; 2. The Secretary General of the Organisation of African Unity shall make an alphabetical

list of the persons thus nominated and communicate it to the Heads of State and Government at least one month before the elections; Article 36 The members of the Commission shall be elected for a six year period and shall be eligible for re-election. However, the term of office of four of the members elected at the first election shall terminate after two years and the term of office of three others, at the end of four years. Article 37 Immediately after the first election, the Chairman of the Assembly of Heads of State and Government of the Organisation of African Unity shall draw lots to decide the names of those members referred to in Article 36. Article 38 After their election, the members of the Commission shall make a solemn declaration to discharge their duties impartially and faithfully. Article 39 1. In case of death or resignation of a member of the Commission, the Chairman of the Commission shall immediately inform the Secretary General of the Organisation of African Unity, who shall declare the seat vacant from the date of death or from the date on which the resignation takes effect. 2. If, in the unanimous opinion of other members of the Commission, a member has stopped discharging his duties for any reason other than a temporary absence, the Chairman of the Commission shall inform the Secretary General of the Organisation of African Unity, who shall then declare the seat vacant. 3. In each of the cases anticipated above, the Assembly of Heads of State and

598

29. Articles 30–40: The ACHPR

Government shall replace the member whose seat became vacant for the remaining period of his term, unless the period is less than six months.

Article 40 Every member of the Commission shall be in office until the date his successor assumes office.

A. Introduction For many years the African Commission on Human and Peoples’ Rights was the only body established to monitor implementation of the African Charter on Human and Peoples’ Rights (ACHPR) at the regional level. Although discussion in the drafting of the ACHPR had also included the possibility of a Court, and notably, at one stage, a court to ‘judge crimes against mankind and violations of human rights’,1 this was considered at that time to be ‘premature’, or ‘untimely’,2 although an idea which could be introduced later by way of additional protocol to the ACHPR.3 It was not until 2007 that the African Court on Human and Peoples’ Rights started to receive cases, leaving the African Commission as the sole institution monitoring the ACHPR until then. Since the adoption of the Protocol establishing the African Court, the African Commission has had to clarify exactly how it should be ‘complemented’ by the Court, a relationship not without tensions, as will be explored in Chapter 39 (Articles 63–68). The competence and independence of the Commissioners have been matters which, at various stages of its existence, have vexed those trying to engage with it. As will be noted, particular concerns have been raised over the years with the incompatibility of the positon of Commissioner and government roles, as some States attempt to flex their influence within, rather from outside, the Commission. With clear statements since 2005 from the African Union (AU) that certain government functions are incompatible with a seat on the Commission one would think this has become less of an issue.4 However, as is discussed below, the AU has interfered in the Commission’s independence in other ways. The shift, currently at least, is towards undermining the independence of the Commission as a body rather than individual members. The Executive Council’s decision in 2018 which ‘underlines that the independence enjoyed by the [African Commission] is of a functional nature and not independence from the same organs that created the body’, its requirement that the Commission ‘primarily serve as an audit mechanism’ and work with the AU Office of the Legal Counsel to develop its Rules of Procedure and a code of conduct’5 is hugely troubling, particularly if the Commission is not willing to stand its ground. Hence, this relationship between an independent expert body and the governments, represented in the AU Assembly and Executive Council in particular, is one which is consistently challenging, as will be noted when considering how the African Commission 1 Dakar Draft, Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 117. Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia 7–19 January 1981), Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 13. 2 Dakar Draft, Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 117. 3 Introduction to the M’Baye Draft, prepared for the Meeting of Experts in Dakar, Senegal, 28 November– 8 December 1979, by Kéba Mbaye. CAB/LEG/67/1. 4 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, p.192. 5 Decision on the Report on the Joint Retreat of the Permanent Representatives’ Committee (PRC) and the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.1015 (XXXIII).

B. Composition of the African Commission

599

has interpreted and applied its mandate.6 It is interesting to note, therefore, that in the drafting of the African Charter suggestions were made that the tasks of promoting and protecting the instrument be a shared responsibility between the African Commission and the Assembly of Heads of State. As stated in the Dakar Draft: The rights stated and guaranteed are ensured by two organs. They are the Assembly of Heads of State and the African Commission of Human and Peoples’ Rights. The Commission plays an important but classical role to promote these rights. So far as the protection of these rights is concerned, it gathers information, establishes facts, concludes and makes recommendations to the Heads of State. It belongs to the latter or, in case of emergency, to the Chairman of the Assembly to take appropriate measures to ensure the protection of human rights. Composed of a small number of people (eleven), the Commission can only work in the two fields of the promotion and protection of rights.7

At this stage it was stated that the African Commission ‘does not take decisions. It simply reports to the Assembly of Heads of State and Government which decides what should be done with the conclusions and recommendations’,8 with the latter being the ‘final decision maker’.9 This perhaps helps to provide some context for the ongoing difficulties for a political body respecting the independence of the African Commission.

B. Composition of the African Commission Entitled the Inter-African Commission on Human and Peoples’ Rights in previous drafts of the ACHPR,10 one draft also contained the suggestion that rather than a Commission, there should be ‘a pool of a fairly large number of members of the Commission to form a representative panel from which a limited number could be appointed ad hoc to deal with a given situation’. This was considered an ‘attractive’ proposition, as ‘the panel may contain fairly all shades of expertise from which experts to deal with differing violations or propagation of human rights ideals could be drawn’.11 In fact this approach was not adopted, although the M’Baye Draft did suggest that the Commission be composed of ‘two members from each region, who shall be persons of high moral character and recognised competence in the field of human rights’.12 As we know, the final version of the African Charter established an eleven-member African Commission, elected by the African Union, formerly the Organisation of African Unity (OAU), the Commission being an ‘autonomous treaty body working within the framework of the African Union to promote human and peoples’ rights and ensure their protection in Africa’.13 See Chapter 36 (Article 59) for example. Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev.  1. 8 Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev.  1. 9 Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia 7–19 January 1981), Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 13. 10 E.g. M’Baye Draft, Article 38. 11 Introduction to the M’Baye Draft, prepared for the Meeting of Experts in Dakar, Senegal, 28 November– 8 December 1979, by Kéba Mbaye. CAB/LEG/67/1, para 50. 12 M’Baye Draft, Article 39. 13 Rule 3, African Commission’s 2010 Rules of Procedure. 6 7

600

29. Articles 30–40: The ACHPR

There are a number of specific competences that the ACHPR requires from the African Commission. In the run-up to the election by the Assembly of members of the African Commission in 2007, Amnesty International issued a paper setting out what they considered to be relevant criteria for nomination and appointment to the Commission.14 It stresses the importance of an ‘open and transparent’ national process for nomination, which is advertised ‘publicly and widely’ and being inclusive in the participation of a wide range of stakeholders including civil society.15 Transparency should also be assured by the publication of lists of and information on the candidates, their compliance with the requirements of the ACHPR, and with the AU also making public the reasoning for their subsequent decision.16 Unfortunately, as will be seen below, these eminently sensible suggestions do not appear to have been taken on board by many States.

1. High Morality, Reputation, Competence in Matters of Human and Peoples’ Rights, Legal Experience In practice, the profile of those appointed to the Commission has been varied and included practising lawyers,17 members of the judiciary,18 those who have held and continue to hold positions in national human rights institutions (NHRIs),19 academics,20 and some who have worked in civil society organisations. Their knowledge of human rights law has been questionable in some instances, and certainly their acquaintance with the African human rights system cannot always be presumed.21 More controversial have been those who have come from a government background, and this has inevitably raised questions as to the compatibility of such with the role of Commissioner.

2. Impartiality and Personal Capacity There is a tension, not unique to the African system, that arises with States nominating and then appointing at the political level, individuals to a position which requires them to be independent and potentially critical of the States themselves. Indeed, there are instances in the past where governments nominated individuals who clearly held government positions and no question appears to have been recorded of the potential incompatibility.22 Furthermore, it is not only in the nomination of such

14 Amnesty International, Criteria for the nomination and election of members of the African Commission on Human and Peoples’ Rights, AI Index: IOR 63/002/2007, 1 March 2007. 15 Amnesty International, Criteria for the nomination and election of members of the African Commission on Human and Peoples’ Rights, AI Index: IOR 63/002/2007, 1 March 2007, paras 3.1, 3.5 and 3.6. 16 Amnesty International, Criteria for the nomination and election of members of the African Commission on Human and Peoples’ Rights, AI Index: IOR 63/002/2007, 1 March 2007, paras 3.7, 3.8, and 3.11. 17 E.g. Pansy Tlakula, from South Africa. 18 E.g. Soyata Maiga, a magistrate in Mali; and Lucy Asuagbor, Judge at the Supreme Court of Yaoundé, Cameroon. 19 E.g. Lawrence Mute, previously at the Kenya National Commission on Human Rights, and Med Kaggwa, Chairperson of the Uganda Human Rights Commission, sitting on the NHRI at the same time as his position in the African Commission. 20 E.g. Solomon Dersso; Mumba Malila. 21 F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 240–241. 22 E.g. see in July 2003, Report of the Interim Chairperson on the Election of the Members of the African Commission on Human and Peoples’ Rights, EX/CL/57 (III) Rev.1. Mr Eugene Nindorera, Burundi: Human

B. Composition of the African Commission

601

individuals where there have been concerns but also in their subsequent appointment to the African Commission. Examples exist of Commissioners concurrently holding positions such as ambassadors,23 and even ministers,24 and, in the case of Andrew Chigovera when he was first appointed to the position, Attorney General of Zimbabwe. At the 19th Session of the African Commission in 1996, a few instances sparked discussion on the independence of the Commission. Firstly, one of the Commissioners had facilitated a visit by the Chairman to Burkina Faso having been requested by the government to do so, and secondly, that Commissioner Rezag-Bara, an Algerian, had arrived late with the Algerian State delegation who were due to present their Article 62 report to the Session and during this presentation mentioned him personally.25 There is no express provision in the ACHPR mentioning incompatibility of a government position, despite earlier drafts providing such. So Article 32 of the Dakar Draft of the African Charter read: ‘The office of a member of the Commission shall be incompatible with that of a government member or of a member of the diplomatic corps’.26 Ouguergouz notes that that this provision ‘was controversial well before the first meeting of government experts’ and despite a proposal by Nigeria that such individuals should resign their posts after becoming Commissioner, this was not accepted.27 It was only in its 2010 Rules of Procedure where the African Commission inserted a specific provision on ‘incompatibility’. Rule 7 reads: 1. ‘The position of member of the Commission is incompatible with any activity that might interfere with the independence or impartiality of such a member or demands of the office such as a member of government, a Minister or under-secretary of State, a diplomatic representative, a director of a ministry, or one of his subordinates, or the legal adviser to a foreign office or any other political binding function or participate in any activity of the nature that will compromise the independence and impartiality. 2. The Bureau of the Commission shall ensure that the requirements in Rule 7(1) above are enforced in accordance with Articles 31(1 & 2) and 39(2) of the African Charter. 3. In the case of incompatibility, the Chairperson of the Commission shall inform the Chairperson of the African Union Commission, who shall declare the seat vacant’.28

Rights Minister; Mr Abdi Ismail Hersi, Djibouti: Director general of the Minister for Justice; Mrs Sylvie Kayitesi Zainabo, Rwanda: in Ministry of Environment, Secretary of State and Chairperson of the National Human Rights Commission of Rwanda. Dr Abdelaziz Mahmoud Buhedma from Libya was also appointed to the Commission, see R. Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge University Press, 2004, chapter 2. 23 E.g. Commissioner Hatem Ben Salem, as ambassador to Tunisia, R. Murray, ‘Report on the 1996 Sessions of the African Commission on Human and Peoples’ Rights, 18(1–4) Human Rights Law Journal (1997) 16–27, at 21–22. See also Commissioner Sawadogo, at that time Chair of the African Commission and also ambassador to her country, see F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at fn.9. 24 E.g. Alexis Gabou, minister for the Interior in Congo, see F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 490, fn.1701. 25 R. Murray, ‘Report on the 1996 Sessions of the African Commission on Human and Peoples’ Rights, 18(1–4) Human Rights Law Journal (1997) 16–27, at 21–22. 26 Dakar Draft. 27 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 489–490, citing OAU. Doc. Amendment No.3. 28 Rules of Procedure of the African Commission, 2010.

602

29. Articles 30–40: The ACHPR

Additional attention by the AU Commission to this issue has helped to address situations where States have nominated and subsequently appointed government representatives to the African Commission. A 2005 Note Verbale provided that: as a guide for States Parties in interpreting the question of incompatibility or impartiality, to the Advisory Committee of Jurists on the establishment of the Permanent Court of International Justice . . . had pointed out that a member of government, a minister or under-secretary of State, a diplomatic representative, a director of a ministry, or one of his subordinates, or the legal advisor to a foreign office . . . are certainly not eligible for appointment as judges upon our Court . . . States Parties are also reminded to ensure adequate gender representation in their nominations and to bear in mind the need to continue to enhance the independence and operational integrity of the African Commission in the spirit of the Grand Bay Declaration of 1999 and the Kigali Declaration of 8 May 2003.29

A further Note Verbale in 201130 highlights Articles 31(1) and 34 of the ACHPR and requested States ‘require nominees to complete biographical information indicating judicial, practical, academic, activist, professional and other relevant experience in the field of human and peoples’ rights. Such biographical information should also include information on political and other associations relevant to determining questions of both eligibility and incompatibility. In addition nominees should submit statements indicating how they fulfil the criteria for eligibility contained in the Charter’.31 The criteria of the 2005 Note Verbale was then repeated when the Executive Council subsequently elected the Commissioners in June 2011. In a Report from the Executive Council in 2011 in the election of members to the African Commission, it also ‘proposed to consider whether or not to apply’ additional criteria suggested by civil society organisations to the AU, namely: the procedure for nomination of candidates should be, at the minimum that for appointment to the highest judicial office in the State party; States Parties should encourage the participation of civil society, including judicial and other State bodies, bar associations, academic and human rights organizations and women’s groups, in the process of selection of nominees; the employment of a transparent and impartial national selection procedure in order to create public trust in the integrity of the nomination process.32

It is not clear whether these suggestions were in fact employed by the AU Commission. Having Commissioners with a background in government, particularly at a senior or diplomatic level, may prove very useful in understanding the workings of not only that particular government but also others and the regional and AU system as a whole. AU Doc. BC/OLC/66/Vol.XVIII, 5 April 2005. Note Verbale BC/OLC/4227.11, 31 March 2011, as cited in Report on the Election of Members of the African Commission on Human and Peoples’ Rights, June 2011, EX.CL/683 (XIX), para VI.5. 31 Report on the Election of Members of the African Commission on Human and Peoples’ Rights, June 2011, EX.CL/683 (XIX), para VI.6. See also Amnesty International, Criteria for the nomination and election of members of the African Commission on Human and Peoples’ Rights, AI Index: IOR 63/002/2007, 1 March 2007, paras 3.9–3.10: ‘States parties should not nominate or vote candidates who hold any paid or unpaid position within the executive or administrative branches of government that could compromise their independence and impartiality. African Union member states should vote only for candidates who meet the highest standards of independence, impartiality and competence’. 32 Report on the Election of Members of the African Commission on Human and Peoples’ Rights, June 2011, EX.CL/683 (XIX), para IV.8. Reflecting those in 2005, AU Doc. BC/OLC/66/Vol.XVIII, 5 April 2005; see F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 241. 29 30

B. Composition of the African Commission

603

Provided that the Commissioner is able to act in their personal capacity as required by Article 31(2) of the Charter, one could argue that this should pose no problem to their sitting as Commissioner. Indeed, the same criticism could be directed (although raised on very few occasions) at those from an NHRI or civil society background that they should also not be there to ‘represent’ that particular viewpoint.33 However, it is the perception of bias or influence that concerns many, and this will not be negated even if the individual were able to remove their government ‘hat’ whilst on the Commission. Given Commissioners are part-time, the challenges they are likely to face when carrying out their regular job are increased if they have, during their time on the Commission, acted independently and been critical of States, and this is a position which does not tally with that of the government they serve at home. The trend now appears, at least for the time being, to ensure the independence of Commissioners (although not necessarily independence of the Commission), a matter considered as central to the integrity of the institution. As Zeid Ra’ad Al Hussein, the then UN High Commissioner for Human Rights, in a Statement to the High Level Dialogue of the AU in April, urged, African States should ‘strengthen the role, as well as the independence, of African human rights institutions—especially the African Commission on Human and Peoples’ Rights, whose Commissioners I hold in high regard’.34

3. Nationality, Geographical Spread and Language Previous drafts of the ACHPR provided that two members be elected from each of the regions in Africa,35 and that the Commission should ‘represent all the member countries of the Organization of African Unity’,36 presumably referring to geographical spread not specifically that they be representative of States. There are considered now, as defined in a Council of Ministers’ resolution,37 to be five regions in Africa: North, West, Central, East and Southern. Article 32 of the ACHPR now requires that ‘[t]‌he Commission shall not include more than one national of the same State’, and this has always been respected; previous drafts noted that it should be no more than two members of the same State.38 Although not mentioned in either the ACHPR nor the African Commission’s Rules of Procedure, there have been attempts by the OAU and AU to ensure a geographical spread of Commissioners to reflect the five different regions of the continent. This has been met with varying degrees of success.39 This is now reiterated in two AU Decisions of the Assembly in 2011,40 and an Executive Council Decision of 2016 and subsequent 33 R. Murray, ‘Report on the 1996 Sessions of the African Commission on Human and Peoples’ Rights, 18(1–4) Human Rights Law Journal (1997) 16–27, at 21–22. 34 High Level Dialogue. African Union. Statement by the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, 24 April 2018. 35 Introduction to the M’Baye Draft, prepared for the Meeting of Experts in Dakar, Senegal, 28 November– 8 December 1979, by Kéba Mbaye. CAB/LEG/67/1, para 50. 36 37 M’Baye Draft, Article 40. Resolution CM/Res.464 (XXVI). 38 M’Baye Draft, Article 41(2). 39 E.g. writing in 2006, Viljoen notes that while Central Africa was not represented, Southern Africa was ‘overly represented’, F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 239. 40 Decision Assembly/AU.356 (XVI) which asked the AU Commission to ‘ensure the respect of the principle of geographical representation in all African Union organs with elected members, except in cases where a region which has been duly informed has not presented candidates’.

604

29. Articles 30–40: The ACHPR

adoption of Modalities on Implementation of the Criteria of Equitable Geographical and Gender Representation in AU Organs and Institutions.41 These are more prescriptive, and indeed reflect previous practice with respect to the African Court,42 and recommend that the regional balance in organs with eleven members should be two from each of the regions, with the exception of West Africa, where there should be three.43 There are exceptions to this if the region has not presented the required number of candidates, in which case it will ‘forfeit’ those seats that are not filled.44 Similarly, linguistic ability is not expressly cited in the ACHPR nor the Rules of Procedure of the African Commission as a factor when nominating and appointing Commissioners and it may be presumed that such is addressed by dealing with this geographically. The appointment of a Commissioner from the Lusophone States has been seen as necessary in more recent years, particularly with communications against countries such as Angola.

4. Gender Representation As to the representation of men and women on the Commission, since initiatives by the OAU and AU,45 including the above Modalities on Implementation of the Criteria of Equitable Geographical and Gender Representation,46 here the African Commission is seen as a beacon of success with respect to the appointment of women (and the AU equates ‘gender’ with ‘women’). There has been a sustained election of women to the African Commission such that it is now common for there to be at least five women if not the majority of women on the Commission, with several holding the post of Chair and Vice Chair. As was raised in defining the ‘Modalities’ for geographical and gender representation, one question is whether there needed to be equitable gender representation in each region, as opposed to the organ as a whole.47 On this point the AU Commission has determined that ‘at least one member from each region must be a woman’, or more if necessary.48 Whilst laudable on paper, there have been concerns raised, with respect to the election of judges to the African Court, that qualified candidates who were not women were not elected, risking a decision which was not competitive nor necessarily based on merit.49 41 Decision on the Modalities on the Implementation of the Criteria of Equitable Geographical and Gender Representation in the AU Organs and Institutions, January 2016, EX.CL/Dec. 953 (XXVIII). 42 Report on the Elections of the Judges of the African Court on Human and Peoples’ Rights submitted to the Executive Council in July 2012, Doc. EX.CL/741(XXI). 43 Decision on the Modalities on the Implementation of the Criteria of Equitable Geographical and Gender Representation in the AU Organs and Institutions, January 2016, EX.CL/Dec. 953 (XXVIII), at para 20. 44 Decision on the Modalities on the Implementation of the Criteria of Equitable Geographical and Gender Representation in the AU Organs and Institutions, January 2016, EX.CL/Dec. 953 (XXVIII), at para 24. 45 Decision on Women and Gender, CM/Dec. 579 (LXXIII). See also Decision on the Election of Three (3) Members of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/AU/ Dec.576(XXV), June 2015: ‘Requests the Commission to prepare modalities to ensure the scrupulous respect of the principles of equitable regional and gender representation in all AU organs and institutions, and to submit the modalities to the January 2016 Summit’, at para 3. 46 Decision on the Modalities on the Implementation of the Criteria of Equitable Geographical and Gender Representation in the AU Organs and Institutions, January 2016, EX.CL/Dec. 953 (XXVIII). 47 Decision on the Modalities on the Implementation of the Criteria of Equitable Geographical and Gender Representation in the AU Organs and Institutions, January 2016, EX.CL/Dec. 953 (XXVIII), para 16. 48 Decision on the Modalities on the Implementation of the Criteria of Equitable Geographical and Gender Representation in the AU Organs and Institutions, January 2016, EX.CL/Dec. 953 (XXVIII), at para 26. 49 Open Society Justice Initiative and International Commission of Jurists, Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners, New York, 2017, at 78.

C. Appointment of Commissioners

605

C. Appointment of Commissioners 1. Nomination Very little is known about the national processes for nomination of individuals to the position of African Commissioner, and how States select those whom they put forward for nomination to the former OAU and now AU for the post of Commissioner. In part this may be explained by the paucity of information available at the domestic level on the vacancies, thereby resulting in practically no discussion on potential candidates and invisibility of the process. Indeed, one of the challenges has been the lack of awareness of the vacancies so reducing the likelihood of competent individuals being identified or putting themselves forward. Again, this is not necessarily unique to the African Commission, neither to the African continent, with opaque procedures lacking visibility apparent in other States across the world.50 There have been attempts by civil society in some African countries to raise awareness, for example, around nominations to the African Court,51 but this has been less apparent for the African Commission and where it has occurred, this is ad hoc. What information is available illustrates that the pool of candidates is very small.52 States do not appear to be nominating sufficient numbers of candidates. So a 2011 report from the Executive Council on the election of members to the African Commission identifies the number of candidates from member States as being only nine candidates for five vacancies.53 The fact that this included two who were eligible for re-election provides States with very little choice in the appointments. As the AU Commission has now recommended, ‘all regions should submit more candidates than the existing vacancies’ and put mechanisms in place to ensure that this is done.54 Viljoen’s invaluable article whereby he interviewed newly appointed members of the African Commission highlights some practical examples of how the nomination process worked at the domestic level. In one instance the individual who was subsequently appointed to the Commission had previously approached the authorities in her country to alert them to a lack of nominations from her own State.55 Others were unaware of the national process in their own countries,56 or were approached and asked to apply by the State.57 One lobbied the State for their election or re-election.58 There is also evidence 50 Open Society Justice Initiative and International Commission of Jurists, Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners, New York, 2017. 51 E.g. see https://lawyersofafrica.org/encouraging-active-participation-in-national-processes-of- nominating-judges-of-the-african-court-on-human-and-peoples-rights-african-court/ 52 Open Society Justice Initiative and International Commission of Jurists, Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners, New York, 2017. 53 Report on the Election of Members of the African Commission on Human and Peoples’ Rights, June 2011, EX.CL/683 (XIX). 54 Decision on the Modalities on the Implementation of the Criteria of Equitable Geographical and Gender Representation in the AU Organs and Institutions, January 2016, EX.CL/Dec. 953 (XXVIII), paras 34(c) and 29 respectively. 55 Commissioner Alapini-Gansou of Benin, see F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 242. 56 E.g. in the Gambia and South Africa, see F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 242. 57 E.g. Commissioner Bitaye in the Gambia, see F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 242. 58 Commissioner Alapini-Gansou of Benin, see F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 242.

606

29. Articles 30–40: The ACHPR

from other sources that there may be no process at the national level to nominate candidates,59 and those who have nominated but not yet elected may have to campaign at the AU Assembly.60 In any event, the national processes do not appear, of what little we know, to be transparent or inclusive and, apart from the case of Zambia, there does not seem to be recognition of equivalency in terms of nominees being those able to be appointed to the highest judicial office.61 Again, these are criticisms which are not necessarily unique to the African continent.62

2. Election Article 33 requires that members are elected by secret ballot from among those nominated by the State and Article 36 staggers the terms of the first members of the Commission, one presumes to ensure that there is no situation where there is an entirely new Commission elected. Previous drafts of the African Charter offered a slightly different approach to how this was to be determined.63 Little is known on the election process of Commissioners at the OAU and now AU level, as besides the fact that the ballot is secret, the reports at this level are rarely made public nor are they accessible.64 States who are not party to the ACHPR can, according to the provisions of the African Charter, elect members of the African Commission, an approach not unique to the African system,65 although they cannot nominate them. Commissioners have generally been elected at the summer Summits of the OAU and AU. The Executive Council will recommend and now elect,66 in a decision, Commissioners and the Assembly will

59 Open Society Justice Initiative and International Commission of Jurists, Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners, New York, 2017, at 47. 60 Open Society Justice Initiative and International Commission of Jurists, Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners, New York, 2017, at 46. 61 Commissioner Alapini-Gansou of Benin, see F. Viljoen, ‘Promising profiles: An interview with the four new members of the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 237–248, at 242. 62 Open Society Justice Initiative and International Commission of Jurists, Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners, New York, 2017. 63 For example, ‘The members of the Commission shall be elected for a term of four years and may be re- elected only once, but the terms of half of the members chosen in the first election shall expire at the end of two years. Immediately following that election the General Assembly shall determine the names of the retiring members by lot’, M’Baye Draft, Article 41(1). Additional ‘transitory provisions’ were provided in Articles 62 and 63 which required States to elect from a list of candidates nominated and those ‘who obtain the largest number of votes and an absolute majority of the votes of the representatives of the Member States shall be declared elected. Should it become necessary to have several ballots in order to elect all the members of the Commission, the candidates who receive the smallest number of votes shall be eliminated successively, in the manner determined by the Assembly of Heads of State and Government’, M’Baye Draft, Article 63. 64 For an example of one report which is available, see Report on the Election of Members of the African Commission on Human and Peoples’ Rights, June 2011, EX.CL/683 (XIX). 65 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 487. 66 Rule 5(1)(f ) of the Rules of Procedure of the Executive Council, Report on the Election of Members of the African Commission on Human and Peoples’ Rights, June 2011, EX.CL/683 (XIX), para VI.4. See e.g. Decision on the Election of Members of the African Commission on Human and Peoples’ Rights, EX.CL/ Dec.231 (VII), July 2005, EX.CL/Dec.231 (VII); Decision on Election of a Member of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.596(XVII), January 2009; Decision on the Election of Members of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.497(XV) Rev.1, July 2009.

C. Appointment of Commissioners

607

subsequently endorse these and appoint the individuals accordingly.67 There have been no instances where the Assembly’s list has differed from that of the Executive Council. The Decisions will sometimes state the term of office of the individual members,68 although not on every occasion.69 Whilst the common approach has been simply to list those who have been appointed, the Assembly has been known to add that the African Commission should, for example, ‘spare no effort in pursuing its mandate in the promotion and protection of human rights in Africa’,70 and ‘prepare modalities to ensure the scrupulous respect of the principles of equitable regional and gender representation in all AU organs and institutions, and to submit the modalities to the January 2016 Summit’.71 These recommendations have been not been made in the preceding decisions of the Executive Council.

3. Solemn Declaration A symbolic gesture, Article 38 of the ACHPR and Rule 9 of the African Commission’s Rules of Procedure, require that the new member of the African Commission will make a solemn declaration stating: ‘I solemnly undertake to carry out my duties well and faithfully in all impartiality’.72 This should occur ‘before assuming office’ and ‘at a public sitting’. In practice the common procedure is that the new Commissioner(s) will stand and take this oath at the start of the first session at which they are present. They read out the declaration in public, followed by applause from the audience. It usually is one of the initial items on the agenda following the opening ceremony.73

67 E.g. Decision on the Appointment of Members of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.23(II), July 2003; Decision on the Appointment of Members of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.84 (V), July 2005; Decision on Appointment of a Member of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.313(XV), July 2010; Decision on the Appointment of Members of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/AU/Dec.244(XIII), July 2009. 68 E.g. Decision on the Election of the Members of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.167(IX), July 2007; Decision on the Election of the Members of the African Commission on Human and Peoples’ Rights, EX.CL/Dec. 373 (XI), July 2007; Decision on the Election of Five Members of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.663(XIX), July 2011; Decision on the Election of Five Members of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.378(XVII), July 2011; Decision on the Election of Four (4) Members of the African Commission on Human and Peoples’ Rights (ACHPR) EX.CL/Dec.778(XXIII), July 2013; Decision on the Election of Four (4) Members of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/ AU/Dec.483.(XXI), July 2013; Decision on the Election of Four (4) Members of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.778(XXIII), May 2013; Page 1 Decision on the Election of Four (4) Members of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/AU/ Dec.483.(XXI), May 2013. 69 E.g. not in Decision on the Appointment of Members of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.23(II), July 2003; and Decision on the Report on the Election of Members of the African Commission on Human and People’s Rights, EX/CL/Dec.56(III), July 2003. 70 Decision on the Appointment of Members of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.23(II), July  2003. 71 Decision on the Election of Three (3) Members of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/AU/Dec.576(XXV), June 2015. 72 Rule 9, Rules of Procedure 2010. 73 E.g. see 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017, Agenda, Item 2.

608

29. Articles 30–40: The ACHPR

D. Vacancy, Removal and Resignation Previous drafts of the African Charter provided that vacancies which occurred ‘for reasons other than the normal expiration of a term’, would be filled by the Assembly in line with the provisions of the Statute of the Commission’.74 The current Rules of Procedure set out an ‘order of precedence’, whereby members ‘follow the Chairperson and the Vice-Chairperson according to their seniority in office. When there are two or more members of the Commission with equal seniority, precedence shall be given to the oldest’.75 On one occasion, one of the seats of the African Commission was declared vacant by the Commission itself. As was noted in the Commission’s subsequent activity report: ‘[i]‌n accordance with Article 39(2), following a decision of the 40th ordinary session of the ACHPR the seat of Commissioner Mohamed Ould Babana was declared vacant by the Chairperson of the Commission of the African Union’.76 He was noted as absent from the 40th Session.77 Mr Babana had attended previous sessions of the African Commission, prior to his appointment as Commissioner, as a representative of the government of Mauritania.78 In a rather opaque comment in its Report on the Election of Members of the African Commission, the Executive Council noted ‘in conformity with the relevant provisions of the African Charter, the members of the ACHPR unanimously decided to declare vacant the seat of one member and informed the Chairperson of the [AU Commission] accordingly’.79 The current Rules of Procedure of the African Commission provide that: If a member of the Commission is re-elected at the expiry of his or her term of office, or elected to replace a member whose term of office has expired or will expire, the term of office shall begin from that expiry date. 3. In conformity with Article 39(3) of the African Charter, the member of the Commission elected to replace a member whose term has not expired, shall complete the term of his or her predecessor. However, if the remaining term of office is less than six months, there shall be no replacement’.80

With respect to resignation, the Rules of Procedure of the African Commission state that a member can resign their positon by writing to the Chair of the Commission, the resignation taking effect three months after the letter is submitted. The African Commission will transmit the letter to the Chair of the AU Commission who will then declare the seat to be vacant. If there is a death of a sitting member, a situation which has not yet arisen, the Chair of the African Commission is to inform the Chair of the AU Commission.81

75 M’Baye Draft, Article 43. African Commission Rules of Procedure, 2010, Rule 6. Twenty-Second Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/364 (XI), June 2007, para 7. 77 Twenty-First Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/322 (X), January 2007, para 6. 78 R. Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge University Press, 2004, p.53, fn.16. 79 Report on the Election of Members of the African Commission on Human and Peoples’ Rights, June 2011, EX.CL/683 (XIX), para 5. 80 Rule 5(2) and (3) of the African Commission’s Rules of Procedure. 81 African Commission Rules of Procedure, Rule 8. 74 76

E. Conclusion

609

E. Conclusion While definite efforts have been made by the AU to encourage States to nominate a sufficiently wide pool of individuals whose position does not compromise their perceived or actual independence at the African Commission, in practice the procedure at the national level has yet to gain the publicity and visibility necessary to ensure this happens. Civil society organisations have made valiant attempts to set out criteria that the States should apply when nominating and electing individuals, which have sometimes been taken on board. Clearly more needs to be done to ensure those appointed to this important and influential position are individuals with the necessary experience, commitment and credibility.

30. Articles  41–44 Appointment of Secretary, Election of Chair and Vice Chair, Voting, Privileges and Immunities Article 41 The Secretary General of the Organisation of African Unity shall appoint the Secretary of the Commission. He shall provide the staff and services necessary for the effective discharge of the duties of the Commission. The Organisation of African Unity shall bear cost of the staff and services. Article 42 The Commission shall elect its Chairman and Vice Chairman for a two-year period. They shall be eligible for re-election. The Commission shall lay down its rules of procedure. Seven members shall form the quorum. In case of an equality of votes, the Chairman shall have a casting vote.

The Secretary General may attend the meetings of the Commission. He shall neither participate in deliberations nor shall he be entitled to vote. The Chairman of the Commission may, however, invite him to speak. Article 43 In discharging their duties, members of the Commission shall enjoy diplomatic privileges and immunities provided for in the General Convention on the Privileges and Immunities of the Organisation of African Unity. Article 44 Provision shall be made for the emoluments and allowances of the members of the Commission in the Regular Budget of the Organisation of African Unity.

A. Introduction Much of how the African Commission should function, whether it is through the day- to-day work of its secretariat or at its sessions, is not mentioned in the African Charter on Human and Peoples’ Rights (ACHPR), this instead being left to the Rules of Procedure to determine. A Working Group on Specific Issues Related to the Work of the African Commission was established in 20051 as one of its special mechanisms,2 in the context of ‘the necessity for certain matters to be dealt with expeditiously; bearing in mind the creation of the African Union and the creation of various organs and institutions within the afore mentioned Union; . . . the delay in the finalization of certain issues including 1 Resolution on the Creation of a Working Group on Specific Issues relevant to the Work of the African Commission on Human and Peoples’ Rights, ACHPR/Res.77, 11 May 2005. 2 Its mandate has been renewed several times: Resolution on the Renewal of the Mandate and Composition of the Working Group on Specific Issues Relating to the Work of the African Commission on Human and Peoples’ Rights, ACHPR/Res.80, 5 December 2005. Resolution on the Renewal of the Mandate and Composition of the Working Group on Specific Issues relevant to the work of the Commission, ACHPR/ Res.127, 28 November 2007. Resolution on the Nomination and Composition of the Working Group on Specific Issues related to the Work of the Commission, ACHPR/Res.150, 25 November 2009. Resolution on the Reconstitution of the Working Group on Specific Issues relevant to the Work of the Commission and modifying its Mandate and Composition, ACHPR/Res.233, 25 February 2013. Resolution on the Extension of the Mandate of the Working Group on Specific Issues relevant to the Work of the Commission, ACHPR/ Res.280, 12 May 2014. Resolution on the Renewal of the Mandate and Reconstitution of the Working Group on Specific Issues Related to the Work of the Commission, ACHPR/Res.311, 18 November 2015.

A. Introduction

611

the follow-up to its recommendations and decisions’. This, with the establishment of the African Court, led the African Commission to create this Working Group composed of Commissioners and initially but not later, external experts. It was given a mandate to review the Rules of Procedure, specifically mentioning the relationships: between the Bureau and Secretariat; with partners; with other African Union (AU) organs and institutions; as well as a procedure for follow-up and implementation of findings of the African Commission, and in particular the implementation of recommendations from the Retreat of the African Commission in Addis Ababa and the UPSALA consultation in 2004; the structure of its various reports; and the establishment of a Voluntary Fund for Human Rights in Africa.3 Added to this has been supervision and monitoring of the African Commission’s 2014–2017 Strategic Plan, and subsequently that for 2015–2019. Rules of Procedure have been adopted three times4 and are currently, as at 2018, undergoing a third revision, to reflect long overdue changes to practice. One of its tasks was the establishment of a Voluntary Fund for Human Rights in Africa, suggested also in the Kigali Declaration.5 The African Commission considered it should include the mandate ‘to strengthen the human, material, technical and financial resources of the African Commission for the implementation of its mandate of promotion and protection of Human Rights in Africa; to strengthen the activities of the special mechanisms set up by the African Commission on Human and Peoples’ Rights’.6 This implies it was to provide financial support to the African Commission to enable it to function. So when the AU adopted in 2016 a Statute on the Establishment of a Legal Aid Fund for Human Rights Organs of the African Union7 which provides for a legal aid fund for ‘indigent applicants’ before the African Court, African Commission and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), valuable though this initiative is, it does not explain why the African Commission subsequently considered the need for a Voluntary Fund for Human Rights to be ‘redundant’.8 The Secretariat, under the direction of the Secretary, is the heart of the African Commission and the resources with which it is provided and the manner in which those resources are managed by the Secretary is key to the efficiency and effectiveness of the African Commission and ultimately therefore its credibility. In 2009 the African Commission established an Advisory Committee on Budgetary and Staff Matters9 composed of, with some variations over the years, a number of

3 Resolution on the Creation of a Working Group on Specific Issues relevant to the Work of the African Commission on Human and Peoples’ Rights, ACHPR/Res.77, 11 May 2005. 4 First in 1988 at its second session, see Fifth Activity Report of the African Commission, Annex V; then on 6 October 1995; and the current Rules on 18 August 2010. See, with respect to the latter, 29th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), EX.CL/678(XIX), 2010, para 173. See K. O. Kufuor, The African Human Rights System. Origin and Evolution, Palgrave, 2010, c hapter 4. 5 Kigali Declaration 2003, para 23. See further Decision on the 21st Activity Report of the African Commission on Human and Peoples Rights, AU Doc.EX.CL/Dec.344 (X). 6 Resolution on the Establishment of a Voluntary Contribution Fund for the African Human Rights System, ACHPR/Res.96, 29 November 2006. 7 Adopted 30 January 2016. So far there have been no signatures or ratifications. 8 Resolution on the Modification of the Mandate of the Working Group on Specific Issues relevant to the Work of the Commission, ACHPR/Res. 328 (EXT.OS/XIX) 2016, 25 February 2016. 9 Resolution on the Establishment of an Advisory Committee on Budgetary and Staff Matters, ACHPR/ Res.142, 27 May 2009.

612

30. Articles 41–44: Appointment of Secretary and Chairs

Commissioners, the Secretary, and legal and administrative officers.10 Its mandate was to identify the 2008–2012 Strategic Plan and related budget; prepare programme budgets; ensure the proper execution of the programs; and implement a new structure for the Secretariat.11 This was expanded in 2011 to include ‘issues relating to the working conditions of members of the Commission, including emoluments and honorariums’.12 Established initially for two years, in line with other special mechanisms, this has been renewed regularly. Its reports are usually not made public and so the progress of its work must be gleaned from brief summaries provided in the African Commission’s activity report or in oral or written presentations by the Chair of the Working Group, the Secretary and Commissioners at the sessions. The choice, as will be explained below, to situate the headquarters and administrative team servicing the African Commission in Banjul, away from the Organisation of African Unity (OAU) and AU in Addis Ababa has resulted in a distance which impacts on the support the political organs provide. As has been noted by one author, writing about discussions at the 10th Ordinary Session of the African Commission: Distance between Addis Ababa and Banjul was explained by the Secretary as the reason for the absence of a Commission representative during the actual process of decision making on the budgets. There was no information as to who dealt with the Commission at the OAU headquarters in Addis Ababa. In the past an Assistant Secretary-General attended the Commission’s meetings, but following redistribution of labour, the department responsible for coordination was cancelled. The Secretary was asked to request the OAU Secretary-General to have his departments submit a report on their activities relevant to the Commission’s work. The first request had been made in the first session. The Secretary explained that none of the departments in the OAU deals specifically with human rights, although many OAU activities pertain to human rights. The OAU therefore required specific questions.13

The geographical and ideological separation between the Banjul administration and the Addis Ababa organs works both ways, however. When the OAU was transforming into the AU the African Commission was specifically tasked with presenting a report on its role in the future Union. This item was on the agenda for a number of sessions leading up to the adoption of the Constitutive Act in 2001 establishing the African Union. Yet the African Commission had little to say during that time and was not particularly forceful, certainly during its own sessions, in presenting a clear role or position for itself. It is perhaps not surprising that it was not listed among the organs of the AU which far from being a mere matter of visibility also had implications for its budget and the way in which relationships between Banjul and Addis Ababa were regulated.14 This was something 10 Resolution on the Establishment of an Advisory Committee on Budgetary and Staff Matters, ACHPR/ Res.142, 27 May 2009; Resolution on the Renewal and Extension of the Mandate of the Advisory Committee on Budgetary and Staff Matters, ACHPR/ Res.188, 12 May 2011; Resolution on the Appointment of the Chairperson and Renewal of the Mandate of the Members of the Advisory Committee on Budgetary and Staff Matters, ACHPR/Res.256, 5 November 2013; Resolution on the Renewal of the Mandate and Reconstitution of the Advisory Committee on Budgetary and Staff Matters, ACHPR/Res.313, 18 November 2015; Resolution on the Appointment of the Chairperson, Renewal of the Mandate and Reconstitution of the Advisory Committee on Budgetary and Staff Matters—ACHPR/Res. 388(LXI) 2017, 15 November 2017. 11 Ibid. 12 Resolution on the Renewal and Extension of the Mandate of the Advisory Committee on Budgetary and Staff Matters, ACHPR/Res.188, 12 May 2011. 13 P. V. Ramaga, ‘The tenth session of the African Commission on Human and Peoples’ Rights’, 10 NQHR (1992) 356, at 361. 14 See F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 219.

B. Role of the Secretary

613

which it then tried to rectify over the years, with success in July 2008.15 Acknowledging, however, that there was a ‘general acceptance that the Commission is an AU organ, even though there is no document that explicitly states this’, the Office of the Legal Counsel of the AU advocated that this informal approach may be best: ‘by retaining the status quo, the Commission would continue to enjoy its presumed organ status, attempting to have the issue clarified posed the risk of the Policy Organs deciding differently’.16

B. Role of the Secretary Earlier drafts of the ACHPR did not provide the detail that is found in the final version, and indeed the secretariat functions were seen to come out of the OAU under an ‘appropriate specialised unit’ of its General Secretariat.17 This was not the format eventually adopted and the secretariat, under the secretary, is instead based in the headquarters of the African Commission in Banjul rather than Addis Ababa, reiterating the independence of the Commission. As the Rules of Procedure of the African Commission indicate, the Secretary has, on the face of it, administrative functions, specifically, according to Rule 18 of the African Commission’s Rules of Procedure: The Secretary to the Commission is responsible for the activities of the Secretariat under the supervision of the Chairperson. The Secretary shall specifically: a. Assist the Chairperson, the Bureau of the Commission and other members of the Commission in the exercise of their functions; b. Supervise and co-ordinate the work of the staff of the Secretariat; c. Keep proper records of the Commission, which must be properly organized for easy reference; d. Ensure confidentiality of the Commission’s records where appropriate; e. Submit to the Chairperson and the members of the Commission all items that will be considered by the Commission; f. In consultation with the Chairperson, prepare: i. a draft agenda for each session; ii. the Commission’s strategic plan, annual work plan and annual budget; iii. guidelines on missions for adoption by the Commission; g. Present a written report to the Commission at the beginning of each session on the activities of the Secretariat since the preceding session; h. Implement the decisions entrusted to him or her by the Commission or the Bureau; i. Make available to the general public documents which are not confidential, including States Reports, by ensuring that they are posted on the website of the Commission; j. Ensure the maintenance and regular updating of the website of the Commission; k. Assess the performance of the staff of the Commission.18

The earlier Rules of Procedure saw some tasks that now fall to the African Commission’s Secretary being given to the Secretary-General of the OAU.19 With changes to the Rules 15 Executive Council Decision EX.CL/446(XIII); Decision on the Report of the Activities of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.200 (XI). 30th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), 2011, para 225. 16 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, para 202. 17 18 M’Baye Draft, Article 45. Rules of Procedure of the African Commission 2010. 19 E.g. arranging the African Commission’s meetings, albeit ‘through the Secretary’, Rule 22(4), Rules of Procedure of the African Commission, 1995.

614

30. Articles 41–44: Appointment of Secretary and Chairs

in 2010, the Secretary now has an extensive range of activities. She therefore organises the sessions of the Commission including the agenda;20 keeps records of proceedings and hearings21 (although beyond the final communiqué of each session further detail is not released publicly) and submission of communications;22 drafts reports including mission reports for the African Commission to adopt;23 disseminates and makes public documents including on its website;24 alerts the Commission to cases of non-compliance such as failure to submit Article 62 reports;25 and determines the sufficiency of information submitted.26 She is privy to the confidential work of the Commission, being present in the private sessions of the Commission.27 This key position is the conduit through which requests for promotional and protective initiatives flow to the Commissioners themselves28 and the forum for processing correspondence between parties to a communication as well as other actors who wish to engage with the African Commission.29 The 198830 and 1995 Rules of Procedure perhaps illustrate best the origins of the perception that the ‘Secretary is the embodiment of the Chairperson of the AUC [African Union Commission]’.31 Rule 22(4) of the 1995 Rules notes under ‘Secretariat’, the role of the Secretary-General ‘or his representative’, and that the former ‘acting through the Secretary’, implying that the Secretary is an arm of the OAU (and now AU), rather than an administrative position for the African Commission. The 2010 Rules do not contain such a provision, instead placing the role and that of the staff of the secretariat under the AU’s Staff Rules and Regulations.32 Although there have been various attempts over the years to render the Chair or Bureau of the African Commission to be full-time,33 or even to increase the number of Commissioners, the membership has remained at eleven, as laid down in the ACHPR in 1981. Consequently, in reality, as the most senior full-time appointment to the African Commission, in contrast to the part-time nature of the Commissioner, the position of Secretary wields considerable power. Despite this, and the potential for influence over the Commission’s decisions, there is no requirement for independence, nor indeed are any other criteria set out in the ACHPR nor the Rules of Procedure to ensure that the individual appointed has the necessary skills, expertise or integrity to undertake the role. This is perhaps not surprising given that it is the AU that appoints the Secretary not Rules 29–36, Rules of Procedure of the African Commission 2010. Rule 37, Rule 83 and Rule 99, Rules of Procedure of the African Commission 2010. 22 Rules 86–122, Rules of Procedure of the African Commission 2010. 23 Rule 59, 60, Rules of Procedure of the African Commission 2010. 24 Rules 61(3) and 74, Rules of Procedure of the African Commission 2010. 25 Rule 76, Rules of Procedure of the African Commission 2010. 26 Rule 93, Rules of Procedure of the African Commission 2010. 27 Rule 31, Rules of Procedure of the African Commission 2010. 28 See also Rules 71–75, Rules of Procedure of the African Commission 2010. 29 Rules 93–110, Rules of Procedure of the African Commission 2010. 30 Rules of Procedure of the African Commission on Human and Peoples’ Rights, adopted on 13 February 1988, reprinted in R. Murray and M. Evans, Documents of the African Commission on Human and Peoples’ Rights, Vol.1, Hart Publishing, 2001, p.136–164. 31 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 203. 32 Rule 17(4), Rules of Procedure of the African Commission 2010. 33 See Brainstorming Meeting 2006, 9–10 May Banjul, AU. Doc. ACHPR/BS/01/010, 20th Annual Activity Report, Annex II, para 18. 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 48. 20 21

B. Role of the Secretary

615

the African Commission, although the latter’s Rules of Procedure place the Secretary under the supervision of the Bureau who can undertake an annual assessment of his or her performance and share this with the AU Commission.34 The Chairperson of the AU Commission appoints the Secretary, albeit having consulted the Bureau in advance, and this can be done without, one presumes, the Commission’s or Bureau’s approval.35 Over the years there have been occasions where the position of Secretary or other key positions have not been filled,36 as one instance shows: The ACHPR has experienced an unprecedented leadership crisis at its Secretariat, which if not urgently addressed will render it completely dysfunctional. This crisis is occasioned by serious governance and accountability lapses. All the members of the ACHPR serve on a part time basis and none of them, including the Bureau, are based in Banjul. This makes it difficult for them to effectively address these lapses. 53. The situation is compounded by the secondment of the Deputy Secretary of the ACHPR to the Office of the Chairperson of the AUC. She assumed her new position on 2 June 2017. The members of the ACHPR learnt about this secondment through a circular which was published on the website of the African Union. 54. The ACHPR was not consulted on the secondment as required in the Staff Rules of Procedure of the African Union. To date, members of the Commission have not been officially informed of this secondment by the office of the Chairperson of the AUC. Obviously this does not auger well for good governance and good working relationship between the AUC and the ACHPR as organs of the AU. . . . b) AUC to expedite: i. recruitment of essential staff of the Secretariat of the Commission, to enhance the capacity of the Commission to deliver on its mandate and; . . . iii. the meeting of Chairperson of the AUC and the Bureau of the ACHPR in order to urgently address the governance and accountability concerns at the leadership of the Secretariat of the ACHPR; iv. advertisement and recruitment process of the position of Deputy Secretary.37

One might presume that the Secretary will be accountable to the African Commission, given that the Bureau has a role in supervising her performance. However, this is not the case. As it is the AU Commission’s Chair who appoints the Secretary, the approach of the Legal Counsel to the AU is clear: ‘with regards to finance, personnel and administration, the Secretary reports exclusively to the AUC; but that the elaboration of programmes should be joint work between the Commission and the Secretary, especially since it is the Secretary who defends these programmes before the AU Policy Organs’.38 This once more risks jeopardising the independence of the African Commission. Although we are not privy to the detail on the exact relationship between the Commissioners and the Secretary, a Resolution ‘on Governance of the Commission and its Secretariat’ in 2015 suggests some tensions.39 This reiterates that it is the Bureau that will ‘monitor, supervise and assess the performance of the Secretariat’; the Secretariat ‘shall ensure that recruitment policies and the regular management of staff and administration are conducted in total transparency with the effective involvement of the Bureau’;

Rules 13(2) and (3), and Rule 126(2) of the Rules of Procedure of the African Commission 2010. Rule 126, Rules of Procedure of the African Commission 2010. 36 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 315, regarding a gap in 2005. Another gap occurred in 2016/2017. 37 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017. 38 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 209. 39 Resolution on the Governance of the Commission and its Secretariat, ACHPR/Res.294 (EXT.OS/XVII) 20, 28 February 2015. 34 35

616

30. Articles 41–44: Appointment of Secretary and Chairs

and that the Advisory Committee on Budgetary and Staff Matters ‘is involved in the execution of the Budget and should monitor the assessment of the Secretariat staff’.40 An organogram was reviewed in 2017 ‘with a view to optimise the governance arrangements between the Commission and its Secretariat, as well as clarifying the management functions of its Secretary and the Deputy Secretary’.41

C. Budget of the African Commission 1. Financial Resources Articles 41 and 44 provide that it is the AU, formerly the OAU, that would fund the Commission. This is reiterated by the African Commission’s Rules of Procedure which state that this will be governed by the AU’s financial rules.42 The African Commission has consistently complained about the lack of resources provided by the OAU and subsequently the AU,43 noting, for example, that the ‘budget is not enough to support the work of the Commission’.44 These concerns have been general, as well as specific, from what the AU will fund, to staffing, as well as the process by which the budget is determined.45 For example, in her Opening Speech to the 52nd Ordinary Session of the African Commission, the Chairperson of the African Commission noted: And of course there was the perennial problem of the OAU failing to support the Commission with an adequate budget. Even though it was one of the oldest organs of the Union, its budget was linked to the Political Affairs Department, which meant that all its activities and programs were drawn up and approved from Addis. Even Commissioners travels had to be cleared from Addis. The Commission had to rely on grants from West European countries for basic operating expenses. As a matter of fact up till 2005, the Commission had only two full time AU paid Legal Officers and only in 2007 was it able to submit and defend its own budget before the AU policy organs.46

Figures on the Commission’s budget are not provided consistently by the African Commission nor the AU. There is little transparency from the African Commission itself, apart from ad hoc inclusion of figures in some reports, as to who is providing it with funding and for what. 40 Resolution on the Governance of the Commission and its Secretariat, ACHPR/Res.294 (EXT.OS/XVII) 20, 28 February 2015. 41 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 49. 42 Rules 19 and 20, Rules of Procedure of the African Commission 2010. 43 E.g. see Bahame Tom Mukirya Nyanduga, Activities as Commissioner, Intersession Report to the 45th Ordinary Session, 2009; 47th Session of the African Commission on Human and Peoples’ Rights, 12–26 May 2010, Banjul, The Gambia, Intersession Report prepared by Me Reine Alapini-Gansou Chairperson of the African Commission on Human and Peoples’ Rights, November 2009–May 2010. 44 34th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, para 26. J. Sarkin, ‘The role of regional systems in enforcing state human rights compliance: Evaluating the African Commission on Human and People’s Rights and the New African Court of Justice and Human Rights with Comparative Lessons from the Council of Europe and the Organization of American States’, 1 Inter-Am. & Eur. Hum. Rts. J. (2008) 199, para 6.3. 45 See e.g. P. V. Ramaga, ‘The tenth session of the African Commission on Human and Peoples’ Rights’, 10 NQHR (1992) 356, at 360. 46 Opening Speech by the Chairperson of the African Commission on Human and Peoples’ Rights, Her Excellency Honourable Commissioner Catherine Dupe Atoki, delivered at the Opening Ceremony of the 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, October 2012.

C. Budget of the African Commission

617

A few of the African Commission’s activity reports set out its the budget for the year, but this is done on a rather ad hoc basis.47 Where figures are provided they indicate, for example, in 200848 the African Commission had an approved budget of just over $6 million of which $1.4million was for programmes and $4.9 million operational costs.49 In 2009 the Executive Council approved the addition of thirty-three more staff over the following five years.50 The report of the African Commission in 2009 setting out its budget for that year provides detail on how the figures were calculated. A seven-day promotional mission is costed, for example, as $13,747.60, involving one Commissioner and one legal officer with DSA (at the UN rate); and two seven-day missions of a special mechanism as $148,808. An ordinary session held in the Gambia is costed at $466,832; and for a session held in another State, $470,543.51 Recognising increases to its budget, the Commission noted that the US$ 5,692,156 for the 2012 fiscal year ‘is still not enough to meet the Commission’s requirements’, 2.08 per cent of the AU annual budget.52 Further, ‘[t]‌he Commission is concerned that this budget is still insufficient to address the financial needs of the Commission and its work; it is further concerned that no AU funds at all have been allocated for the Commission’s program activities, which means that therefore, these activities must be funded from external sources’.53 There are fluctuations. For the 2013 fiscal year it received US$ 8, 488,770.00, made up of an ‘Operational Budget’ of US$ 3, 882,000.00 and a ‘Programs Budget’ (from external sources) of US$ 4, 606, 770.00’.54 For 2014 there is a reduction in the overall budget (US$ 6,395,466.00) but an increase in contributions from the AU: US$ 4, 821,043.00, and US$ 1,569, 423.00 from partners.55 The 2015 fiscal year saw a drop to a total of US$ 5,922,595.00 (US$ 4,970,825.00 from Member States’ assessed contribution and US$ 951,770.00 from partners).56 By 2017, the African Commission stated that extraordinary sessions, which usually deal with the core business of communications, depended on external partners to be funded57 and it was unable to ‘follow-up on implementation as it prevents the Commission from developing effective follow up of its findings during country visits, and recommendations See e.g. 22nd Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), 2006. 25th Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), 2008. 49 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, paras 246–248. 50 Resolution on the Establishment of an Advisory Committee on Budgetary and Staff Matters, ACHPR/ Res.142, 27 May 2009. 51 Report of the African Commission on Human and Peoples’ Rights (Draft Programme Budget For 2009), EX.CL/490 (XIV), January 2009. 52 Combined 32nd and 33rd Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/782(XXII) Rev.2, January 2013, para 58. 53 Combined 32nd and 33rd Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/782(XXII) Rev.2, January 2013, para 59. 54 34th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, para 26. 55 37th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, para 48. 36th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2013–2014, para 37. 56 38th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2015, para 54. 57 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 44. 47 48

618

30. Articles 41–44: Appointment of Secretary and Chairs

arising from its findings, resulting in the overall weakening of the effectiveness of the Commission’.58 One of the constant concerns has been the AU’s failure to fund the ‘programme activities’ of the African Commission.59 Exactly what this encompasses is not entirely clear, but the African Commission has noted that the work of its special mechanisms are not covered by the AU.60 The practice has been to cite in the resolution establishing the mechanism that the AU provide the necessary ‘adequate resources, assistance and support for the implementation of this Resolution’,61 and a presumption that the civil society organisation driving the establishment of the particular mechanism will be the one to seek external funding to enable it to operate. The AU has encouraged the African Commission to seek funding from external partners,62 a need not necessarily unique to the African system.63 However, even with external funding, some of the special mechanisms have noted this is insufficient to carry out the work: Key to the other challenges of the Committee that I have raised is the issue of inadequate resources faced by the Committee. In order to undertake its extensive mandate and ambitious Work Plan, particularly with a view to gaining the requisite visibility, the Committee requires technical and financial support, other than the financial support provided by the Commission, which at present, is very limited in view of the overall budget of the Commission. Whilst the supports of the few external partner of the Committee are rightly appreciated, these are very limited. The current situation makes it difficult for the Committee to undertake several activities and operate as effectively as it should, the commitment of the Commissioners and Experts members notwithstanding. Notably, the current Work Plan of the Committee has not at all been implemented, in the absence of the requisite funds. The Committee is therefore still working on securing crucial financial and technical support; including through involving new partners through the assistance of the Expert Members of the Committee.64 58 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 45. 59 12th Extraordinary Session: Final Communique, 4 August 2012, para 8. 37th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, para 49, for the 2014 and 2015 fiscal years. 60 Report on the Implementation of the Mandate of the Special Rapporteur on Human Rights Defenders in Africa of the African Commission on Human and Peoples’ Rights, Theme: ‘Promoting and Protecting the Rights of Human Rights Defenders in Africa: 8 Years After’, Ms Reine Alapini Gansou, Special Rapporteur on Human Rights Defenders in Africa, 52nd Ordinary Session, Special 25th Anniversary of the African Commission, Yamoussoukro, 9–22 October 2012, para 52. Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced and Migrants in Africa Since its Creation, by Madam Maya SAHLI-FADEL, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012, para 59. 61 E.g. Resolution on the Mandate and Appointment of a Special Rapporteur on Freedom of Expression in Africa, ACHPR/Res.71, December 2004. Resolution on the Protection of Human Rights Defenders in Africa, ACHPR/Res.69, June 2004. Resolution on Economic, Social and Cultural Rights in Africa, ACHPR/Res.73, 7 December 2004. Resolution on the Creation of a Working Group on Specific Issues relevant to the Work of the African Commission on Human and Peoples’ Rights, ACHPR/Res.77, 11 May 2005. 62 12th Extraordinary Session: Final Communiqué, 4 August 2012, para 9. 63 See re the UN, P. Hunt and S. Leader, ‘Developing and applying the right to the highest attainable standard of health. The role of the UN Special Rapporteur (2002–2008), in J. Harrington and M. Stuttaford, Global Health and Human Rights: Legal and Philosophical Perspectives, Routledge, chapter 3, at p.29. J. Naples- Mitchell, ‘Perspectives of UN special rapporteurs on their role: inherent tensions and unique contributions to human rights’, 15(2) International Journal of Human Rights (2011) 232–248. 64 Activity Report of Hon. Commissioner Lucy Asuagbor, Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, Presented to the special 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights,

C. Budget of the African Commission

619

As the work of the special mechanisms has expanded and increased over the years, the extent to which they continue to be ‘special’ and therefore an addition to the core work of the African Commission is debatable. This is the more so as these mechanisms do not appear to be temporary arrangements; it is Commissioners who sit on them; they may or may not be assigned a particular member of the secretariat to support them in their work; and certainly now the vast majority of the thematic work of the African Commission has been funnelled through these mechanisms. For example, as the Special Rapporteur on Promotion and Protection of Refugees, Asylum seekers and Internally Displaced Persons and Migrants in Africa noted, he had been unable to take promotional missions to States in 2006–2007 because of lack of funding.65 Hence, what precisely are included within the core ‘operational’ costs of the African Commission is not clear. While some of the special mechanisms are thematic, when they carry out certain of their activities such as promotional or protective missions, whether this is being done in their capacity as members of those mechanisms or simply as Commissioners is rather opaque on occasions. In addition, the Working Group on Specific Issues Related to the Work of the African Commission, the Advisory Committee on Budgetary and Staff Matters, the Working Group on Communications and the Committee on Resolutions are undertaking operational tasks. Yet, being listed as ‘special mechanisms’ has encouraged them to be considered under the ‘programmatic’ work of the Commission and consequently potentially not funded unless external support is given. As was noted in relation to the Working Group on Communications: Challenges that directly affect the mandate of the [Working Group on Communications]. Limited financial resources: Since the establishment of the WGC, it has not been allocated any funding within the annual budget of the Commission to carry out its activities. As a result, the WGC is constrained in meeting regularly and executing its mandate more effectively. In a bid to address this challenge, the Commission, at its 17th Extra-Ordinary Session, adopted Resolution 295 on Meetings of the Working Group on Communications, whereby it decided that the meetings of the Working Group on Communications shall be considered as Extra-Ordinary sessions of the Commission. Partners are hereby called upon to provide necessary support to the Commission in this regard.66

Funders have been from within and outside the continent, included both civil society organisations67 as well as governments,68 and some of whom are regular contributors, such as DANIDA, the EU and GIZ.69 While an incredibly important source of support for the African Commission the continued reliance on external funding, particularly where the core and ‘special’ work of the Commission is now blurred, renders it susceptible to in commemoration of the 25th Anniversary of the Commission Yamoussoukro, Côte d’Ivoire, 9–22 October 2012, para 23. 65 Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced and Migrants in Africa Since its Creation, by Madam Maya SAHLI-FADEL, Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, 9–22 October 2012, para 56. 66 Report of the Chairperson of the Working Group on Communications, by Commissioner Lucy Asuagbor Presented during the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, para 29. 67 22nd Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), 2006. 68 22nd Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), 2006. 69 22nd Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), 2006.

620

30. Articles 41–44: Appointment of Secretary and Chairs

funders’ priorities and also funders’ vulnerabilities if they themselves are no longer able (or willing) to finance key elements of the Commission’s work.70 The AU Assembly has recognised this, reiterating ‘the need for the [African Commission] to be provided with adequate resources to remove donor dependence and enable [the African Commission] to discharge its mandate effectively and independently’.71 As to the process for accepting donor funds, the Head of Resource Mobilization of the AU has noted that: partner funds can be used on condition that they are included in the budget, and the activities for which the funds are given are consistent with the overall AU plan and are approved by AU Policy Organs. Funds which are not incorporated in the budget cannot be used. They need to be regularised by the Policy Organs first if they are to be used. Regarding ongoing support, no matter where it is coming from, it also needs to be regularised before it can be utilised.72

This has clearly caused challenges where matters arose which were not predictable and where additional funds were provided by donors but could not be used.73 It also does not appear to provide the African Commission with full autonomy to raise and then manage those resources itself from grants. Just as the Commission itself does, those writing about it adopt a similar stance: ‘Equipping the African Commission better would allow the Commission to attain more of its goals, develop its profile and ensure that it has greater impact across Africa’.74 However, given the significant variations to the budget of the African Commission over the years, whether this has made any real impact on the effectiveness or efficiency is hard to tell. An increase in budget has not always been accompanied by an increase in (qualified and expert) staff in Banjul, perhaps the key driver for success. Where staffing levels have improved, there is some evidence of improvements. For example, with the replacement of the Secretary in 1994, Chidi Odinkalu noted the time taken to conclude communications ‘has been reduced drastically’.75 Yet, conversely, although Sarkin predicted that the significant increase in the budget of the Commission in 2008 ‘should have very positive results’,76 this, in fact, appears to have been short-lived with regular mention of the lack of resources and staffing being raised as an ongoing concern even since.

70 See e.g. re withdrawal of funding by Penal Reform International to the Special Rapporteur on the Rights of Prisons and Conditions of Detention in Africa, see D. Long and L. Muntingh, ‘The Special Rapporteur on prisons and conditions of detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 13 SUR -Int’l J. on Hum Rts. 99, 118 (2010), at 101. 71 Decision on the Report of Activities of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.200 (XI), para 4. 72 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 220(ii). 73 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, paras 222–230. 74 J. Sarkin, ‘The role of regional systems in enforcing state human rights compliance: Evaluating the African Commission on Human and People’s Rights and the New African Court of Justice and Human Rights with comparative lessons from the Council of Europe and the Organization of American States’, 1 Inter-Am. & Eur. Hum. Rts. J. (2008) 199. 75 C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedures’, 20 HRQ (1998) 235, at 275. 76 J. Sarkin, ‘The role of regional systems in enforcing state human rights compliance: Evaluating the African Commission on Human and People’s Rights and the New African Court of Justice and Human Rights with comparative lessons from the Council of Europe and the Organization of American States’, 1 Inter-Am. & Eur. Hum. Rts. J. (2008) 199.

C. Budget of the African Commission

621

2. Procedure for Approving the Budget A Resolution adopted shortly after the African Commission became operational sets out ‘Financial Rules and Regulations’ governing its functioning.77 These provided that the African Commission’s budget would be part of the Regular Budget of the OAU, but ‘distinct and managed separately’. The Secretary-General of the OAU was the Accounting Officer, with the ability to delegate some of his or her powers to the Chair of the African Commission, and the Secretary-General should also prepare and submit to the OAU the African Commission’s programme of action and budgetary requirements.78 Additional grants from external sources could be given to the African Commission but their acceptance by the Commission had to involve consultation with the Secretary-General.79 These place considerable power in the hands of a political appointee external to the African Commission. Over the years this has changed, with some of these functions now with the Secretary to the African Commission. While the African Commission will determine how much it wishes and what it needs this to cover, the amount ultimately needs approval by the AU. The budget of the Commission previously fell under the Department for Political Affairs, although the African Commission is now able to present the budget itself before the Permanent Representatives’ Committee (PRC).80 The Executive Council will then adopt the budget and approve any new additional staffing, if appropriate.81 The Chair of the African Commission will present and defend the Commission’s overall budget before the AU bodies.82 The African Commission’s own Advisory Committee on Budgetary and Staff Matters will subsequently discuss the execution of the budget, preparing reports which are then presented to all members of the Commission for their approval.83 With respect to external funds, the 2010 Rules of Procedure of the African Commission note in particular that if the Commission has a ‘proposal entailing expense’, a report, prepared by the Secretary, will be presented to the African Commission for it to discuss.84 The Rules also permit the Commission to ‘negotiate financial agreements with donors’, informing the AU Commission of the proposal.85

3. Staffing and Logistical Resources While the African Commission can propose the ‘organizational structure’ of the secretariat, it must seek the approval of the AU.86 Staff are governed by the AU’s Staff Rules 77 Recommendation on the Financial Rules and Regulations Governing the Functioning of the African Commission on Human and Peoples’ Rights, ACHPR/Res.2R, 28 April 1988. 78 Recommendation on the Financial Rules and Regulations Governing the Functioning of the African Commission on Human and Peoples’ Rights, ACHPR/Res.2R, 28 April 1988. 79 Recommendation on the Financial Rules and Regulations Governing the Functioning of the African Commission on Human and Peoples’ Rights, ACHPR/Res.2R, 28 April 1988. 80 AU Doc.EX.CL/Dec.344 (X). See also e.g. Final Communique of the 10th Extraordinary Session of the African Commission on Human and Peoples’ Rights Held in Banjul, The Gambia, 12–16 December 2011, para 10. 81 E.g. Bahame Tom Mukirya Nyanduga, Activities as Commissioner, Intersession Report to the 45th Ordinary Session, 2009. 82 Rule 14, Rules of Procedure of the African Commission 2010. 83 See e.g. Med S.K. Kaggwa, Activities as Commissioner, Inter-Session Report (November 2013–April 2014), Commissioner Med S. K. Kaggwa, presented at the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, Luanda, Angola, 28 April–12 May 2014, para 7. 84 Rule 21, Rules of Procedure of the African Commission 2010. 85 Rule 66, Rules of Procedure of the African Commission 2010. 86 Rule 17, Rules of Procedure of the African Commission 2010.

622

30. Articles 41–44: Appointment of Secretary and Chairs

and Regulations.87 As noted above, it is the AU Commission which will appoint the Secretary. The AU funds the ‘operational budget’ of the African Commission. Related to the overall financial situation of the African Commission it has therefore complained regularly about the lack of staffing in the secretariat that is funded by the AU. This is not without justification. The staffing situation has been a consistent challenge from the inception of the African Commission,88 and has not improved to any great degree. Some of these positions have been funded by external grants and thereby subject to the vagaries of funders and are temporary. The number of legal officers has never in practice reached twenty and is more often found to be floating just above or below ten. While the AU has approved an increase in the numbers of staff, these have failed to be appointed. As figures showed in 2013: Thirty-three (33) new positions were approved for the Commission’s Secretariat in 2009. Of these, only 10 have been recruited, comprising 3 Drivers, 1 Receptionist, 1 Protocol Assistant, 1 Accounts Assistant and just 4 Legal Officers. At the same time, the Secretariat lost the services of 2 Senior Legal Officers, who are yet to be replaced.89

The following reflects a common statement made in the Activity Reports of the African Commission: the continuing chronic understaffing at the Commission’s Secretariat, and underscored the imperative to accelerate and expedite recruitment of staff for the Secretariat. Quite clearly, the staffing situation has reached such critical levels that it is no longer physically possible for the Secretariat to provide the Commission with the support which it needs to function effectively and deliver on the mandate entrusted to it.90

This failure to appoint staff, despite approval for the positions, can be due to a number of factors, including that while some positions have been filled,91 others then become vacant, resulting in an ongoing deficit.92 In addition, there is the perceived unattractive location of the headquarters in a small West African State. The result is that the ability to recruit and retain capable and qualified staff who remain a constant presence, who can build up expertise and thereby pass on this experience and supervise more junior colleagues, is extremely limited. Instead, the African Commission’s secretariat is noted for its low number, high turnover and consequent inefficiency, a view held by many including

Rule 17(4), Rules of Procedure of the African Commission 2010. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 493–494. 89 34th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2013, para 24. Similarly, in 2013 it reported that the AU had approved forty-six staff, only twenty-two were ‘currently on ground’ with the other posts having not been filled, Combined 32nd and 33rd Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/782(XXII) Rev.2, January 2013, para 57. 90 30th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), 2011. See also 36th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2013–2014, para 35. 38th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2015. 91 E.g. see 29th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), EX.CL/678(XIX), 2010, para 170. 92 43rd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017. 87 88

C. Budget of the African Commission

623

States.93 Whether this has been a conscious desire on the part of the OAU and AU to keep the Commission as ineffective and irrelevant as possible; whether it is benign neglect; or whether it does not feature highly on the political organs’ radar as an organisation worthy or in need of resources, is often the subject of debate amongst those who have worked with the African system over the years. Besides external funding for the special mechanisms, other attempts to address the deficiencies of the secretariat have included external funding for legal officers,94 and secondments by civil society organisations and more controversially, by States. The latter are potentially useful in providing mutual insight into government activities and operations, but equally perceived as possibly threatening to the independence of the Commission. Interns have been accepted at the African Commission for many years, although this has become increasingly regulated. They are now governed by the AU Rules and Regulations which set out the qualifications that they should have (a university degree) and other conditions (the internship will last three months; is unpaid; is only for Africans) and could be in the country of a particular Commissioner.95 There is the possibility of ‘Technical Assistants’ who do not need to be African but must be ‘needs-driven’ and approved through a Memorandum of Understanding signed by the African Union Commission (AUC) Chair.96 Lastly, not only has the location of the African Commission in the Gambia been considered unappealing as a place to work and live, but it has brought with it a poor infrastructure that does little to help the secretariat function efficiently on a daily basis. As was noted in the 2014 activity report: Communication with the Commission and its Secretariat remains a huge challenge, posing a major impediment to the Commission’s effective discharge of its mandate. Telephone landlines do not work and the Office has to rely on a form of cordless phone system locally referred to as Jamano, which is not as efficient as fixed landlines and does not support office extensions; the fax is not working; internet connectivity continues to be a major problem for the Commission; even the Microsoft Outlook installed by the AUC Headquarters to link all AU Organs and Offices is erratic at best, despite the huge efforts deployed by the AUC in this regard; sending and receiving documents by email is extremely difficult and sometimes impossible—indeed, both Member States and other stakeholders have expressed frustration regarding the difficulties of transmitting documents to the Commission.97

93 E.g. the AU Assembly noted in 2008, ‘the observations and reservations made by the Arab Republic of Egypt, regarding the shortcomings of the [African Commission] in the translation of documents, in interpretation, and in transmitting documents to Member States, due to human and financial resource constraints, which can result in procedural and substantial shortcomings’, Decision on the Report of Activities of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.200 (XI), para 11. 94 As GIZ provided, see above. 95 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 234. 96 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 234. 97 37th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, para 46. 36th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2013–2014, para 36.

624

30. Articles 41–44: Appointment of Secretary and Chairs

Power outages, and resultant requests from the AU for generators,98 are challenges faced by the African Commission and not by other organs on the continent or its regional counterparts in the Americas and Europe.

4. ‘Emoluments and Allowances’ Nothing has quite exercised the African Commission in terms of its budget than the allowances accorded to each Commissioner in the performance of his or her duties.99 Its 24th Activity Report, for example, noted concerns regarding: payment made or to be made to members of the Commission including administrative expenses: could the accounting system be reviewed, as the current system is difficult for Commissioners? . . . difficulties faced with regards to payment of half per diem for activities not organised or authorised by the AU—could authorisation of missions be expedited to avoid this? The amount of the honorarium paid to Commissioners: the honorarium for Commissioners was set a long time ago, the amount no longer correspondences to the reality on the ground, and should be reviewed.100

Still in 2017 the African Commission was calling for emoluments of the members of the African Commission to be brought in line with those of other AU organs.101 A report in 2009 revealed that the daily allowance for Commissioners and members of the secretariat when attending missions or sessions is $278.40 USD. Commissioners are costed as travelling business class.102 In one of the few publicly available documents, a report of the African Commission on its budget as presented to the AU notes that ‘Each Commissioner is paid honorarium of US$2,500.00 per Session. The amount requested is for two Ordinary Sessions and one Extraordinary Session per year for eleven Commissioners: 11 × 3 × 2.500 = US$82,500.00’.103 However, in a meeting with the AU, it was agreed (although it is not clear whether by the African Commission or the AU) that this amount had not been reviewed for some time and therefore should be expanded to $5000 per Session (whether that is an Ordinary or Extraordinary Session) and $2500 for promotional and fact-finding missions.104 The African Commission has justified its request for an increase on the grounds that much of the work Commissioners carry

98 43rd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017. 99 See e.g. 29th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), EX.CL/678(XIX), 2010, para 172. Resolution on the Appointment of the Chairperson and Renewal of the Mandate of the Members of the Advisory Committee on Budgetary and Staff Matters, ACHPR/ Res.256, 5 November 2013. 100 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 198. 101 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 55. 102 Report of the African Commission on Human and Peoples’ Rights (Draft Programme Budget For 2009), EX.CL/490 (XIV), January 2009. 103 Report of the African Commission on Human and Peoples’ Rights (Draft Programme Budget For 2009), EX.CL/490 (XIV), January 2009, para 8. 104 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 238.

D. Headquarters

625

out is done during the intersession period,105 which is ‘largely unrecognized and unrecompensed’.106

D. Headquarters One can choose to attribute the choice of the Gambia as the headquarters of the Commission to positive factors (the Gambia, at that time, was considered desirable as a place to be away from Addis Ababa and political organs of the OAU so as to ensure its independence;107 drafting meetings of the African Charter had also taken place in the Gambia; and it had ratified the ACHPR and at that time appeared to ‘[offer] to the Commission substantial material and human resource facilities for its establishment, work and research’108); or negative (‘a way of consigning the Commission to neglect, a struggle against the odds and possible oblivion’109). When, however, Yahya Jammeh took power in a coup in 1994 and remained, becoming increasingly oppressive in his rule, till 2017, the base of the continent’s human rights headquarters looked harder to justify, yet but to move would deal a political blow that no one seemed prepared to give.110 The African Commission did itself adopt resolutions over the years condemning the government’s activities,111 but ‘seemed to have settled comfortably into life under the new regime . . . [and] on a number of occasions bent over backwards to avoid a detrimental finding against the Gambia state’.112 A collective sigh of relief was heard when Jammeh was ousted in December 2016 and a democratic government subsequently elected. In the meantime the African Commission spent much time negotiating with the government for a new headquarters113 having found itself for many years in a modest building. While progress was slow during the earlier years of the Jammeh regime,114 despite it creating an inter-ministerial committee to work on construction,115 the commitment of the government to house the Commission in accommodation ‘befitting of its 105 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 48. 106 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 53. 107 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 505. Recommendation on the Headquarters of the African Commission on Human and Peoples’ Rights, ACHPR/Res.1R, 28 April 1988: ‘Bearing in mind the quasi-legislative nature of the Commission and its need for a full-time Secretariat, it is not desirable to have the Headquarters of the Commission where the political and administrative organs of the OAU are located’. 108 Recommendation on the Headquarters of the African Commission on Human and Peoples’ Rights, ACHPR/Res.1R, 28 April 1988. 109 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 313. 110 See F. Viljoen, ‘A call to shift the seat: The Gambia is not a suitable seat for the African Commission on Human and Peoples’ Rights’, AfricLaw, 27 May 2013, https://africlaw.com/2013/05/27/a-call-to-shift-the- seat-the-gambia-is-not-a-suitable-seat-for-the-african-commission-on-human-and-peoples-rights/ 111 E.g. Resolution on the Human Rights Situation in the Republic of The Gambia—ACHPR/Res.299 (EXT.OS/XVII) 20, 28 February 2015; Resolution on the Deteriorating Human Rights Situation in the Republic of the Gambia, ACHPR/Res.145, 11 October 2009; Resolution on the Human Rights Situation in the Republic of The Gambia, ACHPR/Res.134, 24 November 2008. 112 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 314. 113 E.g. 30th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), 2011, para 244. 114 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 314. 115 38th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2015, para 43.

626

30. Articles 41–44: Appointment of Secretary and Chairs

status as the continent’s oldest and premier human rights body’116 floundered. With a new regime in 2017 there was the potential that the new headquarters would be provided in time for the thirtieth anniversary of the Commission.117 The headquarters of the Commission needed to comply, according to the AU Assembly,118 with the AU Criteria for Hosting AU Organs.119 These include that the host State should provide appropriate office premises, in an ‘conducive political atmosphere and adequate logistical facilities’ as well as ‘appropriate and efficient modern infrastructure especially telecommunication facilities to enable the office to function efficiently’, among others, criteria that clearly under the previous regime had been lacking. A revealing discussion on the Banjul office is provided in an Annex to the 24th Report of the African Commission, which notes that the Senior Legal Officer from the Office of the Legal Counsel of the AU stated it did not have embassy status, comparable to the AU Office in Washington as a result of the US government requiring this, rather that it was governed by a Host Agreement which set out the ‘diplomatic immunities and privileges to be enjoyed by the staff’ and therefore more akin to the Pan-African Parliament or African Court.120

E. Chair and Vice Chair The Rules of Procedure of the African Commission provide for the creation of a bureau composed of a Chair and Vice-Chair, elected from among the members in a secret ballot, for a term of two years with the possibility of re-election.121 The Bureau is intended to be the coordinator of the activities of the Commission, supervising the Secretary, with the Chair specifically being tasked with the following: a. Represent and direct the work of the Commission; b. Preside over the meetings of the Commission; c. Submit the assessment report [on the performance of the Secretary] to the competent organs of the African Union Commission; d. Supervise the preparation of the budget by the Secretariat and its adoption by the Commission; e. Present and defend the budget before the relevant African Union bodies; f. Present a report to the Assembly and to the Commission on the activities carried out during the intersession; g. Perform any other functions that may be conferred upon him or her in the Rules of Procedure or other tasks entrusted to him or her by the Commission or the Assembly; and h. Delegate, when necessary, to the Vice-Chairperson or, if the Vice-Chairperson is not available, to another Commissioner, the abovementioned powers.122

116 43rd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 38. 117 42nd Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2017, para 55. 118 Decision on the Report of Activities of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.200  (XI). 119 AU Criteria for Hosting AU Organs, EX.CL/195 (VII), Rev.1, Annex III, July 2005. 120 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 201. 121 Rules 10–12, Rules of Procedure of the African Commission 2010. 122 Rule 14, Rules of Procedure of the African Commission 2010.

G. Privileges and Immunities

627

The common approach now is for the election for a new bureau to take place just after the opening ceremony of the relevant ordinary session and then the decision to be announced in the next public session. This is also sometimes accompanied by a press release123 and mentioned in the final communiqué of the Session.124

F. Quorum, Voting and Consensus In the early days of the African Commission’s work, it often struggled to meet its quorum of seven members,125 sometimes waiting to make decisions until a few days into the Session in the hope that other Commissioners would arrive. Travel difficulties as well as a lack of commitment or low expectations on what the role of the Commissioner entailed may have explained the lack of attendance. Now, however, it is unusual for all Commissioners not to be present, with the exception of Commissioners who were unable to be present due to illness or, on one occasion, because the African Commission itself declared the seat vacant.126 Most of the decisions of the African Commission, certainly those that are made visible in the public sessions, appear to be taken by consensus. Where the issues may be particularly controversial the Commission will often debate them in private before coming out to the public fora to present a more unified conclusion. There have been very few situations in which Commissioners have voted in the public sittings, perhaps most notably was the decision whether or not to grant observer status to the Coalition of African Lesbians (CAL) at the Session in April 2015 which saw ‘an abysmal lack of due process and open hostility’ by some Commissioners.127 A huge embarrassment for the Commission and an indication of divisiveness not unity.

G. Privileges and Immunities No apparent issues have arisen in public with respect to privileges and immunities of Commissioners. The General Convention on the Privileges and Immunities of the Organisation of African Unity128 (now the AU) governs, according to Article 43 of the ACHPR, that the members of the African Commission, ‘in discharging their duties, shall enjoy diplomatic privileges and immunities’ as provided for under the Convention. The African Commission has noted, in the context of granting observer status to non-governmental organisations, that ‘[t]‌he provisions of the General Convention on the privileges and immunities of the OAU and those of the Headquarters Agreement of

123 E.g. Press Statement on the Appointment of a New Bureau for the African Commission on Human and Peoples’ Rights, 27 October 2011. 124 E.g. Final Communique of the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, The African Commission on Human and Peoples’ Rights (the Commission) held its 54th Ordinary Session in Banjul, The Gambia, 22 October–5 November 2013, 6 November 2013, para 16. See also Final Communiqué of the 50th Ordinary Session of the African Commission on Human and Peoples Rights Banjul, The Gambia. 125 126 Article 42. See Chapter 29 (Articles 30–40). 127 N. D. Sekyiamah, ‘After Years of Activism CAL Attains Observer Status at ACHPR’, 21 May 2015, https://www.awid.org/news-and-analysis/after-years-activism-cal-attains-observer-status-achpr 128 CAB/LEG/24.2/13.

628

30. Articles 41–44: Appointment of Secretary and Chairs

the African Commission shall not apply to observers except as regards the granting of visas’.129 An Annex to the 24th Activity Report of 2008 summarises discussions between the African Commission and the AU Commission on whether the former’s Secretary and staff had diplomatic privileges or were actually diplomats, to which the response of the Legal Counsel of the AU was that staff of the secretariat had diplomatic immunity and functional immunity, under AU Staff Rules and Regulations.130 Staff of P4 level and above have full diplomatic status in Addis Ababa and it was intended to expand this to all AU regional offices.131

129 Resolution on the Criteria for Granting and Enjoying Observer Status to Non- Governmental Organizations Working in the field of Human and Peoples’ Rights, ACHPR/Res.33, 5 May 1999; Resolution on the Criteria for Granting and Maintaining Observer Status to Non-Governmental Organizations working on Human and Peoples’ Rights in Africa, ACHPR/Res.361, 4 November 2016. 130 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 205. 131 24th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/446 (XIII), Annex II, 2008, para 205.

31. Articles 45 and 46 Mandate and Procedure of the African Commission Chapter II: Mandate of the Commission Article 45 The functions of the Commission shall be: 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, organise 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 formulae 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 legislation.

c. cooperate 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 Organisation recognised by the OAU. 4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government. Chapter III: Procedure of the Commission Article 46 The Commission may resort to any appropriate method of investigation; it may hear from the Secretary General of the Organisation of African Unity or any other person capable of enlightening it.

A. Introduction The African Commission has been inventive with its approach to its mandate, exploiting the breadth of Articles 45 and 46 to develop a range of practices, mechanisms and tools to enable it to promote, protect and interpret the rights in the African Charter on Human and Peoples’ Rights (ACHPR). What may have initially started out as an ambiguous set of functions that implied an organisation which would have little power, has been transformed through the practices of the African Commission into one which has, drawing upon the experiences of other international and regional human rights treaty bodies, a variety of mechanisms at its disposal.1 Although the Charter presumes the promotional and protective mandates as almost two distinct functions, and the African Commission’s documentation tends to adopt the

1 M. Ssenyonjo, ‘Responding to human rights violations in Africa: Assessing the role of the African Commission and Court on Human and Peoples’ Rights (1987-2018), 7 IHRLR (2018) 1–42. K. O. Kufuor, The African Human Rights System. Origin and Evolution, Palgrave, 2010, 38.

630

31. Articles 45 and 46: Mandate of the African Commission

same approach,2 the division between the two is not always that well defined. Clearly communications fall within its protective mandate through a combined reading of Articles 45(2) and 55,3 and holding seminars, for example, can be promotional. But the adoption of resolutions, the creation of special mechanisms, the State reporting procedure and carrying out missions to States could be either and both at the same time. This may be explained by the fact that the implications of terming something promotional as opposed to protective does not appear to have any real consequence. On occasion Article 45 has been used by States to claim that the African Commission has over-extended its mandate. For example, in one communication the Respondent State argued that immigration issues were not part of the mandate of the African Commission under Article 45 of the ACHPR. The African Commission disagreed stating that Article 45(2) and Article 12 together provided it with jurisdiction over such issues.4 In another, the Republic of Congo suggested that the ACHPR ‘has established a non-jurisdictional mechanism to guarantee rights and freedoms, the decisions of the latter having just a moral significance and are not binding. Therefore, the [African] Commission could not turn into a jurisdiction to consider requests for the payment of money against states’.5 The African Commission in response ‘observes that the communication is based on allegations of violation of provisions of the Charter which it has the mandate to promote and protect’ and found the case admissible.6 Articles 45 and 46 are often seen together. However, it is important to note that they are found in different chapters of the ACHPR: Article 45 in Chapter II (‘Mandate of the Commission’) and Article 46, with Articles 47–59, in Chapter III (‘Procedure of the Commission’). This has one crucial consequence: Article 59 and the rule on confidentiality covers ‘all measures’ taken in the context of Chapter III. By choosing to derive certain activities from Article 45 or Article 46 (and depending in part on how far they can be disentangled from the communication process) the African Commission can determine the extent to which it is constrained by the need to seek approval first from the AU political organs before it makes its conclusions public.7 But by and large Articles 45 and 46 provide the African Commission with considerable discretion and the ability to develop a broad mandate which can respond to contemporary and pressing issues. Consequently, ‘[t]‌he sole limitation on the free choice of the Commission is the “appropriateness” of the method of investigation; in this field, it seems to give the Commission a sovereign power of appraisal’.8 Earlier drafts of the African Charter proposed an ‘Inter-African Commission’ which had a mandate not dissimilar to that found in Article 45 of the ACHPR, enabling it to promote the Charter as well as to undertake inquiries and respond to ‘petitions on petitions and other communications’.9 2 E.g. under the heading ‘protection activities’, 29th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), January 2012, EX.CL/717 (XX), para 178. 3 Communication 321/06, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013, para 55. The communications procedure will be dealt with in Chapters 33 and 34 (Articles 55 and 57, and Article 56) 27; and 47–54). 4 Neither did this impact on any mandate the Executive Council of the AU may have under Article 13(1) of the Constitutive Act; Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, paras 82–83. 5 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 46. 6 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 47. 7 See Chapter 36 (Article 59). 8 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 582. 9 M’Baye Draft, Article 46.

B. Special Mechanisms

631

In later drafts its functions included ‘gathering the information’ and making recommendations to the Assembly of Heads of State of the Organisation of African Unity (OAU) for it to respond accordingly.10 However, the Commission was not intended to: take decisions. It simply reports to the Assembly of Heads of State and Government which decides what should be done with the conclusions and recommendations.11

B. Special Mechanisms Not explicitly mentioned in the ACHPR, the establishment of special mechanisms addressing thematic issues, functions and working methods of the African Commission has become central to the way the Commission now operates. Drawing upon Articles 45 and 46 to justify their formation,12 the ability to create these ‘subsidiary mechanisms’ such as special rapporteurs and working groups is now consolidated in 2010 Rules of Procedure.13

1. Types of Special Mechanisms As at June 2018 the African Commission’s website notes sixteen such special mechanisms which cover thematic and functional issues but not specific States. Listed are ‘special rapporteurs’, namely single individuals, and ‘working groups’ and ‘committees’ which tend to be composed of Commissioners and external experts. There is one Advisory Committee on Budgetary and Staffing Matters.14 There is evidence that ‘special rapporteurs’ were chosen to reflect those at the UN and at a time when it was easier to encourage the African Commission to focus on a particular issue through an individual Commissioner. That way, the African Commission also retained control over how the special mechanism operated and the outputs it produced.15 However, with an embarrassing lack of work being carried out by the Commissioner on extrajudicial executions, Hatem Ben Salem, resulting in a damning criticism of him at the Session in November 2000,16 the African Commission decided to halt further appointments for a short time, creating ‘focal points’ as a ‘stop-gap’ instead.17 When they resurfaced again, although further special rapporteurs were established, working groups later tended to be the preferred method, composed of Commissioners and external 10 Dakar Draft: Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev.  1. 11 Dakar Draft: Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev.  1. 12 F. Viljoen, ‘The Special Rapporteur on prisons and conditions of detention in Africa: Achievements and possibilities’, 27(1) HRQ (2005) 125–171. J. Harrington, ‘Special Rapporteurs of the African Commission on Human and Peoples’ Rights’, 2 AHRLJ (2001) 247–267. 13 Rule 23; Rule 97 also enables working groups to be established to deal with various aspects of the communication mechanism, Rules of Procedure of the African Commission 2010. 14 See Chapter 30 (Articles 40–44). 15 J. Harrington, ‘Special Rapporteurs of the African Commission on human and peoples’ rights’, 2 AHRLJ (2001) 247–267. 16 R. Murray, ‘The Special Rapporteurs in the African System’, in M.D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2000, Cambridge University Press, 2002, 280–304, at 289. 17 Seventeenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 2003– 2004, para 32.

632

31. Articles 45 and 46: Mandate of the African Commission

organisations or experts. That way the Commission could continue to focus on specific issues, acknowledge the financial and logistical commitment of NGOs and individuals, and still command their activities. The list of special mechanisms on the website hides additional groups and structures which tend to be more temporary or are subsequently transformed into a special mechanism. ‘Study groups’, for example, have focused on particular tasks such as creating a report;18 individual Commissioners19 have been identified as ‘focal points’ to lead on particular issues,20 although initially used as a way to address some of the criticisms being directed towards the special mechanisms themselves.21 Some, but not all, have ended up being special mechanisms.22

2. Creation Prompted by a range of factors, such as sustained civil society engagement around a particular issue, parallel initiatives at the UN level23 or contemporary events on the continent, the establishment of these special mechanisms is often to ensure that the subject matter remains on the agenda of the African Commission,24 or to enable further elaboration of standards on certain rights.25 As a result the process of establishing these mechanisms has been rather organic, responding to particular calls for action over the years and consequently there are no apparently clear policies on when the African Commission may choose to create a special mechanism and what criteria it would apply in helping it decide whether to do so. Furthermore, the African Commission does not have any criteria for determining when such mechanisms should end. Yet these are seen as an attractive tool for those trying to ensure that the African Commission maintains a focus on particular matters. Whilst in itself not particularly problematic or unique to the African system that the criteria for their establishment is not clear, the consequences are threefold: there now exist a group of special mechanisms which once established appear to be there indefinitely (despite them being regularly renewed, usually on a bi-annual basis); mandates 18 Resolution on the extension of the deadline for the study on freedom of association in Africa, ACHPR/ Res.229, October 2012. Resolution on the drafting of Guidelines on Freedom of Association and Assembly in Africa, ACHPR/Res.319, November 2015. Resolution ACHPR/Res.186 (XLIX) 11 of 12 May 2011. 19 Although sometimes legal officers e.g. on policing and human rights: Newsletter. Police and Human Rights in Africa, No. 001, October 2012; or the secretariat: Final Communiqué of the 10th Extraordinary Session of the African Commission on Human and Peoples’ Rights held in Banjul, The Gambia, 12–16 December 2011, para 11. Or Civil society organisations as focal points: Intersession Report of the Working Group on Indigenous Populations/Communities in Africa, Commissioner Soyata Maïga, Chairperson of the Working Group, 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November, 2013, section D. 20 E.g. the APRM, see below; or to prepare for key events: see Resolution on the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, ACHPR/Res.50, 6 November 2000. 21 Seventeenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 2003– 2004, para 32. 22 Seventeenth Annual Activity Resolution on the Renewal of the Mandate of the Special Rapporteur on Human Rights Defenders in Africa, ACHPR/Res.315, November 2015. Report of the African Commission on Human and Peoples’ Rights 2003–2004, para 32. 23 E.g. Working Group on the Death Penalty: Resolution Urging States to Envisage a Moratorium on Death Penalty, ACHPR/Res.42, 15 November 1999. Resolution on the Rights of Older Persons in Africa, ACHPR/ Res.106, 30 May 2007. 24 D. Long and L. Muntingh, ‘The Special Rapporteur on prisons and conditions of detention in Africa and the Committee for the Prevention of Torture in Africa: The potential for synergy or inertia?’, 13 SUR Int’l J. on Hum Rts. 99, 118 (2010), at 109. 25 E.g. Resolution on Freedom of Expression, ACHPR/Res.54, May 2001.

B. Special Mechanisms

633

can be expanded over time to respond to additional needs; and this results in an increase in the number of such mechanisms over the years. As it is an individual Commissioner who holds the post of Special Rapporteur, Chair and member of a Working Group, the workload on them has grown significantly. There appears to be an unwritten presumption now that no new special mechanisms will be created and instead the existing ones used and their remit expanded if necessary. A sensible solution, this is not particularly strategic. Whilst thematic mandates are unlikely to be no longer relevant, they could be made more focused, with clearer timeframes for certain activities. When special rapporteurs were initially created, the first being in 1994 in response to the genocide in Rwanda (the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions26), it was considered pragmatic to have individual Commissioners hold these posts. It enabled the Commission to retain tight oversight over their activities, them being part of and not separate from the institution itself. Conversely because only a handful of Commissioners held these posts in the earlier years of their existence,27 their work as mandate holders was seen as something extra to their role as Commissioner. Working Groups then began to be established which were composed of a Commissioner as Chair and several members, some of whom were Commissioners. Over the years, as the number of mechanisms has increased, all Commissioners then held at least one, if not two, and often several mandates.28 Thematic work and functional issues then began to be diverted through these mechanisms to the point that certainly on the issues where there is a mechanism with a related mandate, the presumption is that discussion will take place under their auspices. Indeed, it is now sometimes difficult to see in what specific capacity individual Commissioners may be operating.29 As a result the work of special mechanisms is now integral to one’s responsibilities as Commissioner. The demand on individual Commissioners is therefore considerable. This also means that new mechanisms, even if needed, can be difficult to justify as they spread the eleven members even more thinly. Although the idea of having special rapporteurs being external experts has surfaced a number of times over the years, the African Commission has not conceded, preferring to retain control. The middle ground has been Working Groups which include external experts, usually from civil society organisations although calls have

26 At the 15th Session, April 1994. See consequently, Resolution on the Situation in Rwanda, April 1994; Report of the Special Rapporteur on Extrajudicial Executions in Africa, Tenth Activity Report 1996–1997, Annex VI. R. Murray, ‘The Special Rapporteurs in the African System’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2000, Cambridge University Press, 2002, 280–304. 27 The first three special rapporteurs in addition to that on extrajudicial executions, was the Special Rapporteur on Prisons and Conditions of Detention and the Special Rapporteur on the Rights of Women. 28 E.g. Intersession Report presented by Honourable Commissioner Reine Alapini- Gansou, Special Rapporteur on Human Rights Defenders in Africa; Focal Point on Reprisals against Human Rights Defenders in Africa; Member of the Committee for the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV; Member of the Working Group on Communications; Member of the Working Group on the Rights of Older Persons and People with Disabilities in Africa; Member of Working Group on Indigenous Populations/Communities in Africa, 58th Ordinary Session of the African Commission on Human and Peoples’ Rights (ACHPR), 6–20 April 2016, Banjul, Islamic Republic of The Gambia. 29 See e.g. promotional mission undertaken to Swaziland by the Special Rapporteur on Freedom of Expression, Report of the Promotional Mission to the Kingdom of Swaziland, 21–25 August, 2006. Activity Report of the Special Rapporteur on Human Rights Defenders in Africa, Commissioner Alapini-Gansou, May 2007.

634

31. Articles 45 and 46: Mandate of the African Commission

been made for national human rights institutions (NHRIs) and States to participate.30 But in more recent years the number of Commissioners on these groups has increased.31 Why the African Commission appears to be reluctant to relinquish some of these tasks to external experts is unknown but until it does so, few are unlikely to persuade it to create new mechanisms and individual Commissioners will continue to feel stretched. For both Commissioner appointments and externals, the criteria applied is not at all clear and the process of selection is not public. It is rare for members to be removed.32 The contribution of the mechanisms, despite these challenges, has been immense. Individual Commissioners have shown their commitment, expertise and enthusiasm to the issues, adding weight and gravitas to civil society efforts.33 Civil society organisations engaged as individuals or in their institutional capacity in working groups and by funding and providing logistical support to the special mechanisms have connected the African Commission with UN counterparts, ensuring the formers’ participation in relevant meetings and activities. The appointment and renewal of special mechanisms has been through Article 45 as well as through particular provisions of the ACHPR which cover the related right.34 For example, the resolution establishing the Special Rapporteur on the Rights of Women cited Article 45(1)(a) and Article 18(3).35

C. Missions and Visits to States Again not explicitly referred to in the text of the ACHPR, Articles 45 and 46 have been employed by the African Commission to permit it to undertake on-site visits to States.36 30 Call for Applications for the Nomination of Expert Members to serve on the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, 24 March 2011; Call for Applications for the Nomination of Expert Members of the Working Group on Death Penalty and Extrajudicial, Summary or Arbitrary Killings in Africa, 17 February 2014. 31 E.g. Resolution on the Appointment of the Chairperson and Renewal of the Mandate of the Members of the Committee for the Prevention of Torture in Africa, ACHPR/Res.254, 5 November 2013; Resolution ACHPR/Res.192 (L) 2011, 5 November 2011. Resolution on the Appointment of the Chairperson and Renewal of the Mandate of the Members of the Committee for the Prevention of Torture in Africa, ACHPR/ Res.254, 5 November 2013. Resolution on the Renewal of the Mandate and Reconstitution of the Committee for the Prevention of Torture in Africa, ACHPR/Res.322, November 2015. 32 E.g. removal of member of Working Group on extractive industries as their commitment was questioned; Resolution appointing Expert Members for the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res.268, 12 May 2014. 33 J. Harrington, ‘Special Rapporteurs of the African Commission on Human and Peoples’ Rights’, 2 AHRLJ (2001) 247–267, at 264. 34 E.g. Resolution to Renew the Mandate of the Focal Point between the African Commission on Human and Peoples’ Rights and the African Peer Review Mechanism, ACHPR/Res. 351 (EXT.OS/XX) 2016. 35 Resolution on the Designation of the Special Rapporteur on the Rights of Women in Africa, ACHPR/ Res.38, 5 May 1999. 36 Final Communiqué of the 16th Ordinary Session of the African Commission, para 47, in respect of communications. See also, e.g. Press Release on the Fact-Finding Mission to Botswana, 11 August 2008, undertaken in the context of Article 46. ZIMBABWE, Report of the Fact-Finding Mission, June 2002, DOC/OS(XXXIV)/346a, Article 46 provided it with the mandate to do so. Press Release for the Promotional Mission to the Republic of Benin, 23 August 2008; Press Release on the Promotion Mission to the Republic of Cameroon, 13 August 2012. ‘As part of its promotion mandate under Article 45 of the African Charter, the Commission undertook a joint promotion mission to Gabon from 13–18 January 2014, and a promotion mission to Zambia from 13–17 January 2014’, 36th Activity Report of the African Commission on Human and Peoples’ Rights Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2014, para 32.

C. Missions and Visits to States

635

The composition of the mission delegation varies depending on the purpose. In more recent years now that Commissioners are spread across numerous thematic mandates as special mechanisms holders the mission usually encompasses Commissioners in these capacities. Furthermore, although Commissioners go to States in their promotional capacity for that particular country to which they are assigned, often missions now encompass at least two members as well as persons from the secretariat.37 The African Commission has denoted a range of types of visits and it is not always obvious if there is a distinction between them.38 Special mechanism mandate holders have undertaken ‘advocacy visits’.39 For instance, the Special Rapporteur on Human Rights Defenders noted that the purpose of one of these visits was to ‘assess, in collaboration with the Ivorian authorities and civil society stakeholders, the implementation of [the law on] the Promotion and Protection of Human Rights Defenders in Côte d’Ivoire and to find out about the situation of human rights defenders, in particular about the situation of women human rights defenders’.40 Other types of visits to States have been labelled ‘promotional visits’,41 ‘informal visits’,42 ‘research and information visits’43 or ‘research 37 E.g. Report of the Joint Promotional Mission to the Kingdom of Swaziland by Commissioner Pansy Tlakula and Commissioner Solomon Dersso, 7–11 March 2016, adopted at the 60th Ordinary Session, 22 May 2017, the Commissioners were accompanied by two legal officers. 38 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 362–367. 39 E.g. to Senegal in September 2015, Press Release Advocacy Visit of the Special Rapporteur on Freedom of Expression and Access to the Republic of Senegal, 6 October 2015. To Côte d’Ivoire, see Intersession Report May 2014–April 2015 presented by Honourable Commissioner Reine Alapini-Gansou, Special Rapporteur on the Situation of Human Rights Defenders in Africa; Focal Point on reprisals against human rights Defenders in Africa; Member of the Committee on the Protection of the Rights of PLHIV and Those at Risk, Vulnerable to and Affected by HIV/AIDS Member of the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa 56th Ordinary Session Banjul, 21 April–7 May 2015. 40 Intersession Report May 2014–April 2015 presented by Honourable Commissioner Reine Alapini- Gansou, Special Rapporteur on the Situation of Human Rights Defenders in Africa; Focal Point on reprisals against human rights Defenders in Africa; Member of the Committee on the Protection of the Rights of PLHIV and Those at Risk, Vulnerable to and Affected by HIV/AIDS Member of the Working Group on the Rights of Older Persons and Persons with Disabilities in Africa 56th Ordinary Session Banjul, 21 April–7 May 2015. 41 Intersession Report by Me Reine Alapini-Gansou, Special Rapporteur on the Rights of Human Rights Defenders in Africa Point II May 2008–November 2008. To Mauritania, December 2017 and to the Gambia in April 2017, see 60th Ordinary Session of the African Commission on Human and Peoples’ Rights Intersession Activity Report presented by Honourable Commissioner Reine Alapini-Gansou, Special Rapporteur on Human Rights Defenders in Africa and Focal Point on Reprisals; Chairperson of the Joint Working Group on ACHPR and United Nations Special Procedures; Member of the Committee for the Protection of Persons Living with HIV, Those at Risk, Vulnerable to and Affected by HIV/AIDS; Member of the Working Group on the Rights of Older Persons and People with Disabilities in Africa; Member of the Working Group on Indigenous Populations; Member of the Working Group on Communications, Niamey, 8–22 May, 2017. To Côte d’Ivoire: Mission on Rights of Women, 2001, 4–8 February 2001; Promotional Mission Report of Commissioner Angela Melo, Special. Rapporteur on the Rights of Women in Africa. In The Republic of the Sudan (From 30 March–4 April 2003). By the Special Rapporteur on Refugees, to Sudan, Botswana, Mali, Mauritania, Senegal and Zimbabwe: Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced and Migrants in Africa Since its Creation by Madam Maya Sahli-Fadel Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa. 52nd Ordinary Session of the African commission on Human and Peoples’ Rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012. 42 E.g. Activity Report of the Special Rapporteur on Human Rights Defenders in Africa, Commissioner Alapini- Gansou, May 2007; and to a mine in South Africa, see Intersession Report, (May– October 2013) Commissioner Pacifique Manirakiza, Presented at the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013. 43 E.g. by the Working Group on Indigenous Populations/Communities to DRC, August 2009; and to Zambia in January 2014, see Intersession Report, (November 2013–April 2014), Commissioner Pacifique

636

31. Articles 45 and 46: Mandate of the African Commission

missions’. For instance, as part of the mandate of the Working Group to ‘[r]‌equest, gather, receive and exchange information and materials from all relevant sources, including Governments . . . Research missions provide a useful opportunity through which to fulfil this part of the Working Group’s mandate’.44 There have been ‘country missions’,45 follow-up missions,46 and ‘fact finding missions’.47 For instance, the Committee on HIV/ AIDS undertook such a mission to Kenya in October 2011, although the aim appears to be both protective and promotional: ‘to meet some stakeholders and to enable members of the Committee to make a decision on the issues, the challenges and opportunities in terms of legal protection of PLWHA [People Living with HIV/AIDS] . . . Furthermore, this activity facilitated the promotion of the Commission among the partners working in the field of HIV, who, in actual fact, are not aware about the Commission, or at best, confuse the role of the Commission with that of the AU Commission, the sub-regional Courts and the African Court on Human and Peoples’ Rights’.48 Some of these reports are made public and some are not, although there is no apparent rationale clarifying the distinction or whether it is simply a matter of resources and failing to keep the website up to date. All types of missions are often accompanied by a press release prior to them taking place.49 The distinction between ‘promotional’ and ‘protective’ is useful to distort here as it enables the African Commission to bypass the challenges of Article 59 and confidentiality.50

D. Interpretative Mandate: Resolutions, Guidelines and Principles and General Comments Article 45(1)(b) and 45(3) provide the African Commission with a broad mandate to interpret the ACHPR.51 Again, the distinction between this part of its mandate and its ‘promotion’ and ‘protective’ functions, despite this being separated out in the ACHPR, is not clear-cut in practice. The interpretation of the ACHPR inevitably emanates also from seminars and workshops held when promoting the African Charter, and its decisions in

Manirakiza, presented at the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, Luanda, Angola, 28 April–12 May 2014. 44 Inter- Session Report, (May– October 2013) Commissioner Pacifique Manirakiza, presented at the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013. 45 E.g. to Republic of Congo in March 2010, Intersession Activity Report of the Chairperson of the Working Group on Indigenous Populations/Communities, 47th Ordinary Session. 46 E.g. to Uganda in August 2013 to follow up from mission in July 2006, HIV Committee. 47 Mandate of the Special Rapporteur on Human Rights Defenders and Focal Point on Reprisals in Africa End of Mandate Report, presented by Madam Reine Alapini-Gansou, Commissioner and Special Rapporteur on Human Rights Defenders and Focal Point on Reprisals in Africa, November 2017, para 21. 48 Intersession Report of the Committee on the Protection of the Rights of Persons Living with HIV/Aids and Those At Risk, 50th Session of the African Commission on Human and Peoples’ Rights by Commissioner Reine Alapini-Gansou, Chairperson of the Committee on the Protection of the Rights of Persons Living with HIV/AIDS (PLWHA) those at risk vulnerable to and Affected by the Virus, April–October, 2011. 49 E.g. Press Release on the Promotion Mission to the Republic of Cameroon, 13 August 2012 with respect to a mission taking place from 4–14 September 2012. 50 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 367. 51 See also Rules 116 and 127, Rules of Procedure of the African Commission 2010.

D. Interpretative Mandate

637

its communications procedures52 to develop aspects of the substantive rights and procedural provisions of the ACHPR.

1. Resolutions Nearly 400 resolutions have been adopted since the African Commission became operational in 1987.53 Its first and indeed some of its very early resolutions were termed ‘recommendations’, dealing with periodic reports,54 and now it is common to adopt several per session on a range of thematic issues, specific countries or logistical practicalities such as the renewal of special mechanisms or other matters relating to the functioning of the African Commission. They are adopted sometimes, but not always, expressly under Article 45 of the ACHPR.55 Resolutions on thematic issues have been adopted under Article 45(1)(b) and the Commission’s mandate 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 legislation’.56 These have been extensive in their scope, on all aspects of the ACHPR. The resolution may often refer to the specific provision of the ACHPR in relation to the rights it is addressing. A resolution can be a step towards greater elaboration of the issues through guidelines and principles,57 a General Comment, and the commissioning of studies.58 In a few, albeit increasing, instances this has developed into the creation of an additional Protocol to the African Charter.59 Resolutions have additionally been used to set out general standards applicable to a range of rights across the ACHPR.60 Country resolutions highlight matters of urgency, such as events in November 2005 in Uganda where members of the judiciary and legal profession were threatened;61 and

52 E.g. as it stated in one decision: ‘Unlike in the other regional human rights instruments, notably the American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms which all consider the period of six months, as a reasonable period within which Complaints must be submitted after the exhaustion of local remedies, the African Charter has no such period. The African Commission by virtue of its mandate under Article 45 of the Charter therefore interprets this provision on a case by case basis taking cognizance of its duty to promote and protect human rights as laid down in the Charter’, Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 59. 53 For an overview until the early 2000s, see F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 542–550. 54 Recommendation on Periodic Reports, ACHPR/Res.3R, 28 April 1988. 55 E.g. Resolution on the Human Rights Situation in Uganda, ACHPR/Res.94, 5 December 2005. 56 E.g. Resolution on Climate Change in Africa, ACHPR/Res.271, 12 May 2014. 57 E.g. Resolution on the Drafting of Guidelines on Human Rights and the fight against Terrorism, ACHPR/Res.74, 12 May 2014; Resolution on the Adoption of the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System, ACHPR/Res.100, 29 November 2006. 58 E.g. on the impact of climate change on human rights, Resolution on Climate Change in Africa, ACHPR/ Res.271, 12 May 2014. 59 See e.g. Resolution on the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on the Right to Nationality in Africa, ACHPR/Res.277, 12 May 2014. 60 E.g. Resolution on the Integration of the Provisions of the African Charter on Human and Peoples’ Rights into National Laws of States, ACHPR/Res.3, 14 April 1989; Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States Parties, ACHPR/Res.97, 29 November 2006. 61 Resolution on the Human Rights Situation in Uganda, ACHPR/Res.94, 5 December 2005.

638

31. Articles 45 and 46: Mandate of the African Commission

the situations in Somalia in 2008 and Guinea in 2009 which prompted the African Commission to consider a mission to the States.62 Special mechanisms have been created by resolutions and their mandates detailed and subsequently renewed through these documents. In addition, resolutions have covered the working methods of the African Commission itself, either through the establishment of special mechanisms such as the Working Group on Communications63 or the Working Group on Specific Issues relating to the African Commission,64 or more generally.65 Resolutions are a useful way to ensure the African Commission’s commitment to a particular issue or task that it has set itself. Many civil society organisations (CSOs) will work regularly on engaging with the African Commission to adopt resolutions on matters of concern to them. As noted below, CSOs and non-governmental organisations (NGOs) have met in a forum, organised by the International Commission of Jurists and then the African Centre for Democracy and Human Rights Studies, prior to each Ordinary Session of the African Commission. Their practice has been to discuss and consequently adopt resolutions reflecting those discussions on a broad range of contemporary issues relating to specific countries or matters relevant to the continent as a whole. It used to be the practice that these resolutions were presented to the African Commission and read out in the opening ceremony during the speech of the representative of NGOs. The influence of these resolutions on the African Commission’s thinking at that time was considerable, the high point being the adoption, sometimes almost verbatim, of the texts of the NGO forum as its own. This inevitably eventually caused considerable consternation among States in a collective backlash against this practice during the submission of the African Commission’s 19th Activity Report to the OAU.66 The result was the withholding by the OAU Assembly of the adoption of the African Commission’s activity report until States had given their views on the resolutions, and in the future calling on the African Commission that it ‘enlists the responses of all States parties to its Resolutions and Decisions before submitting them to the Executive Council and/or the Assembly for consideration’.67 Leaving aside the worrying question of the interference of the political organs into the findings of the independent African Commission, this had two results. Firstly, the African Commission became more careful, and one could argue, quite rightly, in simply adopting the resolutions of the NGOs as its own. Secondly, resolutions then did not form part of the activity 62 Resolution on the Human Rights Situation in the Republic of Somalia, ACHPR/Res.129, 23 February 2008; Resolution on the Human Rights Situation in the Republic of Guinea, ACHPR/ Res.146, 11 October 2009. 63 Resolution Establishing a Working Group on Communications and Appointment of Members, ACHPR/ Res.194, 5 November 2011. 64 Resolution on the Creation of a Working Group on Specific Issues relevant to the Work of the African Commission on Human and Peoples’ Rights, ACHPR/Res.77, 11 May 2005. 65 E.g. Resolution on the Governance of the Commission and its Secretariat, ACHPR/Res.294 (EXT.OS/ XVII) 20, 28 February 2015. 66 Involving Uganda, Eritrea, Ethiopia, Sudan and Zimbabwe: Submission by Ethiopia in accordance with Resolution EX/CL/Dec.257 (VIII), 20th Activity Report of the African Commission on Human and Peoples’ Rights, Annex III; Comments of the Sudan on the Decision of the African Commission Concerning Darfur during its 38th Session, 20th Activity Report of the African Commission on Human and Peoples’ Rights, Annex III; Response of Zimbabwe to the Resolution of the African Commission adopted during its 38th Session, 20th Activity Report of the African Commission on Human and Peoples’ Rights, Annex III; F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 403–404. 67 Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.257 (VIII), January 2006.

D. Interpretative Mandate

639

report of the African Commission but were instead adopted after the session and thus without needing the authorisation of the Assembly.68 Initially resolutions were the preferred form for interpretation of certain rights. However, over time Guidelines and Principles were also developed. The Guidelines on National Periodic Reports were the first set of Guidelines adopted by the African Commission in 1989 to assist States in their Article 62 obligation.69 Subsequently it then drafted and adopted a series of guidelines and principles focusing on substantive provisions of the ACHPR which tended to be interpretative of the relevant rights.70 An analysis of the origin of their provisions reveals reference to UN treaties and other documents; regional standards and jurisprudence from the European and Inter-American system; and comparatively less use of its own documents, and jurisprudence from African courts and other institutions,71 although this has improved over time. For the sake of completeness, mention should also be made of the African Commission’s Committee on Resolutions which it formed, from among its members, in April 2016 with a mandate to: Collect data and information on situations of human rights violations on the continent that may be addressed in resolutions and make proposals to the Commission; Consider resolutions proposed by subsidiary mechanisms of the Commission prior to their adoption in plenary; Ensure that the final versions of resolutions faithfully reflect the observations and comments of Members of the Commission; Ensure proper publication and popularisation of adopted resolutions through the appropriate means; Compile and analyse all resolutions of the Commission.72

2. General Comments Similar to the practice of UN treaty bodies, in November 2012, the African Commission adopted its first General Comment on the Maputo Protocol. Whether the development of resolutions or guidelines might have equally served the purpose, Geldenhuys notes the choice to adopt a General Comment on Article 14(1)(d) and (e) of the Maputo Protocol was a ‘shift in the paradigm of the African Commission’ to provide further detail on the content of the rights in the Protocol and the ACHPR.73 69 See Chapter 36 (Article 59). Guidelines on National Periodic Reports, 14 April 1989. E.g. Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, 23 October 2002; Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 29 May 2003; Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, 24 October 2011; Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines), 25 April 2015; Principles and Guidelines on Human Rights while Countering Terrorism in Africa (Principles and Guidelines), 29 January 2016; Guidelines on Freedom of Association and Assembly in Africa, 21 September 2017. See also Resolution on Developing Guidelines on Combatting Sexual Violence and its Consequences, ACHPR/Res. 365 (EXT.OS/XX1) 2017, 4 March 2017; Resolution on the Need to Develop Principles on the Declassification and Decriminalization of Petty Offences in Africa, ACHPR/Res. 366 (EXT.OS/XX1) 2017, 4 March 2017; Resolution on the Need to Develop Guidelines on Policing and Assemblies in Africa, ACHPR/Res. 363(LIX) 2016, 4 November 2016. 71 See Chapter 37 (Articles 60–61). 72 Resolution on the Establishment of a Resolutions Committee, ACHPR/Res. 338(LVIII) 2016, 20 April 2016. Resolution on the Appointment of the Chairperson, Renewal of the Mandate and Reconstitution of the Committee on Resolutions, ACHPR/Res. 390(LXI) 2017, 15 November 2017. 73 M. Geldenhuys et al, ‘The African Women’s Protocol and HIV: Delineating the African Commission’s General Comment on articles 14(1)(d) and (e) of the Protocol’, 14 AHRLJ (2014) 681–704, at 690. 68 70

640

31. Articles 45 and 46: Mandate of the African Commission

In addition to this General Comment and another on the Maputo Protocol,74 General Comments have been adopted on the right to life,75 and the right to redress for victims of torture.76 Its first joint General Comment, with the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on child marriage, was adopted in January 2018.77

3. Additional Protocols More complex and less common has been the participation in the creation of additional protocols to the ACHPR. As is explored further in Chapter 39 (Articles 63–68) one of the rationales behind some of these documents is to develop in more detail the content of specific provisions of the ACHPR. Requiring a sustained commitment by the African Commission as well as those lobbying for its development, the adoption of a protocol (as compared to say the other tools before the African Commission) may ensure considerable visibility but it is not without its risks (it will take time; its provisions could be diluted once it reaches State level; and it may never end up coming into force if an insufficient number of States ratify it). While these protocols stand to a certain extent outside of the ACHPR as they are only binding on the States which ratify or accede to them, they do help to elaborate principles and standards which can inform the African Commission’s approach under the ACHPR itself.78

4. Other Interpretative Mechanisms Finally one must also mention studies which have been commissioned several times on thematic issues.79 They are a useful device to bring together strands of the Commission’s work, call in external experts and to examine other international and regional standards without necessarily giving a commitment to go further. They are sometimes a stepping stone to further elaboration of guidance on an issue.80

E. Meetings and Workshops In addition to the Ordinary and Extraordinary Sessions of the African Commission, meetings of its special mechanisms,81 and regular invites sent to Commissioners to attend 74 General Comments on Article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 6 November 2012; General Comment No. 2 on Article 14(1)(a), (b), (c) and (f ) and Article 14(2)(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 28 November 2014. 75 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2013. 76 General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), 11 May 2017. 77 Joint General Comment of the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on ending Child Marriage, 30 January 2018. 78 See e.g. discussion around abortion etc. and women’s rights, Chapter 19 (Article 18). 79 E.g. on freedom of association and assembly, Resolution ACHPR/Res.186 (XLIX), 12 May 2011; on illicit capital flight, see Resolution on Illicit Capital Flight from Africa, ACHPR/Res.236, 23 April 2016. 80 E.g. the study on the right to nationality led to work towards a separate protocol: Study on the Right to Nationality in Africa, 2014; Resolution on the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on the Right to Nationality in Africa, ACHPR/Res.277, 12 May 2014. 81 See above, section B.

F. Urgent Appeals

641

events in and outside of Africa, the Commission has also held workshops and seminars in the Gambia and across Africa on various aspects of its mandate. Again, under the remit of Article 45, these are usually organised on the initiative of CSOs, but sometimes also with States and NHRIs, who are expected to find the funding and make the necessary logistical arrangements. Holding a workshop jointly with the African Commission not only gives some level of authority to proceedings but is used as a tactic by CSOs and others to bring attention to an issue and encourage the African Commission itself to keep it on its radar or as a step towards it taking further action. Seminars are an important process in the development of standards under various substantive provisions in the ACHPR, from, for example, the impact of conflict situations on women and children,82 to torture prevention.83

F. Urgent Appeals Separate (although not always) from Article 58 and its communication procedure and provisional measures, the African Commission has developed the ability to issue an ‘urgent appeal’ in relation to emergency matters which are brought before it. The Rules of Procedure make reference to urgent action being identified in Concluding Observations on State reports;84 and within the context of Article 58(3),85 and provisional measures.86 ‘Urgent appeals’ are mentioned in Rule 80(2) which enable the Commission and its subsidiary mechanisms to ‘take action’ through urgent appeals when dealing with ‘matters of emergency’. Although the earlier sections of this Rule seem to relate to Article 58, Rule 80(2) could arguably be read as not being similarly constrained. Articles 45 and 46 are cited as the authority under which it operates in these regards.87 In practice, it has stated that such urgent appeals are issued either by a particular special mechanism which has been approached directly;88 or through a press release by the African Commission as a whole.89 These urgent appeals cite the name of the individual and the circumstances of their situation and some conclusions on the Commission’s view on any violations which may arise under the ACHPR. For example, in one matter:

82 Seminar on the impact of conflict on the rights of women and girls in the Republic of Mali, 28–30 October 2014, in collaboration with the Ministry of Women, Child and Family Affairs of the Republic of Mali, from 28–30 October 2014 in Bamako, Mali. 83 The Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines) 2008 were adopted after a series of seminars culminating on Robben Island in South Africa in 2002, after which the Guidelines are named. 84 Rule 78(1) Rules of Procedure of the African Commission 2010. 85 Rule 79(1)(b) Rules of Procedure of the African Commission 2010. See Chapter 35 (Article 58). 86 Rule 98, Rules of Procedure of the African Commission 2010. See Chapter 33 (Articles 55 and 57). 87 Press Release on the Forced Disappearance and killing of a human rights lawyer and two others, 5 July 2016. 88 E.g. civil society organisations drew the attention of the Working Group on HIV/AIDS to abuses against individuals in Tanzania, see Combined Inter-Session Activity Report (April 2013–October 2013) of Hon. Commissioner Lucy Asuagbor, Chairperson of the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, Presented to the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 22 October–5 November 2013. 89 Press Release on the Forced Disappearance and killing of a human rights lawyer and two others, 5 July 2016

642

31. Articles 45 and 46: Mandate of the African Commission

According to the information reaching the Commission, Willie Kimani, who worked as an investigator with the International Justice Mission, is believed to have been abducted together with his client Josephat Mwendwa and their driver Joseph Muiruri, by persons believed to be police officers, after attending a court in Mavoko for a case involving an officer of the administration police. Reportedly, they were unlawfully detained at the Syokimau AP Camp for a period of time on 23 June 2016, after which they were moved, and their whereabouts subsequently became unknown. On Friday 1 July 2016, the African Commission received reports that the bodies of the three victims were found in a river in Machakos County. While the High Court of Kenya reportedly ordered autopsies to be carried out, preliminary reports indicated that the bodies were found with their hands tied and with indications of beating and strangling. The Commission finds the reported forced disappearance and subsequent killings of these three Kenyan citizens under suspicious circumstances, implicating the police, very concerning; more so because these might be owing to their efforts to seek justice against a police officer. Apart from being contrary to the rights guaranteed in the African Charter, the atmosphere of fear and insecurity engendered by such targeting of human rights lawyers and citizens seeking the vindication of their rights through the courts, threatens the respect for and protection of the rights of Kenyan citizens guaranteed in Kenya’s 2010 Constitution and the African Charter. We therefore: 1 . Strongly condemn the forced disappearance and subsequent brutal killing of the victims; 2. Call on the Government of Kenya to ensure that an independent, thorough and transparent investigation is undertaken into the alleged forced disappearance and subsequent death of the victims as well as the circumstances leading to these tragic incidents and that all those responsible are brought to justice in accordance with the African Charter; 3. Urge the Government of Kenya to guarantee to the families of the victims full access to justice and adequate remedies for the losses they suffered and to ensure that other human rights defenders in Kenya are able to carry out their legitimate human rights activities without fear of reprisals and free of all restrictions; and 4. Further urge that relevant institutional and regulatory reforms are put in place to ensure that the police fully respect and comply with human rights and to prevent the recurrence of similar incidents.90

More immediate than provisional measures,91 not requiring that a communication be pending before the African Commission, and enabling therefore any such call by the Commission to be public mean that urgent appeals are not shackled in the same way as processes under Article 55.

G. Cooperation with Other Entities Article 45(1)(a) provides the African Commission with the mandate to ‘encourage national and local institutions concerned with human and peoples’ rights’ that (with Article 45(1)(c)) ‘cooperate[s]‌with other African and international institutions concerned with the promotion and protection of human and peoples’ rights’. Rule 65 of the African Commission’s Rules of Procedure is entitled ‘Participation of specialized agencies, intergovernmental organisations and United Nations bodies’. This enables these bodies to participate in the public sessions of the African Commission, with them having the ability,

90 Press Release on the Forced Disappearance and killing of a human rights lawyer and two others, 5 July 2016. 91 See Chapter 33 (Articles 55 and 57).

G. Cooperation with Other Entities

643

with the permission of the African Commission, to make oral or written statements, or to submit reports on implementation of the ACHPR.

1. National Human Rights Institutions and NGOs/CSOs As detailed in Chapter 26 (Article 25), the African Commission has developed the procedure of affiliated status to enable it to engage with national human rights institutions. While clearly there is willingness on the part of the African Commission to develop this relationship, as Chapter 26 makes clear, this has not been explored to its fullest extent. In contrast, NGOs and CSOs have been crucial to the successes of the African human rights system.92 They have helped develop the standards under the various human rights instruments adopted by the OAU and then the African Union (AU); they have worked closely with the African Commission and African Court on Human and Peoples’ Rights and the African Committee on the Rights and Welfare of the Child to enhance their working procedures and practices. Their regular engagement and sustained commitment to the African human rights system has resulted in fundamental and significant changes to it, including the establishment of the African Court itself, as well as obtaining remedies for victims of human rights violations. If the credibility and legitimacy of a human rights system at the regional or international levels is measured in terms of its openness and level of engagement with civil society and non-governmental organisations,93 then the African Commission would score very well.94 Since its very first meetings,95 NGOs and CSOs have been present and as sessions have tended to be split roughly between public and private this has enabled the attendance and participation of these organisations in significant parts of the Commission’s work. Although the AU provides for civil society engagement through its Economic, Social and Cultural Council (ECOSOCC)96 ‘composed of different social and professional groups of the Member States of the Union’,97 it is the African Commission which has been the first port of call for many human rights organisations on the continent or those international organisations with a remit in Africa. Unlike before the African Commission where NGOs and CSOs were the mainstay of the Commission’s case load under its communication procedure, and certainly now, in addition, still play a crucial advisory role for individuals and others who wish to submit a communication, they have less opportunity of engagement with the African Court.98 Article 5 of the Protocol Establishing the African Court only permits NGOs to submit cases directly to the Court if the State has not only ratified the Protocol but also made an additional declaration under Article 34(6),99 something which only eight States have Grand Bay (Mauritius) Declaration and Plan of Action, OAU. Doc CONF/HRA/Decl. (I), paras 17–18. A. Clapham, ‘Defining the Role of Non-Governmental Organizations with Regard to the UN Human Rights Treaty Bodies’, in Bayefsky A.F. (ed.), The UN Human Rights Treaty System in the 21st Century (Kluwer Law International, 2000), 183–194, at 183. M. A. Olz, ‘Non-governmental organisations in regional human rights systems’, Columbian Human Rights Law Review 28 (1997) 307. 94 O. C. Okafor, ‘Reconceiving “third world” legitimate governance struggles in our time: Emergent imperatives for rights activism’, Buffalo Human Rights Law Review 6 (2000) 1, at 8–9. 95 See Final Communiqué of the 4th Ordinary Session of the African Commission on Human and Peoples’ Rights, 26 October 1988, AF/COM/HPR/Communiqué, para 6. 96 97 Constitutive Act, Articles 5 and 22. Constitutive Act, Article 22. 98 See Chapter 39 (Articles 63–68). 99 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Article 5(3) and Article 34(6). Rule 29(3)(c) Rules of Court. 92 93

644

31. Articles 45 and 46: Mandate of the African Commission

done.100 A clever use of the advisory opinion jurisdiction, whereby human rights organisations tried to argue that observer status with the African Commission thereby rendered them an ‘African organisation recognised by the AU’ did not meet with approval by the African Court, foreclosing this avenue.101 The African Commission and the AU have consistently recognised the ‘important role’ of such organisations in promoting and protecting human rights on the continent,102 drawing expressly upon Article 45 of the ACHPR as part of the African Commission’s promotional mandate to ‘encourage national and local institutions concerned with human and peoples’ rights’, and requiring it to ‘cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights’. The need to work with them has evolved in part out of a very practical desire by the African Commission to obtain additional resources and support, them being a medium through which funding for core elements of its work can be achieved. This inevitably results in tensions whereby governments who, drawing upon the often adversarial and, it is argued, sometimes ‘dogmatic’ nature of the system, can claim neo-colonialist agendas of the international organisations and question the legitimacy and accuracy of allegations of local CSOs and NGOs.103 The Rules of Procedure provide further detail on how the African Commission can develop its relationship with NGOs and CSOs. This includes specifics such as proposing items on the Commission’s agenda,104 and participating in the sessions.105 It is through the observer status process that most NGOs and CSOs engage with the African Commission.106 The 1998 Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organizations Working in the Field of Human Rights with the African Commission on Human and Peoples’ Rights required that NGOs provide the African Commission with a report on its activities every two years and ‘establish close relations of cooperation with the African Commission and to engage in regular consultations 100 As at June 2018 these are: Benin, Burkina Faso, Côte d’Ivoire, Ghana, Mali, Malawi, Tanzania and Republic of Tunisia. Rwanda had also made an Article 34(6) declaration but then subsequently withdrew it. See In the Matter of Rutabingwa Chrysanthe v Republic of Rwanda, App. No. 022/2015, Order, 3 June 2016, where it decided to continue proceedings. The judgment was then adopted on 11 May 2018. 101 Rule 68 of the Rules of Court provides that: ‘Requests for advisory opinions pursuant to article 4 of the Protocol may be filed with the Court by a Member State, by the African Union, by any organ of the African Union or by an African Organization recognized by the African Union’. See Request for Advisory Opinion by the Socio-Economic Rights and Accountability Project (SERAP) No, 001/2013, Advisory Opinion of the African Court on Human and Peoples’ Rights, 26 May 2017. 102 E.g. Kigali Declaration, 2003, para 28. 103 A. de Waal, ‘Human Rights in Africa: Values, Institutions and Opportunities’, in K. Hossain et al, Human Rights Commissions and Ombudsman Offices. National Experiences Throughout the World (Kluwer Law International, 2001) 759–781, at 767. L. Gordenker and T. G. Weiss, ‘NGO participation in the international policy process’, Third World Quarterly 16(3) (1995) 543–555, at 553. C.E. Welch, ‘Taking rights seriously: Citizen action through NGOs’, NQHR 19(2) (2001) 119–122, at 121; S. Dicklitch, ‘Action for Development in Uganda’, in C. Welch, NGOs and Human Rights: Promise and Performance, (University of Pennsylvania Press, 2000) at 182; O.C. Okafor, ‘Modest harvests: On the significant (but limited) impact of human rights NGOs on legislative and executive behaviour in Nigeria’, Journal of African Law 48(1) (2004) 23–49, at 25. K. Appiayei-Atua, ‘Civil society, human rights and development in Africa: A critical analysis’, Peace, Conflict and Development 2 (2002). 104 105 Rule 6(3)(f ), Rules of Procedure. Rule 72, Rules of Procedure. 106 A. Motala, Non-Governmental Organisations in the African System’, in M. D. Evans and, R. Murray, 1st edition, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2000, Cambridge University Press, 2002 246–279, at 249; Final Communiqué of the Fourth Ordinary Session of the African Commission on Human and Peoples’ Rights; similarly Final Communiqué of the 15th Ordinary Session of the African Commission on Human and Peoples’ Rights, para 14.

G. Cooperation with Other Entities

645

with it on all matters of common interest’.107 Although the African Commission can deny organisations the opportunity to participate in its sessions, propose items on its agenda and eventually withdraw observer status, such sanctions have not been employed (with the exception of its deeply troubling treatment of the Coalition of African Lesbians), the most it has done is threaten to do so or publishing a list of those who have not sent in their reports. Over 400 NGOs have observer status with the Commission. It was the International Commission of Jurists (ICJ) who initiated the workshops that took place prior to the sessions of the African Commission, the purpose of which was to provide an opportunity for, principally African, NGOs to become familiar with the workings of the African Commission and to work with each other.108 This NGO Forum has continued, now coordinated by the Banjul-based African Centre for Democracy and Human Rights Studies, and is still an important part of the African human rights system. Resolutions adopted by this Forum have influenced subsequent agenda items and resolutions adopted by the African Commission, on some occasions it has been argued, the similarities between the two have been too close.109 The African Commission has waxed and waned in the past between an open-door approach to NGO and CSO engagement and more stringent requirements in terms of the reports these organisations should provide in return for this access, their ability to speak at various points on the agenda during public sessions and the influence they have over the work of the Commission. Yet it has remained consistently the case that NGOs and CSOs have been an enduring and constant presence at its meetings, and a sustained partner in all aspects of its work. Largely because of this committed NGO and CSO involvement, African governments in turn started to see the merit in attending the sessions of the African Commission.110 Concerned that the situation in their countries was being discussed at the Commission’s sessions and that they had not had a chance to respond to this criticism, an increasing number of States were prompted to send high level delegations to the sessions including, among their contingent, ministers and other senior ranking officials. During discussions on the agenda items many States now exercise a right to reply to statements by NGOs and CSOs on alleged violations. It is probably fair to say that all the initiatives espoused the African Commission since its establishment (whether this has been with the adoption of resolutions,111 or the establishment of special mechanisms,112 for example) have in one form or another involved, and in many instances been instigated by, NGOs and CSOs.113 107 Resolution on the Cooperation between the African Commission on Human and Peoples’ Rights and NGOs having Observer Status with the Commission, ACHPR/Res.30, 31 October 1998. 108 A. Motala, Non-Governmental Organisations in the African System’, in M. D. Evans and R. Murray, 1st edition, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002, 246–279, at 249. 109 See section D.1. 110 For example, in relation to Nigeria, see O.C. Okafor, ‘Modest harvests: On the significant (but limited) impact of human rights NGOs on legislative and executive behaviour in Nigeria’, Journal of African Law 48(1) (2004)  23–49. 111 See section D.1 above. 112 See Section B.1 above. M. Evans and R. Murray, ‘The Special Rapporteurs in the African System’, in M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, Cambridge University Press, 2nd edition, 2011. F. Viljoen, ‘The Special Rapporteur on prisons and conditions of detention in Africa: Achievements and possibilities’, Human Rights Quarterly 27 (2005) 125–171. An initiative of Penal Reform International. 113 Viljoen, International Human Rights Law in Africa, at 409.

646

31. Articles 45 and 46: Mandate of the African Commission

The African Commission was called upon to adopt measures to enhance the protection of NGOs and CSOs themselves through the appointment of a Special Rapporteur on Human Rights Defenders in 2004.114 She has a broad mandate including to ‘seek, receive, examine and act upon information’ on the situation of human rights defenders, report to each session of the African Commission, cooperate with States, national human rights institutions, international and regional bodies and human rights defenders, ‘develop and recommend effective strategies to better protect human rights defenders’, and raise awareness of the UN Declaration on Human Rights Defenders in Africa.115 She has succeeded in intervening on behalf of NGOs, CSOs and individuals before various governments and highlighting abuses committed against them.116 Although the State reporting procedure under Article 62 of the Charter does not on the face of it permit NGO and CSO engagement, here again they have had an important role to play.117 The quality of the questions posed and information available to Commissioners to examine the report effectively is heavily reliant on NGO and CSO input. Even when State reports were not available in advance of the session,118 this did not stop organisations from submitting information and ‘shadow reports’ to the African Commission challenging the claims made in the State report itself. The African Commission subsequently recognised this important role with express provisions when it revised its Rules of Procedure.119 Where the African Commission has issued concluding observations on the State report, something which it has not done consistently, it is NGOs and CSOs who have taken these up and publicised them, domestic organisations in the home countries and at the regional and international levels. NGOs and CSOs have worked with the African Commission to enable it to develop norms and standards on various rights in the ACHPR.120 Thus, the Guidelines and Measures for the prohibition and prevention of Torture, Cruel, Inhuman and Degrading Treatment and Punishment (Robben Island Guidelines)121 were the result of an NGO initiative from the Geneva-based Association for the Prevention of Torture (APT).122 Despite a few cases submitted by individuals or groups themselves, the majority of the African Commission’s case load has come from NGOs and CSOs. As noted in Chapter 33 (Articles 55 and 57), the Commission has been open in terms of its locus standi and permitted cases to be submitted by NGOs and CSOs in their own name, or on behalf of alleged victims, both individuals and groups. Indeed, the African Commission has

114 Resolution on the Protection of Human Rights Defenders in Africa, 35th Session, 21 May–4 June 2004, Banjul, The Gambia. 115 Resolution on the Protection of Human Rights Defenders in Africa, 35th Session, 21 May–4 June 2004, Banjul, The Gambia. 116 in M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, Cambridge University Press, 2nd edition 2011. 117 See Chapter 38 (Article 62). 118 At the 39th Session in May 2006 the Commission for the first time placed those reports that were due to be examined on its website prior to the session. 119 Rules of Procedure 2010, Rule 74(2) and 75(5). 120 N. Mbelle, ‘The role of non-governmental organisations and National human rights institutions at the African Commission’ in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2000, 2nd edition, 2011. See above, section D.4. 121 Resolution ACHPR/ Res. 61(XXXII) 02 adopted during the 32nd Session held between 17 and 23 October 2002. 122 See Chapter 6 (Article 5).

G. Cooperation with Other Entities

647

actively encouraged organisations to bring more cases to the Commission.123 Although submitting cases on behalf of others, so central to the process have NGOs and CSOs been that in the early years of receiving communications the names of the cases reflected those of NGOs submitting them rather than the alleged victims within them. This eventually led the African Commission to reconsider the issue of locus standi and imposing stricter requirements on those submitting cases on behalf of others.124 NGOs and CSOs have changed the institutional landscape of the African human rights system. They were the driving force behind the creation of the African Court on Human and Peoples’ Rights. From the earliest experts’ meeting in December 1993 they were central to the drafting of the text that would eventually become the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights.125 However, their role is not reflected in the preamble to the adopted Protocol, as Julia Harrington explains, because of ‘the discomfort of African States with the important role played by non-State actors in the drafting process. Officially—that is, according to the Protocol—NGOs played no part in the process.’126 Their involvement from the early stages had a significant impact in terms of how the Protocol was framed and the range of issues that were discussed and NGOs were able to lobby hard for their role in the new Court, succeeding, despite state concern, at least in enabling NGOs to have direct access to the Court if states made a declaration stating so.127 Similarly, NGOs have been central to the developments around the merging of the African Court on Human and Peoples’ Rights with the African Court of Justice to create an African Court of Justice and Human and Peoples’ Rights and earlier drafts of the protocol adopted in 2014 were formulated in London several years earlier and then subsequently used as a basis for the text itself.128 A further example is also revealing. The Working Group on Issues Relating to the Work of the African Commission was established in May 2005.129 It was prompted by the advice of three NGOs who have had a particularly close and influential relationship with the African Commission: Interights, the Institute for Human Rights and Development in Africa (IHRDA) and the Open Society Justice Initiative. They worked with the African Commission to encourage it to consider some particularly controversial issues surrounding how it operated by setting up a working group composed of Commissioners and themselves. This Working Group then had a significant impact for example, through

123 Particularly those involved in women’s rights, Report of Brainstorming meeting, recommendations, para 58(d). 124 African Commission on Human and Peoples’ Rights, Capacity to Bring a Communication before the African Commission on Human and Peoples’ Rights (Locus Standi), 2007, on file with author. 125 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU/LEG/AFCHPR/PROT (III), adopted by the OAU Assembly of Heads of State and Government, 34th session, Burkina Faso, 8–10 June 1998. 126 J. Harrington, ‘The African Court on Human and Peoples’ Rights’, in M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2000, Cambridge University Press, 2002, 305–334, at 308. See also See also A. Motala, ‘Access to the African Court on Human and Peoples’ Rights for victims and human rights organisations’, 15(1) Interights Bulletin (2004) 27–28. 127 Articles 5 and 34 of the Protocol. 128 I. Kane and A. C. Motala, ‘Creation of a New African Court of Justice and Human Rights’, in M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, Cambridge University Press, 2nd edition, 2011. 129 Resolution on the Creation of a Working Group on Specific Issues Relevant to the Work of the African Commission on Human and Peoples’ Rights, Resolution ACHPR/Res.77 (XXXVII) 05, May 2005.

648

31. Articles 45 and 46: Mandate of the African Commission

drafting new Rules of Procedure for the Commission. This enabled NGOs to have a central role in determining the practical work of the African Commission from the broadest perspective. There are increasing concerns with the shrinking of civil society space not only within specific African States,130 but also at the level of the AU and reflected in a global trend.131 The decision to adopt criteria for observer status initially was as a result of the then OAU’s fear that NGOs were attending the Commission and being permitted to speak without determining who they were. Subsequently there was a recognition that many NGOs and CSOs obtained such status but then did not comply with their reporting obligations and did not attend the sessions, thus leading to a revision of the criteria in 1999.132 These lasted until 2016 when the Executive Council of the AU in particular had called on the African Commission to review its criteria by taking into account ‘the fundamental African values, identity and good traditions’,133 (in light of the granting of observer status to the Coalition of African Lesbians) and the ‘representation before the ACHPR by non-African individuals and groups’.134 Not leaving it at this, in July 2018 the AU organs reasserted this call and went further. Not only did they call on the ‘withdraw the accreditation’ of the Coalition for African Lesbians (CAL) by 31 December 2018, but also that it submit to the AU organs ‘for consideration and adoption’ revised criteria for granting observer status.135 Besides the obvious point that the African Commission’s independence, in determining how it carries out its own mandate which should include who it hears from and how, is jeopardised by the interference of political organs, unfortunately the African Commission has failed to stand its ground. Its resolution in November 2016 set out the criteria for granting and ‘maintaining’ observer status, implying that once obtained it can also be withdrawn. The Resolution contains more detail on what the organisation should submit when applying for observer status. It sets out that all those applying should ‘[h]‌ave objectives and activities in consonance with the fundamental principles and objectives enunciated in the African Union Constitutive Act, the preamble to the African Charter on Human and Peoples’ Rights, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol)’. They should be ‘NGOs working in the field of human rights in Africa’ and while the documentary materials that are required to be submitted do not appear to be more onerous than those under the old criteria, the 2016 resolution specifically requires that the NGO provide a ‘Certificate of Legal Status of the NGO issued by the relevant Government authority, in the country in which the NGO is based’, rather than simply ‘proof of its legal existence’ under the 1999 Resolution. An issue that has arisen over the years is whether the African Commission should be able to grant observer status to those organisations who are unable to operate or be recognised by the authorities in the State in which they are based, a

130 E.g. the adoption in Ethiopia of the Charities and Societies Proclamation, see Resolution on the Human Rights Situation in the Democratic Republic of Ethiopia, ACHPR/Res.218, 2 May 2012. 131 See e.g. Human Rights Council, A/HRC/32/L.29, 27 June 2016. 132 AHG/ Dec.126 (XXXIV); F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, 2003, at 514. 133 Decisions Ex.CL/887(XXVII) and EX.CL/Dec.902 (XXVIII) Rev.1. 134 Decision EX.CL/Dec.902 (XXVIII) Rev.1. 135 Decision on the Report on the Joint Retreat of the Permanent Representatives’ Committee (PRC) and the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.1015 (XXXIII), para 6.

G. Cooperation with Other Entities

649

possibility for some who criticise the government, for example.136 While the former rules gave the Commission some leeway here, it is a shame that it has taken a more restrictive approach in these later criteria. The 2016 criteria are clearer in when NGOs with observer status can participate in the sessions and to which documentation they are permitted to have access, enabling the Commission, as before, to withdraw or suspend status from any organisation that ‘does not fulfil the present criteria’.137 The calls by the AU organs for the African Commission to withdraw observer status for the CAL, rejections of the request for an advisory opinion by human rights organisations on the basis that their status as observers before the African Commission did not entitle them to be considered as an organisation ‘recognised by the AU’,138 both illustrate a concerning trend to a more restrictive environment and accessibility.139 It is thus hugely regrettable that an African Commission known for its democratic and open nature of its proceedings is now responding to interferences with its independence by diluting and restricting access at a time when other forum are closing down. From a pragmatic perspective, one of the challenges of engaging with the African human rights bodies, in particular the African Commission, is that it requires tenacity: a sustained, regular relationship, developed over a period of time. This takes resources, in terms of staffing and funding, to attend the sessions of the African Commission, wherever they are held in the continent; the ability to acquire the necessary visas and access to the State; and the cost and logistics of travel. The manner in which the African Commission’s sessions are run, where it is often not clear on which day a particular agenda item will be discussed, means that many NGOs and CSOs who are serious about working with the African Commission need to be present for the entire week of the public session in order to ensure they are there for the relevant issue. This will impact negatively on many organisations who simply do not have the level of resources necessary to do so. The establishment of a Special Rapporteur on Human Rights Defenders in 2004140 adds a further dimension to the African Commission’s engagement with civil society and bolsters the protective aspect, reflected in part by the expansion of the mandate to include reprisals.141 The Special Rapporteur has been vocal in calling on States to respect the rights of human rights defenders and alerted them to particular instances and individuals.142

136 See N. Mbelle, ‘The role of non-governmental organisations and national human rights institutions at the African Commission’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2006, 2nd edition, Cambridge University Press, 2008, 289–315. 137 Resolution on the Criteria for Granting and Maintaining Observer Status to Non-Governmental Organizations working on Human and Peoples’ Rights in Africa, ACHPR/Res.361, 4 November 2016. 138 Request for Advisory Opinion by the Socio-Economic Rights and Accountability Project (SERAP) No. 001/2013, Advisory Opinion of the African Court on Human and Peoples’ Rights, 26 May 2017. 139 See J. Biegon, ‘The Rise and Rise of Political Backlash: African Union Executive Council’s decision to review the mandate and working methods of the African Commission’, EJIL Talk!, 2 August 2018. 140 Resolution on the Protection of Human Rights Defenders in Africa, ACHPR/Res.69, June 2004. 141 Resolution on Extending the Scope of the Mandate of the Special Rapporteur on Human Rights Defenders in Africa, ACHPR/Res.273, May 2014. 142 E.g. Joint Letter of Appeal to the Federal Democratic Republic of Ethiopia, 23 August 2016; Press Statement of the African Commission on Human and Peoples’ Rights on the deregistration of NGOs in Kenya, 30 August 2017. Resolution on the Situation of Human Rights Defenders in Africa, ACHPR/Res. 376 (LX) 2017, 22 May 2017. See also Cotonou Declaration on strengthening and expanding the protection of all Human Rights Defenders in Africa, Adopted at the 2nd International Symposium on Human Rights Defenders in Africa –Johannesburg +18, 27 March–1 April 2017.

650

31. Articles 45 and 46: Mandate of the African Commission

2. With AU Organs and Institutions a. With AU and Former OAU As one might expect with the parent body, the relationship with the former OAU and now AU organs and institutions is integral to the African Commission’s functioning.143 Dependant as it is on the AU for the appointment of its members, secretary and staffing, its funding, and for approving its activity reports, results in a regular exchange between relevant organs and the African Commission.144 Yet there are also other ways in which the African Commission has engaged with its parent organisation. It often participates in meetings and events organised by the AU as the latter elaborates its own initiatives.145 Commemorative Years and Decades such as the ‘African Year of Human Rights with a Particular Focus on Women’ in 2016,146 and the Decade on Persons with Disabilities, are invoked by the African Commission in its work.147 Either initiated at the level of the African Commission, by civil society or the OAU and AU bodies themselves, the African Commission has been brought in during the drafting process of treaties on human rights issues.148 Indeed, it can result in the provisions of any new treaty ensuring greater complementarity and consolidating a future relationship with the African Commission. For example, the AU’s Convention on Internally Displaced Persons requires the AU to share information with the African Commission on the situation of internally displaced persons; cooperate with its Special Rapporteur; and for States parties to report on their implementation of the Convention under Article 62 of the ACHPR.149 The African Commission often advocates for the ratification of AU instruments through its resolutions, and asking comments during State reporting.150 143 R. Murray and A. Lloyd, ‘Institutions with responsibility for human rights protection under the African Union’, 48 JAL (2004) 165–186; B. Manby, ‘The African Union, NEPAD, and human rights: The missing agenda’, 26(4) Human Rights Quarterly (2004) 983–1027. 144 See Chapters 29 and 30 (Articles 30 and 40–44). 145 Intersession Activity Report (April 2016– October 2016) of Honourable Commissioner Jamesina Essie L. King as a Member of the African Commission on Human and Peoples’ Rights; Chairperson of the Working Group on Economic, Social and Cultural Rights in Africa; A member of the Working Group on Indigenous Populations/Communities in Africa; A member of the Working Group on Extractive Industries the Environment and Human Rights Violations; A member of the Working Group on Older Persons and Persons with Disability and A member of the Working Group on Communications, Presented to the 59th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, the Islamic Republic of The Gambia, 21 October–4 November 2016. Intersession Report (May–October 2015) Presented at the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights by Honourable Commissioner Mohamed Bechir Khalfallah, Vice-Chairperson of the Commission and Chairperson of the Working Group on Economic, Social and Cultural Rights in Africa, Banjul, The Gambia, 4–18 November 2015. 146 Decision EX.CL/Dec.842 (XXV); and Declaration by the Assembly on the Theme of the Year 2016, Assembly/AU/Decl.1 (XXVII),  Rev.1. 147 E.g. Draft Report of Commissioner Y. K. J. Yeung Sik Yuen, Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, Intersession period May 2009–November 2009. 148 Report of Activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur for Refugees, Asylum Seekers, IDPs and Migrants in Africa During The Intersession Period November 2007 to May 2008. Report of Intersession Activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur on Refugees, Asylum Seekers, Migrants and IDPs in Africa to the 41st Session of the African Commission on Human and Peoples’ Rights, 16–30 May 2007, Accra, Ghana. 149 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), adopted 23 October 2009, into force on 6 December 2012, Articles 8(3)(e), (f ) and 14(4). 150 E.g. Kampala Convention: Report of the Mechanism of the Special Rapporteur on the Rights of Refugees, Asylum Seekers, and Internally Displaced and Migrants in Africa Since its Creation by Madam Maya Sahli-Fadel Commissioner, Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants

G. Cooperation with Other Entities

651

For many of the former OAU and now AU organs there has been a more systematic and formalised engagement. The Protocol of the Peace and Security Council (PSC), for instance, expressly provides for it to ‘seek close cooperation with the African Commission . . . in all matters relevant to its objectives and mandate’ and for the African Commission, on its part, to respectively inform the PSC of information.151 Relationships with the African Peer Review Mechanism (APRM) have been consolidated with the appointment of one of the Commissioners as focal point in order to pursue and coordinate ‘areas of cooperation’ between the two bodies.152 Yet for many, as noted in Chapter 30, there is considerable untapped potential.153

b. With  UN With its inception being grounded in initiatives of the UN, it is to be expected that the African Commission would develop some relationship with the international organisation and relevant human rights treaty bodies and special procedures. While over the years there has been consistent invitations sent between the UN bodies and the African Commission, and attendance at each other’s events, much of this was not formalised in any meaningful way. Instead it has been dependent sometimes on the personal knowledge of individual Commissioners or members of UN treaty bodies or special procedure mandate holders of the others’ system, and a willingness to find opportunities for collaboration;154 or the fact that the issue may be one upon which either system is currently focusing.155 With the creation of the African Commission’s own special mechanisms, many of which have been established in part because of parallel processes at the level of the UN, so opportunities for greater engagement have arisen. This culminated in 2012 with a meeting in Addis Ababa which set out a Roadmap for future collaboration.156 A Joint Working Group of the African Commission and UN Special Procedures, chaired by both a member of the UN mandate holder and a Commissioner, has committed to holding meetings which have taken place on the sidelines of African Commission sessions.157

in Africa. 52nd Ordinary Session of the African Commission on Human and Peoples’ rights, Yamoussoukro, Côte d’Ivoire, from 9–22 October 2012. 151 Article 19, Protocol Relating to the Establishment of the Peace and Security Council of the African Union. See further Chapter 24 (Article 23). 152 Resolution on the Cooperation between the African Commission on Human and Peoples’ Rights and the African Peer Review Mechanism, ACHPR/Res.168, 24 November 2010; Resolution to Renew the Mandate of the Focal Point between the African Commission on Human and Peoples’ Rights and the African Peer Review Mechanism, ACHPR/Res. 351 (EXT.OS/XX) 2016. 153 See also Brainstorming/Consultative meeting of AU Organs on their working relations, 28–30 September 2008, Ouagadougou, Burkina Faso. 154 E.g. 36th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2014, para 31. 155 Such as albinism, or the death penalty, see Chapters 3 and 19 (Article 2 and 18) and Chapter 5 (Article 4). 156 Dialogue between Special Procedures Mandate-Holders of the UN Human Rights Council and the African Commission on Human and Peoples’ Rights, Road Map, 17–18 January 2012, Addis Ababa, Ethiopia. 157 Intersession Report presented by Honourable Commissioner Reine Alapini-Gansou, Special Rapporteur on the Situation of Human Rights Defenders in Africa, Chairperson of the Joint Working Group on ACHPR and UN Special Procedures, Member of the Committee on the Protection of People Living with HIV, and those at Risk, Vulnerable to and Affected by HIV/AIDS, Member of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, Member of the Working Group on Indigenous Populations/ Communities in Africa, Member of the Working Group on Communications. 59th Ordinary Session of the ACHPR, Banjul, 21 October–4 November 2016.

652

31. Articles 45 and 46: Mandate of the African Commission

Subsequently, although it is difficult to measure the exact impact of the Addis Ababa Roadmap (this was reviewed in 2014158), there have been numerous activities that have taken place between the UN bodies and the African Commission. These include involvement in each other’s studies,159 drafting of standards such as General Comments and guidelines,160 attending each other’s meetings,161 and occasionally undertaking joint missions162 and joint meetings.163 These have occurred on an ad hoc or regular basis, depending, in part, on the special mechanisms involved.164 On the odd occasion the 158 UN OHCHR, Consultation between Special Procedures Mandate-Holders of the UN Human Rights Council and the African Commission on Human and Peoples’ Rights, Review Addis Ababa Road Map, 27 April 2014, Luanda Angola, p.2. 159 E.g. on violence against women, Intersession Activity Report Commissioner Angela Melo, Special Rapporteur of the Rights of Women in Africa, 40th Ordinary Session, African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 15–29 November 2006; and on older persons: Intersession Activity Report of Commissioner Yeung Kam John Yeung Sik Yuen in his joint capacity as Commissioner and Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, 57th Ordinary Session of the African Commission on Human and Peoples’ Rights, 4–18 November 2015, Banjul, The Gambia. 160 Intersession Activity Report (May–November 2017) of Honourable Commissioner Jamesina Essie L. King as a member of the African Commission on Human and Peoples’ Rights; Chairperson of the Working Group on Economic, Social and Cultural Rights in Africa; a member of the Working Group on Indigenous Populations/Communities in Africa; a member of the Working Group on Extractive Industries, the Environment and Human Rights Violations; a member of the Working Group on Older Persons and Persons with Disability and a member of the Working Group on Communications, presented to the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017. 161 Working Group on Economic Social and Cultural Rights: Inter-Session Activity Report (May–November 2017) of Honourable Commissioner Jamesina Essie L. King as a member of the African Commission on Human and Peoples’ Rights; Chairperson of the Working Group on Economic, Social and Cultural Rights in Africa; a member of the Working Group on Indigenous Populations/Communities in Africa; a member of the Working Group on Extractive Industries, the Environment and Human Rights Violations; a member of the Working Group on Older Persons and Persons with Disability and a member of the Working Group on Communications, Presented to the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017. Special Rapporteur on the Rights of Women: Intersession Activity Report (November 2015–April 2016) of Hon. Commissioner Lucy Asuagbor, Special Rapporteur on the Rights of Women in Africa, Member of the Committee for the Prevention of Torture in Africa, Member of the HIV Committee, Presented to the 58th Ordinary Session of the African Commission on Human and Peoples’ Rights Banjul, The Gambia, 6–20April 2016, para 20. 162 E.g. to Tunisia in 2012: Report on the Implementation of the Mandate of the Special Rapporteur on Human Rights Defenders in Africa of the African Commission on Human and Peoples’ Rights, Theme: ‘Promoting and Protecting the Rights of Human Rights Defenders in Africa: 8 Years After’ Ms Reine Alapini-Gansou, Special Rapporteur on Human Rights Defenders in Africa, 52nd Ordinary Session, Special 25th Anniversary of the African Commission, Yamoussoukro, 9–22 October 2012, para 28. 163 E.g. with the UN Joint Programme on HIV/AIDS (UNAIDS), Intersession Report on Activities of the Committee for the Protection of the Rights of People Living with HIV/Aids and Persons At Risk, 49th Session of the African Commission on Human and Peoples’ Rights, by Commissioner Reine Alapini-Gansou, Chairperson for the Protection of the Rights of People Living with HIV/AIDS and Persons at Risk, November 2010–April  2011. 164 E.g. the Working Group on Indigenous Populations has had regular interaction with the UN Permanent Forum on Indigenous Issues (UNPFII) and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), Intersession Activity Report of the Chairperson of the Working Group on Indigenous Populations/ Communities in Africa, Commissioner Musa Ngary Bitaye, to 50th Ordinary Session. Intersession Activity Report of the Working Group on Indigenous Populations/Communities in Africa, Commissioner Soyata Maïga, Vice-Chairperson of the African Commission on Human and Peoples’ Rights and Chairperson of the Working Group on Indigenous Populations/Communities in Africa, 60th Ordinary Session of the African Commission on Human and Peoples’ Rights, Niamey, Niger, 8–22 May 2017. Intersession Report of the Working Group on Indigenous Populations/Communities in Africa Commissioner Soyata Maïga, Chairperson of the Working Group 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights Yamoussoukro, Côte d’Ivoire, 9–22 October 2012.

G. Cooperation with Other Entities

653

actual Working Group of the African Commission has included a member of a UN body.165 These various forms of formal166 and informal engagements and interactions are made considerably easier through the special mechanisms of the African Commission as they are working on thematic issues which tie in with those of their UN counterparts and conversely provide a single person or group of individuals, from the African Commission, with which the UN bodies can identify. The result has been collaboration in developing standards, such as around the African Commission’s General Comment on the Right to Life;167 information sharing;168 and reinforcing each other’s standards by reminding African States of their respective obligations under the regional and international treaties.169

3. Inter-American and European Systems Despite consistent references in its jurisprudence to European Court decisions and those of the Inter-American Commission and Court, the formal and informal engagement between the regional systems has been sporadic. Special mechanisms have interacted with their regional counterparts in workshops and sessions,170 and there is a proposal for the African Commission to adopt a Memorandum of Understanding with the Inter- American Commission.171 165 E.g. representatives of the UNOHCHR and UNECA–GPAD on the Working Group on Economic Social and Cultural Rights: Resolution on the Renewal of the Mandate of the Working Group on Economic Social and Cultural Rights in Africa, ACHPR/Res.193, 5 November 2011. 166 E.g. Memorandum of Understanding, between for example the UNHCR and the African Commission’s Special Rapporteur on Refugees, Modalities for the Operationalisation of the Memorandum of Understanding between the African Commission on Human and Peoples’ Rights and the United Nations High Commissioner for Refugees. 167 Between the Working Group on the Death Penalty and Extrajudicial, Summary or Arbitrary Killings in Africa of the African Commission and the UN Special Rapporteur: Intersession Activity Report, (November 2013–April 2014) presented by Commissioner Kayitesi Zainabo Sylvie, Chairperson, ACHPR, Luanda, Angola, 28 April–12 May 2014; 56th Ordinary Session of the African Commission on Human and Peoples’ Rights Inter-Session Activity Report of the Working Group on Death Penalty and Extrajudicial, Summary Or Arbitrary Killings in Africa (April 2014–April 2015), presented by Commissioner Kayitesi Zainabo Sylvie, Chairperson of the Working Group, ACHPR, Banjul, The Gambia, 21 April 2015–7 May 2015. See C. Heyns and T. Probert, ‘Casting Fresh Light on the Supreme Right: the African Commission’s General Comment No.3 on the Right to Life’, in T. Maluwa, M. du Plessis and D. Tladi, The Pursuit of a Brave New World in International Law: Essays in Honour of John Dugard, Nijhoff, 46–72. 168 E.g. between the Working Group on Older Persons and Persons with Disabilities and the United Nations Special Rapporteur on the Rights of Persons with Disabilities: Intersession Activity Report of Commissioner Yeung Kam John Yeung Sik Yuen in his joint capacity as Commissioner and Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, 58th Ordinary Session of the African Commission on Human and Peoples’ Rights, 6–20 April 2016, Banjul, The Gambia. 169 E.g. Intersession report of the Working Group on Disabilities and Older Persons, to 43rd Ordinary Session. Intersession Activity Report (November 2013–April 2014) and Annual Situation of Torture and Ill- Treatment in Africa Report, Presented to the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights, Luanda, Angola, 28 April–12 May 2014, Commissioner Lawrence M. Mute, Chairperson, Committee for the Prevention of Torture in Africa, Member, Working Group on Older Persons and Persons with Disabilities, Member, Working Group on Extractive Industries, the Environment and Human Rights Violations in Africa, which mentions the views of the UN Special Rapporteur on Torture. Reference to UN resolutions by Commissioner Soyata Maïga, Special Rapporteur on the Rights of Women in Africa in her inter- session report to the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia 4–18 November 2015. 170 See e.g. Public Statement from the second trilateral dialogue between Inter-American, African and UN human rights experts, 16 April 2018. 171 See http://www.achpr.org/press/2018/04/d394/, 3 April 2018.

654

31. Articles 45 and 46: Mandate of the African Commission

4. With Sub-regional Systems The African continent has grouped itself into a number of sub-regional entities each of which has, to a greater or lesser extent, developed their own standards and mechanisms with a human rights remit. Some of the treaties establishing these sub-regional organisations reference human rights in their provisions172 Their courts (the ECOWAS Community Court of Justice; the East African Court of Justice, and the former Southern African Development Community (SADC) Tribunal in particular) consequently have used these or interpreted for themselves the jurisdiction over matters which may overlap with those of the African Commission and African Court,173 but which have sometimes drawn upon their jurisprudence and also have equally made a contribution to the development of human rights law in the region. In turn, the African Commission has also called on States to implement judgments of the sub-regional bodies.174 The elaboration of standards has shown some commitment to human rights by these grouping of States but has been criticised at times for undermining or being inconsistent with the norms developed by the African Commission.175

H. Implementation Despite this considerable amount of work in developing standards and calling on States to fulfil their obligations, the extent to which States have actually implemented the findings of the African Commission and African Court is an important question but one which is often difficult to determine.176 The African Commission has used its various mechanisms to try to find out from States what measures they have taken to respond to the various resolutions, standards, and decisions on communications that are especially particular to them. This will be explored more fully in Chapter 33 (Articles 55–57).

172 E.g. See Articles 4(c) and 6(2) of the SADC Treaty, and Campbell v Zimbabwe, Case No. 2/2008, judgment of 28 November 2008; Treaty Establishing the East African Community, Article 6(d); Treaty of ECOWAS, Article 4(g); COMESA Treaty, Article 6(e). 173 See Manneh v The Gambia, Community Court of Justice of the Economic Community of West African States, judgment ECW/CCJ/JUD/03/08, 5 June 2008. K. Kindiki, ‘The African human rights system: Unnecessary overlap or useful synergies?’ 12 East African Journal of Peace and Human Rights (2006) 332. S. Ebobrah, ‘A rights-protection goldmine or a waiting volcanic eruption? Competence of, and access to, the human rights jurisdiction of the ECOWAS Community Court of Justice’, 7 African Human Rights Law Journal (2007) 309. 174 E.g. the Manneh judgment, ibid, see Resolution on the Human Rights Situation in the Republic of the Gambia, ACHPR/Res.134, 2008. See also A. J. Ali, ‘The admissibility of subregional courts’ decisions before the African Commission or African Court’, 6(2) Mizan Law Review (2012) 241–272. 175 See. F. Viljoen, ‘Human rights in Africa: normative, institutional and functional complementarity and distinctiveness’, 18(2) SAJHR (2011) 191–216, at 196. 176 R. Murray and D. Long, Implementation of the Findings of the African Commission on Human and Peoples’ Rights, Cambridge University Press, 2017. F. Viljoen and L. Louw, ‘State compliance with the recommendations of the African Commission on Human and Peoples’ Rights, 1994–2004’, 101 AJIL (2007) 1–34. R. Murray, D. Long, V. Ayeni and A. Some, ‘Monitoring implementation of the decisions and judgments of the African Commission and Court on Human and Peoples’ Rights’, 1 AHRY (2017) 1.

32. Articles  47–54 Inter-State Communications and Activity Reports Article 47 If a State Party to the present Charter has good reasons to believe that another State Party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter. This Communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission. Within three months of the receipt of the Communication, the State to which the Communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible, relevant information relating to the laws and rules of procedure applied and applicable and the redress already given or course of action available. Article 48 If within three months from the date on which the original communication is received by the State to which it is addressed, the issue is not settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful procedure, either State shall have the right to submit the matter to the Commission through the Chairman and shall notify the other States involved. Article 49 Notwithstanding the provisions of Article 47, if a State Party to the present Charter considers that another State Party has violated the provisions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary General of the Organisation of African unity and the State concerned.

Article 50 The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged. Article 51 1. The Commission may ask the State concerned to provide it with all relevant information. 2. When the Commission is considering the matter, States concerned may be represented before it and submit written or oral representation. Article 52 After having obtained from the States concerned and from other sources all the information it deems necessary and after having tried all appropriate means to reach an amicable solution based on the respect of human and peoples’ rights, the Commission shall prepare, within a reasonable period of time from the notification referred to in Article 48, a report to the States concerned and communicated to the Assembly of Heads of State and Government. Article 53 While transmitting its report, the Commission may make to the Assembly of Heads of State and Government such recommendations as it deems useful. Article 54 The Commission shall submit to each Ordinary Session of the Assembly of Heads of State and Government a report on its activities.

656

32. Articles 47–54: Inter-State Communications

A. Introduction Although the M’Baye Draft of the African Charter on Human and Peoples’ Rights (ACHPR) made the procedure optional, necessitating that a State make an additional declaration that it recognised the African Commission’s competence to receive such communications,1 the final version includes no such requirement. Despite this, as is common with other international systems, the inter-State communication mechanism has been hardly utilised by States at all. At the time of writing, of the over 500 communications submitted to the African Commission, only three (or maybe four2) have been by States and only one of these, Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda3 has made its way through to the merits. The African Commission has listed two inter-State communications as having been received, Communication 422/ 12, The Sudan v South Sudan and Communication 478/14, Djibouti v Eritrea, yet despite stating that it has been seized of such and the former was ‘decided’ during its 13th Extra Ordinary Session in February 2013,4 no decision has actually been published. Killander and Nkrumah suggest that the communication between Sudan and South Sudan went no further because South Sudan was at that stage not a party to the ACHPR, although they do question whether this may be a correct approach arguing that a successor State could be bound by the treaties which its mother State ratified.5 South Sudan subsequently deposited its instrument of ratification in May 2016. States which have ratified the ACHPR and who have lodged a complaint to the Commission, or had a complaint lodged against them at the Commission, or whose citizen is a victim of human rights violation, have standing before the African Court under Article 5 of the Protocol to bring cases against other States Parties to the African Charter. So far this mechanism has yet to be utilised. In one communication brought by the former NGO Interights under Article 55, it was debated whether it should be converted into an inter-State case.6 The States of Eritrea and Ethiopia argued that they did not wish this to happen as they had already signed a peace agreement which dealt with the conflict which had resulted in the human rights violations that were the subject of the communication. They therefore called on the African Article 50, M’Baye Draft. A former chair of the African Commission, Prof. Umozurike, noted that an unrecorded communication was submitted by Libya against the USA in relation to the presence of American forces in Chad and Zaire. It was held inadmissible, see U. O. Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for more effectiveness’, 13(1) Annual Survey of International and Comparative Law (2007) 179–190, at 183. 3 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 51. 4 Report of the Chairperson of the Working Group On Communications, by Commissioner Lucy Asuagbor, Presented during the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, para 18. An earlier report says that it was ‘not seized’ of Communication 422/12, 34th Activity Report of the African Commission on Human and Peoples’ Rights Submitted in Accordance with, Article 54 of the African Charter on Human and Peoples’ Rights, 2012–2013, para 16. For Communication 478/14, the Report of the Chairperson of the Working Group states that the Commission was ‘seized during the 17th Extra Ordinary Session of the Commission, in February 2015’. See also 38th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, 2015, para 27. 5 M. Killander and B. Nkrumah, ‘Recent human rights developments in the African Union during 2012 and 2013’, 14 AHRLJ (2014) 275–296, at 285–286. 6 Communication 233/99-234/99, Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) v Eritrea, 29 May 2003. 1 2

B. Negotiation and Conciliation

657

Commission not to continue with hearing the communication.7 Noting that neither the ACHPR nor its Rules of Procedure provided for a procedure to convert individual communications into inter-State communications, the African Commission held that the ‘initiation of an inter-state complaint is dependent on the voluntary exercise of the sovereign will of a State party to the Charter, which decision can only be made by States in accordance with the Charter’.8 As they clearly did not consent to such, the African Commission was unable to proceed under Articles 47–54. Conversely, it was also suggested in another individual communication that it might have been more suitable to have been brought under Articles 47–54. The authors of the communication were the Association pour la sauvegarde de la paix au Burundi, whom the African Commission considered ‘were in all respects representing the interests of the military regime of Burundi’.9 Although the decision does not make it clear who raised the issue of whether the case should have been an inter-State communication, the African Commission simply ‘resolved to consider this as a calls action’, noting in particular that this was ‘in the interests of the advancement of human rights’ and appeared to be swayed by the fact that the Respondent States had not questioned the standing of the complainants.10 The ACHPR envisages two processes and this is clarified by the African Commission’s Rules of Procedure which labels Article 47 communications as ‘communications negotiations’,11 and for communications received under Articles 48 and 49, ‘communications- complaints’.12 Earlier drafts of the ACHPR applied the same procedure for consideration of communications to both those emanating from individuals as well as States.13

B. Negotiation and Conciliation For communications under Article 47, the 2010 Rules require that a communication be submitted in writing to the Chair of the Commission, through the Secretary of the Commission.14 It should include ‘a comprehensive statement of the facts as well as the provisions of the African Charter alleged to have been violated’, and although it does not say who should undertake the task of notification, it is the State party concerned, the Chair of the African Union (AU) Commission and the Chair of the Commission who should be informed ‘through the most practical and reliable means’.15 The African

7 Communication 233/99-234/99, Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) v Eritrea, 29 May 2003, para 43. 8 Communication 233/99-234/99, Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) v Eritrea, 29 May 2003, para 44. 9 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 63. 10 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 63. 11 Rules of Procedure of the African Commission, 2010, Section 2. 12 Rules of Procedure of the African Commission, 2010, Section 3. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 571, see former Rules of Procedure 1995 which have similar titles: Chapter XVI, sections I and II. 13 14 15 M’Baye Draft, Articles 51–56. Rule 86(1) and (2). Rule 86(3).

658

32. Articles 47–54: Inter-State Communications

Commission’s Secretary shall then acknowledge receipt of the communication and ask that the parties keep the Commission informed of developments.16 Article 47 ‘takes place completely outside the framework of the Commission’, without the Commission even potentially having to be informed if the conciliation is successful.17

C. Complaints 1. Procedure Communications submitted under Articles 48 and 49 may be submitted to the Chair of the African Commission by ‘an interested State party’ through the African Commission’s Secretary.18 They should contain more information than that provided in the communications-negotiations route, namely: measures taken to resolve the issue under Article 47; the initial communication submitted under Article 47 and ‘written explanation’ from the States on the issue.19 Submissions should also include measures taken to exhaust ‘regional or international procedures of settlement or good offices’; and ‘any other procedure of international investigation or international settlement to which the interested States Parties have resorted’.20 The States against whom the complaint is being brought will be informed of such by the Secretary and will then have ninety days to respond with its views on admissibility.21 This response will then be sent to the complainant State who will have a further ninety days from receipt to respond. As with individual communications, a rapporteur Commissioner is chosen for the communication and he or she may request additional information from the States, using the conduit of the Secretary. The rapporteur will then prepare for the session a report on admissibility containing the facts, provisions of the ACHPR allegedly violated and a recommendation on admissibility or other action to be taken.22 Further observations, written and oral, can be sought from the State, within ninety days, before the African Commission makes a decision.23 The Commission will then consider the reports and decide on admissibility, giving reasons.24

2. Exhaustion of Domestic Remedies The requirement to exhaust other avenues does not relate, as with individual communications, to domestic mechanisms, rather to ‘regional or international procedures’.25 Further these are procedures which are those ‘of settlement or good offices’. The M’Baye Draft applied admissibility conditions to both individual and inter-State communications and thereby required States also to exhaust domestic remedies, submitting the communication within eighteen months of the final judgment and setting out exceptions for the exhaustion of domestic remedies.26 Exhaustion of domestic remedies is clearly going to be challenge in the context of inter-State communications and the same processes and issues that apply to individual Rule 86(4). F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 573. 18 19 20 21 Rule 87(1). Rule 87(2). Rule 87(2). Rule 88(1). 22 23 24 25 Rule 88(4). Rule 88(5) and (6). Rule 89. Rule 87(2). 26 M’Baye Draft, Articles 51 and 52. 16 17

C. Complaints

659

communications may not easily translate into the inter- State arena. The African Commission has alluded to this in one communication which although, as noted above, was not an inter-State communication, and given the Respondent States did not argue that it should have been, the complainants appeared to be acting on behalf of the Burundian government. The African Commission, when analysing admissibility conditions under Article 56, noted: These provisions of the African Charter are hardly applicable in this matter [insofar] as the national courts of Burundi have no jurisdiction over the State Respondents herein. This is yet another indication that this communication appropriately falls under communications from states Articles 47–54. However, drawing from general international law and taking into account its mandate for the protection of human rights as stipulated in Article 45(2), the [African] Commission takes the view that the communication deserves its attention and declares it admissible.27

Similarly, in the DRC inter- State communication, it also, with little analysis, concluded that: The [African] Commission is mindful of the requirement that it can consider or deal with a matter brought before it if the provisions of Article 50 of the Charter and 97(c) of the Rules of Procedure are met, that is if all local remedies, if they exist, have been exhausted, unless such would be unduly prolonged. The [African] Commission takes note that the violations complained of are allegedly being perpetrated by the Respondent States in the territory of the Complainant State. In the circumstances, the [African] Commission finds that local remedies do not exist, and the question of their exhaustion does not, therefore, arise.28

As Viljoen notes, ‘perhaps this conclusion was arrived at too glibly, as the possibility of redress by the individuals concerned was not raised’.29

3. Other Admissibility Requirements The reference to the State providing ‘any other procedure of international investigation or international settlement to which the interested States Parties have resorted’30 leaves open the possibility that the matter could be pending before other international bodies at the same time as having been submitted to the African Commission, something which Ouguergouz considers to be a ‘genuine loophole’ in the ACHPR.31 Indeed, despite one of the Respondent States, Uganda, acknowledging the fact that the case was before the International Court of Justice whilst it was also before the African Commission, the latter did not address this in its decision.32 However, as Viljoen points out, this may have had some bearing on the timing of the African Commission’s decision. It was not till 2003 when the decision was adopted and even then there was a delay of three years till it was published and by which stage the Respondent States had withdrawn their troops from the DRC: ‘the fact that the matter was pending before the ICJ [International Court of 27 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, paras 65–66. 28 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, paras  62–63. 29 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 362. 30 Rule 87(2). 31 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 580. 32 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 362.

32. Articles 47–54: Inter-State Communications

660

Justice], which took a decision on 19 December 2005, in all likelihood accounts for this delay’.33 Therefore, the African Commission’s decision cannot have played any role in resolving the matter and perhaps is indicative of the challenges of inter-State communications and the difficulties that the African Commission may have considered itself to face in deciding on a highly charged, politically complex matter in which a number of regional and international actors were already involved.

4. Amicable Settlement and Merits It is only after a communication is declared admissible that the African Commission has given itself the opportunity to offer its good offices to the States to assist them in reaching an amicable settlement.34 The amicable settlement procedure is set out in Rule 90 of the 2010 Rules of Procedure and enables the Bureau of the African Commission to contact the authorities and report on its findings with recommendations to the Commission’s next session. The Commission as a whole will determine the action to be taken and this can include the appointment of a rapporteur, convening a meeting with the parties to come to an amicable settlement; and drafting a memorandum of understanding containing any terms of an amicable settlement which will be signed under the authority of the Commission. A report written by the rapporteur, after its adoption by the Commission, will be sent to the States parties and then the Assembly will be informed. The Commission will then monitor the implementation of the agreement and report on it at sessions until the settlement is concluded. Details are to be included in the African Commission’s Activity Report. In the event that the matter cannot be resolved amicably, the Commission will then request the parties to provide their submissions within thirty days, with the information being shared with the other party to respond accordingly also within thirty days.35 The rapporteur for the communication will subsequently prepare a report including the facts, findings and recommendations. At this stage the Commission can hold a hearing where the parties can give oral submissions.36 Setting itself a deadline of twelve months from receipt of the communication,37 the Commission must adopt a decision with a report and recommendations in accordance with Article 53 of the African Charter. This report is sent to the parties and also submitted as part of the African Commission’s Activity Report to the Assembly of Heads of State of the AU.38

D. DRC v Burundi, Rwanda and Uganda In practice there is only one inter- State communication on which the African Commission has issued a public decision: Communication 227/99, DRC v Burundi, Rwanda and Uganda, and thus it is worth providing the detail of the facts, procedure and the Commission’s findings. Indeed, it is of some assistance that the information provided in the ‘procedure’ section of the decision is comparable greater than is usually found in its decisions. It was the Minister of Human Rights of the DRC who submitted a letter to the African Commission under Article 49 of the ACHPR. He alleged, according to the F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 362. 35 36 Rule 90. Rule 91. Rule 91. 37 38 This was merely ‘reasonable time’ in the Dakar Draft, Article 51. Rule 92. 33 34

D. DRC v Burundi, Rwanda and Uganda

661

decision, ‘grave and massive violations of human and peoples’ rights’ had been committed by the armed forces of Burundi, Rwanda and Uganda on the territory of the DRC. The violations included allegations of hundreds of massacres of Congolese soldiers as well as civilians, rape, deliberate spreading of AIDS, deportation of populations to camps; and looting of its minerals and wealth. Violations of principles of the UN Charter and the Organisation of African Unity (OAU) Charter, including prohibition on the use of force and aggression; respect for sovereignty and territorial integrity; peaceful settlement of disputes and non-interference in internal affairs; were claimed alongside violations of the International Covenant on Civil and Political Rights (ICCPR), the Geneva Conventions of 1949 and a range of individual and peoples’ rights in the ACHPR. Burundi had not reacted nor made any oral submission to the African Commission in relation to the submissions sent to it under Article 47 of the ACHPR.39 This absence of a response however ‘does not absolve [it] from the decision the African Commission may arrive at in the consideration of the communication. Burundi by ratifying the African Charter indicated its commitment to cooperate with the [African] Commission and to abide by all decisions taken by the latter’.40 So there is an obligation to cooperate with the African Commission and comply with its decisions. In line with Article 51(2) and Rule 100 of the Rules of Procedure,41 the African Commission held an oral hearing whereby Rwanda and Uganda were present.42 Rwanda and Uganda argued that as the DRC had submitted the communication to the African Commission and had not notified the Secretary-General of the OAU and themselves first, this was ‘procedurally wrong’ and should render the communication inadmissible before the African Commission.43 The African Commission clarified that Articles 47 and 28 and Rules 88–92 ‘are geared towards the achievement of one of the essential objectives and fundamental principles of the Charter: conciliation’, with the procedure in Article 48 being ‘permissive and not mandatory’.44 Further, Article 48 does not provide for it to be submitted to the Secretary-General of the OAU. Informing the Respondent States that a communication will be submitted to the African Commission in order to: avoid a situation of springing surprises on the States involved. This procedure enables the Respondent States to decide whether to settle the complaint amicably or not. The [African] Commission is of the view that even if the Complainant State had not abided by the said provision of the Charter, such omission is not fatal to the communication since after being seized of the case, a copy of the communication, as is the practice of the [African] Commission, was forwarded to the Respondent States for their observations.45 39 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 52. 40 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 53. 41 Rule 100, Rules of Procedure of the African Commission, 1995. These are the Rules which were in force when the communication was submitted and decided upon by the Commission. 42 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 54, at its 27th Session in Algiers in May 2000. 43 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, at para 54. 44 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, paras  57–58. 45 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 60.

662

32. Articles 47–54: Inter-State Communications

In contrast, Article 49 enables the State directly to seize the African Commission and in such situations it does not have to make contact with the Respondent State.46 It is this approach which the African Commission considered to have applied to this case: ‘Indeed, the situation of undeclared war prevailing between the Democratic Republic of Congo and its neighbours to the east did not favour the type of diplomatic contact that would have facilitated the application of the provisions of Articles 47 and 48 of the [African] Charter. It was also for this reason that the [African] Commission took the view that Article 52 did not apply to this communication.’47 As it does with individual communications, the African Commission then goes in its decision to deal with the merits of the case, finding violations of various provisions of the ACHPR after dealing with each of them in turn and in so doing incorporating conclusions on the inconsistency of the States’ actions with their obligations under the Geneva Conventions and humanitarian law. It found that all three States were liable, including Burundi, which had refused to respond at all, and Rwanda, who had not taken part in deliberations beyond admissibility. Besides calling on the States to abide by the international and humanitarian law obligations in the UN and OAU Charters, and to withdraw their troops from the DRC, it also required them to pay ‘adequate reparations’ to the victims of the human rights violations.

E. Article 54 Although this provision sits between the articles dealing with communications from States (Articles 47–53) and individual communications (Articles 55–59), in practice the report referred to in Article 54 is the African Commission’s (what used to be annual) Activity Report. The Rules of Procedure simply provide that ‘[w]‌hen submitting its Activity Report in accordance with Article 54 of the African Charter, the Commission may request the Assembly to take necessary measures to implement its decisions. The Commission shall bring all its recommendations to the attention of the Sub-Committee on the Implementation of the Decisions of the African Union of the Permanent Representatives Committee’.48 As noted in Chapter 36 (Article 59), these Activity Reports since the first in April 1988, have varied considerably in terms of length and content, not least after the Executive Council imposed a page limit in 2011.49 Resolutions were also part of the Activity Reports until the 20th Report, when the OAU, responding to concerns by some States over resolutions adopted against them, called on the Commission to subsequently print the State responses as well. After this, as noted in Chapter 31, the African Commission did not include resolutions in its Activity Report. The last mission report to be produced in an Activity Report was the mission to Sudan in the 22nd Activity Report.50 As to why 46 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 61. 47 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda, 29 May 2003, para 61. 48 Rule 125, Rules of Procedure of the African Commission 2010. 49 See 30th Activity Report of the African Commission on Human and Peoples’ Rights, 2011. 50 Report of the African Commission on Human and Peoples’ Rights’ Fact-finding Mission to the Republic of Sudan in the Darfur Region, 8–18 July 2004, 22nd Activity Report of the African Commission on Human and Peoples’ Rights, Annex III.

E. Article 54

663

this was the case may in part be to do with the page limit, but also, perhaps, to avoid the restrictive application of Article 59 of the ACHPR, and interference in the independence of the African Commission.51 Similarly decisions on communications appeared first in the Seventh Annual Activity Report, 1993–1994.52 A former Chair of the African Commission, Prof Umozurike, provides a revealing account of the rationale for the inclusion and content of decisions at this stage which arose from a positive example where the State of Zambia had, in response to an amicable settlement brokered by a Commissioner, released an individual held in detention.53 The resulting publication of decisions in the Activity Report recognised that ‘a state would be happy that the Assembly, and the public in general, know about its compliance with the African Charter rather than be embarrassed by the publication’.54 Consequently, as a result of all these changes, it can unfortunately be difficult to find these various documents adopted by the African Commission: whilst the Activity Report used to be a relatively comprehensive source of the African Commission’s materials this is no longer the case and the website is not always the reliable repository that one might hope it to be.

51 See Chapter 36 (Article 59). See J. Biegon, Diffusing tension, building trust: Proposals on guiding principles applicable during consideration of the activity reports of the African Commission on Human and Peoples’ Rights, Global Campus Africa, Policy Briefs, 2018. 52 Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1993–1994, adopted on 27 April 1994, AHG/198 (XXX) Rev.2, Annex VI. 53 Communication 11/88, Henry Kalenga v Zambia, Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1993–1994, adopted on 27 April 1994, AHG/198 (XXX) Rev.2, Annex VI, reproduced in R. Murray and M. D. Evans, Documents of the African Commission on Human and Peoples’ Rights, Hart Publishing, Vol. 1, 2001, 382. 54 U. O. Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for more effectiveness’, 13(1) Annual Survey of International and Comparative Law (2007) 179–19, at 184.

33. Articles 55 and 57 Individual Communication Procedure Article 55 1. Before each Session, the Secretary of the Commission shall make a list of the Communications other than those of State Parties to the present Charter and transmit them to Members of the Commission, who shall indicate which Communications should be considered by the Commission.

2. A Communication shall be considered by the Commission if a simple majority of its members so decide. Article 57 Prior to any substantive consideration, all communications shall be brought to the knowledge of the State concerned by the Chairman of the Commission.

A. Introduction Article 55 is prefaced by a sub-heading ‘other communications’, the ‘other’ meaning those not submitted by States as set out in Articles 47–54. The African Commission quickly decided that this provision enabled non-State actors to submit communications to it1 and it would not be constrained by an interpretation which only saw it being able to deal with serious or massive violations in Article 58.2 This, it is argued by others, is also supported by the wording in Articles 55 and 57 which enable the Commission to ‘consider’ such communications.3 A bold move, one might argue, for an institution which it was not envisaged, in the earlier drafts certainly, to have the power to ‘take decisions’, and one which would share the protection of the rights in the ACHPR with the political Assembly of Heads of State.4 The African Commission has received several hundred communications in its three decades, not a particularly impressive case load when compared with other regional or international mechanisms and indicative of the lack of awareness of the African human rights system at the national level. Its approach has become increasingly more detailed and thoughtful, with decisions on communications now reaching twenty to thirty pages rather than the scant few lines of 1 First Activity Report of the African Commission on Human and Peoples’ Rights, Documentation 1, para 26, as produced in R. Murray and M. D. Evans, Documents of the African Commission on Human and Peoples’ Rights, Hart Publishing, Vol.1, 2001, p.129. See also Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 42. 2 W. Benedek, ‘The African Charter and Commission on Human and Peoples’ Rights: How to make it more effective’, 11 NQHR (1993) 25. C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedure’, 20 HRQ (1998) 235, at 239–240. R. Murray, ‘Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights’, 46 ICLQ (1997) 412–434. C. A. Odinkalu, ‘The role of case and complaints procedures in the reform of the African human rights system’, 2(1) AHRLJ (2001) 225–246. 3 C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedure’, 20 HRQ (1998) 235, at 243. 4 Preliminary draft of the African Charter prepared during the Dakar Meeting of Experts at the end of 1979. CAB/LEG/67/3/Rev.  1.

B. Procedure for Consideration of Communications

665

the earlier decisions.5 Yet, as will be seen below and discussed in the context of Article 56 (Chapter 34), there is still a considerable amount of inconsistency, lack of precision and ambiguity in its reasoning. Furthermore, despite time limits being set out in the Rules of Procedure for the various stages of consideration of communications, it is common for these to be extended or to be almost inconsequential, with the African Commission keener to have the parties’ engagement throughout. Cases can sometimes take years to conclude, although this time has reduced when there have been more staff at the secretariat.6 The delays and extension of time limits can cause uncertainty for litigants and States alike and do not contribute positively to the credibility of the African Commission and the quasi-judicial role it likes to portray. The African Commission has held on numerous occasions that it cannot act as a form of appeal from national courts and neither is it there to ‘substitute itself for internal/domestic procedures found in the Respondent State’.7 However, its role is to ‘guide, assist, supervise and insist upon Member States on better promotion and protection standards should it find domestic practices wanting’.8 The M’Baye draft restricted the standing of those who could submit a communication to the African Commission to ‘any person or group of persons, or any non-governmental entity legally recognised in one or more Member States of the OAU’.9 As to whether international non-governmental organisations based outside the continent would have been able to submit a case to the Commission by defining themselves as a ‘group of persons’, is not clear and luckily Article 55 does not contain any such limitation. In fact many of the complainants in the cases before the African Commission have been international NGOs, or at least supported by them.10

B. Procedure for Consideration of Communications The procedure for processing communications submitted under Article 55 is ‘particularly obscure’, not least because the text does not explain in any real detail what should happen.11 Each communication is recorded at the Secretariat by way of a number (the number of communications received/the year in which it was received) and the names of the parties.12 The record of each communication should also include the date of the decision or closure.13 Communications are considered in the order received by the Secretariat, although the Commission has discretion to decide otherwise.14 When in receipt of some

5 See Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1993– 1994, ACHPR/RPT/7th; Eighth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 199401995, ACHPR/RPT/8th. 6 C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedure’, 20 HRQ (1998) 235, at 274–275. 7 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 50. 8 Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 53. 9 10 Article 49, M’Baye Draft. See Chapter 34 (Article 56) for discussion on locus standi. 11 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 587. F. Viljoen, ‘Communications under the African Charter: Procedure and Admissibility’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006, Cambridge University Press, 2008, chapter 3. 12 Rule 83, Rules of Procedure of the African Commission 2010. 13 Rule 83, Rules of Procedure of the African Commission 2010. 14 Rule 95, Rules of Procedure of the African Commission, 2010.

666

33. Articles 55 and 57: Individual Communication Procedure

of its early cases the African Commission still registered them with a name and number despite them being against States which were not party to the ACHPR.15 Rule 93 of the 2010 Rules provides that a rapporteur for each communication will be appointed from among its members. In some of the earlier decisions the name of the rapporteur was included at the top of the decision but this practice has now been discontinued.

1. Jurisdiction, Competence and Seizure of the African Commission Article 55 requires that the Commission ‘make a list of the [communications under Article 55] and transmit them to Members of the Commission, who shall indicate which Communications should be considered by the Commission. A Communication shall be considered by the Commission if a simple majority of its members so decide’. The French version of the African Charter on Human and Peoples’ Rights (ACHPR) refers to ‘en saisir la Commission/en sera saisie’ as ‘considered’, suggesting that this sentence is to do with seizure, and as Ouguergouz notes, ‘seisin of the Commission as such would thus hang on a decision of [the Commission] and would not be the result of any action by the author of the communication’.16 The 2010 Rules of Procedure, distinguish between seizure17 and admissibility, as did the 1995 Rules.18 Rule 93 of the Rules of Procedure is entitled ‘seizure of the Commission’ and provides that ‘[a]‌Communication submitted under Article 55 of the African Charter may be addressed to the Chairperson of the Commission through the Secretary by any natural or legal person’. The communications should include information on the identity and contact details of the litigant, name of the victim, any request for anonymity, the facts of the alleged violations, any State authority which may be aware of the allegations, the State against whom the communication is addressed, attempts to exhaust domestic remedies and compliance with Article 56(7) of the ACHPR. This information is then transferred to the Commission who will ‘make a decision on seizure’. However, it is apparent that some of this information relates to admissibility. ‘Consideration’ appears to equate with seizure, and the African Commission has held that ‘[t]his power of the Commission to consider communications naturally includes the lesser power to decline to hear them’.19 Rule 105 of the 2010 Rules reads: 1. When the Commission has decided to be seized of a Communication pursuant to the present Rules, it shall promptly transmit a copy of the complaint to the Respondent State. It shall simultaneously inform the Complainant of the decision on seizure, and request the Complainant to present evidence and arguments on admissibility within two months. 2. Upon receipt of the Complainant’s observations on admissibility, the Secretary shall transmit a copy to the respondent state and request the latter to make a written submission, containing its

15 Former Rule 102(2) (1995 Rules) noted that ‘No communication concerning a State which is not a party to the Charter shall be received by the Commission or placed in a list under Rule 103 of the present Rules’. Yet see Communication 2/88, Iheanyichukwu A. Ihebereme v USA, 13 July 1987; Communication 7/88, Committee for the Defence of Political Prisoners v Bahrain, 26 February 1988. 16 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 587. 17 E.g. Rule 97(1) refers to ‘seizure, admissibility and merits’. Rule 93 is entitled ‘seizure of the Commission’. 18 Section I of Chapter XVII, Rule 102 is entitled ‘Seizing of the Commission’; Section III is ‘Procedures to determine admissibility’, Rules of Procedure of the African Commission, 1995. 19 Communication 65/92, Ligue Camerounaise des Droit de l’Homme v Cameroon, 24 April 1997, para 10.

B. Procedure for Consideration of Communications

667

arguments and evidence on admissibility, within two months of its receipt of the Commission’s request. The Secretariat shall, within a week of receipt of the state’s submission, provide the Complainant with a copy. 3. Upon receiving the observations of the Respondent State on Admissibility, the Complainant may comment on the observations within one month of receipt. 4. In conformity with Rule 88(6), the Commission, while determining Admissibility may ask the parties to present supplementary observations in an oral hearing.

This is followed by Rule 106 which repeats the Article 56 admissibility conditions. The procedures for seizure and admissibility would thus appear to be distinct, and this was also reflected in the 1995 Rules. In addition, seizure comes before consideration of admissibility (‘When the Commission has decided to be seized of a communication . . . It shall simultaneously inform the Complainant of the decision on seizure, and request the Complainant to present evidence and arguments on admissibility’). Yet this is not consistent in the decisions. For example, on one occasion the African Commission stated that admissibility criteria needed to be fulfilled ‘before the Commission can be seized of a communication’.20 Contrast, however, another, where the entire decision is entitled ‘Decision of the African Commission on Human and Peoples’ Rights on Seizure’.21 The decision includes its examination of admissibility criteria, specifically Article 56(3) and 56(5) under a separate heading ‘Analysis of the Commission on seizure’. Together with a lack of prima facie violations and that the author had failed to seek the consent of the victims, with their signatures attached to the complaint when it was submitted to the Commission, it decided that it would ‘not to be seized of this Communication because it does not comply with Article 56 of the African Charter and does not fulfil the criteria for seizure provided under Rule 93(2) of the Commission’s Rules of Procedure’.22 This is confused further by use of the terms ‘competence’ and ‘jurisdiction’, which are often conflated.23 A number of States have questioned the ‘competence’ of the Commission to deal with a particular communication. ‘Competence’ is not a term used in the communications sections of the Rules of Procedure, neither is ‘jurisdiction’. In one instance the African Commission considered this on the rationae materiae and rationae personae jurisdiction of the Commission,24 matters, which as will be seen below, the African Commission has also dealt with in the context of Article 56(1) and 56(2).25

2. Preliminary Objections In some communications ‘preliminary objections’ are raised by the State with respect to jurisdiction. Sometimes preliminary issues on jurisdiction are raised before 20 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 80. 21 Communication 464/14, Uhuru Kenyatta and William Ruto (represented by Innocence Project Africa) v Republic of Kenya, 4 June 2014. 22 Communication 464/14, Uhuru Kenyatta and William Ruto (represented by Innocence Project Africa) v Republic of Kenya, 4 June 2014, para 22. 23 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 72. 24 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, paras 38–40. See also Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, paras 63–65; Communication 321/2006, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013, paras 53–62. Communication 375/ 09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 33. 25 See Chapter 34 (Article 56).

668

33. Articles 55 and 57: Individual Communication Procedure

admissibility,26 sometimes after.27 These preliminary issues or objections have related to a number of issues. So in one communication the State contested the ‘existence’ of the African Commission, noting that as it had been established under the OAU, which ceased to exist in 2001 when the African Union (AU) came into being, ‘no provision was made for the continuance of the work of the Commission in the Constitutive Act of the African Union that took over from the OAU [Organisation of African Unity]’, and the African Commission is not listed among the organs of the AU in Article 5 of the Constitutive Act.28 The African Commission considered that as it had been established by a treaty, the ACHPR, under Article 30, the termination of another treaty did not impact on the African Commission’s existence, noting that the State had not contested the existence of the ACHPR itself.29 In only one instance has the African Commission adopted a separate ‘Decision on the preliminary objection’,30 these matters usually only being mentioned in the final decision on the inadmissibility or merits of the case. It is perhaps not surprising that it chose to do so in this case given the sensitivities of one of the issues that the Respondent State was raising, namely, the bias on the part of the African Commission given the Commissioner who was appointed as the rapporteur for the particular communication was also the Special Rapporteur on Freedom of Expression and Access to Information. Under this latter mandate it was alleged that the Commissioner had ‘conducted a campaign against Eritrea’, endorsing a report on violations of freedom of expression in the country and thereby ‘negatively influenced the outcome of the communication’.31

3. Procedure on Admissibility and Merits In the 2010 Rules of Procedure, Rule 105 provides that when the Commission ‘has decided to be seized of a Communication pursuant to the present Rules, it shall promptly transmit a copy of the complaint to the Respondent State. It shall simultaneously inform the Complainant of the decision on seizure, and request the Complainant to present evidence and arguments on admissibility within two months’. When it has received the latter’s comments, it will send this to the State who will have two months in which to respond. The Commission will share the submissions of the State with the complainant and can itself also ‘comment on the observations’ of the State. Additional remarks can be made in an oral hearing on admissibility.32 The Commission then makes a decision on admissibility and informs the parties.33 If it is declared inadmissible the decision is then, according to Rule 107, attached to the E.g. Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010. Rule 103(1), Rules of Procedure of the African Commission, 2010; Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. 28 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 72. 29 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, paras 75 and 78. 30 Communication 428/12, Dawit Isaak v Republic of Eritrea, Decision of the African Commission on Human and Peoples’ Rights on the Preliminary Objection, 25 February 2016. 31 Communication 428/12, Dawit Isaak v Republic of Eritrea, Decision of the African Commission on Human and Peoples’ Rights on the Preliminary Objection, 25 February 2016, para 24. See further discussion on this case in Chapter 29 (Articles 30–40). 32 Rules 113–118 of the 1995 Rules of Procedure are less prescriptive in terms of time limits for submission of information and the process which the African Commission will follow. 33 Rule 107, Rules of Procedure of the African Commission 2010. 26 27

B. Procedure for Consideration of Communications

669

Activity Report and published. Decisions on inadmissibility can be reviewed.34 A decision on admissibility will move to consideration of the merits35 whereby the 2010 Rules require that sixty days is set for the complainant to submit their observations which will then be sent to the State to respond within a further sixty days.36 The State’s response will be returned to the complainant who will have thirty days to comment. Although the Rules provide that ‘this time limit cannot be extended’, as seen with respect to admissibility, the African Commission has given considerable leeway to parties over timeframes.37

4. Amicable Resolution Rule 109 of the 2010 Rules of Procedure sets out the possibility of amicable settlements, not expressly provided for in the previous Rules of Procedure, with respect to individual communications. This enables the Commission or any of the parties to use the ‘good offices’ of the Commission to achieve an amicable settlement ‘at any stage of the examination of a communication’.38 It will require the consent of the parties.39 In its earlier years the African Commission stated that its role in the communication procedure was not adversarial but to ‘initiate a positive dialogue, resulting in an amicable resolution . . . which remedies the prejudice complained of ’.40 This implies, as Odinkalu and Christensen argued in 1998, settlements to be conditional on ‘subjective and objective criteria’, for the former that it be ‘to the satisfaction of both parties’; and for the latter, that both parties ‘act in good faith’ which results in remedying the prejudice.41 On some occasions the request for an amicable settlement has been sent by the State authorities through the Commission to the complainants.42 On others the African Commission has initiated it itself.43 The extent to which the African Commission is then involved in such is not clear and thus it is not always apparent precisely what its role is.44 The 2010 Rules, although these do not apply to some of the earlier cases cited here, enable negotiations to be facilitated by one member of the Commission.45 They also require that the Commission itself ensure, if the parties inform it they have reached an amicable settlement, that the agreement ‘complies with or respects the human rights and fundamental freedoms enshrined See discussion in Chapter 34 (Article 56). Rule 107, Rules of Procedure of the African Commission 2010. 36 Rule 108, Rules of Procedure of the African Commission 2010. 37 See Chapter 34 (Article 56). R. Murray, ‘Decisions by the African Commission on individual communications under the African Charter on Human and Peoples’ Rights’, 46 ICLQ (1997) 412–434. 38 Rule 109(1), Rules of Procedure of the African Commission 2010. 39 Rule 109(2) Rules of Procedure of the African Commission 2010. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 38. 40 Communications 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC. 41 C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedure’, 20 HRQ (1998) 235, at 245. 42 E.g. Communication 289/04, Maîtres Brahima Koné et Tiéoulé Diarra v Côte d’Ivoire, 18 October 2013, paras 13–15. Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006, para 19. 43 E.g. Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 24. 44 See for discussion of other examples of amicable settlement, F. Viljoen, ‘Communications under the African Charter: Procedure and Admissibility’, in M. D. Evans and R. Murray, M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006, Cambridge University Press, 2008, chapter 3. 45 Rule 109(3) Rules of Procedure of the African Commission 2010. 34 35

670

33. Articles 55 and 57: Individual Communication Procedure

in the African Charter and other applicable instruments’, and indicates that the victims have consented and are satisfied with the settlement. The African Commission is then to prepare its own report with information on the agreement and ‘Recommendations by the Commission for steps to be taken by the parties to ensure the maintenance of the settlement’, implying that it will maintain some form of oversight over the content of the agreement and its compliance, particularly given if the terms of the settlement fail to be implemented within six months, the African Commission can, on the request of the complainant, continue with the process under the communication procedure.46 In one instance, the African Commission’s involvement is apparent where it asked the parties to provide it ‘with information on the progress made regarding the negotiations conducted by the Government of Côte d’Ivoire towards an amicable settlement’.47 On other occasions the African Commission acts as the conduit through which settlement is proposed. So, in one communication alleging the denial of nationality to an individual, while the case was pending before the African Commission: the Secretariat received by fax a Note Verbale from the Ministry of Foreign Affairs of Botswana with the information that the Head of State had granted Botswana nationality to Mr Modise, and that his certificate of nationality had been sent to him by post on 26th June 1995.48

The African Commission encouraged the complainant to agree this as an ‘amicable settlement’.49 Despite suggestions in the decision that this was not accepted by the complainant, the African Commission decided in April 1997 to close the case on the basis that there had been an amicable settlement.50 When the complainant contested his consent to this, the Commission reopened the communication and went on to pronounce on the merits of the case finding violations of the Charter and urging the government not only to recognise the individual as a citizen by descent but also to provide him with compensation.51 One can conclude that the acceptance of the amicable settlement by the complainant could be the determining factor. In one instance, a communication against Cameroon, the decision sets out some detail of what was agreed, although this is unusual. Here the African Commission received information from the complainant that: 1. the Government of Cameroon [had] dropped the criminal charges against the Freedom FM director and released the equipment of the Radio; 2. the Government committed itself to grant Radio Freedom FM a provisional authorization to broadcast, and process its application for a full license in a fair and equitable manner; 3. Freedom FM, for its part, agreed to discontinue the communication before the Commission, and settle the case; 4. the ongoing negotiations between the parties on the compensation issue have now produced a mutually acceptable compromise, with the Government of Cameroon agreeing to re-open the discussions with Radio Freedom FM in relation to the compensation of the damages suffered by the radio, with a view to reaching a fair, comprehensive and final settlement of the case; and 5. the Government has reiterated its commitment to grant Freedom FM a provisional authorization as soon as consideration of the current

Rule 109, Rules of Procedure of the African Commission 2010. E.g. Communication 289/04, Maîtres Brahima Koné et Tiéoulé Diarra v Côte d’Ivoire, 18 October 2013, para 17. 48 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 28. 49 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 29. 50 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 45. 51 Communication 97/93_14AR, John K. Modise v Botswana, 6 November 2000, para 97. 46 47

B. Procedure for Consideration of Communications

671

communication is discontinued—as well as process the Radio’s application for a broadcasting license in a fair, transparent, and expeditious manner.52

It closed the file on the request of the complainant, although asking specifically that a ‘written copy of the said amicable settlement’ was sent to the Secretariat to add to the file.53 This suggests no more than the African Commission being the repository of records of such settlements rather than the entity that may determine whether they are suitable or otherwise. A finding of a violation is not necessarily mutually exclusive with an amicable settlement. In a case against Côte d’Ivoire the African Commission found the State in violation of Articles 2 and 14 and made recommendations for reparations in these regards. It also, however: Strongly urges the Ivorian State to pursue, within the framework of the current national reconciliation process, the amicable settlement of all the disputes arising out of the application of the former discriminatory laws and to scrupulously ascertain that the principle of equality before the law, as stipulated in the African Charter, notably in its Article 2, is respected under all circumstances.54

The 2010 Rules of the African Commission suggest that protective missions can be used to reach an amicable settlement.55 Cases can be closed when an amicable settlement has been reached.56 Odinkalu rightly cautions against the apparent approach of the African Commission in some cases that it ‘treats withdrawal of a case as equivalent to an amicable settlement’.57 In an early case alleging arbitrary detention, the very brief reasoning of the African Commission noted that ‘the Commission decides to close the file because the victim has been released and the issue satisfactorily resolved’.58 It is difficult to make any assessment as to appropriateness of doing so without further information.

5. Decision on the Merits Once the African Commission has considered the submissions of the parties, in private,59 it ‘shall adopt a decision on the merits’. This decision is then signed by the Chair of the Commission, the Secretariat and subsequently authorised by the Assembly after which, only then are the parties informed.60 The decision should, according to the current Rules, 52 Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006, para 22. 53 Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006. 54 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008, para 30. 55 Rule 60(5) reads: ‘In the case of a mission for protection activities, the Mission Report shall be sent to the members of the delegation referred to in paragraph 2 of this Rules, as well as to other concerned parties, including any party to a Communication that was a subject of the Mission. The Commission shall consider the comments of these parties when finalizing the Report, especially with regard to any proposal for amicable settlement.’ 56 Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006, para 24. Communication 286/04, Dino Noca v DRC, 12 October 2013, paras 16–17. 57 C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedure’, 20 HRQ (1998) 235, at 247–249. 58 Communication 39/90_8AR, Annette Pagnoulle v Cameroon, 22 March 1995, para 2. 59 Rule 110(2), Rules of Procedure of the African Commission 2010. 60 Rule 110(3) Rules of Procedure of the African Commission 2010.

672

33. Articles 55 and 57: Individual Communication Procedure

be posted on the website. Unfortunately, as noted elsewhere,61 there can be some delay in the parties being informed of the decision post its authorisation by the Assembly and in its subsequent publication on the website. The African Commission’s decisions have been increasingly detailed since the publication, in its first decisions, of barely a paragraph per decision. Containing sections on the facts, procedure, now submissions of the complainant and respondent State, the decision on admissibility, merits and recommendations, they give greater insight into the rationale for the conclusions of the African Commission.

6. Review of Decision on Merits Prior to the 2010 Rules, there was no provision for review of the merits of the decisions of the African Commission.62 In Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania,63 the complainants requested a review of the decision on the merits on the basis of the former decision being infra petita, and that it did not ‘represent the required guarantees of impartiality’. The African Commission ruled there that, drawing upon the experiences of the International Court of Justice, it did have the competence to review its own decision, and the criteria on which it would do so would be that: it included a new fact not apparent at the time of the original decision; it must be made within a certain period of time; and the new information would have impacted on the decision or it had failed inadvertently to take it into account.64 The failure to consider should also ‘be an affront to fairness, justice and good conscience’.65 In this particular case it agreed with the complainants that it had ‘failed to pronounce itself on all the allegations . . . in particular Articles 1, 2 and 14’, and went on to find violations of Articles 1 and 14, but did not consider that the complainants had demonstrated how Article 2 had been violated. Rule 111 of the 2010 Rules of Procedure now provides explicitly for ‘Review of the decision of the Commission on the merits’. This sets out a procedure ‘once the Commission has taken a decision on the merits’. It may initiate the procedure itself or at the written request of one of the parties. When considering whether to proceed a number of factors are taken into account: ‘the discovery of some fact of such a nature as to be a decisive factor, which fact was not known to the Commission and the party requesting the review, provided that such ignorance was not due to negligence’; that the application is made within six months of the new fact being discovered and no more than three years after the date of the initial merits decision; and ‘any other compelling reason or situation that the Commission may deem appropriate or relevant to justify review of a Communication, with a view to ensure fairness, justice and respect for human and peoples’ rights’. See Chapter 36 (Article 59). Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 8. For further discussion of this decision see Chapter 2 (Article 1). For review of the decision on admissibility see Chapter 34 (Article 56). 63 Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010. 64 Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, paras 8–11. 65 Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, paras 8–11. 61 62

D. Amicus Curiae

673

C. Hearings, Witnesses and Experts Oral hearings are permissible under Rule 99 of the 2010 Rules of Procedure, either on the motion of the African Commission or at the request of the parties (at least ninety days before the session being requested), although the use of the word ‘may’ in Rule 99(1) implies that it is in the discretion of the Commission to grant this request. Oral arguments can only cover ‘new or additional facts or arguments’ or in response to questions raised by the Commission.66 Hearings are held in the private session and are in camera, although the African Commission can permit the parties and their representatives to be present, witnesses or experts, ‘or any person whom the Commission may decide to invite’.67 The Commissioners can ask questions, as can the parties if the Chair permits it. The Rules of Procedure include provisions on reprisals against the complainant, their relatives or witnesses. Experts and witnesses can also be called, either by the Commission, or requested by the parties. They will be required to take an oath akin to that in a court of law.68 Hearings, at admissibility and merits stage, are now common, the first being prompted by a powerful testimony from a victim, Embga Mekongo Louis, in the early 1990s,69 and now provided for in the Rules of Procedure of the African Commission. They clearly enable litigants to provide further information to the African Commission but the process has been criticised on a number of grounds including the inconsistency in approach by the African Commission, that not all parties do attend, and that the questions probed by Commissioners may not always be sufficiently informed.70 In addition, as sessions are often held in The Gambia but also in other States, this does not take into account the financial challenges faced by those wishing to be present. This is exacerbated by the unreliability of the Commission’s agenda, with it not being unusual for litigants to arrange to bring witnesses and representatives to a session having been informed that it is where their case will be heard, only to leave disappointed when the Commission changes its schedule at the last minute.71

D. Amicus Curiae Under Article 46, Rule 85 (the African Commission ‘may decide to solicit or accept interventions by parties other than the Complainant and the Respondent State that it considers could provide it with information relevant to making a decision on a Communication’) and Rule 99, the African Commission can receive amicus briefs, and permit the author to make a presentation at a hearing relating to that communication.72 It is apparent that Rule 99(2), Rules of Procedure of the African Commission, 2010. Rule 99(5) Rules of Procedure of the African Commission, 2010. 68 Rule 100, Rules of Procedure of the African Commission, 2010. 69 See Communication 59/91, Embga Mekongo Louis v Cameroon, 22 March 1995. 70 R. Murray, ‘Evidence and fact-finding by the African Commission on Human and Peoples’ Rights’, in M. D. Evans and R. Murray, M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006, Cambridge University Press, 2008, chapter 4. 71 S. Gumedze, ‘Bringing communications before the African Commission on Human and Peoples’ Rights’, 3 AHRLJ (2003) 188–148, at 136. 72 Rule 99, Rules of Procedure of the African Commission, 2010. C. A. Odinkalu & C. Christensen ‘The African Commission on Human and Peoples’ Rights: The Development of its non-state communication procedures’ 20 Human Rights Quarterly (1998) 279. See also R. Mackenzie et al, The Manual on International Courts and Tribunals (2010) 404–405. 66 67

674

33. Articles 55 and 57: Individual Communication Procedure

the African Commission has received amicus briefs in relation to several communications before it, despite the practical limitations imposed by Article 59. Because the African Commission has read Article 59 as requiring that all documents relating to communications submitted under Article 55 remain confidential,73 the ability of those who may have something to offer in terms of amicus submissions to be aware of the content of a particular communication and thereby make relevant and pointed submissions is extremely restricted. It thus depends on the individual or organisation wishing to submit an amicus having a close enough relationship with the complainants (or State) to know the content of the case, without the latter divulging detail which would be incompatible with Article 59.74 There are a number of changes that could be made to the system, even if the African Commission were to continue to take the same approach to Article 59. Indeed, it should be encouraged to consider such amendments as part of its current revision of its Rules of Procedure.75 Modifications could include making more information available in the activity on the content of any pending communication; and issuing a call for submissions of amicus briefs on particular issues, without necessarily specifying the communication to which this relates.76

E. Conflicts of Interest The legitimacy of the African Commission examining, consequently adopting a decision on alleged violations of the ACHPR and the State then implementing its recommendations is premised on the independence of the African Commission, as set out in Article 31 of the ACHPR. Rule 101 of the 2010 Rules of Procedure reiterates this by preventing a member of the Commission taking part in the ‘consideration’ of a communication on a number of grounds.77 These include that he or she is a national of the State; has ‘a personal interest’ in the case; ‘is engaged in any political or administrative activity or any professional activity that is incompatible with his or her independence or impartiality’; ‘has participated in any capacity in any decision at the national level in relation to the Communication’; or ‘has expressed publicly opinions that might be interpreted as reflecting lack of impartiality with respect to the Communication’. Although there have been concerns raised over the impartiality of particular members of the Commission at points in its history given their holding positions such as ambassadors or senior political posts,78 there have been fewer instances of actual allegations of bias. However, in one communication Eritrea raised this, questioning the independence of a Commissioner who had previously made a statement in public asserting violations of freedom of expression, the subject of the communication. The African Commission held that ‘the adjudicatory body must be subjectively free of personal prejudice or bias and; second See Chapter 36 (Article 59). F. Viljoen and A. K. Abebe, ‘Amicus curiae participation before regional human rights bodies in Africa’, 58(1) Journal of African Law (2014) 22–44, at 34. 75 R. Murray and O. Jonas, Amicus Submissions before the African Commission, Proposals for Addressing Challenges, January 2018, on file with author. 76 R. Murray and O. Jonas, Amicus Submissions before the African Commission, Proposals for Addressing Challenges, January 2018, on file with author. 77 Rule 102, Rules of Procedure of the African Commission, 2010. If a Commissioner considers they cannot take part in consideration of a communication they should withdraw, Rule 103. 78 See Chapter 29 (Articles 30–40). 73 74

F. Legal Aid and Representation

675

that the body must be objectively seen as impartial and offer sufficient guarantees to exclude any legitimate doubt in this respect’.79 Applying these to the case, it noted that the mandate of the Commission to promote, protect and interpret occurred simultaneously and each Commissioner carried out the range of functions. Consequently, the subjective test could not be met as this would require ‘a unilateral amendment of the Charter’.80 However, recognising that its own credibility was ‘at stake’, although the Commissioner may have been ‘speaking from a nuanced perspective’ as the Special Rapporteur, she had sent letters expressing concern on freedom of expression and the specific victim in the communication, to the Eritrea government in her capacity as Special Rapporteur. Given that the State was claiming that the Commissioner’s involvement ‘will negatively influence’ the outcome of the case, the African Commission found any perception of bias was ‘inconsequential’ as this was an allegation of ‘future bias’ when the Commissioner would be recused.81

F. Legal Aid and Representation The Rules of Procedure permit State parties and complainants under Article 55 to be represented82 and this is now a regular occurrence.83 Rule 104 of the 2010 Rules provides for legal aid which the Commission can ‘facilitate access to’ but will not be able to offer itself. Such assistance must be ‘essential for the proper discharge of the Commission’s duties, and to ensure equality of the parties before it; and The author of the Communication has no sufficient means to meet all or part of the costs involved’.84 In practice, a handful of experienced non-governmental organisations (NGOs) provide support to litigants wishing to bring a communication under Article 55, sometimes submitting the case in partnership with them.85 Although acting without legal representation or support is possible, the process is technical and requires a knowledge of international human rights law and the case law of the African Commission. A Voluntary Contribution Fund for the African Human Rights organs, proposed by the African Commission,86 was eventually adopted by the AU in January 2016 and provides for ‘legal assistance to indigent applicants’ before the African Commission, African Court and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC).87 79 Communication 428/12, Dawit Isaak v Republic of Eritrea, Decision of the African Commission on Human and Peoples’ Rights on the Preliminary Objection, 25 February 2016, at para 30. 80 Communication 428/12, Dawit Isaak v Republic of Eritrea, Decision of the African Commission on Human and Peoples’ Rights on the Preliminary Objection, 25 February 2016, at para 35. 81 Communication 428/12, Dawit Isaak v Republic of Eritrea, Decision of the African Commission on Human and Peoples’ Rights on the Preliminary Objection, 25 February 2016, at paras 44–45. 82 Rules 94 and 95(3) Rules of Procedure of the African Commission 2010. 83 See also C. A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedure’, 20 HRQ (1998) 235, for discussion of earlier cases. 84 Rule 104, Rules of Procedure of the African Commission 2010. 85 E.g. Communication 355/07, Hossam Ezzat & Rania Enayet (represented by Egyptian Initiative for Personal Rights & INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018; See S. Gumedze, ‘Bringing communications before the African Commission on Human and Peoples’ Rights’, 3 AHRLJ (2003) 188–148, at 122–123. 86 Resolution on the Establishment of a Voluntary Contribution Fund for the African Human Rights System, ACHPR/Res.96, 2006. 87 Statute on the Establishment of Legal Aid Fund for the African Union Human Rights Organs, 30 January 2016, Article 2(1).

676

33. Articles 55 and 57: Individual Communication Procedure

G. Issues of Evidence and Proof Neither the ACHPR, Rules of Procedure of the African Commission nor the Rules of Court refer to rules of evidence88 or the standard or burden of proof.89 Perhaps inspired by the breadth and vagueness of Article 46, enabling the African Commission to ‘resort to any appropriate method of investigation’ and to call on ‘any other person capable of enlightening it’, the Commission has similarly been open, and some might argue rather vague, in its approach to evidence that must be presented before it to substantiate allegations in a communication. It is, however, on many occasions left unclear as to how the African Commission has assessed the evidence before it, leading some to criticise it for being overly deferential to States.90 The range of types of evidence permitted are almost unlimited, bar the requirement in Article 56(4) that the allegations do not rely ‘exclusively’ on mass media, although, as is discussed in Chapter 34 (Article 56), this can be one source just not the only one. Complainants and Applicants and States before the African Commission and African Court have submitted witness statements and affidavits,91 expert reports, UN documents, legislation, reports from post-mortem examinations,92 court rulings and photographs. As noted above,93 although the African Commission and African Court do hold oral hearings, the communication process is principally based on written documentation. The African Commission, as noted in Chapter 31 (Articles 45 and 46), has undertaken ‘fact- finding’ missions prompted by communications pending before it and in order to obtain further information on the allegations, although there is insufficient consistent clarity on the manner in which it collects evidence whilst on mission and how this then informs its decision-making on the communications.94 It does not take missions on every occasion and again, there is no (at least publicly available) criteria setting out when it will decide to undertake a fact-finding mission.95 The African Commission initially need only be presented with a prima facie case by the complainant for the purposes of seizure and admissibility.96 If this has been achieved, then the burden will shift to the State to submit evidence ‘refuting each and every one of the assertions contained in the complainant’s submissions’.97

88 However see generally, Rules of Court, Rules 45 and 46, measures for taking evidence and witnesses and experts. 89 See R. Murray, ‘Evidence and fact-finding by the African Commission on Human and Peoples’ Rights’, in M. D. Evans and R. Murray, M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006, Cambridge University Press, 2008, chapter 4. 90 G. Bekker, ‘The African Commission on Human and Peoples’ Rights and remedies for human rights violations’, 13(3) Human Rights Law Review (2013) 499–528. 91 Communication 212/98, Amnesty International v Zambia, 5 May 1999. 92 E.g. Communication 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, 11 May 2000. 93 Section C. 94 See e.g. Communication 54/91, 61/91, 98/93, 210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-Droits, Association Malienne des Droits de l’Homme v Mauritania, 11 May 2000, para 87; Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006. 95 R. Murray, ‘On-site visits by the African Commission on Human and Peoples’ Rights: A case study and comparison with the Inter-American Commission on Human Rights’, 11 AJICL (1999) 460–473. 96 Communication 661/17, Amir Fam and 141 others v The Arab Republic of Egypt, 7 August 2017, para 24. See Chapter 34 (Article 56). 97 Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, para 44.

G. Issues of Evidence and Proof

677

The African Commission has reiterated ‘its longstanding practice that the burden of proof rests on the government in cases of human rights violations’.98 If the government is unable to provide evidence to contradict the allegations, there is no ‘substantive response’, from the government,99 or there is a blanket denial of responsibility,100 then the African Commission ‘will take it as proven, or at the least probable or plausible’.101 Its wording is not consistent, referring intermittently to the response of the government being ‘convincing’,102 or that it should ‘refute’ the allegations.103 However, the complainant in turn must submit ‘concrete proof ’ in order to hold the State responsible.104 A more thorough examination of the evidence presented by the complainants is increasingly apparent, particularly where the facts are contested by the parties.105 The African Commission has held that ‘[t]‌he burden to produce evidence in support of an alleged fact lies with the party asserting that fact’, although the principle is not absolute.106 Hence, in one case, as the complainants had not offered evidence which indicated a practice of those of the Baha’i faith having to produce particular documents, the African Commission was unable to consider this aspect of the allegation of discrimination.107 The African Court for its part has held that Article 26(2) of the Protocol108 ‘highlights the principle of free admissibility of evidence implies in particular that the Court is not limited by internal restrictive rules of law with regard to admissible evidence. It may therefore decide that a type of evidence required under domestic law is not necessarily required before it as an international court’.109 Evidence brought to determine reparations will need ‘to establish that these damages directly arose from the facts of this case and the violations declared in the judgment’.110

Communication 288/04, Gabriel Shumba v Zimbabwe, 30 June 2017, para 40. Communications 27/89, 46/91, 49/91 and 99/93, Organisation Mondiale contre la Torture and Association Internationale des Juristes Democrates, Commission Internationales des Juristes (CIJ), Union Interafricaine des Droits de l’Homme v Rwanda, 31 October 1996, para 28. 100 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995, paras 24–25. 101 Communication 288/04, Gabriel Shumba v Zimbabwe, 30 June 2017, para 40. 102 Communication 48/90, 50/91, 52/91 and 89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 75. 103 E.g. Communication 140/ 94, 141/ 94 and 145/ 96, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999. 104 Communication 288/04, Gabriel Shumba v Zimbabwe, 30 June 2017, para 40. 105 See criticism in the past: R. Murray, ‘Evidence and fact-finding by the African Commission on Human and Peoples’ Rights’, in M. D. Evans and R. Murray, M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006, Cambridge University Press, 2008, chapter 4. 106 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 171. Communication 60/91, Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and others) v Nigeria, 22 March 1995, para 27: where it held that ‘without specific information as to the nature of the acts themselves, the African Commission is thus unable to find a violation of Article 4’. 107 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, paras 172–173. 108 This reads: ‘The Court may receive written and oral evidence including expert testimony and shall make its decision on the basis of such evidence.’ 109 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 52. 110 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 30. 98 99

678

33. Articles 55 and 57: Individual Communication Procedure

H. Provisional Measures Provisional measures, permitted under Rule 98 of the 2010 Rules of Procedure,111 are there to ‘prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands’.112 They can only be given in the context of a communication which is pending before the African Commission (‘[a]‌t any time after the receipt of a Communication and before a determination on the merits’113). The Rules give little detail on the process which the African Commission must follow when considering such a request, other than provision for what happens in between sessions (the Chair or Vice Chair will take a decision), and afterwards (the Commission will inform the victim, Assembly, Peace and Security Council (PSC) and African Union Commission (AUC); and ask that the State report within fifteen days on what it has done to implement them). The African Commission has issued a ‘request’ on some occasions114 and an ‘order’115 or ‘decision’ on another. Arguably ‘greatly underutilised’,116 provisional measures have been requested in a number of communications in relation to a variety of different contexts, such as a candidate’s access to State-controlled media during an election campaign;117 human rights abuses against the Anuak community in Ethiopia be halted;118 detainees be released;119 universities be reopened to stop interference with teaching;120 and, infamously in the cases of Mariette Bosch in Botswana121 and Ken Saro-Wiwa and his colleagues in Nigeria,122 not to execute individuals who had been sentenced to the death penalty. As these latter cases illustrate, as well as a number of others, the requests have not been respected on every occasion.123

111 Rule 111 of the 1995 Rules of Procedure. Under the 1988 Rules, it was Rule 109, First Activity Report of the African Commission on Human and Peoples’ Rights, adopted 28 April 1988, Annex V, as reproduced in R. Murray and M. D. Evans Documents of the African Commission on Human and Peoples’ Rights, Vol. 1, Hart Publishing, 2001. See also D. Juma, ‘Provisional measures under the African human rights system: The African Court’s order against Libya’, 30 Wis. Int’l L.J. (2012-2013) 344–373. See also C. Berbano-Herrera and F. Viljoen, ‘Provisional Measures issued by the African Commission and African Court on Human and Peoples’ Rights’, in Y. Haeck and C. Burbano-Herrera (eds) Interim Measures in International Human Rights Law, Oxford University Press, 2017. 112 Rule 98(1), Rules of Procedure of the African Commission 2010. 113 Rule 98(1), Rules of Procedure of the African Commission 2010. 114 Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Arab Republic of Egypt, 1 March 2011, para 101. 115 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016; see also in relation to Communication 419/12, The Indigenous Peoples of the Lower Omo (represented by Survival International Charitable Trust) v Ethiopia, see 35th Activity Report of the African Commission on Human and Peoples’ Rights, para 27. 116 S-A. Elvy, ‘Theories of state compliance with international law: Assessing the African Union’s ability to ensure state compliance with the African Charter and Constitutive Act’, 41 Ga. J. Int’l & Comp. L. (2012- 2013) 75–155, at 148. 117 Communication 413/12, David Mendes (represented by the Centre for Human Rights, University of Pretoria) v Angola, 25 February 2013, para 13. 118 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 15. 119 Communication 256/02, Samuel Kofi Woods, II and Kabineh M. Ja’neh v Liberia, 20 November 2003, para 8. 120 Communication 220/98, Law Offices of Ghazi Suleiman v Sudan, 16 May 2002, para 7. 121 Communication 240/01, Interights et al (on behalf of Mariette Bosch) v Botswana, 20 November 2003. 122 Communication 137/94-139/94-154/96-161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr v Nigeria, 31 October 1998. 123 D. Juma, ‘Provisional measures under the African human rights system: The African Court’s order against Libya’, 30 Wis. Int’l L.J. (2012-2013) 344–373, at 358.

I. Closure and Withdrawal

679

The consequences of non-compliance in most cases is nothing,124 despite the African Commission expressing its ‘outrage’.125 Failure to implement provisional measures will violate Article 1 (it is not consistent in its approach here)126 and the African Commission also has the option to refer such cases to the African Court under Rule 118(2) of its Rules of Procedure.127 In addition, the Commission has resent or re-issued provisional measures, sometimes on the request of the complainant, when the State has not respected them.128 Unfortunately, very little information is given in the decisions on the reasoning behind its conclusion as to whether to issue provisional measures or not,129 which can result in apparent inconsistencies in the decisions.130 Rule 98 of the Rules of Procedure indicate only that the purpose is to ‘prevent irreparable harm to the victim or victims’.131 The decisions add nothing further of any consequence. For example, in one decision the African Commission explained it had declined the request for provisional measures simply ‘because it deemed that the circumstances of the case did not warrant provisional measures’.132 In another, again refused, it stated this was on the basis that the ‘complainant did not demonstrate the irreparable damage that would be caused if the provisional measures were not taken’.133 For discussion of interim or provisional measures before the African Court see Chapter 39 (Section E.k).

I. Closure and Withdrawal As noted above and in relation to Article 56 (Chapter 34) cases can be closed if the parties reach an amicable settlement or a party requests that it is withdrawn.134 With respect to the latter, the extent to which the African Commission will publish what has occurred in the case until that point is not at all clear. The sometimes delay in publishing the case on the website, and the fact that proceedings can continue for years makes it challenging to identify cases which have been registered but on which there is no published outcome.135 124 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 640. Eleventh Annual Report of the African Commission, 1997-1998, OAU Doc.CM/2084 (LXVIII), Addendum, para 16. 125 Final Communiqué of the 23rd Ordinary Session of the African Commission, para 9. 126 For example, in Communication 240/01, INTERIGHTS et al (on behalf of Mariette Bosch) v Botswana, 20 November 2003, it did not find any violations on the basis that there was no proof that the fax sent by the African Commission alerting the government to the provisional measures had in fact been received; see paras 97–101. 127 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, 27 May 2017. See Chapter 39 (Articles 63–68). 128 E.g. Communication 413/12, David Mendes (represented by the Centre for Human Rights, University of Pretoria) v Angola, 25 February 2013, para 22. Communication 334/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Arab Republic of Egypt, 1 March 2011, paras 40 and 52. 129 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, at para 176. Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016. 130 G. Bekker, ‘The African Commission on Human and Peoples’ Rights and remedies for human rights violations’, 13(3) Human Rights Law Review (2013) 499–528, at section C. 131 Rule 98(1), Rules of Procedure of the African Commission, 2010. 132 Communication 435/12, Eyob B Asemie v Kingdom of Lesotho, 13 February 2015, para 16. 133 Communication 322/06, Tsatsu Tsikata v Ghana, 14 October 2014, para 19. See also Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, para 16. 134 Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006. 135 See e.g. Communication 380/09, Global Conscience Initiative Cameroon v Cameroon, cited in the 32nd and 33rd Activity Report of 2013 and listed as ‘request for withdrawal’ but on which no further information is found.

680

33. Articles 55 and 57: Individual Communication Procedure

Where author has ‘no interest’ in proceeding with the case,136 when they fail to respond to letters from the Commission,137 when the complainant chooses to withdrawal the communication138 or states that they do not intend to proceed with it,139 then it will be closed. The Working Group on Communications has a mandate to advise the African Commission ‘on the withdrawal or closure of communications’140 although no further detail is provided by the Working Group on criteria, if any, that it adopts when considering these matters. In an innovative argument, the State of Côte d’Ivoire wished that one communication be closed on the basis that the African Commission should apply the ‘principle of topicality’ and should assess the facts as they stood on the day the African Commission made the ruling.141 Noting its previous decisions that it will rule on the communication on the basis of the facts at the time the case was submitted to it, the African Commission held that even if the law had been changed this does not mean an ‘automatic’ closure of the case.142 It therefore continued to examine the merits.

J. Implementation Of little interest to many in the earlier years of the African Commission’s existence was what happened post-decision.143 That such matters were of minor consequence could be attributed, in part, to the African Commission for many years making no recommendations beyond a mere statement that the State had violated the provisions of the ACHPR and if it did so, its statements were generalised (‘ensure that it complies with its international obligations’) and gave no precise indication to the State as to what it should do to remedy the violation. As the communications procedure has become more embedded, and the human rights community has turned its attention to the effectiveness or otherwise of these mechanisms, so greater consideration has been paid to whether the State has actually implemented any recommendations made by the African Commission in its decision.144 This has prompted the African Commission in turn to give more thought as to how it should frame its recommendations in its decisions and to adopt a procedure for monitoring follow-up. Rule 112 of the 2010 Rules of Procedure now sets out that after

Communication 31/89, Maria Baes v Democratic Republic of the Congo, 22 March 1995. Communication 201/97, Egyptian Organisation for Human Rights v Egypt, 11 May 2000, para 15, but also held to be inadmissible. 138 Communication 261/02, Interights et al v Egypt, 29 May 2003; Communication 349/07, Simon Weldehaimanot v Eritrea, 31 March 2016. Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v Cameroon, 25 May 2006, para 23. 139 Communication 349/07, Simon Weldehaimanot v Eritrea, 31 March 2016, para 17. 140 Resolution on the mandate of the Working Group on Communications of the African Commission on Human and Peoples’ Rights, ACHPR/Res.212, 1 March 2012. 141 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008, para 60. 142 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008, para 60. 143 R. Murray and D. Long, Implementation of the Findings of the African Commission on Human and Peoples’ Rights, Cambridge University Press, 2015. See also Chapter 2 (Article 1). 144 F. Viljoen and L. Louw, ‘State compliance with the recommendations of the African Commission on Human and Peoples’ Rights, 1994–2004’, 101 AJIL (2007) 1–34. F. Viljoen and L. Louw, ‘The status of the findings of the African Commission: From moral persuasion to legal obligation’, 44(1) JAL (2004) 1–22. Open Society Justice Initiative, From Rights to Remedies, Structures and Strategies for Implementing International 136 137

J. Implementation

681

the Commission’s activity report has been considered by the AU Assembly, the parties can themselves disseminate the decision. The parties each have 180 days from the date of the decision to inform the African Commission of any measures that the State has taken to implement it, with additional times permitted for the State to submit further information to the Commission.145 In some decisions a different time limit is given.146 The African Commission can send reminders to the State, and the rapporteur for the communication, or another Commissioner, is tasked with monitoring the measures taken and making contacts or taking appropriate action. A report is presented by the Working Group on Communications, who is mandated now to deal with monitoring implementation,147 to each session of the African Commission. Information is included in its Activity Report.148 In addition, although it cannot be considered to be a strategy as such, the African Commission has used its other mechanisms to monitor States’ compliance with its decisions. This has included requesting information during a mission;149 asking questions during the State reporting process and making comments in concluding observations;150 mentioning the particular case in a resolution on the State;151 and, although infrequently, adopting a resolution specifically on the communication in question.152 The African Commission has also offered its ‘good offices’ to the parties to ‘facilitate implementation’.153 Its tactic is to engage principally with the parties to the communication in terms of obtaining information on the extent of implementation, and whilst it has the capacity in Human Rights Decisions, OSJI, New York, 2013; Open Society Justice Initiative, From Judgment to Justice. Implementing International and Regional Human Rights Decisions, OSJI, New York, 2010. Rule 112. E.g. Communication 245/2002, Zimbabwe HR NGO Forum v Zimbabwe, 2006, ‘during the presentation of its next periodic report’, Recommendations, para 5. Communication 292/2004, IHRDA v Angola, May 2008: ‘at a later stage’. 147 Resolution on the expansion of the mandate of the working group on communications and modifying its composition, ACHPR/RES.255, October 2012. 148 Rule 112. E.g. 35th Activity Report of the African Commission, reference to 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, to ‘follow-up on implementation’, p.27, see also para 27: ‘With regards to 419/12, The Indigenous Peoples of the Lower Omo (Represented by Survival International Charitable Trust) v Ethiopia, the Commission issued an Order against the State, requesting the latter to adopt Provisional Measures to prevent irreparable harm being caused to the victim of alleged human rights violations; the State has not respected that Order’. 149 E.g. a decision on a number of related communications against Mauritania was discussed in a promotional visit by the CPTA Chairperson in 2012, Report of the Promotional Mission to the Islamic Republic of Mauritania, held between 26 March and 1 April 2012, at p.9. Similarly, in a mission to Botswana in 2005, the visiting delegation requested information on the steps taken to implement recommendations on the decision on Modise vs Botswana, Report of the Promotional Mission to the Republic of Botswana, held between 14–18 February 2005, at.13. OSJI, From Judgment to Justice: Implementing International and Regional Human Rights Decisions, at 107; Report of the Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, presented at the 52 Ordinary Session of the African Commission, held between 9 and 22 October 2012, para 44. 150 E.g. Concluding Observations on Mauritania’s Report, 16 February 2012. 151 See Resolution on the Human Rights Situation on Eritrea, adopted at the 38th Ordinary Session held between 21 November and 5 December 2005. 152 Resolution Calling on the Republic of Kenya to Implement the Endorois Decision, ACHPR/Res.257, 5 November 2013. 153 Final Communiqué of the 13th Extra Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 19–25 February 2013, para 7vii. See also under the previous Rules of Procedure, Rule 98: ‘Except the provisions of the present Rules of Procedure, the Commission shall place its good offices at the disposal of the interested States parties to the Charter so as to reach an amicable solution on the issue based on the respect of human rights and fundamental liberties, as recognized by the Charter’. See also John K Modise v Botswana, November 2000. 145 146

682

33. Articles 55 and 57: Individual Communication Procedure

Rule 112(6) to receive information from others, an option exploited by some civil society organisations (CSOs),154 this has not been used to its fullest extent. A communication has been brought using Article 1 to argue, successfully, that failure to comply with a decision of the African Commission will itself violate the ACHPR.155 Rule 112 provides that the African Commission should draw the attention of the ‘Sub- Committee of the Permanent Representatives Committee and the Executive Council on the Implementation of the Decisions of the African Union, to any situations of non- compliance with the Commission’s decisions’, but this committee does not seem to exist. The African Commission also has the power, under Rule 118, to refer any case of non- compliance to the African Court which, as is discussed in Chapter 39 (Articles 63–68) is problematic given the challenges it has faced with gathering information and establishing policies on how it should monitor implementation of its decisions. This Rule, one presumes, is there in part as it is premised on the basis that where the African Commission’s quasi-judicial authority has failed to be respected by the State, so the latter will react differently to a binding decision of the African Court. Research suggests that the reasons States comply is not grounded simply on whether the decision is binding or not. Indeed, as noted in Chapter 2 (Article 1), the African Commission itself has reiterated that it considers its own decisions to be binding on the State,156 and the political organs of the AU have called on States to implement the Commission’s decisions.157 Yet this relationship between the AU organs and the African Commission when it comes to monitoring implementation is unclear and yet to be fully formulated. This is also related to what role the AU should play with respect to the monitoring of judgments of the African Court and decisions of the ACERWC and whether the three should be treated the same.158 This is an ongoing and current debate which depends on a range of factors, not least the African Commission’s own conclusion as to what role it considers it should play in monitoring implementation of its decisions, how it will acquire any such information, and with whom it should share the burden of monitoring. In the meantime, the African Commission could make some simple improvements which may have a significant impact such as continuing in its approach to provide more precise recommendations in its decisions; and providing more detail in its Activity Report and on its website on what action States have (and have not) taken to implement the decisions.159 154 IHRDA, Communication Nos.54/91-61/91, 98-93-164/97, 196/97, 210/98, Malawi Africa Association et al v Mauritania, Implementation Dossier. For presentation to the African Commission on Human and Peoples’ rights on the occasion of the 50th Ordinary Session, October 2011, IHRDA were not the original complainants. 155 Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v Nigeria, 31 October 1998, which related to the failure of the government to comply with a previous decision of the African Commission (Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria), 22 March 1995. See Chapter 2 (Article 1). 156 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 234. Communication 272/03, Association of Victims of Post Electoral Violence and INTERIGHTS v Cameroon, para 87. 157 EX.CL/Dec.841(XXV) Page 1, Decision on the Thirty-Sixth Activity Report of the African Commission on Human and Peoples’ Rights, para 3. EX.CL/Dec.775(XXIII), Decision on the Thirty-Fourth Activity Report of the African Commission on Human and Peoples’ Rights, para 4. EX.CL/Dec. 372 (XI), Decision on the 22nd Activity Report of the African Commission on Human and Peoples’ Rights, para xi. 158 See R. Murray, D. Long, V. Ayeni and A. Some, ‘Monitoring implementation of the decisions and judgments of the African Commission and Court on Human and Peoples’ Rights’, 1 African Human Rights Yearbook (2017) 150–166. 159 See Chapter 36 (Article 59).

K. Special Mechanisms: Working Group on Communications

683

K. Special Mechanisms: Working Group on Communications Rule 97 of the 2010 Rules of Procedure explicitly enables the African Commission to establish ‘one or more working groups to consider questions of seizure, admissibility and the merits of any Communication(s) and to make recommendations to the Commission’.160 The Working Group on Communications is a consequence of this provision, set up in 2011.161 Meeting twice a year initially, this Working Group’s mandate was laid out in 2012 as being to consider seizure, admissibility and ‘where necessary’ the merits. It is also required to ‘Inform the African Commission on the status of Communications at all stages of the procedure; Inform the African Commission on the status of implementation of its decisions on Communications; Examine Communications to be referred to the African Court on Human and Peoples’ Rights and make recommendations to the African Commission’; as well as to provide advice on provisional measures, withdrawal and closure, the granting of oral hearings and ‘[ensuring] that the final versions of decisions accurately reflect the comments and observations of Members of the African Commission’.162 The mandate was subsequently expanded to include monitoring the implementation of decisions by coordinating follow-up, collecting information and producing a report to each session on the status of implementation.163 These reports produced at each session provide an overview of the number of communications received and considered,164 as well as a list of recommendations and the status of implementation.165 The detail is limited, however, one presumes in line with the African Commission’s tight reading of Article 59 and that ‘all measures’ remain confidential until approval by the AU’s Assembly.166 There are no external experts on this Working Group, it being composed only of Commissioners and members of the secretariat,167 the latter being coordinated by the Secretary.168

Rule 97(2), Rules of Procedure of the African Commission 2010. Resolution Establishing a Working Group on Communications and Appointment of Members, ACHPR/Res.194, 5 November 2011. 162 Resolution on the mandate of the Working Group on Communications of the African Commission on Human and Peoples’ Rights, ACHPR/Res.212, 1 March 2012. 163 In line with Rule 112, Resolution on the expansion of the mandate of the working group on communications and modifying its composition, ACHPR/Res.255, 22 October 2012. 164 E.g. Report of the Chairperson of the Working Group on Communications by Commissioner Lucy Asuagbor, presented during the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015. 165 E.g. Report of the Chairperson of the Working Group on Communications by Commissioner Lucy Asuagbor, presented during the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015. Intersession Activity Report (November 2016–May 2017), of Hon. Commissioner Lucy Asuagbor Chairperson of the Working Group on Communications, Presented at the 60th Ordinary Session of the African Commission on Human and Peoples’ Rights, Niamey, Niger, 8–22 May 2017. Intersession Activity Report (June–November 2017) of Hon. Commissioner Lucy Asuagbor, Chairperson of the Working Group on Communications, Presented at the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017. 166 See Chapter 36 (Article 59). 167 Resolution on the mandate of the Working Group on Communications of the African Commission on Human and Peoples’ Rights, ACHPR/Res.212, 1 March 2012. Resolution on the expansion of the mandate of the working group on communications and modifying its composition, ACHPR/Res.255, 22 October 2012. 168 Resolution on the Renewal of the Mandate and Reconstitution of the Working Group on Communications, ACHPR/Res.314, 18 November 2015. 160 161

34. Article 56 Admissibility of Individual Communications 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 requests anonymity, 2. Are compatible with the Charter of the Organisation 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 Organisation 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 with the matter, and 7. Do not deal with cases which have been settled by those States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organisation of African Unity or the provisions of the present Charter.

A. Introduction In many of the Commission’s, in particular earlier, decisions the reasoning on its findings, including that on admissibility was brief, amounting to little more than a couple of lines,1 and in some cases not even that.2 Indeed, earlier cases tended to include only reasoning with respect to the ground on which there was some dispute, and therefore not necessarily on all elements of Article 56.3 Increasingly, however, the detail is considerable and it is therefore easier to comprehend the basis on which the decision was reached. Decisions on inadmissibility are published separately. Decisions on admissibility only appear as part of the final decision which also contains the merits. The African Commission will apply the legislation or constitutional provisions that existed at the time when the communication was brought before the African Commission even if they are subsequently amended.4 It will rule on the facts as alleged at the time

1 E.g. Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996; Communication 35/ 89, Seyoum Ayele v Togo, 27 April 1994, Communication 57/91, Tanko Bariga v Nigeria, 27 April 1994; Communication 53/90_7AR, Albert T. Capitao v Tanzania, 27 April 1994; Communication 135/94, Kenya Human Rights Commission v Kenya, 11 October 1995; Communication 72/92, Bamidele Aturu v Nigeria, 27 April 1994. Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 51; Communication 43/90, Union des scolaires nigériens, Union générale des étudiants nigériens au Bénin v Niger, 27 April 1994. 2 Communication 131/94, Ousman Manjang v Gambia (The), 27 April 1994; Communication 107/ 93, Academic Staff of Nigerian Universities v Nigeria, 27 April 1994; Communication 45/90, Civil Liberties Organisation v Nigeria, 27 April 1994; Communication 209/97, Africa Legal Aid v Gambia (The), 11 May 2000, para 15. 3 E.g. Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996. 4 Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 74.

A. Introduction

685

of the submission of the communication.5 Furthermore, where there has been a change in government or political context which has resulted in, for example, the release of detainees, the African Commission has reiterated that any new government will be responsible for the acts of the previous regime.6 Most of the decisions on admissibility are based on written evidence supplied by the parties. However, the African Commission has also held hearings on admissibility specifically.7 Indeed, its 2010 Rules permit ‘supplementary observations’ on admissibility to be obtained from an oral hearing.8 Because, as will be seen below, some of the interpretations of the various provisions of Article 56 have not always been consistent, it is not always easy to attribute a particular meaning to what the African Commission has stated.9 Where such instances arise, they will be discussed accordingly. Rule 117 of the African Commission’s 2010 Rules of Procedure provide that the Commission may request the State to give further information on the admissibility of a communication and time limits may be given by the Commission. Where the State has failed to respond, the Commission will proceed on the basis of the information given by the complainant on the basis of Rule 117(2) and (4).10 The information provided by the complainant must be ‘verifiable’.11 If the complainants refuse to give information on the admissibility conditions they can be found not to have been satisfied.12 The complainant will need to do more than, as was the case in Mouvement des réfugiés mauritaniens au Sénégal pour la defense des droits de l’Homme v Senegal, state that the domestic procedures will be unduly prolonged but without giving reasons why, particularly when the Respondent State provides its own arguments on this issue.13 Similarly the complainant in another case against Nigeria said that the allegations had been brought before ‘several authorities’ without clarifying whether this was before national courts. The communication was held to be inadmissible.14 All Article 56 conditions need to be fulfilled for the communication to be admissible: ‘conditions laid down in Article 56 are conjunctive, meaning that if any one of them is absent, the communication will be declared inadmissible’.15 As to whether the Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003, para 40. Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, 7 May 2001. 7 E.g. Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 41: ‘At its 34th Ordinary Session held in Banjul, The Gambia from 6th to 20th November 2003, the African Commission granted audience to the parties to complement their respective written submissions orally’. 8 Rule 105, Rules of Procedure 2010. 9 F. Viljoen, ‘Admissibility under the African Charter’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002, 61–99, at 63. 10 Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, 28 June 2016, paras 33–35. 11 Communication 286/2004, Dino Noca v Democratic Republic of the Congo, 12 October 2013, para 39. 12 Communication 248/02, Interights and World Organisation against Torture v Nigeria, 4 June 2004; Communication 256/02, Samuel Kofi Woods, II and Kabineh M. Ja’neh v Liberia, 20 November 2003, para 16. Communication 230/99, Motale Zacharia Sakwe v Cameroon, 6 November 2000, para 19. Communication 201/97, Egyptian Organisation for Human Rights v Egypt, 11 May 2000, para 15; Communication 8/88, Nziwa Buyingo v Uganda, 22 March 1995. 13 Communication 254/02, Mouvement des réfugiés mauritaniens au Sénégal pour la defense des droits de l’Homme v Senegal, 29 May 2003, para 14. 14 Communication 252/02, Stephen O. Aigbe v Nigeria, 29 May 2003. 15 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 43. Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 81. 5 6

686

34. Article 56: Admissibility of Individual Communications

African Commission or Court will address each sub paragraph of Article 56 even if the State does not contest it, there is some contradiction in the case law here before the African Commission. In a 2015 decision where both parties agreed on all of the Article 56 grounds bar two, the African Commission simply stated that its consideration of the admissibility requirements ‘will focus mainly on finding out if these two conditions have been met’.16 In addition, in a 2008 decision it noted: since the State did not raise objections on the other requirements under Article 56, it is presumed that they have been complied with by the Complainant. The Commission will therefore pronounce on the two requirements in dispute.17

However, in one 2013 case the State contested only Article 56(5), yet with respect to the other provisions of Article 56 the African Commission agreed with the complainant and went on further to note that ‘[h]‌aving studied the Complainant’s submissions, the African Commission sees no reason to hold an opposing view’.18 Overall, its approach tends to be that it will retain the power to consider each Article 56 ground, including those which are uncontested. So in one communication where there were two of the Article 56 conditions which were disputed, the African Commission noted that it had ‘carefully examined’ the communication and the parties’ submissions it held that with respect to the other admissibility requirements these ‘raised no contentious issues and are satisfied’.19 Similarly, it has also held that if ‘a party contends that another party has not complied with one of the requirements, the Commission must pronounce itself on the contentious issues between the parties, as well as the non-contentious issues’.20 This surely has to be the correct approach. The African Court takes a similar stance.21 However, in one application where the Respondent State had not contested that local remedies had been exhausted, the African Court’s judgment found the application to be inadmissible on this ground. A Joint Dissenting Opinion from two Judges noted that while the Court had a right and duty to examine each admissibility condition even if it were not contested, ‘when the Respondent State itself—which is supposed to have a good knowledge of the remedies available in its judicial system and which has an interest in challenging the admissibility of the application—admits that the local remedies had been exhausted, when the Commission arrives at the same conclusion after examining the circumstances surrounding the matter,

16 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciaires Stratégiques v Democratic Republic of Congo, 10 March 2015; See similarly, Communication 372GTK/2009, Interights (on behalf of Gizaw Kebede and Kebede Tadesse) v Ethiopia, 16 December 2011, para 61; and Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 49. Communication 317/ 2006, The Nubian Community in Kenya v The Republic of Kenya, 30 May 2016, para 24. 17 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 18 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013. 19 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015; see also Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 67; Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 40. Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, para 48. Communication 338/07, Socio-Economic Rights and Accountability Project (SERAP) v the Federal Republic of Nigeria, 21 November 2010, para 46. 20 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 56. 21 In the Matter of Mohamed Diakite Couple v Republic of Mali, App. No. 009/2006, Judgment of 28 September 2017, para 30.

A. Introduction

687

the Court must have very convincing reasons to go against this common position, and decide that local remedies had not been exhausted’.22 A rapporteur Commissioner will be appointed by the Commission for each communication.23 Rule 97(2) gives the Commission the power to establish a working group or groups to ‘consider questions of seizure, admissibility and the merits of any Communication(s) and to make recommendations to the Commission’ and in November 2011 the African Commission created the Working Group on Communications with the mandate to deal with issues of admissibility among others.24 As to whether the communication has to be submitted in any particular form, in one case the State argued that the communication, being sent by a letter of appeal to the African Commission’s Special Rapporteur on Prisons and Conditions of Detention, did not meet the prescribed form. The African Commission noted that Article 56 does not set out what is the necessary form and thus this was not a prerequisite for admissibility.25 Sending a letter to a special rapporteur was in fact, in this case, ‘the most practicable and reliable means for the Complainants to bring the plight of the victims to the African Commission’.26 In a case before the African Court the Respondent State argued that as the Applicant had not signed the application to the Court it should be held inadmissible, noting Rule 34(1) of the Rules of Court.27 The African Court held that this was not an admissibility issue, and the objection was immaterial given other documents submitted did contain signatures of the applicant.28 As has been seen in Chapter 33 (Article 55) there has sometimes been a lack of clarity over issues of seizure, competence and jurisdiction of the African Commission and how these relate to admissibility, not assisted by the fact that Rule 93 of the Commission’s Rules of Procedure which is entitled ‘seizure’, covers issues such as: the detail which the communication includes; information on the complainant; steps taken to exhaust domestic remedies; and whether it has been submitted to another international body. Time limits are provided for in the Commission’s Rules of Procedure with respect to the submission of information on admissibility by the parties,29 although it is clear that these are often not complied with by either the parties, nor always enforced by the African Commission. With cases before the African Court, the Court is entitled under Article 6(2) of the Protocol, to ‘rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter’. A preliminary examination will be undertaken by the Court on admissibility, under Rule 39 of its Rules of Court, and Rule 40. As will be seen, the wording in Rule 40 does not exactly mirror that in Article 56. 22 Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment on the Merits, 21 June 2013, Joint Dissenting Opinion of Judges Gerard Niyungeko and El Hadji Guisse, para 13. 23 Rule 97, Rules of Procedure of the African Commission, 2010. 24 Resolution Establishing a Working Group on Communications and Appointment of Members, ACHPR/ Res.194, 5 November 2011. 25 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, paras 119 and 120. 26 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 120. 27 Wilfred Onyango Nganyi & 9 Others v United Republic of Tanzania, App. No. 006/2013, Judgment of 18 March 2016, 71. 28 Wilfred Onyango Nganyi & 9 Others v United Republic of Tanzania, App. No. 006/2013, Judgment of 18 March 2016, para 73. 29 Rule 105, Rules of Procedure 2010.

688

34. Article 56: Admissibility of Individual Communications

As the African Court has started to deal with cases, so the issue has arisen of how it will treat communications that are referred to it by the African Commission where the latter has already made finding on admissibility. Here the African Court has held that: even though the rules of admissibility applied by the Commission and this Court are substantially similar, the admissibility procedures with respect to an Application filed before the Commission and this court are distinct and shall not be conflated. Accordingly, the Court is of the view that admissibility and other procedures relating to a complaint before the Commission are not necessarily relevant in determining the admissibility of an Application before this Court.30

One argument for keeping some distinction between the rules on admissibility before the Court and those before the Commission is that it enables the African Court to examine a matter de novo if it has already been before the African Commission. However, in practice the African Court appears so far to have relied on the jurisprudence of the African Commission when interpreting admissibility31 and indeed has said that Rule 40 ‘in essence restates Article 56’ of the ACHPR.32

B. Standard and Burden of Proof The African Commission has held that the standard of proof may vary at admissibility stage from that at merits. It was argued in one case by the complainant that the standard of proof should be lower at the admissibility stage, whereas the State considered it was ‘beyond reasonable doubt’.33 Recognising that the standard of proof can vary depending on ‘various purposes and in respect of different subject matter and in a variety of circumstances’34 and a ‘single standard of proof ’ does not apply in the context of admissibility, the African Commission cited examples such as ratione materiae requiring only prima facie evidence, but which would be higher at merits stage.35 However, ratione temporis ‘must be made out conclusively at admissibility stage as the very possibility of a case on the merits necessarily depends on whether the Respondent State had undertaken the necessary obligations when the alleged violations occurred. Whether a particular violation occurred after the critical date is an issue that goes to admissibility and not the merits of the alleged violations’.36 A similar approach should be taken to ratione personae and ratione loci.37

30 African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, 26 May 2017, para 78. 31 See e.g. The matter of George Maili Kemboge v The United Republic of Tanzania, App. No.002/2016, Judgment, 11 May 2018, ‘Rule 40 of the Rules, which in substance restates the provisions of Article 56 of the Charter’, at para 26. 32 In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, para 35. 33 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 140. 34 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 142. 35 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 143. 36 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 144. 37 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, paras 145–146.

C. Lack of Diligent Prosecution and Striking Out

689

The Republic of Djibouti, in one case which alleged it had been involved in extraordinary rendition, argued that in determining this matter the African Commission would have also to consider the actions of a third State, the USA, and therefore it did not have the competence to examine the communication.38 The African Commission did not agree, noting the obligation of the State party to the African Charter on Human and Peoples’ Rights (ACHPR) with respect to violations of human rights and torture in particular.

C. Lack of Diligent Prosecution and Striking Out The Rules of Procedure of the African Commission make no reference to the terms of ‘lack of due diligence’ or ‘striking out’ but since 2013, when it was first mentioned in Communication 374/08, Morin Family (Represented by Small Island Institute) v Seychelles,39 the African Commission has used the phrase ‘lack of diligent prosecution’ and ‘struck out’ cases in a handful of situations.40 In each it has referred to Rule 105(1) and the requirement that the parties send it information on admissibility,41 and Rule 113 with respect to time limits in which to do so. If the complainant has not sent any information the African Commission will strike out the case for ‘lack of diligent prosecution’.42 In one case there was a ‘lack of interest’ in the case by the complainants who had not responded to requests for information on amicable settlement.43 In some instances the cases have been struck out prior to admissibility, in others they have been held admissible but then struck out because the complainants did not send further information on the merits.44 Although the reasoning in admissibility was not made public in this and another case,45 it was a further communication which was subsequently struck out for lack of information on the merits.46 It is not clear why the African Commission adopted this approach and at the time that it did. However, in her report as Chair of the Working Group on Communications, Commissioner Asuagbor noted in 2015 that the Working Group ‘wishes to restate that the Commission now adopts default decisions where States fail to respond or make

38 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 178. 39 Communication 374/08, Morin Family (Represented by Small Island Institute) v Seychelles, 25 July 2013. 40 E.g. see also Communication 427/12, SERAP (on behalf of Daniel Nsofor and Osayinwinde Agbomien) v Nigeria, 31 March 2016. Communication 612/16, Ahmed Mohammed Aly Subaie v Arab Republic of Egypt, 22 May 2017. 41 Rule 105(1) reads: ‘When the Commission has decided to be seized of a Communication pursuant to the present Rules, it shall promptly transmit a copy of the complaint to the Respondent State. It shall simultaneously inform the Complainant of the decision on seizure, and request the Complainant to present evidence and arguments on admissibility within two months.’ 42 Communication 374/08, Morin Family (Represented by Small Island Institute) v Seychelles, 25 July 2013. See also Communication 407/11, Artur Margaryan and Artur Sargsyan v the Republic of Kenya, 4 June 2014; Communication 427/12, SERAP (on behalf of Daniel Nsofor and Osayinwinde Agbomien) v Nigeria, 31 March 2016, para 24. 43 Communication 289/2004, Mr Brahima Koné and Mr Tiéoulé Diarra v Côte d’Ivoire, 18 October 2013, para 22. 44 Communication 285/04, Mr Kizila Watumbulwa v Democratic Republic of the Congo, 18 October 2013. 45 Communication 336/07, AFTRADEMOP and Global Welfare Association (on behalf of the Moko-oh Indigenous Peoples of Cameroon) v Cameroon, 18 October 2013. 46 Communication 321/2006, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013.

690

34. Article 56: Admissibility of Individual Communications

requisite submissions, and strikes out Communications for lack of diligent prosecution, where the Complainant fails to respond or make requisite submissions. It is therefore in the best interest of litigants to avail the Commission of their updated contact details.’47 The African Court’s Rules of Court do not make reference to lack of diligent prosecution and only expressly noted that it will strike out a case if the applicant informs the Registry of his or her intention not to proceed,48 the ‘lack of interest’,49 or lack of response of the Applicant.50

D. Review of Decision on Inadmissibility There have been a handful of communications where the complainants or Respondent State have requested a review of the Article 56 decision before the African Commission. This is different from a review of the decision on the merits.51 Rule 118(2) of the 1995 Rules of Procedure enabled the African Commission to review its decision on inadmissibility ‘if it receives a request for reconsideration’.52 Rule 107(4) of the 2010 Rules provides: ‘If the Commission has declared a Communication inadmissible this decision may be reviewed at a later date, upon the submission of new evidence, contained in a written request to the Commission by the author.’ However, there is no specific Rule which covers a request for revision if the decision has already been declared admissible and the African Commission has held that it has been its ‘practice . . . not to reconsider a decision declaring a communication admissible’.53 Nevertheless, one decision could imply that this is not conclusive. Here the African Commission noted that it had held the communication to be admissible and then in its merits submissions the Respondent State had required that the Commission review its admissibility decision.54 Noting its Rule 118(2) the African Commission simply concluded ‘after careful consideration of the Respondent State’s arguments, the African Commission is not convinced that it should reopen arguments on the admissibility of the communication. It therefore declines the Respondent State’s request’.55 Lack of detail provided by the African Commission does not permit further analysis as to the basis for considering a review of a decision already held to be admissible.

47 Report of the Chairperson of the Working Group on Communications by Commissioner Lucy Asuagbor, presented during the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, para 27. 48 Rule 58, Rules of Court. 49 Collectif Des Anciens Travailleurs du Laboratoire (ALS) v Republic of Mali, App. No. 002/2015, Order Striking out the application, 5 September 2016, para 28(iv). 50 E.g. African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya, App. No. 004/2011, Order on the Merits of the Application, 15 March 2015, para 26. 51 This is covered by Rule 111 and dealt with under Chapter 33 (Article 55). 52 Former Rule 118(2) of the 1995 Rules of Procedure read: ‘If the Commission has declared a communication inadmissible under the Charter, it may reconsider this decision at a later date if it receives a request for reconsideration.’ 53 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003. 54 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, para 60. 55 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009.

D. Review of Decision on Inadmissibility

691

Under the 1995 Rules there needed to be a new element on the facts or legal grounds.56 Under the 2010 Rules, when reviewing a decision the African Commission will consider if new evidence is provided to it.57 These facts had been discovered that: intrinsically might have had a decisive influence on the judgment had it been brought to the attention of the Commission at the time the decision was made, but which at the time was unknown to both the Commission and the party making the application and also which could not, with reasonable diligence, have been discovered by the party before the judgment was made or on account of some mistake, fraud or error on the face of the record or because an injustice has been done.58

In this case, the previous communication had been held to be inadmissible for failure to exhaust domestic remedies and under Article 56(6). The application for review noted a recent decision of the Court of Appeal in Botswana on the case, the previous communication having failed on Article 56(5) because the complainants had not appealed to the Court of Appeal.59 The African Commission held that ‘new evidence’ had to be that which existed at the time of its admissibility decision but which was not then known to the complainants. Consequently, as the Court of Appeal decision had not existed at the time of the admissibility decision it was not new evidence.60 Under the 1995 Rules, a decision to review will consider whether it is aimed at protecting human and peoples’ rights.61 Further, the review must be based ‘on the same facts as was initially before the Commission. A party cannot introduce new facts or information at the review stage’.62 When the parties did not provide any further written submissions on local remedies but the complainant requested it review its inadmissibility decision because it did not think the African Commission had taken into account relevant jurisprudence around local remedies in particular around massive violations, the African Commission proceeded to look at the previous submissions.63 It then subsequently held the case to be admissible, on the basis that there were serious or massive violations thereby justifying the waiver of the requirement to exhaust domestic remedies. The party requesting review must show that the Commission had ‘failed to take into account the criteria’ in Article 56 or ‘it erred in reaching the decision it did’.64 In one case the complainant requested the review on the basis that the Commission had made a mistake in holding it to be inadmissible. It was alleged he received no correspondence from the African Commission asking him to make submissions on admissibility resulting in the Commission taking the decision based solely on what the State had provided. The African Commission’s decision simply refers to the fact that it granted the complainant’s request without clarifying the grounds on which it did so.65 Given that Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 43. Communication 331/06 [R]‌, Kamanakao Association, Reteng & Minority Rights Group v The Republic of Botswana, 24 July 2013, para 14. 58 Communication 331/06 [R]‌, Kamanakao Association, Reteng & Minority Rights Group v The Republic of Botswana, 24 July 2013, para 15. 59 Communication 331/06 [R]‌, Kamanakao Association, Reteng & Minority Rights Group v The Republic of Botswana, 24 July 2013. 60 Communication 331/06 [R]‌, Kamanakao Association, Reteng & Minority Rights Group v The Republic of Botswana, 24 July 2013, para 17. 61 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009, para 81. 62 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009, para 82. 63 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009. 64 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009, para 82. 65 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 29 November 2006, para 54. 56 57

692

34. Article 56: Admissibility of Individual Communications

there have been numerous claims over the years, some quite credible, by complainants and States that they have not received the Commission’s correspondence and whether this is down to lack of staff within the Secretariat or the unreliability of technology, it makes some sense to give the benefit of the doubt to the parties in some situations. However, in this particular communication it is not clear whether the African Commission was acknowledging such errors or that it had made this decision for other reasons. In another communication the complainant submitted a ‘re-consideration of the decision on admissibility’ under Rule 118(2), although the decision had actually previously been declared inadmissible. The purpose of this communication, according to the complainant, was to ‘clarify the content of my communication of 23rd April 2006 and to provide further elaboration of how I had exhausted local remedies in respect of the matters I complained of to the Commission’, and not to provide new facts.66 The African Commission noted that the complainant was challenging his right to be presumed innocent until proven guilty and the principle of non-retroactive criminal offences and had taken the matters to four courts in Ghana including the highest court in the country.67 Beyond these comments, the African Commission simply held that the case was admissible without any further discussion.68 The word ‘later’ in Rule 118(2) of the former Rules and 107(4) of the 2010 Rules can mean during submission of the merits.69 Under the 2010 Rules, in 2014, the African Commission adopted its ‘Review on Admissibility’ on Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon.70 It had previously declared the communication inadmissible on the basis of non-exhaustion of domestic remedies. This review was being requested under Rule 118(2) of the 1995 Rules of Procedure and was based on a subsequent decision adopted by the African Commission, Communication 266/2003, Kevin Ngwang Gumne & Other v Cameroon, and in particular the paragraph in the decision which noted the doctrine of separation of powers and that the ‘admission by the Respondent State that the President of the Republic and the Minister responsible for Justice are the Chairperson and Vice Chairperson of the Higher Judicial Council respectively is manifest proof that the judiciary is not independent’.71 As this was the ground on which the original complaint had argued for non-exhaustion of local remedies, the complainants were asking the African Commission to revise its decision and declare the communication admissible. No comments were received by the State on this request.72 Although the complainant cited the 1995 Rules of Procedure, Rule 118(2) namely, If the Commission has declared a communication inadmissible under the Charter, it may reconsider this decision at a later date if it receives a request for reconsideration’; the African Commission found that as the request for review had been submitted in January 2011 it was now governed by the new

Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 58. Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 90. 68 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014. 69 Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009. 70 Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon (Review on Admissibility), 13 December 2014 71 Communication 266/2003, Kevin Ngwang Gumne & Other v Cameroon, para 211. 72 Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon (Review on Admissibility), 13 December 2014, para 12. 66 67

E. Article 56(1)

693

2010 Rules of Procedure, and its Rule 107(4).73 As to whether this review contained ‘new evidence’, referring to previous jurisprudence the African Commission held that it would grant the application: where it is proved that some facts have been discovered which intrinsically might have had a decisive influence on the judgment had it been brought to the attention of the Commission at the time the decision was made, but which at the time was unknown to both the Commission and the party making the application and also which could not, with reasonable diligence, have been discovered by the party before the judgment was made or on account of some mistake, fraud or error on the face of the record or because an injustice has been done.74

Considering if a subsequent decision of the African Commission was itself new and compelling evidence, the African Commission found that its previous Gunme decision did not mean that all complainants bringing cases against Cameroon would not have to comply with domestic remedies. As in its earlier decision it has held that there were available remedies but the complainant had not sought them, there was no new evidence to support the request for review.75

E. Article 56(1): ‘Indicate their Authors even if the Latter Requests Anonymity’ There are various aspects to this provision. Firstly the complainant needs to ‘provide their identity’76 and enable the Commission to ‘be in communication with the author, to know his identity and status, to be assured of his continued interest in the communication and to request supplementary information if the case requires it’.77 This includes giving the Secretariat an address or contact details.78 The African Commission itself will endeavour to seek out the contact details of the complainant through follow-up letters or letters to relatives, although the extent to which it will be always willing to do so and has indeed done so consistently is not apparent.79

73 Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon (Review on Admissibility), 13 December 2014, para 14. 74 Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon (Review on Admissibility), 13 December 2014, para 17. 75 Communication 260/2002, Bakweri Land Claims Committee (BLCC) v Cameroon (Review on Admissibility), 13 December 2014, para 21. 76 Communication 70/92_9AR, Ibrahima Dioumessi, Sekou Kande, Ousmane Kaba v Guinea, 7 October 1995, para 11. Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 71. 77 Communication 108/93, Monja Joana v Madagascar, 24 April 1997, para 6. Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 97. 78 Communication 70/92_9AR, Ibrahima Dioumessi, Sekou Kande, Ousmane Kaba v Guinea, 7 October 1995, para 11. Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 79. Communication 434/12, Filimao Pedro Tivane (represented by Dr. Simeao Cuamba) v Mozambique, 23 October 2017, para 33. Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 78. 79 Communication 108/93, Monja Joana v Madagascar, 24 April 1997, para 6, where it noted that in ‘62/ 91 Committee for the Defence of Human Rights (in respect of Ms Jennifer Madike v Nigeria) because two letters of reminder to the Complainant had gone unanswered’; and in the present case, ‘has tried various means in an attempt to contact the Complainant through other individuals. The address of the Complainant’s family reached the Commission in the same letter as news of the Complainant’s death. Efforts made to contact the deceased’s legal successor have not borne results’, para 11.

694

34. Article 56: Admissibility of Individual Communications

Article 56(1) is given further meaning in the earlier 1995 Rules of Procedure, Rule 10480 and the 2010 Rule 93(2) around seizure, namely: The Secretary shall ensure that Communications addressed to the Commission contain the following information: a. The name, nationality and signature of the person or persons filing it; or in cases where the Complainant is a non-governmental entity, the name and signature of its legal representative(s); b. Whether the Complainant wishes that his or her identity be withheld from the State; c. The address for receiving correspondence from the Commission and, if available, a telephone number, facsimile number, and email address.81

Before the African Court, its Rules require that any application ‘shall give clear particulars of the Applicant and of the party or parties against whom such application has been brought. The application shall also contain the names and addresses of the persons designated as the Applicant’s representatives’.82 As to whether the actual victims’ names need to be provided,83 the African Commission has stated that ‘the Commission must receive communications with adequate information with a certain degree of specificity concerning the victims’, and where a report did not give: specific places, dates, and times of alleged incidents sufficient to permit the Commission to intervene or investigate. In some cases, incidents are cited without giving the names of the aggrieved parties. There are numerous references to “anonymous” lawyers and judges. Thus, in this case the author is not an alleged victim, nor is the communication submitted in the name of a specific victim, nor does the complainant allege grave and massive violations. The information in the communication is insufficient to permit the Commission to take action.84

In one communication the author was the Darfur Relief and Documentation Centre, which brought the communication on behalf of thirty-three Sudanese nationals whose names were all provided in the submissions. Article 56(1) was met.85 In a number of cases the African Commission has held that Article 56(1) only requires that the authors of the communication are identified.86 As to whether the victims’ identity has to be disclosed, when that of the authors of the communication have already been provided, there are a number of additional considerations. The African Commission’s ‘Information Sheet on the Communications Procedure’ provides that ‘[t]‌he person submitting the complaint must, as a matter of principle, indicate his or her name’87 and:

Communication 108/93, Monja Joana v Madagascar, 24 April 1997, para 6. Rule 93(2), Rules of Procedure of the African Commission, 2010. 82 Rule 34(2) Rules of Court. 83 E.g. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 1 March 2011, para 82. Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 97. 84 Communication 104/94-109/94_126/94, Centre of the Independence of Judges and Lawyers v Algeria, paras  6–7. 85 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 63. 86 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 67. Communication 304/05, FIDH, Organisation nationale des droits de l’Homme (ONDH) and Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Senegal, 29 November 2006 87 Information Sheet No.3, http://www.achpr.org/files/pages/communications/procedure/achpr_communication_procedure_eng.pdf. 80 81

E. Article 56(1)

695

If the person wishes to remain anonymous, he or she should say so and the communication will be given a letter of the alphabet, say B. It will henceforth be addressed a B v the State party concerned. The author need not give reasons for wanting to be anonymous. If the author is an NGO, the names of the representatives of the NGO would be required. The name and address also make correspondence between the author and the Commission easier. If there is no name or address on the complaint, it will not be considered.88

Where there are ‘grave and massive violations’ it may not be possible to give the names of all the victims and neither would it be required, on the basis that it is only the authors who have to give their names.89 Where a communication is submitted by a number of organisations, it will be sufficient for the purposes of Article 56(1) if the name of only one of the organisations’ representatives is provided.90 Where the government of Eritrea questioned the ‘neutrality, credibility and integrity’ of the complainant organisations the African Commission found that this was not an issue which fell under Article 56(1), and also went further to state that it did not agree with the government on this matter, singling out one, well known organisation, INTERIGHTS, for particular mention.91 With respect to the Court, its Rules differ slightly in terms of the wording used in the context of Article 56(1). Rule 40(1) requires that the applications ‘disclose the identity of the Applicant notwithstanding the latter’s request for anonymity’.92 A change to the title of the case as a result of a variation in the Applicants will not render the application inadmissible before the African Court under Article 56(1). An application had initially been filed under the names of Karata Ernest and Others v Tanzania, but was subsequently amended to Frank David Omary and Others v Tanzania, due to Karata Ernest claiming he had not filed the application and not permitted his name to be used in the application. The Applicants argued that Karata Ernest had withdrawn from the application without giving reasons. The African Court noted that Ernest Karata had ‘disassociated’ himself from the application.93

88 See where it cites among those communications it has seized: Communication 502/14, S.A (Complainant Requested for Anonymity) v DRC, 38th Activity Report of the African Commission on Human and Peoples’ Rights, para 27. And, much earlier: Communication 285/2002, Miss A v Cameroon, 4 June 2004; Communication 283/03, B v Kenya, 4 June 2004. 89 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 79. 90 Communication 233/99-234/99, Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) v Eritrea, 29 May 2003, para 33. 91 Communication 233/99-234/99, Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) v Eritrea, 29 May 2003, para 34. 92 Rule 40(1) Rules of Court. 93 Frank David Omary and Others v United Republic of Tanzania, App. No. 001/ 2012, Ruling on Admissibility, 28 March 2014, paras 88–90. See further Karata Ernest and Others v United Republic of Tanzania, App. No. 001/2012, Order of 27 September 2013.

696

34. Article 56: Admissibility of Individual Communications

1. Locus  Standi Locus standi is not dealt with expressly by the ACHPR nor the Rules of Procedure of the African Commission, except for Article 56(1).94 The African Commission has noted that its approach here has been one of ‘generous access’,95 wider than that in the Inter-American system as it ‘places no restriction as to who can bring a communication before it’,96 recognising the challenges of litigating in Africa.97 Procedurally, locus standi has sometimes been dealt with under ‘competence’ or ‘jurisdiction’ of the African Commission98 and sometimes under admissibility.99 The actio popularis principle is also applied by the African Commission, ‘allowing everyone the legal interest and capacity to file a Communication, for its consideration’100 and ‘to enable poor victims of human rights violations on the continent to receive assistance from NGOs and individuals far removed from their locality’.101 An NGO ‘with an interest in the protection and promotion of human rights in Africa’ will therefore be considered to fulfil this requirement.102 However, the necessity of a ‘legal interest’ by the author of the communication has not always been consistently upheld, with the African Commission noting that it has permitted organisations ‘interested in the protection of human rights in Africa to seize the African Commission on behalf of persons who for one reason or another cannot do so on their own’.103 Indeed, it has praised organisations for bringing the matter to it.104 The locus standi requirement does not require that only victims can submit a communication to the African Commission, but simply that there is ‘a disclosure of the identity of the author of the communication, irrespective of him/her being the actual victim of the alleged violation’.105 As noted above, the author need not be the victim nor related to the victim, reflecting the practical difficulties in many African States.106 A victim may 94 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013. See in general, M. P. Pedersen, ‘Standing and the African Commission on Human and Peoples’ Rights’, 6 AHRLJ (2006) 407–422. 95 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 76. 96 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 81. 97 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 78. 98 E.g. Communication 321/ 2006, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013, paras  53-62. 99 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003; Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013 100 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 76. Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 61. Communication 321/06 Law Society of Zimbabwe et al/Zimbabwe, 18 October 2013, para 58. 101 Communication 275/03 Article 19 v Eritrea, 30 May 2007, para 65. 102 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 61. 103 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 77. 104 Communication 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR)v Nigeria, 27 October 2001, para 49. 105 Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 46. 106 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 62.

E. Article 56(1)

697

be represented ‘through express consent or by the self-initiative of the author who speaks for him/her’.107 However, in one case the African Commission considered that given ‘a complaint of this nature’ (it was filed by the Innocence Project Africa on behalf of Kenyan President Kenyatta and Deputy President Ruto regarding their rights and indictment by the International Criminal Court), consent should have been sought from the victims and their signatures included on the initial complaint to the Commission.108 In a communication where the African Commission noted that the authors of a communication were ‘in all respects representing the interests of the military regime of Burundi’, it considered whether this should not have been dealt with under the inter- State communication procedure of the ACHPR.109 However, it concluded that this was instead a ‘class action’, noting that the State had not contested the locus standi of the authors.110 In the Konaté case before the African Court, the Burkinabé government tried to argue that as neither he nor his newspaper was registered as required at the national level, he was therefore not a journalist.111 No specific provision of the ACHPR nor Rules of the Court was raised in this context. The African Court held that as he had been punished by the national courts in his capacity as a journalist, despite him not being registered as such, he was de facto a journalist and that Article 9 did not restrict the right to freedom of expression solely to journalists. The application would consequently not be declared inadmissible on this ground.112 Neither does the author need to be a national of the Respondent State or a State that is party to the ACHPR.113

2. Joinder of the Parties Again, there is no mention in the ACHPR, but there is in the Commission’s Rules of Procedure, of the ability to join parties. Rule 96 provides: 1. If two or more Communications against the same State Party address similar facts, or reveal the same pattern of violation of rights, the Commission may join them and consider them together as a single Communication. 2. Notwithstanding paragraph 1 of the present Rule, the Commission may decide not to join the Communications if it is of the opinion that the joinder will not serve the interest of justice.

Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 46. Communication 464/14, Uhuru Kenyatta and William Ruto (represented by Innocence Project Africa) v Republic of Kenya, 4 June 2014, para 21. 109 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 63. 110 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003 111 Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014. 112 Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, paras  57–59. 113 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 79; Communication 31/89, Maria Baes v Zaire, 22 March 1995; Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 64; C.A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The Development of Its Non-State Communication Procedures’, 20 HRQ (1998) 235– 280, at 251. 107 108

698

34. Article 56: Admissibility of Individual Communications

3. Where in accordance with paragraph 1 of the present Rule, the Commission decides to join two or more Communications, it may subsequently, where it deems appropriate, decide to disjoin the Communications.

The African Commission has reiterated that it is within its discretion to decide whether to join the parties or join communications.114 Joinder of parties ‘refers to the act if uniting as parties to an action all persons who have the same rights or against whom rights are claimed, as either co-plaintiffs or co-defendants’.115 This permits a number of plaintiffs or defendants to join ‘if each of their claims arises from the same transaction or occurrence, or are of a similar nature or if there is a common question of law or fact relating all their claims’.116 The well-known and respected NGO, the Institute for Human Rights and Development in Africa (IHRDA), requested to join the communication, Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, as a co-author. In determining whether it grant its request the African Commission implied that if it did not, then this may impact on the victims’ continued suffering.117 It noted, making reference to the actio popularis principle, the interest of the IHRDA in promoting and protecting human rights in Africa, and also implied that joining another NGO as complainants may address the difficulty with the initial complainant no longer communicating effectively with the African Commission.118 The African Court’s Rules of Court permit cases and pleadings to be joined at any stage of the pleadings, either on its own decision or responding to a party’s application.119

F. Article 56(2): ‘Are Compatible with the Charter of the Organisation of African Unity or with the Present Charter’ Sometimes these issues have been dealt with under jurisdiction of the African Commission120 or a separate heading in the decision of ‘competence’,121 sometimes they have been dealt with under the ‘admissibility’ section of the decision as part of Article 56(2).122 In the African Court judgments issues of ratione materiae, ratione temporis, ratione loci and ratione personae are dealt with separately from admissibility in a section

114 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 68. 115 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 67. 116 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 67. 117 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 69. 118 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 69 and 71. 119 Rule 54, Rules of Court. See e.g. Tanganyika Law Society, the Legal and Human Rights Centre and the Reverend Christopher Mtikila v The United Republic of Tanzania, App. Nos. 009/2011 and 011/2011, Judgment on the Merits, 14 June 2013. 120 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011. 121 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011. 122 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 72.

F. Article 56(2)

699

on jurisdiction of the Court,123 or in a ruling on jurisdiction. There has been some discussion among the Judges as to whether jurisdictional issues should be dealt with before admissibility.124 As Ouguergouz notes, ‘the use of the co-ordinating conjunction “or” is rather unfortunate, as it suggests that the compatibility must be assessed with respect to either of these instruments’.125 As Odinkalu and Christensen observe, ‘the only sensible interpretation of this provision is to read these requirements cumulatively, because to do otherwise would imply that the Organisation of African Unity (OAU) Charter is itself a source of rights and guarantees, which it is not’.126 Indeed, the African Court reiterated in Mohamed Abubakari v United Republic of Tanzania, that the Applicant did not need to cite both provisions of the ACHPR as well as those of the Constitutive Act (or OAU Charter) alleged to have been violated. The former was sufficient.127 Yet Rule 40(2) of the Rules of Court adds some confusion by requiring that the applications before the African Court ‘comply with the Constitutive Act of the Union and the Charter’.128 The African Commission has said that ‘this power of the Commission to consider communications naturally includes the lesser power to decline to hear them’.129 ‘Compatibility’ in Article 56(2) has been interpreted by the African Commission to mean: ‘ “in compliance” or “in conformity with” or “not contrary to” or “against”.130 Allegations of violations of the right to personal integrity, and intimidation and harassment by intelligence services of the State were held to raise prima facie violations.131 The fact that the jurisprudence is ‘evolving’ around the concept of ‘compatibility’ is something which has been acknowledged by the African Commission.132 Instead of the Charter of the OAU, the Constitutive Act is now read into Article 56(2).133 Ouguergouz suggests that compatibility should be determined by reference to the principles of the former OAU Charter,134 and one therefore presumes, by extrapolation, those in Article 4 of the Constitutive Act of the African Union (AU). This 123 E.g. Tanganyika Law Society, the Legal and Human Rights Centre and the Reverend Christopher Mtikila v The United Republic of Tanzania, App. Nos. 009/2011 and 011/2011, Judgment on the Merits, 14 June 2013. 124 Tanganyika Law Society, the Legal and Human Rights Centre and the Reverend Christopher Mtikila v The United Republic of Tanzania, App. Nos. 009/2011 and 011/2011, Judgment on the Merits, 14 June 2013, Separate Opinion of Vice-President Fatsah Ouguergouz; Separate Opinion of Judge Bernard M. Ngoepe; Separate Opinion of Judge Gerard Niyungeko. 125 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 593. 126 C.A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedures’, 20 HRQ (1998) 235–280, at 252. F. Viljoen, ‘Admissibility under the African Charter’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002, 61–99, at 68. 127 Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016, para 49. 128 Rule 40(2) Rules of Court. 129 Communication 65/92, Ligue Camerounaise des Droits de l’Homme v Cameroon, 24 April 1997, para 10. 130 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 73. Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. Communication 307/ 05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 48. 131 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 73. 132 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 127. 133 E.g. Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 90. 134 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 594.

700

34. Article 56: Admissibility of Individual Communications

may require that there be consideration of, for example, ‘respect of borders existing on achieving independence’ under Article 4(b) of the Constitutive Act.135 One communication dealt with issues of self-determination of southern Cameroonians as a result of a referendum which voted in favour of the creation of an independent State, in addition to citing violations of other provisions of the ACHPR. The government claimed that the complainants were arguing for secession which would compromise the sovereignty of the State and the communication should be consequently declared inadmissible under Article 56(2).136 The African Commission cited the following requirements of Article 56(2) and ‘compatibility’: • The communication should be brought against a State party to the African Charter; • The communication must allege prima facie violations of rights protected by the African Charter; • The communication should be brought in respect of violations that occurred after [the] State’s ratification of the African Charter, or where violations began before the State Party ratified the African Charter, have continued even after such ratification’.137

It held that these had been met and thus the communication did not fail under Article 56(2).138 Similarly, in an early case requesting the African Commission to recognise the independence of Katanga from (then) Zaire, the Commission considered the right to self-determination could only be accepted if it were ‘fully cognisant of other recognised principles such as sovereignty and territorial integrity’.139 As Viljoen notes, these are words mentioned in the OAU Charter (applicable at the time of the communication) but not the ACHPR so lending ‘support to the contention that communications have to be compatible with both the OAU Charter and the African Charter’.140 The allegations need also to ‘fall within the scope’ of the Constitutive Act which they will if they allege violations of human rights, given Articles 3(h) and 4(m) refer to ‘promote and protect human rights’ and ‘respect for human rights’ as among objectives and principles of the AU.141 The African Commission has held similarly that ‘the Charter must so far as possible be interpreted in harmony with other relevant rules of international law which it forms part of ’.142 Under Article 56(2) the African Commission has found that if the communication ‘seeks a remedy or redress which if granted, will contravene any of the provision of the

135 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 596. 136 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 68. 137 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 71. 138 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, paras 71 and 72. 139 Communication 75/92, Katangese Peoples’ Congress v Zaire, 22 March 1995. 140 F. Viljoen, ‘Admissibility under the African Charter’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002, 61–99, at 69. 141 Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016, para 51. Peter Joseph Chacha v United Republic of Tanzania, App. No. 003/2012, Ruling on Admissibility, 28 March 2014, para 124. Alex Thomas v Republic of Tanzania, App. No. 005/2013, Judgment on Merits, 20 November 2015, para 52. 142 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 127.

F. Article 56(2)

701

said Constitutive Act’ then it will not be admissible.143 The State will have the burden to prove incompatibility: it will not be enough simply to say that the complainant had submitted a communication.144 Before the African Court, the application need not state that it is based on the ACHPR, nor specify the particular rights, rather that ‘it must merely relate to “human and peoples’ rights” ’.145 This appears to be the approach in a number of cases. However, the African Commission in one, dealing with the issues at seizure stage and not at admissibility, held that as the complainant had cited only provisions of the ICCPR alleged to have been violated, and not those of the ACHPR, it would not be seized of the matter.146 The main line the African Commission has taken with respect to Article 56(2), however, is to interpret ‘compatibility’ as encompassing the issues of ratione temporis, ratione materiae, ratione personae and ratione loci.147

1. Prima Facie Violations and Ratione Materiae There needs to be prima facie evidence of violations of the ACHPR148 in order to pass the admissibility test in Article 56(2) and consequently this will then provide the African Commission with jurisdiction ratione materiae:149 ‘[h]‌aving proved the existence of prima facie violation of the Charter, it becomes obvious that the African Commission has the rationae materiae jurisdiction to entertain the case’ and the ‘issue involved in the present case is an alleged violation of the provisions of the African Charter by a State Party, which squarely fits into the rationae materiae jurisdiction of the African Commission’.150

143 Communication 321/2006, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013, para 67. Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 98. 144 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, paras 90–91. 145 Peter Joseph Chacha v United Republic of Tanzania, App. No. 003/2012, Ruling on Admissibility, 28 March 2014, paras 117–118. Frank David Omary and Others v United Republic of Tanzania, App. No. 001/ 2012, Ruling on Admissibility, 28 March 2014, para 93. 146 Communication 457/13, Pastor Key Mwand v Democratic Republic of Congo, 5 November 2013, para 13. 147 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, paras 129– 133. Communication 306/ 05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 58. Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 64. Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 72. Communication 409/ 12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 89. 148 Communication 162/97, Mouvement des réfugiés mauritaniens au Sénégal v Senegal, 11 November 1997, para 22. Communication 65/92, Ligue Camerounaise des Droits de l’Homme v Cameroon, 24 April 1997, para 11. Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 80. Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum v Zimbabwe, 12 October 2013, paras 48 and 49. Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008, para 38. Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 53. 149 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 57. 150 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, paras 72–73.

702

34. Article 56: Admissibility of Individual Communications

The African Commission rejected an early case (with extremely limited analysis on its part) on the basis that ‘corruption, immorality, etc.’ cited in the communication did not amount to violations of the ACHPR.151 Interpreting the concept of ‘prima facie’ the African Commission notes that it means ‘on the face of it’; ‘so far as can be judged from the first disclosure’; ‘a fact presumed to be true unless disproved by some evidence to the contrary’ and therefore ‘is a decision or conclusion that could be reached from preliminary observation of an issue or a case without deeply scrutinizing or investigating into its validity or soundness’.152 Hence, the facts indicate that a violation ‘has likely occurred’ but also ‘a human rights violation has occurred if not contradicted or rebutted by the Respondent State’.153 Further, ‘[t]‌here is no requirement in the African Charter for evidence of systematic violations to be adduced for a prima facie case to exist’.154 The documents used to support the allegations, such as court orders, can help the complainant reach this requirement.155 There needs to be a certain degree of ‘specificity’ to the allegations.156 This would be satisfied, as it was for example in one communication, if the complainant ‘succinctly narrates how the Victim allegedly suffered, among others, from acts of torture, inhumane and degrading treatment in the hands of suspected members of the military intelligence in the Zimbabwe Defense Force while he was in Zimbabwe’ and has documentary evidence to support the allegations.157 It is possible that prima facie violations may be found at admissibility stage but that no violations will be found at merits.158 The subject matter of the communication must relate to a right protected in the ACHPR.159 However, the actual articles of the ACHPR do not need to be specified by the complainants, neither do they need to state which right is being alleged, ‘so long as they have raised the substance of the issue in question’.160 In one case the State claimed that while Article 4 was raised in relation to violations of the right to life, Article 5 had not been cited with respect to allegations of torture. The African Commission held ‘it is not

Communication 1/88, Frederick Korvah v Liberia, 26 October 1998, para 4. Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 56. 153 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 56. 154 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 35. 155 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 57. 156 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 57. 157 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, paras 70–71. 158 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 86. 159 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 35. Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 72. 160 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 73. Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 49. Communication 162/97, Mouvement des réfugiés mauritaniens au Sénégal v Senegal, 11 November 1997, para 22. 151 152

F. Article 56(2)

703

mandatory for the Complainant to mention specific provisions of the African Charter that have been violated’.161

2. Ratione  Loci This has been interpreted as requiring that the violations must occur with the ‘territory’ of the State’162 the ‘territorial sphere within which the Charter operates’,163 or the ‘territorial jurisdiction’.164 On other occasions, however, the African Commission has referred to violations that took place ‘within the jurisdiction of a State Party’.165 It will not matter, at this admissibility stage, who committed the violations, i.e. whether this was by the State or non-State actors.166 The African Commission has held that the ACHPR ‘applies primarily within the territorial jurisdiction of States Parties’.167 However, there may be certain circumstances where a State ‘assumes obligations beyond its territorial jurisdiction such as when a State assumes effective control of part of a territory of another state (spatial model of jurisdiction), or where the state exercises control or authority over an individual (personal model of jurisdiction)’, drawing upon jurisprudence from other human rights treaty bodies and case law.168 The complainant must show ‘a sufficient connection between the alleged violation and the Respondent State before the Commission can proceed to invoke the obligations of that state under the Charter with a view to assessing whether such obligations were breached’.169 This connection can be shown if the complainant ‘was under the territorial jurisdiction or effective control or authority of the Respondent State when the alleged violation occurred’.170 In one decision on inadmissibility against Djibouti, raising issues around the role of Djibouti in extraordinary rendition, the African Commission was asked to determine

161 Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, para 51. Similarly, Communication 253/02, Antonie Bissangou v Congo, 29 November 2006, para 73: ‘although the Complainant does not specifically mention this Article of the Charter, the examination of the facts shows a violation of Article 7 of the Charter concerning the right to fair trial’. 162 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 58. Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 38; African Court: Kennedy Owino Onyachi and Others v United Republic of Tanzania, App. No. 003/2015, Judgment of 28 September 2017, para 47. African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, 26 May 2017, para 67. Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, para 41. 163 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 72. Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 64. 164 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 58. 165 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 80. 166 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 58. 167 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 134. 168 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 134. 169 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 135. 170 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 136.

704

34. Article 56: Admissibility of Individual Communications

whether the complainant had in fact been deported to Djibouti and detained at a secret site, that this site had been Camp Lemonnier, a US government-run facility in Djibouti, or indeed whether he had been in Djibouti at all. The complainant believed he had been deported from Tanzania to Djibouti, he supported this with a record of habeas corpus proceedings before the High Court of Tanzania and affidavits from his father and wife. The Respondent State on the other hand provided an affidavit by the Assistant Director of Immigration showing a ‘Departure Declaration Card’ and a ‘Notice to Prohibited Immigrant’ purportedly signed by the Complainant on his deportation, a signature which was disputed by the complainants.171 The African Commission found that the signatures on the Departure Declaration Card and the Complainant’s submission to the African Commission were ‘manifestly different’ and concluded that the former ‘cannot have been signed by the complainant’.172 The African Commission also considered the aircraft that was allegedly used to deport the complainant was too small to be able to fly direct to Djibouti and therefore this opened up the possibility that he could have been flown to other locations instead. In addition, it also examined the claims by the complainant with respect to the guards in the detention facility, and found that they could have equally been in a State other than Djibouti.173 It took into account the ‘clandestine nature of the rendition program characterised by concealment to the victim of his whereabouts, the Commission has difficulty believing that the Complainant could have been told the truth about his whereabouts’.174 Neither did the habeas corpus record indicate, beyond prima facie evidence, to where the complainant would be deported; nor information of what he said he saw in his cell; nor his experiences of where the complainant said he was detained correlate with the map of Camp Lemonnier in terms of proximity to the airport, and of evidence of an earthquake, which he said he had experienced. The African Commission concluded that it was ‘equally not satisfied that the Complainant’s version of his experiences at the place of his secret detention conclusively establishes that he was in Djibouti to the exclusion of the other alleged participating countries. For one thing, save for the alleged picture of the president, the rest of the description of what he observed could fit in Somalia and Ethiopia, among the countries reported to have participated in the rendition’.175 Reports of the US extraordinary rendition programme also submitted by the complainant were considered to be of ‘limited value’ by the African Commission as they ‘simply reproduce the complainants own testimony’.176 Again referring to the secretive nature of extraordinary rendition which may make it difficult for complainants to obtain the necessary evidence, and its willingness in such circumstances to ‘draw inferences of fact from such evidence’, if it is to be relied upon, the African Commission held that ‘such evidence must 171 Communication 2014, para 151. 172 Communication 2014, para 155. 173 Communication 2014, paras 156–157. 174 Communication 2014, para 159. 175 Communication 2014, para 165. 176 Communication 2014, para 169.

383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October

F. Article 56(2)

705

not be open to multiple inconsistent inferences creating considerable doubt about a given inference preferred by a Party’.177 There was no conclusive evidence that the complainant was therefore in Djibouti and Article 56(2) was not satisfied.

3. Ratione Temporis Thirdly, ratione temporis requires that the violations must be ‘based on events which occurred within the period of the Charter’s application to the State, except [where] there is evidence of continuing violation’.178 Violations ‘or their effects’, which began prior to the date of coming into force for a State but which continue after that, will fulfil the requirement of ratione temporis.179 South Africa deposited its instrument of accession to the ACPHR in July 1996, becoming a party in October 1996. Allegations in one communication related to the fact that certain individuals were paid less of a pension when a pension fund was privatised. The process which effected this, and resulted in the violations, started in 1994/1995 but the situation continued to when the communication was being considered by the African Commission. The Commission found that the ‘the status quo has remained the same; these victims have still not been paid what they allege they are entitled to’, and this amounted to a continuing violation.180 One victim was arrested in October 1974, prior to the adoption of the ACHPR, the establishment of the African Commission and the coming into force for Mozambique of the ACHPR in February 1989. The African Commission held that a continuing violation was ‘when an act is committed in a certain moment, but continues due to the consequences of the original act’.181 This it has distinguished from an ‘instantaneous act’: ‘a continuing act, the violation occurs and continues over a period of time until the violation ceases. In case of an instantaneous act, the violation itself does not continue over time, although the completion of such an act might take some time’.182 An enforced disappearance can be a continuing violation.183

177 Communication 383/10, Mohammed Abdullah Saleh Al-Asad v The Republic of Djibouti, 14 October 2014, para 172. 178 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 72. Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 38. African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, 26 May 2017, para 65. The African Commission on Human and Peoples’ Rights v Libya, App. No. 002/2013, Judgment on the Merits, 3 June 2016, para 56. 179 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. Before the African Court, Kennedy Owino Onyachi and Others v United Republic of Tanzania, App. No. 003/2015, Judgment of 28 September 2017, para 47. Communication 434/12, Filimao Pedro Tivane (represented by Dr. Simeao Cuamba) v Mozambique, 23 October 2017, para 41. 180 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 76. 181 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 88. 182 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 93. 183 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 93.

706

34. Article 56: Admissibility of Individual Communications

4. Ratione Personae This requires that the communication is brought against a State which is party to the ACHPR.184 Very early cases had been brought against even the USA185 and African States which had at that stage not ratified the ACHPR.186 Conversely, the communication must be brought by ‘someone who is competent to do so’.187 Here, the African Commission has linked this with Article 56(1) and stated that ‘the only requirement for doing so in this respect, that is, the disclosure of identity has been met’.188 Burkina Faso in one case before the African Court argued that as the Applicants in their submissions to the Court had used the wrong name for the State, namely ‘People’s Democratic Republic of Burkina Faso’, the application did not refer to it.189 The Applicants admitted this mistake and the African Court held that an error in the title of the application was not a ground for admissibility and on this occasion the violations alleged ‘clearly stem from a decision of the Burkinabé courts’ and the government had already complied with some of the African Court’s request for provisional measures.190

G. Article 56(3): ‘Are not Written in Disparaging or Insulting Language Directed against the State Concerned and Its Institutions or to the Organisation of African Unity’ This is an unusual provision191 not found in other international or regional instruments and one which has been criticised for being imprecise192 and ‘dangerously subjective’,193 despite the African Commission’s claims to the contrary.194 The purpose of the clause is, according to the African Commission, that it ensures ‘diplomatic, courteous and respectful exchanges between parties appearing before it and the need to uphold the integrity of State institution, which are indispensable for the protection of human rights’.195 184 Communication 372GTK/2009, Interights (on behalf of Gizaw Kebede and Kebede Tadesse) v Ethiopia, 16 December 2011, para 62. Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011. Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 72. 185 Communication 2/88, Iheanyichukwu a. Ihebereme v USA, Seventh Activity Report of the African Commission on Human and Peoples’ Rights, Annex. See also Communication 5/88, Prince J.N. Makoge v USA. 186 E.g. Communication 33/ 89, Simon B. Ntaka v Lesotho, Seventh Activity Report of the African Commission on Human and Peoples’ Rights, Annex. 187 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011. Communication 335/ 2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 72. 188 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011. 189 Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, para 44. 190 Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, paras  46–48. 191 Rule 40(3) Rules of Court requires that applications ‘not contain any disparaging or insulting language. 192 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 598. 193 C.A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedures’, 20 HRQ (1998) 235–280, at 255. 194 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 142. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 95. 195 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 60.

G. Article 56(3)

707

Further, it is there to guarantee that communications are ‘presented with a certain degree of decorum’.196 As Ouguergouz notes, with legal advice in crafting the submission to the African Commission, the challenges of this provision can be overcome.197 The African Commission will still consider this Article even if the State does not contest it.198 It has, however, been recognised that a balance needs to be struck between this provision and the right to free expression:199 namely ‘between the right to speak freely and the duty to protect state institutions to ensure that while discouraging abusive language’.200 Drawing upon the definition in the Oxford Advanced Dictionary of ‘disparaging’ as ‘to speak slightingly of . . . or to belittle and insulting means to abuse scornfully or to offend the self respect or modesty of ’,201 the African Commission interpreted this as requiring that ‘the language must be aimed at undermining the integrity and status of the institution and bring it into disrepute’.202 There must thus be intention on the part of the complainant to bring the State or its institutions into disrepute,203 namely: in determining whether a certain remark is disparaging or insulting and whether it has dampened the integrity of the judiciary, the Commission has to satisfy itself whether the said remark or language is aimed at unlawfully and intentionally violating the dignity, reputation or integrity of a judicial officer or body and whether it is used in a manner calculated to pollute the minds of the public or any reasonable man to cast aspersions on and weaken public confidence on the administration of justice. The language must be aimed at undermining the integrity and status of the institution and bring it into disrepute.204

This test was applied where a complainant alleged that law enforcement officials were corrupt and drug smugglers, taking money from motorists. He also alleged that the President was also corrupt and had been bribed by drug smugglers. The African Commission noted that while there was a balance between freedom of expression and the reputation or rights of others, such statements would result in ‘every reasonable person would lose respect for that institution or person’.205 Furthermore, there is a balance between individual rights and protection of State institutions which ‘facilitate the enjoyment of these rights are also respected by the individuals’, and comments such as these may bring the institution ‘into disrepute and renders its effectiveness wanting’.206 The comments regarding the President were therefore insulting.207

196 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 102. 197 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 599. 198 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 67. Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, para 53. Communication 338/07, Socio-Economic Rights and Accountability Project (SERAP) v the Federal Republic of Nigeria, 21 November 2010, para 49. Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 81. 199 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 60. 200 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 67. 201 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005, para 39. 202 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005, para 39. 203 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 59. 204 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 91. 205 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005, para 40. 206 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005, para 40. 207 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005, para 40.

708

34. Article 56: Admissibility of Individual Communications

In a case before the African Court, Côte d’Ivoire alleged that the language used in the application was insulting towards it and its institutions,208 namely ‘the Constitutional Judge curiously refused to censor this law’, and ‘the President of the Constitutional Council later tendered his resignation’, thereby questioning the credibility of the judiciary and suggesting that it lacked independence. Drawing upon this same test from Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe,209 the African Court held the remarks were not insulting.210 Noting that it is not the phrases themselves that are disparaging but rather the ‘inferences that can be drawn from them’, the African Commission held that the statements were the ‘perceptions and honest opinion’ of the complainant, ‘cast in plain language’ and a communication which alleged violations ‘by its very nature should be expected to contain allegations which reflect negatively on the State and its institutions’.211 It would not appear to be sufficient that this is the complainant’s claims, however, with the African Commission stating that the complainant should also ‘present(s) evidence to justify that perception’.212 One presumes that if prima facie evidence is not presented then the communications will be found inadmissible in any event. The amount of criticism in remarks may vary depending to whom they are directed, as is relevant when considering freedom of expression. Criticism of the judiciary, for example, may be tolerated less by the African Commission as public trust in the judiciary has to be upheld to enable it to function effectively, ensure the rule of law,213 and protect it ‘against vilification’.214 A statement in a newspaper by the complainants that claimed that a judgment of the Supreme Court ‘marked a sad day for Zimbabwe’s constitutional history . . . The practical effect of this judgment is that had we have been challenging the death penalty and not AIPPA [Access to Information and Protection of Privacy Act], we would have had to hang first and challenge the penalty from hell’ was claimed by the government to show contempt for the Court.215 By stating that one judge had been ‘omitted’ from the Supreme Court, implied, it was also argued by the government, that there was bias in the appointment of the judiciary. The African Commission held that freedom of expression ‘does not mean that attacks, however scurrilous, can with impunity be made on the judiciary as an institution or on individual officers’.216 Further:

208 Actions Pour La Protection Des Droits De L’homme (APDH) v Republic of Côte d’Ivoire, App. No. 001/ 2014, Judgment on the Merits, 18 November 2016. 209 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 91. 210 Actions Pour La Protection Des Droits De L’homme (APDH) v Republic of Côte d’Ivoire, App. No. 001/ 2014, Judgment on the Merits, 18 November 2016, paras 82–83. 211 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 58. See also Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, paras 46–47. 212 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 58. 213 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 89. 214 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 89. 215 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 84. 216 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 90.

G. Article 56(3)

709

A clear line cannot be drawn between acceptable criticism of the judiciary and statements that are downright harmful to the administration of justice. Statements concerning judicial officers in the performance of their judicial duties have, or can have, a much wider impact than merely hurting their feelings or impugning their reputations. Because of the grave implications of a loss of public confidence in the integrity of the judges, public comment calculated to bring the judiciary into disrepute and shame has always been regarded with disfavour.217

However, it has also been recognised that the line between ‘genuine criticism of the judiciary and insulting language has grown thinner’.218 Underscoring the importance of freedom of expression in a democratic society and the ability to criticise public figures, the African Commission held that the word ‘omitted’ made in this case had not been proven to have brought the judiciary into disrepute, the complainants were stating facts.219 With regard to the article in the newspaper, this did not form part of the communication submitted to the African Commission, it not being in the complaint nor annexes submitted by the complainant.220 Documents submitted by third parties or the State were not ‘part of the complaint’.221 Allegations that the judiciary is not independent and that a judge had resigned due to pressure from the government, were found not to be disparaging or insulting as the State had not shown ‘the detrimental effect of this statement on the judiciary in particular and state institutions as a whole’, nor were they made in bad faith or ‘calculated to poison the mind of the public against the government and its institutions’.222 Similarly, claims that the judiciary lack independence and that the President had extraordinary powers and could influence the judiciary were considered to be ‘mere allegation’ and did not render the communication inadmissible under Article 56(3).223 An early case in 1997 where the complainant used phrases such as ‘Paul Biya must respond to crimes against humanity’, ‘30 years of the criminal neo-colonial regime incarnated by the duo Ahidjo/Biya’, ‘regime of torturers’ and ‘government barbarisms’, were considered by the African Commission to be ‘insulting language’.224 There are clearly concerns if this is taken at face value as it does suggest that it may be more difficult for individuals who are not legally represented and who do not necessarily know the expected language of a procedure like this. However, a more generous interpretation of the African Commission’s decision is that there may be more to it than this. The decision continues by noting the ‘requirements of form’ and that ‘communications must contain a certain degree of specificity, such as will permit the Commission to take meaningful action’.225 It 217 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 90. 218 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 93. Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, para 53. 219 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 96. 220 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 97. 221 Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 97. 222 Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, para 55. 223 Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 48. 224 Communication 65/92, Ligue Camerounaise des Droits de l’Homme v Cameroon, 24 April 1997. 225 Communication 65/92, Ligue Camerounaise des Droits de l’Homme v Cameroon, 24 April 1997, para 14.

710

34. Article 56: Admissibility of Individual Communications

is perhaps that the language is insufficiently precise to identify clear evidence of violations which may be more conclusive. In another case, the statements made by the complainant to which the government objected were: This Communication documents a situation of absolute misuse of government authority and executive powers to inflict gross injustice and suffering among a vulnerable segment of the Sudanese citizens. This situation is a classical example of the absence of accountability of public officials and for the lack of proper administration of justice and the rule of law in Sudan.

The African Commission found that this language was not disparaging nor insulting.226 Phrases such as ‘forceful annexation’ and ‘State-sponsored terrorism’ in relation to allegations against people of the Southern Cameroons were found by the African Commission not to prevent the communication being held to be admissible.227 It did, however, call on complainants to be ‘respectful’ in the language they use in the communications.228 The terms ‘sickening’, ‘charade’; ‘the Respondent is part of the ploy’; ‘trample under’; ‘fishing expedition’ and ‘demonization’ were considered to be disparaging and insulting, thereby being one of the grounds rendering a communication inadmissibility.229 In Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, the State argued that the following passages in the complaint were written in disparaging and insulting language as the complainant had not provided any proof that his wife was in another country, suggested that the State influenced another State which impacted on its reputation, and that the final paragraph implied that the State interfered with the judiciary: ‘surprisingly the second day after operation (on my wife), the harassment by Lesotho continued, one immigration Officer by the name of Mr. Breed presented himself to the maternity ward and reported that he is sent to arrest my wife while she was in a hospital bed.’ 8 ii. ‘Just one day prior to their decision which was deliberately organised by Lesotho Government long arm using Mr Breed to organize the cancellation of my status in RSA.’ iii. ‘Lesotho Government realised the implication an individual from RSA Immigration (Mr Breed) and fabricated a false story through a newspaper.’ iv. ‘they preferred to twist the arms of justice and reversed the order on the 4th of December 2013 by another Magistrate Court decision . . . This act clearly shows how Lesotho Government tampers with the local courts.’230

Words such as ‘ulterior purpose’, ‘violator’ and ‘irrational’, and that is has been ‘made in bad faith’, were considered by the African Commission as ‘nothing but mere allegations, depicting, as they perceive it, the Complainant/Victims’ perception of the facts which form the basis of the allegations and fears upon which the Communication is founded’.231 They were not found to be disparaging or insulting. Similarly, neither were the following considered to be contrary to Article 56(3): the fact that the Public Prosecutor is apparently appealing against the decision is worthless. It is illogical to suggest that the Public Prosecutor who reviewed the case file and brought the case for

Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 69. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 75. 228 Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 75. 229 Communication 464/14, Uhuru Kenyatta and William Ruto (represented by Innocence Project Africa) v Republic of Kenya, 4 June 2014, para 18. 230 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, paras 35–37. 231 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 93. 226 227

H. Article 56(4)

711

prosecution would thereafter lodge an appeal to oppose all of the death sentences and guarantee the interests of the accused.232

The State should simply have found evidence to contradict the complainant’s assertions.233 Allegations of the violations and ‘expressions of fear’ were also found not be disparaging or insulting.234 Words such as ‘xenophobia’, ‘exclusionist’ and ‘discriminatory’ used in a communication were claimed by the State to be contrary to Article 56(3). The African Commission appears to suggest that it may not be just the words themselves which are considered but also the manner in which they are used, noting in this case that ‘these words are not used in an insulting and disparaging context for the Respondent State but rather have been used to describe a situation which has been condemned and it would be difficult to describe it differently’.235 In another case, the complainant’s submission included the following paragraph: Faced with a largely negative balance sheet, the regime, which has been in power for thirty years, has come up with a hoax to scapegoat a number of senior officials, on the trumped-up charge of misappropriation of State funds, for the sole purpose of gaining credibility in the eyes of international donors.236

The African Commission found that this was: targeted generally at the regime in power without, however, insulting or disparaging any particular State authority or institution. In addition, the language merely expresses the Complainant’s opinion about the performance of the regime and the quality of some of its reforms. The Commission thus concludes that such language cannot be considered insulting.237

Referring mistakenly to the ‘People’s Democratic Republic of Burkina Faso’ in the Application to the African Court, instead of the Respondent State’s correct name, ‘Burkina Faso’, was not considered to be ‘devious or biased’ and therefore neither disparaging nor insulting, drawing upon the African Commission’s decision in Communication 284/ 2003.238

H. Article 56(4): ‘Are not Based Exclusively on News Disseminated through the Mass Media’ A provision not found in other instruments, but appearing to mirror the wording in a resolution of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities,239 this requirement has been dismissed quickly in some communications, 232 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 146. 233 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 145. 234 Communication 322/06, Tsatsu Tsikata v Ghana, 29 November 2006. 235 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008, para 47. 236 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016, para 54. 237 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016, para 55. 238 Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment on the Merits, 5 December 2014, paras  69–73. 239 Resolution 1 (XXIV), 13 August 1971, para 3(d) reads: ‘A communication shall be inadmissible if it appears that it has based exclusively on reports disseminated by mass media’, see F. Ouguergouz, The African

712

34. Article 56: Admissibility of Individual Communications

with little analysis to assist in clarifying how the African Commission has reached its decision.240 Where detailed reasoning is provided it would appear that this provision requires the complainants to support his or her allegations by evidence: ‘the issue therefore should not be whether the information was gotten from the media, but whether the information is correct’ and whether the complainant tried to verify the truth’.241 This test has been applied elsewhere.242 One presumes that how it is shown if it is correct is by drawing upon other documents to corroborate the allegations. So ‘primary information gathered by the complainant’ or ‘first hand information’ from victims will satisfy this provision, (although exactly what amounts to ‘primary information’ is not clear243); as will court judgments,244 legislation, eyewitness accounts, and other reports,245 affidavits including from the lawyers involved in the domestic litigation,246 court applications,247 testimonies before parliament, text statements, witness statements,248 ‘evidence directly from the victim’249 or the personal experiences of the complainant (where the complainant was the victim).250 International human rights organisations’ documents, including not only reports but also press releases, are considered to be sufficient additional information to ensure that allegations are not based exclusively on mass media.251 Consequently, the documents

Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 599. 240 E.g. Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 70. 241 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, paras 25 and 26. Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 93. F. Viljoen, ‘Admissibility under the African Charter’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002, 61–99, at 81. 242 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016. 243 Communication 338/07, Socio-Economic Rights and Accountability Project (SERAP) v the Federal Republic of Nigeria, 21 November 2010, para 50. 244 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 150; Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July 2011, para 40. 245 Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, para 54. Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 61. Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 100. Communication 334/ 06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 1 March 2011, para 85. Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 42. 246 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 150. 247 Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, para 56. 248 Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008, para 40. Frank David Omary and Others v United Republic of Tanzania, App. No. 001/2012, Ruling on Admissibility, 28 March 2014, para 96. 249 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 150. 250 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 75. Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 50. 251 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 92.

I. Article 56(5)

713

submitted by the complainants do not, as was argued by the State in one case, have to be authored by them.252 While the African Commission is prepared to give some concession to the evidence required to be provided to fulfil the admissibility requirements, for example, if the complainant has a ‘legitimate reason’,253 it will not permit the complainant to exclusively rely on media reports. A legitimate reason may be one where the complainant faces ‘serious security risks and severe difficulties in ‘obtaining access to these documents as well as to the victims’.254 As the complainant had in this case cited other sources of information beyond the media, including from NGOs such as Human Rights Watch and Amnesty International, as well as Peace and Security Council communiqués, the case was found to be compatible with Article 56(4).255 A breadth of material and reports has been cited in a number of cases and this could be implied as a way of fulfilling this requirement,256 although this has not been explicitly stated by either the African Commission nor African Court. It is appropriate to have media sources as part of the package of proof of the violations, as long as they are not relied upon ‘exclusively’.257 Further, some aspects of the communication may well be based on mass media reports, particularly where the situation is one of many and extensive violations, as for example the African Commission recognised in relation to Darfur.258

I. Article 56(5): ‘Are Sent after Exhausting Local Remedies, If Any, Unless it is Obvious that this Procedure is Unduly Prolonged’ The African Commission has called Article 56(5) ‘the most important condition for admissibility’.259 A number of purposes have been identified for the rule. Firstly, it is there to provide notice to the government to enable it to ‘remedy such violations before being called before an international tribunal’.260 In determining whether the authorities were made aware of the allegations, the African Commission has considered, for example, the number of complaints made to various authorities and whether the State undertook any Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009. Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 150. 254 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 150. 255 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 151. 256 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 82. 257 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciaires Stratégiques v Democratic Republic of Congo, 10 March 2015, para 40. The case cites Article 56(3) but it would appear that it is referring to Article 56(4). See also Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 106. 258 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 92. 259 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 29. 260 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 17. See also Communication 71/92, Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Zambia, 31 October 1997; Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, paras 59 and 60. 252 253

714

34. Article 56: Admissibility of Individual Communications

investigations in response.261 Simply stating that the ‘authorities’ were drawn to the allegations will not be sufficient.262 Secondly, the rule of exhaustion of domestic remedies prevents the African Commission from being a court of first instance, rather than one ‘of last resort’.263 This is underpinned by the principle of complementarity: international courts ‘cannot and should not replace the national courts. It is only when the national courts are unable to deliver justice that the international or regional bodies have competence to hear these cases’.264 A State which has received allegations of violations will have a duty to investigate them and if it fails to do so, then it will ‘forfeit its prerogative to deal with the matter domestically’.265 The notice of the allegations must be ‘ample’.266 Similarly, in relation to oil companies’ activities in Nigeria and the impact on the local people, the African Commission noted, in determining whether local remedies had been exhausted, the admission by the new government that ‘a lot of atrocities were are still being committed by the oil companies in Ogoni Land and indeed in the Niger Delta area’.267 A purpose of the rule on exhaustion of domestic remedies is to enable the State to ‘save its reputation, which would be inevitably tarnished if it were brought before an international jurisdiction’.268 It is also based on the principle of complementarity.269 As will be seen below, although the Commission’s approach to Article 56(5) has been said to ‘compare favourably’ with other regional systems,270 a criticism directed towards the African Commission is its lack of consistency in its approach to a number of issues around interpretation of this rule, arguably doing ‘injustice’ to the complainants and preventing potential victims from accessing the Commission.271 More pragmatically, local remedies are also ‘normally quicker, cheaper, and more effective than international ones’.272 261 Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 48. 262 Communication 207/97, Africa Legal Aid v Gambia (The), 7 May 2001, para 32. 263 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 59. Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 66. Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 71. Communication 54/91-61/91-96/93-98/93-164/97_196/ 97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 80. 264 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 61. 265 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 47. 266 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 47. 267 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 42. 268 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 80. Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 47. 269 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 48. 270 H. Onoria, ‘The African Commission on Human and Peoples’ Rights and the exhaustion of local remedies under the African Charter’, 3 AHRLJ (2003) 1–24, at 23. 271 See in general, N. J. Udombana, So far, so fair: The local remedies rule in the jurisprudence of the African Commission on Human and Peoples’ Rights 97 AJIL (2003) 1–37. 272 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 48.

I. Article 56(5)

715

Article 56(5) has been said to include the following elements: 1 . the existence of domestic procedures for dealing with the claim; 2. the justiciability or otherwise, domestically, of the subject-matter of the complaint; 3. the existence under the municipal legal order of provisions for redress of the type of wrong being complained of; and 4. available effective local remedies, that is, remedies sufficient or capable of redressing the wrong complained of.273

It is quite clear that not all remedies have to be exhausted. Over time the African Commission, and now the African Court, appears to have applied the same test as found in other treaty bodies, namely that the remedy must be ‘available, effective and sufficient to redress the alleged violation’.274 Sometimes the term ‘adequate’ is also utilised.275 While these terms are often dealt with separately, in some cases they are conflated, and the African Commission has implied that, for example, a remedy which is found to be unavailable, will therefore be ineffective.276 On a few occasions the African Commission has referred to ‘constructive exhaustion’ of domestic remedies. It has not interpreted this phrase and it is not found in the ACHPR nor the Rules of Procedure but from an examination of the cases where it has been used it appears to be an umbrella term to cover situations in which local remedies do not need to be exhausted by the complainant. For example, mass deportations of thousands of non-nationals from Angola without the ability to challenge the deportations in Angolan courts, as well as being unable to return, constituted ‘constructive exhaustion of domestic remedies’.277 In addition, where the complainant had no legal standing in the domestic courts and that representatives of its organisation would be arrested if they attempted to pursue the legal remedies in Angola, the African Commission noted that it would apply the ‘constructive exhaustion of domestic remedies’ standard to determine whether an exception applied in this context.278 In another, finding that local remedies in Sudan were neither adequate nor effective it found that the complainants had ‘constructively exhausted’ local remedies.279

1. Who Must Exhaust Domestic Remedies The African Commission has held that Article 56(1) presupposes that remedies need to be exhausted by the authors of the communication, rather than the victims themselves.280 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 47. Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31. Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria, 22 March 1995, ‘adeqaute and effective’. Communication 71/92, Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 6. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 40. Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 63. Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 81. African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, 26 May 2017, para 93. 275 E.g. Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 276 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005 277 Communication 292/04, Institute for Human Rights and Development in Africa v Angola 292/04 IHRDA (on behalf of Esmaila Connateh & 13 others) v Republic of Angola [24th AAR], 22 May 2008, para 41. 278 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 49. 279 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, paras 56–57, my italics. 280 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 65. N. J. Udombana, So far, so fair: The local remedies rule in the jurisprudence of the African Commission on Human and Peoples’ Rights 97 AJIL (2003) 1–37, at 17. 273 274

716

34. Article 56: Admissibility of Individual Communications

In Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, the Applicants were the beneficiaries of Zongo and his companions as well as the local NGO, the Mouvement Burkinabé des Droits de l’Homme et des Peuples (MBDHP). The African Court held that as the former had exhausted domestic remedies, and the MBDHP was not entitled to bring the matter before the national courts, as it had not, as required by domestic law, ‘suffered personally from the damage directly caused’, remedies did not ‘exist’ for the organisation.281

2. The Justiciability and Subject Matter of the Claim before the Domestic Courts The domestic remedy must address all aspects of the individual’s claim. Where a Compensation Committee existed in Zimbabwe which could only look at improvements on the complainant’s land, but not other aspects of his claim, the African Commission found it not to be a sufficient remedy.282 Conversely, the issues pleaded before the African Commission have to be same as those pleaded before the domestic courts. So in one case where the complainants had not challenged the constitutionality of measures through a constitutional review, but then subsequently pleaded those before the African Commission, it was held that they had not fulfilled their duty to exhaust domestic remedies.283 However, as to whether the same facts need to be presented at the national courts as to the African Commission, it has been held that while the complainants ‘do not have to state [in the domestic courts] specific Articles of the Charter which have been violated, but where they do, it would be wrong to penalize them for doing so based on the arguments that they had not raised the fact that those Articles have been violated, in the domestic Courts’.284 Rather, the complainants at the African Commission level need to ‘state the facts, showing evidence of prima facie violation of Articles in the Charter and that they have utilized and exhausted the legal mechanisms available to them in the State to remedy the wrong’.285 As to whether the rights asserted before the African Commission have to have been available in domestic law or the constitution, the African Commission noted in one case that the International Covenant on Economic, Social and Cultural Rights (ICESCR) had not been domesticated into Nigerian law but that the constitution contained most of these rights.286 Even though they were not justiciable according to the constitution, the African Commission still found that the constitutional provisions provided ‘a foundation upon which economic and social rights could be enjoyed, and its provisions indicate that the courts are not excluded from entertaining cases relating to socio-economic

281 Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Judgment on the Merits, 28 July 2014, paras 108–112. 282 Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 86. 283 Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016, paras 56–58. 284 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 82. 285 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 83. 286 Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008, para 62.

I. Article 56(5)

717

rights’287 and that the ACHPR had been domesticated by Nigerian law, a position which had been substantiated by case law.288 The matters could therefore have been litigated before national courts. In one communication it was questioned whether in fact it should be considered as an inter-State communication, under Articles 47–54, rather than one under Article 55.289 The communication concerned sanctions imposed on Burundi by a number of States, namely, Tanzania, Kenya, Uganda, Rwanda, Ethiopia, Zambia and the former Zaire. The Respondent States objected to this becoming an inter-State communication arguing that two of the countries, Eritrea and Ethiopia, had signed an agreement and matters were being dealt with by an Ethio-Eritreian Claims Commission. The African Commission noted that neither its Rules of Procedure nor the provisions of the ACHPR provided for the conversion of Article 55 communications into inter-State ones, although it held that an inter-State communication depended on the ‘voluntary exercise of the sovereign will of a State party to the Charter, which decision can only be made by States in accordance with the Charter’ and as neither Eritrea nor Ethiopia wished to do this the African Commission was unable to consider it under Articles 47–54.290 It was prepared to state, however, that it did consider that this communication should have fallen within the inter-State procedures, noting with respect to Article 56(5) and (6) that the Burundian courts would have no jurisdiction over the Respondent States.291 It is surprising that it then goes on to find the communication is admissible simply explaining that it has done so by ‘drawing from general international law and taking into account its mandate for the protection of human rights as stipulated in Article 45(2), the [African] Commission takes the view that the communication deserves its attention’.292

3. In Existence at the Time Local remedies needed to have been in existence ‘at the time when the facts occurred’.293 Further, the African Commission will consider the facts as alleged at the time of submission of the communication.294 Consequently, ‘even if the situation has improved, such as leading to the release of the detainees, repealing of the offensive laws and tackling of impunity, the position still remains that the responsibility of the present government of Nigeria would still be engaged for acts of human rights violations which were perpetrated 287 Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008, para 63. 288 Abacha v Fawehinmi, Supreme Court of Nigeria, 28 April 2000, S.C. 45/1997; Ogugu v The State, Supreme Court of Nigeria, (1994) 9 NWLR (Pt 366) 1. 289 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003. 290 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 44. 291 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 65. 292 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 66. 293 Communication 281/03, Marcel Wetsh’okonda Koso and others v Democratic Republic of Congo, 27 May 2009, para 49. 294 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 37; Communication 27/89- 46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 36, it will ‘rule on the facts that were submitted to it’.

718

34. Article 56: Admissibility of Individual Communications

by its predecessors’.295 This will apply in relation to consideration of admissibility criteria and also the availability of remedies at the time.296 If the individual victims are arbitrarily detained, thereby denying them the ability to pursue a writ of habeas corpus, the African Commission has held the remedy did not exist.297

4. ‘Exhaust’ Cases still pending before the domestic courts will generally not be considered to have been exhausted.298 Therefore: As long as a case still pending before a domestic court is a subject matter of the petition before this Commission, and as long as this Commission believes the relief sought can be obtained locally, it will decline to entertain the case.299

In Frank David Omary and Others v United Republic of Tanzania, there was a possibility that the Applicants were still part of a claim before the domestic courts and even if they were not, they had not themselves pursued appeal to the Court of Appeal. The application was held by the African Court to be inadmissible.300 If there is the possibility of appeal this will need to be pursued before it can be claimed remedies have been exhausted.301 With respect to ongoing proceedings in Ghana, whereby even after these had been concluded it would still have left the possibility of the complainant appealing to the Court of Appeal and Supreme Court, the African Commission found that local remedies had not been exhausted.302 If the case has been dealt with by the highest national court, then Article 56(5) will have been satisfied.303 Authors of a communication had brought the case before a court of first instance in Sudan which had dismissed the application. This was appealed to the Court of Appeal who ordered the first court to reconsider the matter. The case was subsequently dismissed by the court of first instance and the judgment was then upheld by the Court of Appeal. The government claimed that they could have approached the Constitutional Court which had jurisdiction to consider ‘protection of the rights of a

295 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 37; Communication 27/89- 46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 36. 296 Communication 225/98, Huri-Laws v Nigeria, 6 November 2000, para 39. Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000, para 39. 297 Communication 153/96, Constitutional Rights Project v Nigeria, 15 November 1999, para 10. 298 Communication 135/94, Kenya Human Rights Commission v Kenya, 11 October 1995, para 16; Communication 18/88, El Hadj Boubacar Diawara v Benin (joined with 16/88 and 17/88), 3 November 1994, para 2. Communication 258/02, Miss A v Cameroon, 4 June 2004, paras 25 and 26. 299 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 62. 300 Frank David Omary and Others v United Republic of Tanzania, App. No. 001/ 2012, Ruling on Admissibility, 28 March 2014, para 127. 301 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 51. 302 Communication 322/06, Tsatsu Tsikata v Ghana, 29 November 2006, para 36. 303 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 108. Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 64. Christopher Jonas v United Republic of Tanzania, App. No.011/2015, Judgment of 27 September 2017, para 43.

I. Article 56(5)

719

human being and the fundamental freedoms thereof ’.304 The African Commission agreed with the State. In a claim for wrongful dismissal, the Applicant had brought this before the Industrial Relations Court in Malawi, but could have gone further to appeal to the High Court and then the Supreme Court of Appeal. As he had not done so, the application was held inadmissible for failure to exhaust domestic remedies.305 As to whether a complainant should have taken proceedings for forced execution against the State, the African Commission was asked to consider whether this applied where an individual had a favourable judicial decision and this had not been honoured by the State. The African Commission held that this should not be required.306 The right to appeal is necessary to fulfil the requirement to exhaust domestic remedies under Article 56(5).307 If the domestic courts dismiss the application for appeal or review to the higher court, then local remedies will be deemed to have been exhausted.308 In Communication 198/97, S.O.S. Esclaves v Mauritania, the complainant had informed the African Commission that ‘internal procedures’ had been initiated by the victims but then they failed to provide further information. Consequently, the African Commission considered itself ‘unable to determine whether the said procedures have been concluded or otherwise; nor whether they have allowed the supposed victims to have their rights restored’.309 There is, of course, no requirement to wait for a pending case which does not offer a remedy which is neither available, sufficient nor effective.310 As the victim had already accessed the appeal procedure in one case it was considered to be available and accessible,311 but the African Commission then considered whether it was effective. It has held that an effective appeal procedure is one that ‘subsequent to the hearing by the competent tribunal of first instance, may reasonably lead to a reconsideration of the case by a superior jurisdiction, which requires that the latter should, in this regard, provide all necessary guarantees of good administration of justice’.312 If the appeal procedure did not satisfy fair trial guarantees, or if it did not provide ‘an effective, impartial adjudication of the matter’,313 then it may not need to be exhausted. There would, however, need to be evidence to support this.314 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 74. Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment on the Merits, 21 June 2013, para 40. See also Peter Joseph Chacha v United Republic of Tanzania, App. No. 003/2012, Ruling on Admissibility, 28 March 2014, para 145 in relation to the failure of the Applicant to seize the Court of Appeal in Tanzania. 306 Communication 253/02, Antonie Bissangou v Congo, 29 November 2006 para 59. 307 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 35. 308 Communication 243/01, Women’s Legal Aid Center (on behalf of Sophia Moto) v Tanzania, 7 December 2004, paras 27–28. 309 Communication 198/97, S.O.S. Esclaves v Mauritania, 5 May 1999. 310 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 158. 311 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 159. 312 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 163. 313 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 166. 314 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 164. 304 305

720

34. Article 56: Admissibility of Individual Communications

On 24 October 2000 the High Court of Namibia had ordered that an individual, Jose Domingos Sikunda, be released. The Minister of Home Affairs did not honour that decision. Sikunda’s lawyers had applied for contempt of court against the minister. This application was still pending before the High Court when the communication was submitted to the African Commission on 31 January 2001. The High Court later heard the matter and delivered its judgment on 9 February 2001, finding the minister in contempt of court. The Respondent State had argued that Article 56(5) had not been met due to the date on which the complainants referred the case to the African Commission. In noting that the complainants had repeatedly failed to respond to requests from the African Commission for submissions on admissibility and ‘principally’ from the High Court judgment, the Commission held the ‘complainant brought the matter before it prior to exhausting domestic remedies’ and therefore held it to be inadmissible.315 The decision had an additional ‘note’ which stated the chair of the African Commission had written to the government expressing concern that Mr Sikunda’s deportation and that: in circumstances where an alleged violation is brought to the attention of the [African] Commission and where it is alleged that irreparable damage may be caused to the victim, the [African] Commission will act expeditiously appealing to the Responding State to desist from taking any action that may cause irreparable damage until after the [African] Commission has had the opportunity to examine the matter fully. In such cases the [African] Commission acts on the facts as presented and it was therefore in this vein that the [African] Commission wrote to the Minister of Foreign Affairs of the Republic of Namibia expressing concern over the alleged deportation of Mr Sikunda.316

This is a rather odd addition to the decision on inadmissibility and it implies some analysis and conclusion by the African Commission on the merits. It is certainly not an approach that is followed in every decision that has been published on inadmissibility. Where allegations related to arrests, incommunicado detention, delays in providing copies of court judgments and lack of legal representation, these were not raised explicitly in the national proceedings. The African Court noted that these were ‘a “bundle of rights and guarantees” that were related to or were the basis of their appeals’, and therefore the local authorities had sufficient opportunity to deal with them.317 Remedies need to be exhausted for each element of the claim and they will be considered separately. So while claims for compensation had been pursued through the domestic courts (albeit not fully), the allegations in relation to police brutality had not.318 If the communication is submitted too quickly to the African Commission, it may presume that insufficient efforts have been made to exhaust remedies. Where universities had been closed on 26 September 1998 and the communication was received on 14 October 1998, the African Commission found that one month was insufficient time to exhaust local remedies, and no indication had been given that the complainant had accessed the courts.319 315 Communication 239/01, Interights (on behalf of Jose Domingos Sikunda) v Namibia, 16 May 2002, para 28. 316 Communication 239/01, Interights (on behalf of Jose Domingos Sikunda) v Namibia, 16 May 2002. 317 Kennedy Owino Onyachi and Others v United Republic of Tanzania, App. No. 003/2015, Judgment of 28 September 2017, para 54. See also Anaclet Paulo v United Republic of Tanzania, App. No. 020/2016, Judgment, 21 September 2018, paras 41–42. 318 Frank David Omary and Others v United Republic of Tanzania, App. No. 001/ 2012, Ruling on Admissibility, 28 March 2014, paras 136–138. 319 Communication 220/98, Law Offices of Ghazi Suleiman v Sudan, 16 May 2002, para 43.

I. Article 56(5)

721

5. An Available Remedy An available remedy is one where ‘the petitioner can pursue it without impediment’,320 with ‘available’ having been interpreted as: ‘ “readily obtainable”, “accessible”; or “attainable, reachable on call, on hand ready, present; . . . convenient, at one’s service, at one’s command, at one’s disposal, at one’s beck and call” ’.321 In addition, an available remedy is a: mechanism(s) by which competent national organs examine the substance and validity of a given complaint and, where the complaint is adjudged valid, grant appropriate relief. For this purpose there must exist relevant substantive and procedural laws, and competent institutions or organs and processes which a complainant can access and utilise in practice without unjustifiable impediments.322

A generalised fear in the State which resulted in an individual not being able to return to his country because of a risk to his life, was considered to render remedies unavailable.323 If local remedies exist but the complainant does not have the capacity to use them (e.g. they are only available for certain individuals such as the President of the Republic and members of parliament) then they are not available for him or her.324 The remedy must therefore be available to the particular victim, not just available in general terms. Even if legislation existed which provided for appeal in the event of expulsion, the African Commission held that the circumstances of the complainants, involving mass arrests, detention prior to expulsion and the fact that expulsions were carried out very quickly (although there is no detail in the decision as to how quickly) resulted in them being unable to bring the matter to the courts, and contact their families or lawyers. Consequently, the remedy was not available to them.325 Similarly, it was found that as Mr Saif Gadhafi had been detained in a secret location, without access to a lawyer or being brought before a judge, remedies were unavailable.326 It was alleged in one case that violations had occurred in June 1989, legislation was then adopted in 1991 but had a retroactive effect in relation to the victim’s complaint, thereby making it subject to a limitation period of two years. The African Commission held that the remedies were not available to the victim.327 There have been numerous instances where legislation has prevented individuals from pursuing their claim before domestic courts or appealing any adverse finding, sometimes in relation to rulings from military tribunals. Where individuals were acquitted by a military tribunal after a period of wrongful imprisonment, the African Commission found

320 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 32. Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 30 May 2016, para 55. 321 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 12. 322 Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016. 323 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 37. 324 Communication 262/02, Mouvement ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire, 22 May 2008, para 55. Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008. 325 Communication 71/92, Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 14. 326 The African Commission on Human and Peoples’ Rights v Libya, App. No. 002/2013, Judgment on the Merits, 3 June 2016, para 68. 327 Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 62.

722

34. Article 56: Admissibility of Individual Communications

that the State had sufficient opportunity to remedy the violations and it was ‘not worthwhile’ for the complainants to have lodged an appeal with the Supreme Court given that they had already been released.328 The African Commission will consider the specific rights alleged to have been violated and whether domestic proceedings were available in relation to each of them.329 So while it was prepared to consider that pursuit of domestic remedies beyond the military tribunal was not necessary for these violations, it found that the victims, after they had been released, could have pursued the perpetrators of alleged acts of torture and confiscation of property in domestic courts.330 As to whether the remedies are unavailable with respect to allegations of corruption against the President of the Respondent State, the African Commission found that this was not within the subject matter of the African Commission’s jurisdiction.331 Where, in Swaziland, there was no constitution and the King had the power to overturn court decisions, the African Commission found that ‘the likelihood of the complainant succeeding in obtaining a remedy that would redress the situation complained of in this matter is so minimal as to render it unavailable and therefore ineffective’.332 This wording implies that an unavailable remedy would also be an ineffective one, but other jurisprudence on this point, as will be seen below,333 is not consistent. If the remedy, such as compensation for wrongful deaths, is not available under national law, then remedies will not have been exhausted.334 The complainant in one case had argued that they were prohibited from pursuing the matter at the national level as Nigerian courts did not allow class actions. The African Commission examined Nigerian case law to hold that there was sufficient jurisprudence to indicate that the local courts could employ locus standi in class actions.335 Even if it did not state expressly that the situation was one which amounted to serious or massive violations, it held that the ‘grave’ situation ‘and the numbers of victims involved were numerous’, and the criminal justice system would not have been able to investigate and prosecute all the cases that had been reported, a fact admitted by the State itself. Thus, remedies were available but ‘as a matter of practicality were not capable of yielding any prospect of success to the victims of the criminal assaults’.336

6. An Effective Remedy An effective remedy will be one that ‘offers a prospect of success’,337 and ‘upon success, the appropriate relief is one that is capable of adequately and timely redressing the specific 328 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 65. 329 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, paras 65–66. 330 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, paras 68–69. 331 Communication 413/12, David Mendes (represented by the Centre for Human Rights, University of Pretoria) v Angola, 25 February 2013, para 60. 332 Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005. 333 See section K.6 of this chapter. 334 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum v Zimbabwe, 12 October 2013. 335 Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008, para 58. 336 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 71. 337 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31.

I. Article 56(5)

723

violation suffered’.338 However, ‘if a remedy has the slightest likelihood to be effective, the applicant must pursue it’.339 Casting aspersions about the national courts, for example, that they are weak and ineffective, will not be sufficient to exhaust domestic remedies.340 Effectiveness will not depend on ‘certainty or guarantee of a favourable outcome for the complainant’, the complaint simply needs to be ‘arguable, in the sense that it is as susceptible to being adjudged valid as it may be to be adjudged unmeritorious upon full examination of supporting and vitiating evidence, and legal arguments’.341 Consideration will be given to the formal remedies, the nature of the complaint, the ‘general legal and political context’ of the remedies and the complainant’s personal circumstances.342 Where a remedy pursued before a domestic court did not receive a response, it was found to be available but not effective.343 In Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, the Respondent State argued that the Applicants should have seized the highest judicial authority in the country, namely the Cour de Cassation.344 The applicants responded that they had already waited nine years and to take it further to this court would be a ‘waste of time’ and would likely take a further five years before deciding their case.345 The African Court held that the effectiveness of the remedy should be determined by ‘its ability to solve the problem raised by the Applicant’.346 The Cour de Cassation in theory could have changed the Applicants’ situation had it found violations in the way the lower courts dealt with the matter and would not be a ‘waste of time’ and was consequently an effective remedy that required exhaustion.347 If the rights are not protected in the constitution, then it may be that they cannot be addressed by any court. So where economic, social and cultural rights were not safeguarded in the Kenyan constitution the African Commission noted they were ‘unlikely to have redress in the Kenyan courts’.348 When the Chief Justice had been removed in a manner contrary to international standards, the African Commission did not agree with the complainant that this meant that local remedies were unavailable or ineffective. It was still necessary to take steps to exhaust domestic remedies and it was ‘not enough for the Complainant

Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016. Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 58. 340 Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008, para 59. 341 Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016. See also, before the African Court, Mariam Kouma and Ousmane Diabaté v Republic of Mali, App. No. 040/2016, Judgment, 21 March 2018, para 52; Peter Joseph Chacha v United Republic of Tanzania, App. No. 003/2012, Judgment, 28 March 2012, para 144. 342 Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016. 343 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016, para 58. 344 Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Judgment on the Merits, 28 July 2014, para 57. 345 Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Judgment on the Merits, 28 July 2014, para 62. 346 Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Judgment on the Merits, 28 July 2014, para 68. 347 Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Judgment on the Merits, 28 July 2014, para 70. 348 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 30 May 2016, para 61. 338 339

724

34. Article 56: Admissibility of Individual Communications

to cast aspersion on the ability of the domestic remedies of the State due to isolated incidences’.349 Individuals detained on the basis of their mental health in The Gambia had no right of appeal under the legislation against the decision of a medical practitioner.350 No legal assistance was available to those who wished to pursue the case through the courts. The African Commission in this case looked ‘at the nature of people that would be detained as voluntary or involuntary patients under the [Lunatics Detention Act, or LDA] and ask itself whether or not these patients can access the legal procedures available (as stated by the Respondent State) without legal aid’.351 So while there were remedies, they were only there ‘if you can afford it’.352 It further found that the remedies were not realistic nor effective, given the poor background of those who were likely to be detained.353 Where National Intelligence Security Service (NISS) members were immune from prosecution and disciplinary action under the National Security Act of 2010 in Sudan, and where private individuals could not bring lawsuits against government officials under Article 27 of the Criminal Procedure Act, there was no effective remedy for the victim.354 Whether a ‘prevailing trend of non-compliance with court orders in the country’ will be sufficient to argue that local remedies are not effective, the African Commission has stated that there must be ‘proof beyond reasonable doubt and balance of probability that the remedy, despite its existence, would indeed not redress the violation(s) alleged’ (italics added).355 This is confused and does not clarify the standard of proof. Where the complainant had not made ‘any attempt’ to exhaust local remedies and did not provide evidence to support this contention, the African Commission found the communication inadmissible under Article 56(5). It is not clear if the combination of the two rendered the decision inadmissible.356

7. A Sufficient Remedy A remedy will be sufficient ‘if it is capable of redressing the complaint’.357 As to whether the failure of the government to respect the decisions of national courts will be reason enough not to exhaust domestic remedies, the African Commission has held that the complainant cannot ‘merely anticipat[e]‌the outcomes of court proceedings’.358 There needs to be ‘at least a modest attempt to exhaust local remedies’.359 The complainants argued that they had not seized any domestic court because the judiciary were not independent and the body appointing judges was controlled by the President. The African Commission did not consider that this precluded the complainants exhausting domestic Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 67. Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003 351 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 35. 352 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 36. 353 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 37. 354 Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 60. 355 Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 78. 356 Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 79. 357 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31. 358 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 97. 359 Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 55. 349 350

I. Article 56(5)

725

remedies as they were ‘merely subjective assessments on which the African Commission cannot base itself ’.360 The complainant should have at least attempted to exhaust remedies. Where immunities are granted to police officers with respect to allegations, unless a preliminary investigation was undertaken, the African Commission has held that this restricted the exhaustion of domestic remedies. The State, by failing to conduct this investigation, rendered redundant any remedies which theoretically existed.361 The remedies were therefore neither adequate nor effective.362 The complainants in one case had taken cases at the domestic level including appealing to the High Court and Supreme Court, being dismissed by both, and then to the President.363 However, the African Commission found that the matter that had been ruled upon at the local courts was not the eviction and resulting human rights violations. Further, the courts had dismissed the applications on technicalities, not ruling on the merits nor substance of the case, having only been asked to rule on procedural issues, namely reviewing a decision of a district council.364 There appears to be some responsibility on the complainants to ‘avoid a prolonged litigation process’ by pursuing judicial remedies, rather than others.365 Where the complainants’ case had been heard by the Kenyan Court of Appeal, as the court of final jurisdiction in Kenya, a question arose as to whether they should have requested the Court of Appeal to review its decision, of which there was a possibility under exceptional circumstances. The African Commission held that there was no legal obligation of the Court of Appeal to review its decisions which then rendered this ‘purely discretionary and not mandatory’ and thus not ‘available’.366 ‘Use of another remedy which has essentially the same objective is not required’.367 So the complainants were not required to submit a fundamental rights application to the High Court of Kenya when there had already been a rejection by the Court of Appeal, the latter being ‘very well in a position to protect the right that the Victim would have sought to be protected’.368 The constitutionality of a number of regulations was challenged before the Supreme Court in Zimbabwe, from which there was no right of appeal, and the latter ruled that some but not all were unconstitutional, and that the complainant lacked standing to contest them. A communication was then submitted to the African Commission alleging that these particular provisions which were found to be constitutional were

Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 55. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 48. 362 Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 4 June 2014, para 48. 363 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 67. 364 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, paras 73–75. 365 Communication 372GTK/2009, Interights (on behalf of Gizaw Kebede and Kebede Tadesse) v Ethiopia, 16 December 2011, para 71. 366 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 54. 367 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 55. 368 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 55. 360 361

726

34. Article 56: Admissibility of Individual Communications

in violation of the ACHPR. The African Commission found remedies to have been exhausted.369

8. Ordinary, Judicial and Local Remedies and Appeal a. Judicial Remedies Remedies are only those which are ‘ordinary remedies of common law that exist in jurisdictions and normally accessible to people seeking justice’.370 The Mauritanian Civil Commercial and Administrative Procedure Code permitted access to revision of rulings of the Administrative Chamber of the Supreme Court if the ruling was wrong or the other party was in possession of decisive evidence. The African Commission considered the revision procedure to be an ‘extraordinary legal remedy’.371 The fact that one of the lawyers had made an application for revision, which was subsequently withdrawn the same day, was considered by the African Commission to be a ‘clear indication of the Complainant’s intention not to resort to such a remedy’.372 Similarly, an ‘ordinary’ remedy is not one where in the national legal system, for example, leave to review a decision lies at the discretion of the court,373 or a constitutional remedy.374 Those remedies that are of a judicial nature and not discretionary need to be exhausted.375 Remedies are not just penal, but ‘all the legal remedies, whether civil, penal or administrative’.376 Conversely, those procedures which are ‘discretionary, extraordinary’ and of a ‘non-judicial nature’, and ‘do not operate impartially’ and ‘have no obligation to decide according to legal principles’, will not require exhaustion.377 These factors were applied to the Civil Disturbances (Special Tribunal) Act in Nigeria by the African Commission in 1995. This Act provided for an Armed Forces Ruling Council to confirm the validity of penalties imposed by the Tribunal. The African Commission found that remedies need not be exhausted before this body.378 369 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012. See also before the African Court, The matter of George Maili Kemboge v The United Republic of Tanzania, App. No. 002/2016, Judgment, 11 May 2018: a constitutional petition will be considered an extraordinary remedy, para 33. The matter of Thobias Mang’ara Mango and Shukurani Masegenya Mango v The United Republic of Tanzania, App. No. 005/2015, Judgment of 11 May 2018. 370 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 4 June 2004, para 27. Kennedy Owino Onyachi and Others v United Republic of Tanzania, App. No. 003/2015, Judgment of 28 September 2017, para 56. 371 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 4 June 2004, para 28. 372 Communication 242/01, Interights, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 4 June 2004, para 29. 373 Alex Thomas v Republic of Tanzania, App. No. 005/2013, Judgment on Merits, 20 November 2015, para 65. 374 Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016, paras  66–67. 375 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 64. Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment on the Merits, 21 June 2013, para 38. Tanganyika Law Society, the Legal and Human Rights Centre and the Reverend Christopher Mtikila v The United Republic of Tanzania, App. Nos. 009/2011 and 011/2011, Judgment on the Merits, 14 June 2013, para 82. 376 Communication 304/05, FIDH, Organisation nationale des droits de l’Homme (ONDH) and Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Senegal, 29 November 2006, para 44. 377 Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria, 22 March 1995, para 8. Communication 60/91, Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and others) v Nigeria, 22 March 1995, para 10. 378 Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria, 22 March 1995.

I. Article 56(5)

727

Where the Public Prosecutor’s office can apply for pardon for persons convicted by a military court, the African Commission considered that this was ‘not jurisdictional and that its implementation is dependent on the discretion of public authorities’ and did not meet Article 56(5) requirements.379 A decision by the State of Emergency Court, which required endorsement by the President, had no further judicial right of appeal. The African Commission found there were no remedies left to exhaust.380 Hence, a discretionary power in the hands of the President will not be a remedy that needs exhausting.381 In a communication concluded in 2000 Mr Diakité had been expelled from Gabon in August 1989 and only in 1997 permitted to return. The State claimed that he had not contested the expulsion warrant in the domestic courts and in fact had returned to Gabon as a result of talks between the Heads of States of Mali and Gabon. The African Commission found the case inadmissible for failure to exhaust domestic remedies.382 Where a bill was pending before Parliament dealing with the matter of independent candidates in elections, the issue that was submitted to the African Court, the Court did not agree with the State that the Applicants should have waited for parliament to conclude this process as this was a ‘political process and is not an available, effective and sufficient remedy because it is not freely accessible to each and every individual; it is discretionary and may be abandoned at any time; moreover, the outcome thereof depends on the will of the majority. No matter how democratic the parliamentary process will be, it cannot be equated to an independent judicial process for the vindication of the rights under the Charter’.383 A victim had sent letters to the former and current Presidents of Mozambique, and to the UN Special Rapporteur of Extrajudicial, Summary and Arbitrary Executions, as well as Amnesty International, attempted to engage with local lawyers who would not do so because of fear, and sought information from police and prisons. The African Commission found that these were neither judicial remedies, nor were they ‘institutionalized administrative remedies’. As the fear of those lawyers had not been substantiated, local remedies were found not to have been exhausted.384 Similarly, an appeal to a minister is not a remedy that requires exhaustion, it being non-judicial.385 Neither will sending a writ of habeas corpus to the minister, and not to the courts, be sufficient to exhaust domestic remedies.386 A plea for pardon will not satisfy the requirement of a judicial remedy and will not need to be exhausted.387

379 Communication 259/2002, Groupe de Travail sur les Dossiers Judiciaires Stratégiques v Democratic Republic of Congo, 10 March 2015, para 43. 380 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 1 March 2011, para 98. 381 Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 89. 382 Communication 73/92_13AR, Mohammed Lamin Diakité v Gabon, 11 May 2000, para 17. 383 Tanganyika Law Society, the Legal and Human Rights Centre and the Reverend Christopher Mtikila v The United Republic of Tanzania, App. Nos. 009/2011 and 011/2011, Judgment on the Merits, 14 June 2013, para 82. 384 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, paras 105–107. 385 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 52. 386 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 70. 387 Communication 231/99, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi, 6 November 2000, para 23. Communication 259/2002, Groupe de Travail sur les Dossiers Judiciaires Stratégiques v Democratic Republic of Congo, 10 March 2015, para 46.

728

34. Article 56: Admissibility of Individual Communications

Whether it is necessary to request the Attorney General or undertake private prosecution to fulfil Article 56(5), the African Commission has held that if a situation in the country results in disruption of law and order, the State has a responsibility to maintain that through its police forces, and if it is unable to do so, then to arrest individuals and undertake criminal proceedings against them.388 It would not be appropriate to expect victims to pursue private prosecutions nor to follow this up with the Attorney General.389 It may consider remedies from bodies that are not courts. So in one case the African Commission looked at the Compensation Commission, a body set up to provide compensation for victims of post-electoral violence in Cameroon. The African Commission did not dismiss this simply as a body which should not be approached; rather it noted that it had failed to function effectively (by not producing reports for twelve years) and held that ‘this remedy is neither effective nor satisfactory’.390 Submission of cases to national commissions, even if they can grant remedies, such as a national human rights institution (NHRI),391 or Independent Corruption Practices Commission, as was the case in Communication 268/03, Ilesanmi v Nigeria, is not considered necessary as they are ‘non-judicial institutions’.392 However, it has noted that if the NHRI has judicial powers such as the ability to issue summons or require the attendance of witnesses, and can order the release of individuals or payment of compensation, it may decide differently.393 Neither will complainants be required to submit a case to another regional or sub- regional body, such as the Southern African Development Community (SADC) Tribunal.394 However, the African Court has found that if the Article 56(7) conditions are met, then a previous determination by a sub-regional court, in this case the ECOWAS Community Court of Justice, may result in the case being declared inadmissible on this provision.395 As to whether the rule requires victims to pursue civil remedies including to an investigating judge, the African Court held in one case that this was an ‘effective and sufficient’ remedy that could have been exhausted.396 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 70. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 70. 390 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 68. 391 Communication 221/98, Alfred B. Cudjoe v Ghana, 5 May 1999, para 14. Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 56. African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012, 26 May 2017, para 97. 392 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005, para 42. Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, para 61. 393 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, paras 62–63. As the complainants had exhausted domestic remedies before the judicial authorities in this case and had not sought to have the Uganda Human Rights Commission consider their matter, it did not see the need to explore this option further. See also Communication 596/16, Romy Goornah (represented by Dev Hurnam) v Republic of Mauritius, 28 April 2018, para 60, which considered that the National Human Rights Commission of Mauritius could not provide a judicial remedy to the victim and was therefore not among those remedies which required exhaustion. 394 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 102. 395 Jean-Claude Roger Gombert v Republic of Côte d’Ivoire, App. No. 038/2016, Judgment, 22 March 2018, paras  39–61. 396 Mohamed Diakité Couple v Republic of Mali, App. No. 009/2006, Judgment of 28 September 2017, paras  44–52. 388 389

I. Article 56(5)

729

The African Commission has held that one must consider not just whether a body is termed a court or judicial body at the national level, but rather whether it has the ‘competence to adjudicate complaints/disputes’ and the remedy ‘must primarily conform to and operate in accordance with certain fundamental legal principles. It must operate in strict observance of the procedural guarantees of a fair hearing by a competent, independent and impartial organ. It must be based on enforceable law from which the relief it offers earns its mandatory or coercive force, as opposed to being merely discretionary.’397 Even if it is process before a ‘court’, if it does not satisfy these criteria then it will not have to be exhausted. So it held that the mechanism in the House of Federation (part of the legislature), whereby it interprets constitutional disputes and is assisted in doing so by the Council of Constitutional Inquiry in Ethiopia, was of sufficient judicial nature to require exhaustion for the purposes of Article 56(5).398 It based its reasoning on the fact that parties to court cases could submit to this mechanism; it will deliberate on it and provide reasons for its decision; it interprets fundamental rights in line with principles of international human rights law; and its decisions bind government bodies and officials. Thus, ‘a constitutional review is clearly a legal action that may lead to the redress of the complainant grievances at the domestic level’ and should be pursued as part of the Article 56(5) obligations.399

b. A ‘Local’  Remedy The remedies must be those which are local, namely within the State against whom the allegations are made.400 So pursuing remedies in the courts in an alternative jurisdiction will not be required and may delay submission of a communication to the African Commission to the detriment of the complainant.401

c. An Independent Judiciary Article 56(5) must be read alongside Article 26 and the requirement to uphold an independent judiciary402 as well as Article 7 and the right to a fair trial. Therefore, it has been held that the domestic remedies must fulfil certain criteria namely ‘the right to a good administration of justice’, with an appeal before a judge,403 and follow due process.404 In a Dissenting Opinion to Peter Joseph Chacha v United Republic of Tanzania, an application which alleged violations of the right to fair trial among other rights, Judge Ouguergouz noted it was difficult to consider the admissibility issues around exhaustion of domestic remedies without considering the merits of Article 7.405 Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016, para 59. Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016, paras 56–58. 399 Communication 445/13, Human Rights Council and Others v Ethiopia, 19 May 2016, para 72. 400 Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 97. 401 Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 99. 402 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 57. 403 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 34. 404 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015. 405 Peter Joseph Chacha v United Republic of Tanzania, App. No. 003/2012, Ruling on Admissibility, 28 March 2014, Dissenting Opinion of Judge Fatsah Ouguergouz, para 17. 397 398

730

34. Article 56: Admissibility of Individual Communications

However, as to whether a failure to provide a right to a fair trial or due process at the national level will render the remedy unnecessary to exhaust has been the subject of a number of cases. On the one hand there is some suggestion that the domestic court proceedings need to fulfil Article 7 requirements.406 In one communication individuals were held in detention and the African Commission noted the State has the responsibility to bring them before a competent court and to be tried in compliance with Article 7 of the ACHPR.407 The fact that if failed to do so meant local remedies were not accessible to the victims. Thus, the African Commission said that not only must the case be brought before domestic courts but they must also be ‘in conditions that guarantee him a fair trial’.408 In addition, it has stated that an exception to the requirement to exhaust domestic remedies is if ‘the domestic situation of the State does not afford due process of law for the protection of the right or rights that have allegedly been violated’.409 So where individuals were held incommunicado for over three years, the African Commission found a prima facie violation of Article 7 and as the State had failed to remedy this situation for over a year after the communication had been seized by the African Commission this indicated that local remedies were neither available nor effective.410 The latter also supports the argument that the State had ample notice of the allegations but failed to act upon them.411 If the right to appeal is only available in respect of certain sentences, then this may also not amount to an effective remedy.412 An effective appeal will be one that ‘subsequent to the hearing by the competent tribunal of first instance, may reasonably lead to a reconsideration of the case by a superior jurisdiction, which requires that the latter should, in this regard, provide all necessary guarantees of good administration of justice’.413 In a few cases the lack of independence of national courts has been raised as a possible ground for exception to the requirement to exhaust domestic remedies. Here the African Commission has noted the principle of complementarity: ‘international or regional mechanisms do not and cannot substitute national courts; it is only when national courts or tribunals fail to deliver justice that international or regional organs will have jurisdiction to receive cases’.414 As to who determines the independence or otherwise of the national courts, in one case the complainants drew on a report of a mission taken by the African Commission itself which made such an assessment.415 The African Commission was not prepared to dismiss 406 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 111. 407 Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea, 20 November 2003, para 40. 408 Communication 247/02, Institute for Human Rights and Development in Africa (on behalf of Jean Simbarkiye) v DRC, 29 May 2003, para 27. 409 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 75. 410 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 76. 411 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 77. 412 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 36. 413 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 37. 414 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 84. 415 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 83.

I. Article 56(5)

731

the report as evidence in its entirety but did consider the fact that it was five years before the communication was adopted and no additional proof was provided to show that the situation remained the same.416 It will also consider approaches by domestic courts in other cases.417 Further, ‘if there is a chance that domestic courts could remedy the subject matter of the complaint’, then they will to be pursued.418 This is a high threshold. In an unusual case, two judges in Kenya, one High Court and one Court of Appeal, had submitted a case which it was alleged Kenyan citizens were prevented from contributing to the constitution making process.419 The complainants who brought the case to the African Commission argued that this illustrated that the judiciary were not independent and so local remedies would be impossible, and that the two judges who submitted the case were representative of the judiciary rendering a fair hearing impossible. The complainants had, however, made an application to join others as interested parties in the suit and this had been allowed. The African Commission held that this illustrated that their concerns were not actually realised and that they had not given ‘ample evidence’ to demonstrate their arguments.420 The two judges in question were also on suspension and the court process was not being pursued. As tribunals had been established to investigate members of the judiciary, the African Commission held therefore that the complainants could now approach the national courts.421

9. Exceptions to the Requirement to Exhaust Local Remedies The African Commission has set out in one communication various exceptions to the local remedies rule. These include if the local remedies are ‘inexistent’; they are unduly or unreasonably prolonged; recourse to them is ‘impossible’; ‘from the face of the complaint there is no justice or there are no local remedies to exhaust, for example, where the judiciary is under the control of the executive organ responsible for the illegal act’; and ‘the wrong is due to an executive act of the government as such, which is clearly not subject to the jurisdiction of the municipal courts’.422 Some, but not all of these, have been developed in the jurisprudence of the African Commission and African Court.

a. Ousting of the National Court’s Jurisdiction Where the national court’s jurisdiction has been ousted by legislation or decree, the African Commission has found that ‘it is reasonable to presume that domestic remedies . . . are certain to yield no results’.423 There have been numerous cases over the years, particularly against 416 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 87. 417 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 88. 418 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 91. 419 Communication 263/02, Kenyan Section of the International Commission of Jurists, Law Society or Kenya and Kituo Cha Sheria v Kenya, 7 December 2004. 420 Communication 263/02, Kenyan Section of the International Commission of Jurists, Law Society or Kenya and Kituo Cha Sheria v Kenya, 7 December 2004, para 42. 421 Communication 263/02, Kenyan Section of the International Commission of Jurists, Law Society or Kenya and Kituo Cha Sheria v Kenya, 7 December 2004, para 44. 422 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 48. 423 Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, para 9. Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 38. Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 55.

732

34. Article 56: Admissibility of Individual Communications

Nigeria in the 1990s, where the government had passed certain pieces of legislation which prevented the ordinary courts from examining matters, including those placed before or on appeal from special tribunals.424 This included in Nigeria legislation such as the Treason and Treasonable Offices (Special Military Tribunal) Decree,425 and Legal Practitioners Decree,426 and the African Commission found local remedies were neither existent or effective.427 It held that the ‘ouster clauses create a legal situation in which the judiciary can provide no check on the executive branch of government’.428 Applying this approach in another communication, the complainants had not presented information on any domestic court cases they had pursued. The African Commission noted that the Nigerian government had passed decrees ousting the jurisdiction of the courts and so no adequate remedies existed.429 The jurisdiction of the courts will have to be ousted with respect to all aspects of the complaint. So in one case against Zimbabwe, whilst the courts had no jurisdiction over expropriation of land, they did have jurisdiction to consider whether a constitutional amendment was valid.430

b. Unduly Prolonged Article 56(5) provides an express exception, if ‘it is obvious that this procedure is unduly prolonged’.431 ‘Unduly’ has been interpreted as meaning ‘excessively’ or ‘unjustifiably’, and if there is a reason for the delay then the remedy may still require to be exhausted.432 Although the African Commission has said there are ‘no standard criteria used by the African Commission to determine if a process has been unduly prolonged’, it will examine a number of factors including the ‘political situation’, the ‘judicial history’ and ‘the nature of the complaint’, as well as the ‘reasonable man test’.433 A justifiable reason for prolonging a case will not be ‘undue’.434 In one case, which was around the validity of election results, the African Commission considered that such results were supposed to be released quickly.435 Given that it was over four years since the submission of cases to the national courts, the case was found

424 Communication 151/96, Civil Liberties Organisation v Nigeria, 15 November 1999; Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999; Communication 148/ 96, Constitutional Rights Project v Nigeria, 15 November 1999; Communication 143/95-150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 5 November 1999; Communication 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, 5 November 1999; Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998. More recently, Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 82. 425 Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999. 426 Communication 148/96, Constitutional Rights Project v Nigeria, 15 November 1999 427 Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999 428 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 41. 429 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 41. 430 Communication 321/2006, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013, para 73. 431 See also Rule 40(5) of the Rules of Court. 432 Wilfred Onyango Nganyi & 9 Others v United Republic of Tanzania, App. No. 006/2013, Judgment of 18 March 2016, para 91. 433 Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, paras 58 and 60. 434 Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, para 60. 435 Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, para 59.

I. Article 56(5)

733

to be unduly prolonged, noting in particular that the office holders’ terms had nearly ended.436 A case pending for five years before the Administrative Chamber of the Supreme Court was considered to be unduly prolonged.437 If the matter involves deprivation of liberty, then this may impact on what is considered to be ‘unduly prolonged’. For example, the African Commission held that a lack of response to a petition for annulment of an order seven months and then a year after it was submitted was considered to be too long.438 Where timeframes are provided for in national law, the African Commission will consider first if these are within that expected by the African Charter.439 Where those time limits are within what is appropriate under the ACHPR, the State must respect them. The workload of magistrates, for example, which led to delays in examining cases, will not be sufficient grounds for prolonging consideration of a matter.440 As to what is the actual ‘procedure’ to determine if it is unduly prolonged, this was discussed in Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso before the African Court where it held that ‘the unduly prolonged nature of a procedure as addressed in article 56(5) of the Charter applies to remedies in their entirety as utilised or likely to be utilised by those concerned’.441 The time will start to run from when the complainants started domestic proceedings, not from when the violations occurred. So in Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, Norbert Zongo and his companions had been assassinated. The time to determine when local remedies were unduly prolonged ran, according to the African Court, not from the prosecution and trial of the suspect but from ‘the search for, trial and judgment of the assassins . . . because it is the beneficiaries of the latter who have brought the action before the Court’.442

c. Climate of Fear, Fear of the Individual If there is a general climate of fear it may mean that no remedies are available. Therefore, ‘the clear establishments of the element of fear perpetrated by identified state institutions (sic) fear which in the case, the Commission observed that “it would be reversing the clock of justice to request the complainant to attempt local remedies” ’.443 Similarly, an individual forced to flee the State against whom the communication was brought may not be required to exhaust domestic remedies. This is not certain in every situation. In one case an individual had fled Kenya to the DRC due to his political opinions and the UN High Commissioner for Refugees (UNHCR) had recognised his refugee status. The African Commission cited these two elements and, without providing 436 Communication 293/04, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, 22 May 2008, para 61. 437 Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25 November 2009, para 67. 438 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016, para 62. 439 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016, para 63. 440 Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016, para 69. 441 Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Judgment on the Merits, 28 July 2014, para 90. 442 Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, Judgment on the Merits, 28 July 2014, para 104. 443 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 90.

734

34. Article 56: Admissibility of Individual Communications

any further clarification as to its reasoning, concluded that there had been ‘constructive exhaustion’ of domestic remedies.444 Harassment and threats to an individual may need to reach a certain level to warrant reasons for not exhausting domestic remedies. The African Commission has said that if an individual is ‘constantly threatened, harassed and imprisoned, of course he would have no access to local remedies, they would be considered to be unavailable to him’.445 Where persecution by State officials meant that refugees were ‘in constant danger of reprisals and punishment’, the African Commission found that domestic remedies were not available.446 The African Commission will consider the circumstances and the particular individual. In one case where there were alleged threats to the victim’s life and a ‘general atmosphere of fear’, the victim was a prominent lawyer who had represented clients in court on a number of occasions. He had instituted proceedings in other courts at the same time as he could have instituted proceedings on this particular matter. It was therefore ‘contradictory’ to argue that local remedies were not available.447 If using local remedies themselves will result in fear or a risk to the complainant’s or victim’s life, then they may be considered to be unavailable.448 In Côte d’Ivoire there was considerable violence towards particular sections of the population, particularly those from the Dioula ethnic group or Muslims. This resulted in the victims of the communication before the African Commission having been unable to pursue the remedies domestically at that time.449 Returning to a country to pursue domestic remedies where you had previously suffered persecution and had consequently been forced to flee the State, was considered by the African Commission not to be required.450 If a victim is to claim that they fled the State due to fear for their life, this needs to be substantiated and the complainant will have the burden of proving this. Specifically, ‘[i]‌t is not enough for the Complainant to claim he was tortured or harassed without relating each particular act to the element of fear’.451 If discharged, the burden will then shift to the State to show that remedies are available and available to the particular complainant. There needs to be ‘concrete evidence and sufficiently demonstrated’, rather than mere aspersions452 or ‘general accusations’.453 This can be done, for example, by providing ‘evidence, including medical reports, names of persons who committed the alleged violations, and testimony of witnesses’,454 or ‘documentary evidence, sworn affidavits’.455 If no

Communication 232/99, John D. Ouko v Kenya, 6 November 2000, para 19. Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 34. 446 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, para 33. 447 Communication 413/12, David Mendes (represented by the Centre for Human Rights, University of Pretoria) v Angola, 25 February 2013, para 58. 448 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 41. 449 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 44. 450 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, para 35. 451 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 62. 452 Communication 413/12, David Mendes (represented by the Centre for Human Rights, University of Pretoria) v Angola, 25 February 2013, para 59. 453 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 91. 454 Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 63. 455 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 91. 444 445

I. Article 56(5)

735

such evidence is provided then the African Commission will conclude that the State had not had notice of the violations.456 For example, the African Commission noted that the submissions in one communication included reference to ‘the Minister [who] expressed his displeasure with the said decision and further attempted to unduly influence and/or threaten the Complainant’, but ‘[h]e fails to show how this attempted influence or threat by the Minister was carried out’.457 It was alleged that one complainant had to leave the country and flee to South Africa because State agents had tracked him and he was afraid of being hurt or killed. Specific instances given in the communication gave dates and details on what was alleged to have happened.458 Distinguishing this case from previous ones of the African Commission on the basis that the others had had ‘clear establishment of the element of fear perpetrated by identified state institutions’,459 the African Commission found that the intimidation by State agents would have resulted in ‘every reasonable person’ being concerned and afraid for their life, but that the complainant had not identified those tracking him to have been State agents, this being only his suspicion and ‘not corroborated’.460 The African Commission put particular weight on the fact that he did not report any suspicions to the police,461 despite the obvious consideration that a person might not approach the police if he considered himself to have been followed by State agents themselves. The African Commission found that he could also have reported them to the magistrate when he appeared a number of times in court.462 However, in another case, the complainant argued that he was in hiding and in fear of his life and to support this contention the African Commission considered the acceptance by the Nigerian government that the situation in the country had been ‘chaotic’.463

d. Serious or Massive Violations An exception to the exhaustion of domestic remedies rule is if there are allegations of serious and massive violations, or indeed ‘grave or massive violations’,464 or ‘serious and largescale’ violations.465 The presumption is that the more pervasive the violations and situation, the greater the likelihood that the State knew about them.466 In a series of cases against Mauritania, given that events in the country had come to the attention of both 456 Communication 413/12, David Mendes (represented by the Centre for Human Rights, University of Pretoria) v Angola, 25 February 2013, para 56. 457 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 92. 458 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007. 459 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 72. 460 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 74. 461 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 75. 462 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007, para 76. 463 Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000, para 13. 464 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 76. 465 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 45. C.A. Odinkalu and C. Christensen, ‘The African Commission on Human and Peoples’ Rights: The development of its non-state communication procedures’, 20 HRQ (1998) 235–280, at 263–264. R. Murray, ‘Serious or massive violations under the African Charter on Human and Peoples’ Rights: A comparison with the inter-American and European mechanisms’, 17 NQHR (1999) 1009–134, at 118–120. See also Chapter 35 (Article 58). 466 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000.

736

34. Article 56: Admissibility of Individual Communications

‘national and international communities’, the government was found to have been ‘sufficiently informed of the situations’.467 Setting down a rule which came to be repeated in a number of subsequent cases, the African Commission held that where it was ‘neither practicable nor desirable’ for complainants or victims to pursue domestic remedies, they will not be required to be exhausted. Although the African Commission does not clarify precisely what amounts to serious and/or massive violations,468 it has noted that this approach is appropriate in light of ‘the vast and varied scope of the violations alleged and the large number of individuals involved’.469 i. Scope and Scale of Violations Regard will be had to the ‘gravity of the human rights situation’ in the country.470 For ‘massive violations’, the African Commission has noted that their ‘pervasiveness’ means the State is presumed to have notice of them and to have dealt with them.471 Where the State set up a commission of inquiry and indicted perpetrators, the African Commission found that it ‘was not indifferent’ to the alleged violations and therefore ‘exercised due diligence’.472 Without specifically stating that such a situation was one of serious or massive violations, in one case the African Commission held that the government ‘has been sufficiently aware of the plight of the Nubians to the extent that it can be presumed to know the situation prevailing within its own territory as well as the content of its international obligations’.473 The ‘scale and nature of the alleged abuses, the number of persons involved ipso facto’ may render local remedies unavailable, ineffective and insufficient.474 In determining scale, ‘a violation is massive where a significant number of people are targeted either within a specific area or across the territory of a State Party. In terms of the nature, the Commission considers a violation to be massive where it is the product of a consistent and predetermined action that impacts on a right or a combination of rights guaranteed under the African Charter’.475 Sentencing of over 500 individuals to the death penalty, 467 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 81. 468 R. Murray, ‘Serious or massive violations under the African Charter on Human and Peoples’ Rights: A comparison with the inter-American and European mechanisms’, 17 NQHR (1999) 1009–134. 469 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 18. 470 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 86. Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 38. 471 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 60. 472 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 61. 473 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 30 May 2016, para 60. 474 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 100. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 46. 475 Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016, para 172. Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 46.

I. Article 56(5)

737

where just over 490 of them were given life sentences instead, all of which could be appealed, did not meet the ‘scale’ necessary to argue the existence of serious or massive violations.476 A ‘single incident that took place for a short period of time’ will not be sufficient to amount to serious or massive violations.477 What is surprising in the case where this was held is that the allegations related to extensive abuses against the Anuak indigenous people in Ethiopia over three days in December 2003 including massacres of hundreds of individuals, torture, rape and destruction of their property but which resulted in their displacement, as well as continued violence since that date. In contrast, in another case, ‘the magnitude of the alleged violations had an effect on a sizeable section of the population of Côte d’Ivoire, in particular, the communities in the northern region of the country’.478 A ‘predetermined’ violation may be one which arises from implementation of legislation.479 ii. Number of Victims There would appear to have to be ‘many victims’.480 Where the violations concern ‘a large section of the population . . . or about 30 percent of a population’, and that ‘hundreds of thousands of persons were affected by the statelessness in Côte d’Ivoire as a result of the allegations alleged by the Complainant’, the African Commission found remedies did not need to be exhausted.481 A large number of plaintiffs may make it difficult for national courts to provide an effective remedy: 300,000 Sierra Leonean refugees in Guinea were considered to be too great a burden for the national courts to deal with, ‘if even a slight majority of victims chose to pursue legal redress in Guinea’.482 In relation to allegations in Darfur where ‘tens of thousands of people have allegedly been forcibly evicted and their properties destroyed’ it was ‘impracticable and undesirable to expect these victims to exhaust the remedies claimed by the State to be available’.483 There were thus ‘prima facie’ serious and massive violations.484 In respect of the requirement to exhaust domestic remedies, the African Commission has distinguished between cases which involve violations ‘against victims identified or named’ and those with serious or massive violations ‘in which it may be impossible for

Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016. Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 61. 478 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 48. 479 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 48. 480 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 86. Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 38. 481 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 48. 482 Communication 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004, para 34. 483 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 101. 484 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 102. 476 477

738

34. Article 56: Admissibility of Individual Communications

the Complainants to identify all the victims’.485 Where there were 14,000 refugees, the African Commission held that it was ‘not reasonable’ to expect them to seize domestic courts ‘given their extreme vulnerability and state of deprivation, their fear of being deported and their lack of adequate means to seek legal representation’.486

e. Against a Number of States Where a communication is against more than one State, it has been argued that the complainant should not be required to pursue local remedies in all of the Respondent States. So in one case against fourteen States, the African Commission applied the same principles with respect to findings of serious or massive violations, namely ‘in view of the vast and varied scope of the violations alleged and the large number of victims involved’ local remedies need not be exhausted as this ‘would involve seizing the domestic courts in respect of each violation and/or victim, which would in effect unduly prolong the process of exhausting local remedies in such cases’.487 Consequently, a local remedy ‘even if available, is neither practicable nor desirable’.488

f. Other That the complainant had been a minor will of itself be insufficient to show that local remedies were not available: ‘If he could be helped to return home, he could have been assisted to pursue a remedy in the courts of The Gambia.’489 If the complainant claims he or she was unable to afford legal fees and so could not pursue legal remedies, the African Commission held in one case that as they had had the assistance of a local NGO they could have also been assisted in pursuing domestic remedies.490 Viljoen argues that adopting a similar stance to that of the Inter-American Court, whereby requiring an individual who cannot afford to do so to pursue domestic remedies would violate his or her right to equal protection before the law, could also be read into the African Charter.491 In Purohit and Moore v The Gambia, the African Commission held that those detained on mental health grounds were unlikely to be able to access the courts without legal aid as they were ‘likely to be people picked up from the streets or people from poor backgrounds’; and those procedures were ‘available to the wealthy and those that can afford the services of private counsel. However, it cannot be said that domestic remedies are absent as a general statement; the avenues for redress are there if you can afford it’.492 Remedies were not effective for this ‘category of people’.493 485 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 30. 486 Communication 235/00, Curtis Francis Doebbler v Sudan, 25 November 2009, para 116. 487 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 103. 488 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 104. 489 Communication 207/97, Africa Legal Aid v Gambia (The), 7 May 2001, para 33. 490 Communication 207/97, Africa Legal Aid v Gambia (The), 7 May 2001, para 33. Communication 236/ 00, Curtis Francis Doebbler v Sudan, 4 May 2003, para 27. 491 F. Viljoen, ‘Admissibility under the African Charter’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002, 61–99, at 89–90. 492 Communication 241/01, Purohit and Moore v The Republic of the Gambia, 29 May 2003, paras 37 and 36 respectively. 493 Communication 241/01, Purohit and Moore v The Republic of the Gambia, 29 May 2003, para 38. F. Viljoen, ‘Admissibility under the African Charter’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2008, chapter 3.

I. Article 56(5)

739

A state of emergency may render it impossible for the victim to exhaust domestic remedies.494 So, a victim was unable to approach the courts as a 1989 decree which governed his arrest and detention determined that no reasons for the arrest needed to be given, there was no right to contact family or a lawyer, nor could the legality of the decree be challenged before the courts.495

10. Complainant Present in the State against which the Case is being Brought As to whether the individual complainant has to be physically in the State against which the case is being brought has been considered in a few communications, including where individuals claimed they have been forced to flee the State because of fear for their safety. Considering the ‘availability’ of remedies is one way to determine if the complainant should have to pursue them from outside the Respondent State.496 The individual must have actually fled the State, and also been unable to return.497 In one case, the individual had not actually fled Lesotho, rather he had travelled to South Africa to submit a complaint to the UNCHR. He had intended to come back to Lesotho but had had his passport revoked in South Africa prohibiting him from returning, and so this condition will not be satisfied.498 The African Commission found local remedies had not been exhausted. In an early decision in 1996 the complainant had been arrested and detained without charge for cooperating with political opponents in Ghana. He had then escaped from prison in Ghana and went to Côte d’Ivoire. The decision of the African Commission appears to identify one factor that may be relevant in deciding whether local remedies need to be exhausted, namely the ‘nature of the complaint’.499 Although no further reasoning is given in this case, it could imply that detention would result if the individual were to return. The remedies were not found to be available.500 A further factor that is determinative is whether the complainant has the assistance of legal counsel who can take the case in the country of the Respondent State.501 In a case decided in 2000 involving the deportation of a Nigerian national from the Gambia to Nigeria, the African Commission held that ‘the victim does not need to be physically in a country to avail himself of available domestic remedies, such could be done through his counsel’.502 As it was a Lagos-based human rights organisation that filed the complaint with the African Commission, the Commission considered that it should have exhausted domestic remedies first in The Gambia. It found the communication inadmissible.503 The African Commission also considers the particular complainant who has filed the communication, noting that in one case it was an NGO based in the State against whom

494 Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 54. 495 496 Ibid. Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008. 497 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 66. 498 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 66. 499 Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996, para 6. 500 Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996. 501 Communication 435/12, Eyob B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 67. 502 Communication 219/98, Legal Defence Centre v Gambia (The), 11 May 2000, para 17. 503 Communication 219/98, Legal Defence Centre v Gambia (The), 11 May 2000, para 17.

740

34. Article 56: Admissibility of Individual Communications

the case was being brought and which specialised in domestic and international human rights litigation.504 Similarly, where an individual was in Togo but wished to take action against the DRC, the African Commission noted that his wife had remained in the DRC and that the individual had not attempted to exhaust remedies in the DRC and had not shown ‘moral and material constraints’ which prevented him from doing so.505 If the domestic law in the Respondent State permits cases to be filed without the presence of the complainant, this will also be a factor to be taken into account.506 The Republic of The Gambia in one case argued that even if the victim had been forced to leave the country, he could still have pursued local remedies from outside the State in accordance with domestic law. The African Commission agreed with this argument, even if the victim had fled because he was in fear for his life.507 However, where the victim had been deported contrary to court orders, the African Commission held that requiring him to exhaust any further remedies would be a ‘senseless formality’ given that previous judicial remedies had been ignored by the State.508 Thus, there had been ‘constructive exhaustion’ of domestic remedies.509 There must have been some effort on the part of the complainant to have exhausted local remedies.510 Similarly, where the victim had to leave Nigeria because his life was in danger,511 the African Commission found that he had been ‘unable to pursue any domestic remedy’. Further, when one complainant had been sedated and then deported from Zambia, the African Commission held that local remedies had been exhausted because he ‘was deported and was given no opportunity to approach the Zambian courts’.512 The Zambian government argued in another case that the complainants should have made use of legal aid to access the courts in the event of deportations. The African Commission did not agree, noting expert testimony that stated that legal aid was not available in this situation.513

11. Amnesties and Clemencies Where amnesties and clemencies have been granted to individuals, the African Commission has recognised that it would be ‘most unlikely for any domestic court to entertain this

504 Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 81. 505 Communication 247/02, Institute for Human Rights and Development in Africa (on behalf of Jean Simbarkiye) v DRC, 29 May 2003, paras 32 and 33. 506 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 100. 507 Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 70. Communication 207/97, Africa Legal Aid v Gambia (The), 7 May 2001, para 35. Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, paras 81 and 82. 508 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 54. 509 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 55. 510 Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, para 56. 511 Communication 215/98, Rights International v Nigeria, 15 November 1999, para 24. 512 Communication 212/98, Amnesty International v Zambia, 5 May 1999, para 7. 513 Communication 71/92, Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 16.

I. Article 56(5)

741

appeal as, this would only be a purely theoretical exercise’.514 The African Commission will also not necessarily require the complainant to challenge the constitutionality of any clemency order as, taking into account the political situation in Zimbabwe at the time, this ‘would not bring immediate relief to the victims of the violations’.515

12. Burden of Proof The African Commission has set out the process. Firstly, the initial burden is on the complainant to show that local remedies have been exhausted.516 There needs to be prima facie evidence provided by the complainants of attempts to exhaust domestic remedies, and such attempts include seizing the domestic courts.517 Judgments indicating district court, regional court and supreme court decisions with respect to the allegations will be sufficient to illustrate exhaustion.518 If the government claims that local remedies have not been exhausted it will have the burden of proving that they existed519 and that they are available, effective and sufficient to cure the violation alleged.520 An application had been filed by CEMIRIDE (an organisation instructed by the Nubian community) seeking leave of the High Court in Kenya to file a constitutional application in March 2003, but no bench had been constituted to hear the case. In June and July of the same year, the High Court would not transmit the file to the Chief Justice as the judge wished to verify the identity of the 100,000 applicants on behalf of whom the application had been filed. Letters to the Chief Justice had not been answered. In the subsequent communication before the African Commission, Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, it noted the ‘desperate situation of the Nubians’ and that the complainants had been unable to access local remedies ‘because of many procedural and administrative bottlenecks [had been] put in their path’. The Commission found that the State had not discharged its burden of proving that the complainants had adequate and effective remedies.521 Where the State makes ‘a general statement on the availability of local remedies without substantiating’, this will not be sufficient to discharge its burden.522 Drawing upon UN Human Rights Committee jurisprudence, the African Commission has held that the State will have to do more than simply listing remedies ‘in abstracto without relating them to the circumstances of the case, and without showing how they might provide effective redress in the circumstances of the Complainant’s case’.523 514 Communication 144/95, William A. Courson v Equatorial Guinea, 22 November 1997, para 16. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 64. 515 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 65. 516 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 63. Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 68. 517 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 69. 518 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004, paras 12–14. 519 Communication 71/92, Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Zambia, 31 October 1997, para 12. 520 Communication 275/03, Article 19 v Eritrea, 30 May 2007. 521 Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 30 May 2016, paras  51–54. 522 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 47. 523 Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire, 29 July 2008, para 47, citing UN Human Rights Committee 458/1991, Albert Mukong v Cameroon.

742

34. Article 56: Admissibility of Individual Communications

In one case the Egyptian government claimed that police investigations had stopped and would later be reopened when new information and evidences came to light. The African Commission held that the government had to prove that ‘judicial procedures to remedy the violations are still being pursued, otherwise its submission could be considered a mere statement’.524 As the PPO (Public Prosecution Office) had decided not to prosecute, the African Commission found that ‘the Victims were left with no other remedy because the inquiry procedures have been stopped’.525 It also examined a number of other factors including the length of time since the violations took place, in this case, eighteen months, the fact that evidence had already been examined, and that the State had not shown what it had done to acquire any new evidence.526 The case was found to be admissible. In the situations in which the State does prove such remedies are available, then the burden will shift to the complainant ‘who must demonstrate that the remedies in question were exhausted or that the exception provided for in Article 56.5 of the African Charter is applicable’.527 If the complainant wishes to argue that a remedy does not need to be exhausted because it is either unavailable, ineffective or insufficient,528 then it is not necessary for the complainant to prove this at this stage. Instead the burden will shift to the State to show that the remedy is indeed available, effective and sufficient and has not been exhausted.529 Once the State has done so, the burden will then move back to the complaint to show that he or she exhausted that remedy or that it was not effective in the particular case.530 If the complainant is going to allege that local remedies are unlikely to be successful due to, for example, fear for the safety of lawyers, or there being no independent or adequately resourced judiciary, then he or she will need to provide ‘concrete evidence and demonstrated sufficiently that these apprehensions are founded’.531 Thus, ‘casting doubts’ on the effectiveness of any remedy will not be sufficient.532

524 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 64. 525 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 65. 526 Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 66 527 Communication 275/03, Article 19 v Eritrea, 30 May 2007; Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 80. 528 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 45. 529 Communication 328/06, Front for the Liberation of the State of Cabinda v Republic of Angola, 5 November 2013, para 45. Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 63. Communication 323/06, Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 October 2013, para 63; Communication 317/2006, The Nubian Community in Kenya v The Republic of Kenya, 30 May 2016, para 47. 530 Communication 268/03, Ilesanmi v Nigeria, 11 May 2005, paras 46–47. Communication 284/03 Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 102. 531 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 58. 532 Communication 306/05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011, para 65.

J. Article 56(6)

743

J. Article 56(6): ‘Are Submitted within a Reasonable Period from the Time Local Remedies are Exhausted or From the Date the Commission is Seized with the Matter’ Inevitably, if Article 56(5) is not complied with, the African Commission will not go on to examine Article 56(6).533 However, it will still conclude that Article 56(6) has also not been complied with.534

1. ‘Within a Reasonable Time’ What is ‘reasonable’ is to be determined on a case-by-case basis,535 although reference has been made to Articles 60 and 61 to draw inspiration from other regional and international treaty bodies in this regard,536 including the six-month time limit in the European Convention on Human Rights (ECHR) and American Convention on Human Rights (ACHR).537 Earlier drafts of the ACHPR included an eighteen-month time limit.538 The purpose of the provision is to require the complainant to ‘be vigilant and to discourage tardiness’.539 Various factors may be taken into account in determining what is reasonable. These include ‘the complexities of getting a representation before an international body, and the challenges of communications system in Africa’.540 In February 2006 the Constitutional Court of South Africa had dismissed the complainants’ application for leave to appeal a decision of the Supreme Court. They submitted the case to the African Commission, who received it in December 2006. This was held to be a reasonable time ‘taking into consideration the complexities of getting a representation before an international body, the unreliability of communications system in Africa and obtaining the consent of a large group of victims’.541 533 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 75. 534 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 76. Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, paras 100 and 101. Communication 306/ 05, Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe, 1 March 2011. Communication 351/2007, Givemore Chari (represented by Gabriel Shumba) v Republic of Zimbabwe, 12 October 2013, para 83. 535 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 75. Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008. This has been reiterated by the African Court, see Ernest Zongo and Others v Burkina Faso (App. No. 013/2011), Ruling on Preliminary Objections, 21 June, 2013, paragraph 121; Alex Thomas v United Republic of Tanzania (App. No. 005/2013), Judgment of 20 November, 2015, paragraph 73; Mohamed Abubakari v United Republic of Tanzania (App. No. 007/2013), Judgment of 3 June 2016, para 91. Kennedy Owino Onyachi and Others v United Republic of Tanzania, App. No. 003/2015, Judgment of 28 September 2017, para 62. 536 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 76. 537 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 106. 538 See M’Baye Draft, Article 51(1)(b): ‘that the petition or communication is lodged within a period of eighteen months from the date on which the party alleging violation of his rights was notified of the final judgement’. 539 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 78. 540 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 1 March 2011, para 99. 541 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 84.

744

34. Article 56: Admissibility of Individual Communications

The African Commission will also consider the nature of the remedies being pursued and whether they fulfil Article 56(5) criteria. So where the complainant in one case explained the delay in submitting his communication to the African Commission was due in part to the fact that he was seeking diplomatic protection in another State, the African Commission held that such diplomatic protection was not of a judicial nature.542 In addition, the African Commission will also take into account its own obligation to ‘protect human and peoples’ rights’.543 The African Court also considered where the applicants were ‘lay, incarcerated and indigent person with no legal assistance’, that seven months for one, and three years two months for the other, were not unreasonable.544 Other factors that may be taken into account include whether the applicant was illiterate and, in the case of submission to the African Court ‘he could not be aware of the existence of this court because of its relatively recent establishment’,545 or because he was incarcerated.546 Where there is a delay, the complainant will need to provide reasons547 and these must be a ‘compelling reason’548 or a ‘good and compelling reason’ which requires the African Commission to consider the case in the interests of ‘fairness and justice’.549 There had been two years between the decision at national level and submission to the African Commission as the complainants wished to see if the government would implement the national court’s decision. The African Commission considered that this was not a ‘good and compelling’ reason as the issue. The argument by the complainants had been that a number of provisions of the broadcasting regulations were unconstitutional. The Supreme Court found some but not all of them to be so and that the complainants did not have standing. This decision could not be appealed. The African Commission could not understand why it was necessary for the complainants to ‘wait and see’ if the decision would be implemented or not.550 A communication having been received at the Secretariat on 26 September 2005, seized by the African Commission in November 2005, related to the complainant leaving the country on 12 January 2005. The complainant said the delay in submitting the case to the African Commission was due to the fact that he needed to settle in his new country. The African Commission considered that ten months where the complainant was now in another country would ‘for the sake of fairness and justice’ be considered to be reasonable.551

542 Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 94. 543 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 108. 544 Kennedy Owino Onyachi and Others v United Republic of Tanzania, App. No. 003/2015, Judgment of 28 September 2017, paras 67 and 68. See also Alex Thomas v Republic of Tanzania, App. No. 005/2013, Judgment on Merits, 20 November 2015, para 74; In the Matter of Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment, 21 September 2018, para 52. 545 Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016, para 92. 546 The matter of Thobias Mang’ara Mango and Shukurani Masegenya Mango v The United Republic of Tanzania, App. No. 005/2015, Judgment of 11 May 2018, para 55. 547 Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, para 76. 548 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 78. 549 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 60. 550 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, paras 97–98. 551 Communication 307/05, Obert Chinhamo v Zimbabwe, 28 November 2007.

J. Article 56(6)

745

As the complainant in one communication had not provided any reasons for a thirty- one-month delay, the communication was found inadmissible under Article 56(6).552 Similarly, eight or nine years before submission of a communication, without good and compelling reasons, was not be considered reasonable;553 neither was one year and three months.554 A period of two years and five months between dismissal of the case by the High Court and the submission of the communication to the African Commission was considered to be ‘way beyond’ what could be considered reasonable.555 Filing a communication to the African Commission thirty-five days after the Court of Appeal had handed down a decision dismissing an appeal regarding the death sentence on Mariette Bosch was considered to be within a reasonable time.556 In another, two months was considered to be reasonable.557 In another communication it was alleged violations occurred in 1989. There had been no remedies available until the adoption of a new constitution in 2005, thereby enabling the victim to submit a challenge in 2006. When the constitutional court decided the case and informed the victim of its ruling in January 2009, the communication was then brought to the African Commission in May 2010, fifteen months later. It held that this was not a reasonable time.558 Where the complainant had not submitted the communication to the African Commission till 2008 despite having fled from Mozambique in 1983 and visiting there in 1995 and again in 2007, this was explained on the basis of an ongoing application for refugee status and a lack of resources and the inability to take legal action whilst being based in France.559 The African Commission noted that the complainant could have submitted the communication to the African Commission ‘as soon as the second victim or the Complainant was convinced that local remedies could not be exhausted’.560 It was also persuaded by the fact that the complainant had visited the Respondent State every two or so years and yet took thirteen years to submit a communication to the African Commission. This was too long a time period to be considered reasonable within Article 56(6).561

552 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 60. 553 Communication 477/14, Crawford Lindsay von Abo v The Republic of Zimbabwe, 31 March 2016, para 98. 554 Communication 386/10, Dr Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013. 555 Communication 310/05, Darfur Relief and Documentation Centre v Sudan, 25 November 2009, para 78. 556 Communication 240/01, Interights et al. (on behalf of Mariette Sonjaleen Bosch) v Botswana, 20 November 2003, para 18. 557 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 109. Also Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe, 3 April 2009, para 81. 558 Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 77. See also Communication 596/16, Romy Goornah (represented by Dev Hurnam) v Republic of Mauritius, 28 April 2018, paras 65–69, whereby three years, one month and fifteen days was held not be reasonable. 559 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 110. 560 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 112. 561 Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 113.

746

34. Article 56: Admissibility of Individual Communications

The complainant in one case submitted the communication to the African Commission while awaiting ratification by the Egyptian President of a final decision by the Egyptian State Security Emergency Court. The communication was submitted ten months after the Emergency Court’s decision. This was considered to be reasonable.562 A shorter period of time may be considered to be reasonable without the need to consider other factors. So in one case, four months between the decision of the national court and the submission to the African Commission was found to be reasonable without consideration of further issues.563 In one case that the African Commission had found admissible, one of the Commissioners submitted a dissenting opinion on the basis that it had erred in this conclusion on the basis of exhaustion of domestic remedies and submission within a reasonable time to the African Commission as he had taken more than six years to send the case to the Commission. In his dissenting opinion, the Commissioner noted that some of the national court decisions had not been translated from the original Arabic into either English or French, the languages of the Commissioner rapporteur and the legal officer working on the communication.564 He noted that the documents in the file indicated that the complainant had not raised the matters, that were submitted to the African Commission, before the local courts including the Court of Appeal.

2. ‘From the Time Local Remedies are Exhausted’ The time starts to run has been from the ‘date of exhaustion of local remedies’,565 or ‘from the date that the last available local remedy is exhausted by the complainant’566 or from the date of the delivery of the judgment of the final domestic court.567 If the remedies are not available, sufficient or effective, the time will run from ‘when the Complainant immediately realizes’ this.568 Similarly, where local remedies are unavailable or prolonged, the time will run ‘from the date of the Complainant’s notice thereof ’.569 Where a case was pending before the Court of Appeal since 1995, the African Commission ruled in 2004 that it was unduly prolonged and, linking Article 7(1)(d) of the ACHPR, declared it admissible.570

562 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 1 March 2011, para 99 563 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 109. 564 Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004, Dissenting Opinion by Commissioner Yasir Sid Ahmad El Hassan, Vice-Chairperson of the African Commission. 565 Communication 278/2003, Promoting Justice for Women and Children (PROJUST NGO) v Democratic Republic of Congo, 12 October 2013, para 76. Communication 340/07, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 4 June 2014, para 100. Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 107. 566 Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, para 51. 567 Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, para 73. 568 Communication 386/10, Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v Sudan, 18 October 2013, para 71. 569 Communication 322/06, Tsatsu Tsikata v Ghana, 29 November 2006, para 37. 570 Communication 199/97, Odjouoriby Cossi Paul v Benin, 4 June 2004, paras 21–22.

J. Article 56(6)

747

3. ‘Or from the Date when the Commission is Seized of the Matter’ As to when the Commission ‘is seized of the matter’, Ouguergouz has noted that this is ‘not very clear . . . the implication is necessarily that it has already received the communication; the condition of a time-limit for the submission of the communication therefore has no purpose’.571 Therefore, by referring to the French text of the provision which reads ‘dans un délai raisonnable courant depuis l’épuisement des recours internes ou depuis la date retenue par la Commission comme faisant commencer à courir le délai de sa proper saisine’, Ouguergouz notes its literal translation as being that the communication should be lodged ‘within a reasonable time-limit running from the exhaustion of the local remedies or from the date decided upon by the Commission as the beginning of the time- limit for its own seisin’.572 In one case the African Commission implied the time ran until the date of the letter submitting the communication to the African Commission, not the date on which the African Commission received the communication.573 In another, it was the date the African Commission received the communication.574 Seizure is a technical approach and is not what is envisaged by Article 56(6) as ‘for a seizure to technically occur, the Communication must have first been submitted to the Commission, while on the other hand Article 56(6) contemplates that a Communication must be submitted “after” and within a timeline “from the date the Commission is seized with the matter” ’.575 Instead, the Commission’s jurisdiction ‘began in relation to the facts of the present Communication on the date on which the alleged cause of action under the African Charter arose’.576 In one communication, the African Commission received the communication at the secretariat on 8 November 2005, it being dated 2 November 2004. The African Commission considered seizure in November 2005. The complainant had left the Respondent State in December 2003 explaining that he had received psychotherapy and had not been able to take the case before the Commission has he had no financial means to do so and had hoped that that situation would have improved in the country to enable him to pursue domestic remedies.577 The African Commission did not agree with the complainant stating that he should have given ‘medical proof ’ for his mental problems and the basis on which he had hoped things may improve in the State.578

571 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 611. 572 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 611. 573 Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, paras 10 and 73. 574 Communication 335/2006, Dabalorivhuwa Patriotic Front v the Republic of South Africa, 18 October 2013, para 84. 575 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 108. 576 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 109. 577 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008 578 Communication 308/05, Michael Majuru v Zimbabwe, 24 November 2008, para 110.

748

34. Article 56: Admissibility of Individual Communications

4. Before the African Court The Rules of Court state that the application ‘be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter.579 The African Court has held that where domestic remedies were exhausted before the deposit of an Article 34(6) declaration, the reasonable time will run from the date the State then deposited this declaration.580 These matters are dealt with further in Chapter 39 (Articles 63–68).

K. Article 56(7): ‘Do Not Deal with Cases which have been Settled by those States Involved in Accordance with the Principles of the Charter of the United Nations, or the Charter of the Organisation of African Unity or the Provisions of the Present Charter’ The rule is based on the non bis in idem and res judicata rules581 and therefore that ‘no State may be sued or condemned more than once for the same alleged human rights violations, and seeks to uphold and recognize the res judicata status of decisions issued by international and regional tribunals and/or bodies’.582 Some cases have been declared inadmissible on this ground but did not provide any detail or reasoning as to why.583 Although this provision was not expressly cited, in Urban Mkandawire v Republic of Malawi the State argued that as the matter was already pending before the African Commission it should held to be inadmissible before the African Court. The latter ruled that as the Applicant had withdrawn his communication before the African Commission, no matter was therefore pending and the Applicant could approach the Court.584

1. ‘Have Been Settled’ The wording of the ACHPR appears to be clear and indeed, the African Commission has held that ‘settled’ means that the case ‘must no longer be under consideration under an international dispute-settlement procedure’.585 It is more than this, however: the other international body must have decided the case on the merits and there is a ‘final Rule 40(6) Rules of Court. Kennedy Owino Onyachi and Others v United Republic of Tanzania, App. No. 003/2015, Judgment of 28 September 2017, para 62. 581 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 110. Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 52. 582 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 111. 583 Communication 69/92, Amnesty International v Tunisia, 7 April 1993, para 3; Communication 333/06, Southern Africa Human Rights NGO Network and Others v Tanzania, 26 May 2010, para 77. 584 Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment on the Merits, 21 June 2013, para 33. 585 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 112. Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, para 115. Communication 375/ 09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011, para 145. 579 580

K. Article 56(7)

749

settlement’ by that body.586 The African Court has applied the following test: ‘the convergence of three major conditions: (1) the identity of the parties; (2) identity of the applications or their supplementary or alternative nature or whether the case flows from a request made in the initial case; and (3) the existence of a first decision on the merits’.587 As to whether the other body must have found in favour of the complainant, the African Commission has noted that ‘have been settled’ means the other body ‘has taken a decision which addresses the concerns, including the relief being sought by the Complainant. It is not enough for the matter to simply be discussed by these bodies’.588 Furthermore, if the State is to contest this then it must show the ‘nature of remedies or relief granted by the international mechanism, such as to render the complaints res judicata, and the African Commission’s intervention unnecessary’.589 Submission to the bodies is required. The discussion of the general situation in, for example, the UN Security Council, prompted by reports from a number of organisations, will not be sufficient to be inadmissible under Article 56(7).590 Unfortunately there are inconsistencies in the approach of the African Commission in its interpretation of Article 56(7). It has referred to the consideration of the fact that the communication ‘is not being considered by another international or regional mechanism, nor has it been previously settled by one’;591 and in another communication that the claim ‘has not been submitted to any other international body for settlement’, finding Article 56(7) satisfied.592 This considerably broadens Article 56(7), implying simply that a referral, even if not considered by the body, will be sufficient to render it inadmissible.593 It is interesting, therefore that in one case it expressly stresses the precise wording of the ACHPR: In Bob Ngozi Njoku v. Egypt 38 the African Commission noted that Article 56(7) of the African Charter ‘. . . talks about cases which have been settled . . .’ and not cases which are still pending before other international mechanisms’.594

The inconsistency can perhaps also be explained by the fact that the earlier Rules of Procedure, specifically Rule 114(3)(f ), stated that ‘the same issue is not already being considered by another international investigating or settlement body’, a condition which Ouguergouz states now ‘could not legitimately be required’ as it is not reflected in the 586 Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004, paras 52 and 53. 587 Jean-Claude Roger Gombert v Republic of Côte d’Ivoire, App. No. 038/2016, Judgment, 22 March 2018, para 45. 588 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 117. 589 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 103. 590 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 117. 591 Communication 338/07, Socio-Economic Rights and Accountability Project (SERAP) v the Federal Republic of Nigeria, 21 November 2010, para 70. See also Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 1 March 2011, para 100. 592 Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012, para 98. 593 Articles 51(1)(c) and 52(d) of the M’Baye Draft of the ACHPR only required that the communication was ‘pending in another international procedure for settlement’ and that it is not ‘substantially the same as one previously studied by the Commission or by another international organisation’. 594 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013.

750

34. Article 56: Admissibility of Individual Communications

text of the ACHPR, and explained by the duplication of the Human Rights Committee’s Rules of Procedure by the African Commission.595 Unfortunately the 2010 Rules of Procedure do not help to clarify the position, noting at the seizure stage that the African Commission will consider ‘[a]‌n indication that the complaint has not been submitted to another international settlement proceeding as provided in Article 56(7) of the African Charter’.596

2. ‘By those States Involved’ The African Commission has held that it is only the same communication ‘with the same facts and parties’597 that will be relevant when examining Article 56(7).

3. ‘In Accordance with the Principles of the Charter of the United Nations, or the Charter of the Organisation of African Unity or the Provisions of the Present Charter’ As to which international mechanism is included in Article 56(7) the African Commission has noted these are ‘any of the UN human rights treaty bodies or any other international adjudication mechanism, with a human rights mandate’,598 and this will also include UN Charter bodies as well as the 1503 Procedure and the Sub-Commission for the Promotion and Protection of Human Rights.599 While it has explicitly listed the UN Security Council, the former Commission on Human Rights ‘and other UN organs and agencies on the Darfur crisis’ as not among those under Article 56(7),600 its approach to the Human Rights Council is inconsistent. On the one hand it has referred to the ‘UN Charter bodies are those created under the UN Charter and include the Human Rights Council (HRC)’ and these fall under Article 56(7),601 on the other, held that it does not.602 The international body must be one which is ‘capable of granting declaratory or compensatory relief to victims, not mere political resolutions and declarations’, namely ‘an international adjudication mechanism, with a human rights mandate’.603 595 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 617–618. See also F. Viljoen, ‘Admissibility under the African Charter’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002, 61–99, at 94. 596 Rule 93(2)(j), Rules of Procedure of the African Commission, 2010. 597 Communication 277/2003, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 110. Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 112. 598 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 103. 599 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, paras 115–116. 600 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 105. 601 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 115–116. 602 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 105. 603 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, para 112. Communication 279/03, 296/05 (joined), Sudan Human Rights Organisation and the Centre on Housing Rights and Evictions v Sudan, 27 May 2009, para 105.

K. Article 56(7)

751

In Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, both the complainants and the State argued that the issue under consideration was self-determination and therefore could not be determined by a national court.604 However, the State noted that the International Court of Justice had examined the situation in 1963 in the Northern Cameroon case. Examining this within the context of Article 56(7) (and not Article 56(5), the African Commission considered that the question before the International Court of Justice, namely ‘in the application of the Trusteeship Agreement for the Territory of the Cameroons under the British Administration, the United Kingdom failed, with regard to the Northern Cameroons, to respect certain obligations flowing from that Agreement’, was not related to that before the African Commission.605 An international body can also be one established by a peace agreement between only two States. A Claims Commission created by a peace agreement, such as the Ethio- Eritrean Claims Commission, was found by the African Commission not to be a political organ of the OAU, but rather bound by international law and ‘cannot make decisions ex aequo et bono’.606 As this Claims Commission applied rules of evidence to deal with disputed facts, the African Commission found that it ‘has the capacity, unlike the African Commission to deal with complex matters such as the citizenship status of the individuals, what amount of compensation shall be awarded and to whom, in respect of the violations that they have suffered’.607 It did not consider it to be a discretionary, extraordinary or non-judicial mechanism and therefore fell under Article 56(7). In addition, as this Claims Commission could order not only monetary compensation but also other remedies and that the State had assured that all issues before the African Commission will be brought before the Claims Commission, it ‘suspended’ consideration until the Claims Commission had ruled, providing for an option to reopen the matter if it did ‘not fully address the human rights violations contained herein’.608 Sub-regional courts need also be considered under Article 56(7). For example, the Republic of Uganda argued that the matters in the communication before the African Commission had already been ruled upon by the East African Court of Justice.609 Applying the above requirements to this judicial body, namely that it was able to deliver a reasoned judgment in public, could impose obligations to ensure it was implemented and provide both declaratory and compensatory relief to victims, it then considered if the case before the East African Court involved the same parties and same issues.610 As the victims before the African Commission had withdrawn their participation in the case before the East African Court, the African Commission found that Article 56(7) was met.611 Conversely, the ECOWAS Court of Justice had examined the matter and applied Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 81. Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, para 86. 606 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 55. 607 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 55. 608 Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003, para 63. 609 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, para 67. 610 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, paras 68–71. 611 Communication 339/2007, Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018, paras 74–75. 604 605

752

34. Article 56: Admissibility of Individual Communications

provisions of the ACHPR, the same rights that were raised in the case before the African Court. It had thus ‘been settled in accordance with the principles of one of the instruments invoked in Article 56(7) of the Charter’.612 The Rules of Court of the African Court on Human and Peoples’ Rights add some confusion to this aspect of Article 56(7), adding on to the list of those instruments mentioned expressly in the ACHPR. It requires that applicants ‘not raise any mater or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union’.613

L. Conclusions The rich jurisprudence that has been developed over the years by the African Commission and now consolidated and expanded by the African Court provides considerable detail to those wishing to litigate before these two bodies. However, the inconsistencies in approach with respect to a number of the Article 56 requirements is not helpful.614 The African Commission, going forward, needs to tightens up its analysis and accuracy, particularly in referring to its previous decisions, in order to enhance its credibility in its protective mandate.

612 Jean-Claude Roger Gombert v Republic of Côte d’Ivoire, App. No. 038/2016, Judgment, 22 March 2018, para 58. 613 Rule 40(7) Rules of Court. 614 F. Viljoen, ‘Communications under the African charter: Procedure AND Admissibility’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006, 2nd edition, Cambridge University Press, 2008, chapter 3.

35. Article 58 Serious or Massive Violations and Emergencies 1. 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. 2. The Assembly of Heads of State and Government may then request the

Commission to undertake an in- depth study of these cases and make a factual report, accompanied by its finding and recommendations. 3. A case of emergency duly noticed by the Commission shall be submitted by the latter to the Chairman of the Assembly of Heads of State and Government who may request an in-depth study.

A. Introduction It was initially thought that the only circumstance in which the African Commission would be able to receive communications from entities other than States was in respect of those which revealed, according to Article 58, serious or massive violations. The practice of the African Commission over the years made it clear that it was not constrained to such situations and could receive communications under Article 55 on a range of issues. It was further confirmed in a decision on a communication in 2000 where the Respondent State, The Gambia, argued this point.1 Conversely, Article 58 also applies to communications raised not only under the individual communication procedure but also the inter-State, under Articles 47–54. Article 58 sets out a specific procedure for such ‘special’ cases.2 However, bar a couple of occasions, the practice of the African Commission has been to employ the term ‘serious or massive violations’ to underscore the gravity which the African Commission considers attaches to a particular situation, rather than to actualise the procedure Article 58 envisages. It has not set out any clear criteria for what amounts to ‘serious or massive’ violations,3 instead using the terms rhetorically and often without precision. Consequently, the African Commission has been criticised for its ‘reluctance’ to use an Article 58 process and as a result it has ‘nearly gone into a state of disuse’.4 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 42. ‘[E]‌xceptional’ in earlier versions: Dakar Draft, Article 56 reads: ‘When it appears after a deliberation of the Commission that one or more exceptional situations apparently reveal the existence of a series of serious or executive violations of human and peoples’ rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to them.’ 3 C. A. Odinkalu and R. Mdoe, ‘Article 58 of the African Charter on Human Rights: A legal analysis and proposals for implementation’, INTERIGHTS (1996); R. Murray, ‘Serious or massive violations under the African Charter on Human and Peoples’ Rights: A comparison with the inter-American and European mechanisms’, 17 NQHR (1999) 109–134. A. Mohamed, ‘Article 58 of the African Charter on Human and Peoples’ Rights—A legal analysis and how it can be put into more practical use’ [1996] ASICL Proceedings 290. 4 Amnesty International, Counting Gains, Filling Gaps. Strengthening African Union’s Response to Human Rights Violations Committed in Conflict Situations, London, 2017, AI Index AFR 01/6047/2017, at 32. 1 2

754

35. Article 58: Serious or Massive Violations and Emergencies

Some case law by the African Court helps to clarify what violations will amount to a situation which can trigger Article 58, but as will be explored, the procedure which then follows is far from settled. What is also pertinent is that categorising a situation as falling under Article 58 is not an indication of a hierarchy of gravity. Conversely, failing to cite Article 58 does not render the situation lacking in severity. There is inevitably a relationship here with international humanitarian law, with a number of situations where the African Commission has raised Article 58 also highlighting humanitarian law concerns as well as the commission of international crimes.5 The International Committee of the Red Cross (ICRC) has shown an interest in recent years in trying to get the African Commission to examine the relationship with humanitarian law, although concrete outcomes have yet to materialise. Further, recognition of conflict and post-conflict situations and transitional justice have also been raised in the context of serious or massive violations.6 As was noted in Chapter 34 (Article 56) a consequence of a finding of serious or massive violations, whether or not the Article 58 procedure is in fact triggered, is that if this occurs in the context of a communication before the African Commission the complainant will not have to exhaust domestic remedies.7 Further, procedurally, although not raised before the African Commission, the Economic Community of West African States (ECOWAS) Community Court of Justice implied that submission of a case, relating to violations of the rights of peoples in the Niger Delta, did not require the consent of victims where there were serious or massive violations. This was because under Article 58 of the ACHPR: Human rights are human centered and the admissibility of an application is linked among other criteria to the status of the victim. This condition necessarily entails the Applicant, acting on personal grounds as a result of a legally protected injured interest, or in a representative capacity, having the mandate to act on behalf of an identifiable group whose legally protected interest have been harmed. Where a petition is submitted on behalf of a victim, it must be with their consent, unless submitting it without their consent can be justified. Such justification would be the case of serious or massive violations pursuant to article 58 of the African Charter or a documented and well-reasoned problem for the victims in doing so themselves.8

B. ‘Serious or Massive’ The African Commission has referred to situations involving violations which are ‘serious or massive’, ‘serious and massive’,9 ‘serious or grave’, or simply only

E.g. Resolution on Darfur, ACHPR/Res.68, 4 June 2004. E.g. Resolution on Transitional Justice in Africa, ACHPR/Res.235, 23 April 2013. 7 See Chapter 34 (Article 56). See e.g. Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, paras 16–18. 8 In the Community Court of Justice of the Economic Community of West African States (ECOWAS) Holden At Abuja, Nigeria, Suit No. ECW/CCJ/APP/20/15, Judgment No. ECW/CCJ/JUD/03/17, Nosa Ehanire Osaghae, Jonah Gbemire, Peter Aiko Obabiafo Plaintiffs, Daniel Ikponmwosa. Suing for themselves and on behalf of Niger Delta People v Republic of Nigeria, 10 October 2017. 9 E.g. Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995, para 15. Resolution on the Situation in Rwanda, ACHPR/Res.8, 27 April 1994. Press Release on the atrocities committed by Boko Haram, 26 January 2015. 5 6

B. ‘Serious or Massive’

755

‘serious’,10 ‘massive’,11 ‘grave’12 or ‘gross’.13 The terms appear to be used interchangeably14 and Article 58 is not cited on every occasion. Given this lack of precision, it is difficult to discern with real clarity what exactly amounts to a serious or massive violation sufficient to activate Article 58. Sometimes a ‘series’ of serious or massive violations is found,15 and on occasion ‘serious and continuing’;16 often, however, it is just ‘serious or massive violations’. Thus, the addition or omission of the word ‘series’ appears to be irrelevant. The African Commission has held there to have been a ‘serious violation’ of a particular right,17 with or without reference to Article 58. For example, in a communication alleging a range of violations in The Gambia, the African Commission, when examining Article 7(2) held that the Economic Crimes (Specified Offences) Decree of 25th November 1994, which came into force in July 1994 ‘is therefore, a serious violation of this right’.18 Similarly, in Sudan: numerous arrests have been effected in disregard of this decree. The Commission is constrained to find that in Sudan there have been serious and continuing violations of Article 6 during the period under consideration.19

Even though the African Commission has referred to ‘serious’ violations of a particular right, it does not imply that the violation of some rights are more serious than others. Instead, it is the combination of rights, or the number of victims, or the length of time over which they occur, which appears to render them ‘serious or massive’.20 An analysis of the situations in which Article 58 have arisen does identify a number of principles the African Commission has applied (albeit not consistently) which could assist in interpreting what are ‘serious or massive’ violations.21 Although a definition is now provided in the 2010 Rules of Procedure, that ‘ “serious or massive violations” refers to grave human rights violations as distinguished by their scale and importance’,22 this is not particularly helpful. I have attempted to outline elsewhere 10 E.g. Report of Activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur For Refugees, Asylum Seekers, IDPs and Migrants in Africa During the Intersession Period November 2007–May 2008. 11 E.g. ‘Condemns the massive violations of the human rights of the civilians population in Somalia, particularly in Mogadishu’, Resolution on the Human Rights Situation in Somalia, ACHPR/Res.137, d24 November 2008, although elsewhere in the resolution it refers to ‘massive and serious human rights violations’. 12 Resolution on the Human Rights Situation in Somalia, ACHPR/ Res.137, 24 November 2008. Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 15. 13 Resolution on Darfur, ACHPR/Res.68, 4 June 2004. 14 R. Murray, ‘Serious or massive violations under the African Charter on Human and Peoples’ Rights: A comparison with the inter-American and European mechanisms’, 17 NQHR (1999) 109–134. 15 E.g. Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996, para 16. 16 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 60. 17 E.g. of Article 7(2), see Communication 147/95-149/96, Sir Dawda K. Jawara v The Gambia, 11 May 2000, para 63. 18 Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000. 19 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 60. A ‘serious violation of the right to development’ in Article 22 was found in Communication 318/06, Open Society Justice Initiative v. Côte d’Ivoire, 27 May 2016, para 186. 20 R. Murray, ‘Serious or massive violations under the African Charter on Human and Peoples’ Rights: A comparison with the inter-American and European mechanisms’, 17 NQHR (1999) 109–134, at 114. 21 See further, Chapter 34 (Article 56). 22 Rules of Procedure of the African Commission on Human and Peoples’ Rights of 2010, Rule 2.

756

35. Article 58: Serious or Massive Violations and Emergencies

other criteria which may be inferred from the African Commission’s findings, including, an element of planning and purpose; and a ‘pattern’ of violations.23 Case law and other interpretations by the African Commission suggest that this ‘scale and importance’ can relate, firstly, to the number of victims. Thus, several cases have noted the ‘large’ number of victims, yet how large is sufficient to fall under Article 58 is not clarified.24 If the number is so large as to make it impossible to identify each one, this may be sufficient.25 The African Commission has also remarked on the ‘scale and nature of the alleged violations’:26 With regard to the scale, the Commission then determined that a massive violation is one that affects a large number of persons, either in a specific region or all over the territory of a State Party. Concerning the nature, the violation must be the consequence of continual and pre-determined actions having an impact on a right or a group of rights under the African Charter.27

Applying this test in one communication the African Commission observed that the violations affected ‘about 30 percent of a population of 16 million inhabitants at the time of the events in question. . . . the Commission critically notes that hundreds of thousands of persons were affected by the statelessness in Côte d’Ivoire as a result of the allegations alleged by the Complainant’, resulting in ‘the magnitude of the alleged violations had an effect on a sizeable section of the population of Côte d’Ivoire, in particular, the communities in the northern region of the country’.28 In addition, the number of victims, for the purposes of determining whether the requirement to exhaust domestic remedies should be waived, requires consideration of ‘those cases of serious and massive violations in which it may be impossible for the Complainants to identify all the victims’.29 The African Commission has, in addition, mentioned the period of time over which the violations took place.30 For example, in one communication it distinguished serious or massive violations from ‘one single incident that took place for a short period of time’.31 As was noted in Burundi: Government security personnel and affiliated groups perpetrated wide range of violations. Not only that these violations were perpetrated repeatedly but also they overtime have become part and parcel of the response of security forces to the violent expressions of opposition to the government. The violations have thus been pervasive and systematic. The manner in which the violations were committed and the range of rights involved have all the marks of series of serious and massive violations referred to under Article 58 of the African Charter. At the time the Delegation concluded its visits the scale of casualties was reported to be a minimum of 400 stretching over a period of 9 months. Although this may not be deemed large scale in the wider national level, the form of the violations (dead bodies on the streets and mass killings on 11 December) and their concentration 23 R. Murray, ‘Serious or massive violations under the African Charter on Human and Peoples’ Rights: A comparison with the inter-American and European mechanisms’, 17 NQHR (1999) 109–134. 24 Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 71. 25 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999. 26 Kenyan section of ICJ v Kenya. 27 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 46. 28 Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 27 May 2016, para 48. 29 Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999, para 30. 30 Report of the Fact-finding Mission to the Republic of Mali, 3–7 June 2013, Annex 1, Rev 1, para 90. 31 Communication 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, para 60.

B. ‘Serious or Massive’

757

in the so-called opposition stronghold districts of Bujumbura make them serious and massive. The consequences of these violations affected a much larger portion of the society not only in Bujumbura, the epicentre of much of the violence, but also in other parts of the country, resulting in displacement and refugee flows to neighbouring countries.32

As to whether African Union (AU) involvement is an indication of whether a situation has reached an Article 58 threshold, this is clearly not required.33 There are numerous instances where the African Commission has referred to ‘serious or massive violations’, whether or not it has then gone on to cite Article 58 expressly. These have included the situation in Darfur involving ‘murders, rape, destruction, arson and plundering of villages’;34 as well as ‘mass killings, sexual violence as a means of warfare and the abduction of women and children’ which were considered to occasion ‘serious and massive’ violations;35 and more generally ‘the on-going conflict situations affecting various parts of Africa, as well as the consistent reports of violence being faced by civilian populations and the attendant widespread violations of human and peoples’ rights and humanitarian law’.36 Where the government of Chad had ‘failed to provide security and stability in the country, thereby allowing serious and massive violations of human rights. The national armed forces are participants in the civil war and there have been several instances in which the Government has failed to intervene to prevent the assassination and killing of specific individuals’, the African Commission found ‘serious and massive violations’ of human rights and specifically used Article 58 to inform the Assembly of the Organisation of African Unity (OAU) of the situation.37 An earlier case against Cameroon which alleged the cruel, inhuman and degrading prison conditions in the country including torture and deprivation of food, as well as ‘repression of freedom of expression, creation of special tribunals, denial of fair hearing, ethnic discrimination, and massacres of the civil population’, this was stated by the African Commission to be ‘of a series of serious and massive violations of the Charter’, although it went on to find the communication inadmissible.38 Particularly notable, the genocide in Rwanda in April 1994 while the session of the African Commission was being held, and subsequently the focus of a communication before it, was considered to ‘constitute serious or massive violations’ of the ACHPR.39 One could perhaps not envisage a moment more suited to initiate an Article 58 process, 32 Report of the Delegation of the African Commission on Human and Peoples’ Rights on its Fact-finding Mission to Burundi, 7–13 December 2015, para 110. 33 Resolution on the Human Rights Situation in Somalia, ACHPR/Res.137, 24 November 2008. 34 Report of the African Commission on Human and Peoples’ Rights’ Fact-finding Mission to the Republic of Sudan in the Darfur Region, 8–18 July 2004, EX.CL/364 (XI) Annex III. 35 Resolution on Darfur, ACHPR/Res.68, 4 June 2004. Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 201. 36 Resolution on Human Rights in Conflict Situations, ACHPR/Res. 332 (EXT.OS/XIX) 2016, 25 February 2016, citing Article 58. O. C. Okafor, ‘The African Commission on Human and Peoples’ Rights as a Collective Human Security Resource: Promise, Performance and Prospects’, 2010, DOI:10.1093/acprof:oso/ 9780199578986.003.0013. 37 Communication 74/92, Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995, paras 15 and 22. 38 Communication 65/92, Ligue Camerounaise des Droits de l’Homme v Cameroon, 24 April 1997, paras 1 and 13. 39 Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v Rwanda, 31 October 1996.

758

35. Article 58: Serious or Massive Violations and Emergencies

yet this was not mentioned by the African Commission. Instead it simply adopted a resolution noting it was ‘[d]‌eeply concerned about the alarming human rights situation in Rwanda characterised by serious and massive human rights violations’, condemning ‘very strongly the cycle of violence and the massacre of innocent civilians by the different armed factions’, and referencing the OAU Secretary-General’s ‘very energetic condemnation of the wanton killing of civilians and heinous acts perpetrated in this country’. It concluded by asking its Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions to pay ‘special attention to the situation’ and report back to the next session.40 Serious or massive violations may amount to crimes against humanity, such as was observed by the African Commission regarding the Aguel’hoc and Diabali attacks in Mali,41 but not all will do so. More recently, reference to the pervasiveness of conflict and ‘political crises’ in Africa;42 insecurity in the DRC, including ‘including summary executions, rape of women and recruitment of child soldiers’;43 and activities by Boko Haram have warranted being labelled as ‘serious and massive human rights violations’, although Article 58 is not expressly mentioned. Indeed, the African Commission, with the latter, calls not only on the AU but ECOWAS to put an end to the atrocities.44

C. Procedure under Article 58 The wording of Article 58(1) and (2) sets out a procedure. Firstly, given that Article 58 falls within the Chapter on communications, and noting the wording in Article 58(1) refers to ‘one or more communications’, one presumes that the African Commission can only identify a situation as involving ‘serious or massive violations’ if it is in respect of communications pending before it. However, as noted in section B above, there are various other instances, including through resolutions and fact-finding missions, where it has identified serious or massive violations but where the connection with any pending communications is not clear. This suggests that there may be instances where serious or massive violations can be found (and therefore an Article 58 procedure triggered) outside of the communication process. The African Commission, according to Article 58, should have ‘deliberated’ on the issue and one could presume that such deliberations could take place after a fact-finding mission has been carried out. Little is known about this process and the evidence on which the African Commission will base its assessment lacks transparency. It is notable that in one decision on a communication: ‘[t]‌he Commission indicated that the Complainant’s allegation of ‘serious and massive’ human rights violation by the Respondent State merits a hearing before the African Commission as per the latter’s established practice’.45 The African Commission is then obliged (‘shall’) to draw the attention of such situations to the Assembly. Exactly how it does so is not made clear in the African Charter Resolution on the Situation in Rwanda, ACHPR/Res.8, 27 April 1994. Report of the Fact-finding Mission to the Republic of Mali, 3–7 June 2013, Annex 1, Rev 1. 42 Resolution on Transitional Justice in Africa, ACHPR/Res.235, 23 April 2013. 43 Press Release on the Human Rights Situation in Eastern Democratic Republic of Congo, 18 December 2012. 44 Press release on the atrocities committed by Boko Haram, 26 January 2015. 45 Communication 300/05, Socio Economic Rights and Accountability Project v Nigeria, 29 July 2008, para 18. 40 41

C. Procedure under Article 58

759

on Human and Peoples’ Rights (ACHPR) nor in the Rules of Procedure. One could argue that the Assembly will be so alerted simply by reference to such in the African Commission’s Activity Report, or through other documents adopted by it, such as resolutions on particular States. Further, a report by a special mechanism has also been used as a way to alert the Assembly.46 But Article 58, it is arguable, implies something beyond this. The African Commission’s own approach has been somewhat inconsistent. So, after fact-finding missions, the African Commission has found evidence of ‘serious’ human rights violations and noted that such information from its mission will be included in its Activity Report, but Article 58 is not mentioned expressly.47 Even situations which are deemed explicitly to amount to ‘serious and massive’ do not always appear to trigger Article 58, or at least Article 58 is not explicitly cited,48 and on other occasions it could be implied: The Commission further calls upon the International Conference on the Great Lakes Region, the African Union and the international community at large to continue their efforts towards finding a peaceful solution to the persistent conflict in the two Kivus and restoring lasting peace in the DRC.49

In addition, what Article 58 does not spell out is what action the African Commission itself can take in response to what it considers to be serious or massive violations and whether any such action can be taken prior to, at the same time as, or after alerting the Assembly to the situation. For example: At the 16th Session, the Commission reiterated the need to send a mission to Nigeria. The Commission also decided to invoke Article 58 of the Charter by writing to the Chairman of the OAU, drawing his attention to the grave violations of human rights in Nigeria.50

Similarly: the Commission would like to address the Complainant’s prayer that the Commission draws the attention of the Assembly of the Africa Union to the serious and massive violations of human and peoples’ rights in the Darfur, so that the Assembly may request an in-depth study of the situation. The Commission wishes to state that it undertook a fact finding mission to the Darfur suo motu, in July 2004. Its findings and recommendations were sent to the Respondent State and the African Union. The Commission has continued to monitor the human rights situation in the Darfur through its country and thematic rapporteurs and has presented reports on the same to each 46 E.g. ‘Article 58 of the African Charter mandates this Commission to undertake investigation on behalf of the AU Assembly on serious allegation of violations of human rights. The Constitutive Act requires the African Union to act when there are allegations of grave violation such as in the case of genocide, war crimes and crimes against humanity. I call upon the AU and the UN to take further measures to arrest the deterioration of the human rights and humanitarian situation in Somalia. I call on AU member states to enhance the AUMSOM in order to offer protection to the civilian population. I call upon the African Union and the UN to immediately initiate an investigation on the allegations of violations of human rights and international humanitarian law in Somalia. I urge parties to the conflict to respect the human rights of the civilian population, and to observe the rules of conduct of armed conflict under international humanitarian law’, Report of Activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur for Refugees, Asylum Seekers, IDPs and Migrants in Africa During the Intersession Period November 2007–May 2008. 47 Press Release on the Fact-finding Mission of the African Commission on Human and Peoples’ Rights to the Central African Republic, 15 September 2014. 48 E.g. Press release on the atrocities committed by Boko Haram, 26 January 2015; Resolution on Darfur, ACHPR/Res.68, 4 June 2004. 49 Press Release on the Human Rights Situation in Eastern Democratic Republic of Congo, 18 December 2012. 50 Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, para 15.

760

35. Article 58: Serious or Massive Violations and Emergencies

Ordinary Session of the Commission, which are in turn presented to the Assembly of the African Union.51

In practice, the African Commission has undertaken, on its own volition,52 fact-finding missions,53 adopted resolutions,54 issued press releases and calls for urgent action,55 asked questions during State reporting under Article 62, and adopted provisional measures where the issue is the subject of a communication pending before it. On rare occasions, it has held an Extraordinary Session to deal with the matter,56 and found violations in communications prior to and after referring the matter to the Assembly. In the only inter-State communication which has been decided and published, it chose itself to produce a ‘detailed, objective and impartial report’ on the violations in the eastern provinces of the State and then submit this to the Assembly of the OAU, in light of Article 58(1) and (3).57 In so doing, the African Commission has called on States to take action such as ending hostilities, engaging in dialogue, ensuring security in their jurisdiction, and bringing perpetrators to justice.58 Clearly there is a lot more that that the Assembly and AU organs can do to address such situations, far beyond the capacities of the African Commission. Yet one questions, if the issue is already being considered by the AU organs (and one could argue that situations which raise serious or massive violations are likely to be complex and are already likely to have their attention59), what any referral by the African Commission is likely to achieve. Indeed, the AU organs do not have a great track record of responding to or taking action on the basis of the African Commission’s findings. Similarly, as Juma notes with respect to the Order for Provisional Measures against Libya that was adopted by the African Court, ‘the debates in multiple sites of the African Union, while cognizant of the grave human rights situation in Libya, have given little attention to the enforcement of the African Court’s judgment as a vernacular for engagement with Libya’.60 Instead, they have

51 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 225. 52 R. Murray, ‘Serious or massive violations under the African Charter on Human and Peoples’ Rights: A comparison with the inter-American and European mechanisms’, 17 NQHR (1999) 109–134. 53 E.g. to the Central African Republic from 10–14 September 2014, see Press Release on the Fact-finding mission of the African Commission on Human and Peoples; Rights to the Central African Republic, Bangui, 15 September 2014. Press Release on the Fact-finding Mission of the African Commission on Human and Peoples’ Rights to the Central African Republic, 15 September 2014: ‘The delegation investigated several allegations of serious and massive human rights violations committed in the Central African Republic since December 2012.’ 54 Resolution on Darfur, ACHPR/Res.68, 4 June 2004 55 See Remarks by Dr Solomon A Dersso, Commissioner at the African Commission on Human and Peoples’ Rights at the Human Rights and Conflict Prevention: The New York Launch of the Appeal of 13 June, 13 June 2017, New York. Report of the African Commission on Human and Peoples’ Rights’ Fact- finding Mission to the Republic of Sudan in the Darfur Region, 8–18 July 2004, EX.CL/364 (XI) Annex III. 56 E.g. Nigeria and Burundi in December 1996, although only the former was discussed: Final Communiqué of the Second Extraordinary Session of the African Commission on Human and Peoples’ Rights, ACHPR/ FINCOMM/2ndEXTRA ORDINARY/XX. 57 Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda, 29 May 2003, para 10. 58 E.g. Press Release on the Human Rights Situation in Eastern Democratic Republic of Congo, 18 December 2012. 59 E.g. as was the situation in Darfur, see Resolution on Darfur, ACHPR/Res.68, 4 June 2004. 60 D. Juma, ‘Provisional measures under the African human rights systems: The African Court’s order against Libya’, 30(2) Wisconsin International Law Journal (2012–2013) 344–373, at 371–372.

D. Emergency: Article 58(3)

761

focused on political rather than judicial solutions.61 Certainly, the African Commission itself has questioned the utility of an Article 58 referral on this basis when asked by the complainants in one communication to refer the matter to the AU Assembly: The African Union has deployed its peacekeepers together with the United Nations under the UNAMID [United Nations–African Union Mission in Darfur] hybrid force. In the Commission view, these measures constitute what would most likely ensue, if an in-depth study were undertaken under Article 58. The request by the Complainant would have been appropriate had no action been taken by the African Commission or the organs of the African Union.62

D. Emergency: Article 58(3) Article 58(3) distinguishes emergency situations from those involving serious or massive violations, although clearly the two could be inter-related. Indeed, earlier drafts of the ACHPR combined the two elements of ‘serious or massive’ and ‘emergencies into one provision and did not give a role for the political organs of the OAU. Article 53(2) of the M’Baye draft read: However, in serious and urgent cases, only the presentation of a petition or communication that fulfils all the formal requirements of admissibility shall be necessary in order for the Commission to conduct an investigation with the prior consent of the state in whose territory a violation has allegedly been committed.

In 1996 the African Commission adopted a little known ‘Mechanism for Urgent Response to Human Rights Emergencies under Article 58’.63 This set out actions that the African Commission could take in the event of ‘massive violations’ or ‘emergency situations’, including carrying out missions, ‘diplomatic approaches and contact national and international organisations concerned with human rights’, writing reports and organising meetings in or near the State.64 It was also suggested that focal points be created ‘linked to the Commission and collect information and give warning of emergency situations’.65 While one can see responses by the African Commission from time to time to urgent situations, through the issuing of press releases and statements, as well as resolutions, for example, the extent to which this is a ‘mechanism’ which obeys clear criteria and offers a procedure to be followed in the event of emergency situations is debatable. Situations have been identified as constituting both serious and massive violations and an emergency. For example, discussing the situation in Somalia in 2008: Expressing deep concern that the escalation in the armed conflict in Somalia continues to inflict massive and serious human rights violations on the civilian population which also constitute a

61 D. Juma, ‘Provisional measures under the African human rights systems: The African Court’s order against Libya’, 30(2) Wisconsin International Law Journal (2012–2013) 344–373, at 372. 62 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, para 226. 63 Mechanism for Urgent Response to Human Rights Emergencies under Article 58 of the African Charter on Human and People’s Rights, Doc/OS/552 (XXIV), adopted 1996. 64 Mechanism for Urgent Response to Human Rights Emergencies under Article 58 of the African Charter on Human and People’s Rights, Doc/OS/552 (XXIV), adopted 1996. R. Murray, ‘Preventing conflicts in Africa: The need for a wider perspective’, 45 JAL (2001) 13–24, at 20–21. 65 Mechanism for Urgent Response to Human Rights Emergencies under Article 58 of the African Charter on Human and People’s Rights, Doc/OS/552 (XXIV), adopted 1996.

762

35. Article 58: Serious or Massive Violations and Emergencies

violation of international humanitarian law; Alarmed by the breakdown of the rule of law and the fragility of State institutions in Somalia, which have, inter alia, resulted in incidences of piracy in the territorial waters of Somalia, thereby, affecting vessels, including those carrying humanitarian assistance to the vulnerable Somali population’, the African Commission then ‘Condemns the massive violations of the human rights of the civilian population in Somalia, particularly in Mogadishu . . . ; Requests the United Nations and the African Union to urgently enhance the African Union Mission in Somalia (AMISOM) by contributing troops, financial and material resources in order to guarantee the protection of the civilian population in Somalia’, and alerted the Assembly to ‘the serious violation of human rights, on the grave humanitarian situation in Somalia, under Article 58(3) of the African Charter on Human and Peoples’ Rights.66

Even in emergency situations, the Assembly and AU are already involved at the time when the African Commission adopts resolutions or makes any announcements. For example, in Somalia the AU had adopted various declarations67 and deployed military troops under an AU mandate, before the African Commission drew the attention to the Assembly under Article 58(3).68 Rules 79 and 80 of the African Commission’s 2010 Rules of Procedure provide some assistance in setting out the procedure that should be followed in the event of an emergency. Rule 79 note that the situation will be considered as an emergency under Article 58(3) in two contexts: ‘it is one of serious or massive human rights violations; it presents the danger of irreparable harm or requires urgent action to avoid irreparable damage’. The procedure depends on whether the emergency arises during the session of the Commission, in which case any decision will be taken by the Commission as a whole; or in the intersession period, where the Bureau will decide if it falls within Article 58(3), informing other members and reporting at the next session.69 If the matter is considered to be one of emergency then Rule 80 applies. This reiterates Article 58(3) and for the African Commission to draw the attention to the Chair of the Assembly; but also adds that the Commission itself can take ‘any appropriate action, including Urgent Appeals’, and should inform the Peace and Security Council (PSC), the Executive Council and the Chair of the AU Commission. The possibility of alerting others beyond the Assembly of Heads of State is important as it avoids the situation where the African Commission will be in effect notifying the very head of States who may be subject to the Commission’s concerns: ‘[t]‌his would evidently pose an unfortunate political and diplomatic situation for the Commission’.70 Unfortunately the inclusion in earlier drafts of the ACHPR that once the Addis Ababa organs had been so informed they (albeit ‘may’) ‘take such measures intended to protect human and peoples’ rights’, was omitted from the final version.71

Resolution on the Human Rights Situation in Somalia, ACHPR/Res.137, 24 November 2008. African Union Assembly Declaration on the Situation in Somalia, Assembly/AU/DECL.2 (VII), 2nd July 2006. 68 Resolution on the Human Rights Situation in Somalia, ACHPR/Res.137, 24 November 2008. 69 Rule 79, African Commission Rules of Procedure 2010. 70 R. M. D’Sa, ‘The African Charter on Human and Peoples’ Rights: Problems and prospects for regional action’, 10 Australian Yearbook of International Law (1983), 101–130, at 127. 71 Dakar Draft, Article 56(3). 66 67

E. Relationship with the Peace and Security Council

763

E. Relationship with the Peace and Security Council The fact that the ACHPR envisages alerting the Assembly of Heads of State, namely those who ‘were most likely to be self-interested or deeply implicated in mass atrocities’72 may help to explain why Article 58 resulted in little response from the Assembly certainly during the time of the OAU. The former OAU mechanism for early warning of emergency situations, the Mechanism for Conflict Prevention, Management and Resolution,73 found itself transformed into the Peace and Security Council when the AU was created.74 Its task is to act as ‘a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa’.75 Specifically, Article 3(f ) of the Protocol Establishing the Peace and Security Council (‘PSC Protocol’) has among its objectives the protection of ‘human rights’ and ‘respect for the sanctity of human life and international humanitarian law; and Article 19 provides that the PSC ‘shall seek close cooperation with the African Commission on Human and Peoples’ Rights in all matters relevant to its objectives and mandate. The Commission on Human and Peoples’ Rights shall bring to the attention of the Peace and Security Council any information relevant to the objectives and mandate of the Peace and Security Council’.76 In addition, Rule 84(1) of the 2010 Rules of Procedure of the African Commission adds that not only should attention be brought to the Assembly but also to the Peace and Security Council. This offers an alternative more ‘nimble’ procedure to the ‘unduly ponderous’ one under Article 58.77 The PSC for its part has requested the African Commission to undertake a very small number of missions and investigations into situations of concern, such as in Burundi,78 Western Sahara79 and Mali.80 Reports are then presented to the PSC.81 While the missions of the African Commission may have helped ‘document’ the abuses occurring in 72 C. A. Odinkalu, ‘From architecture to geometry: the relationship between the African Commission on Human and Peoples’ Rights and organs of the African Union’, 35 HRQ (2013) 850–869, at 862. 73 Cairo Declaration, AHG/Dec.3 (XXIX). See R. Murray, ‘Preventing conflicts in Africa: The need for a wider perspective’, 45 JAL (2001) 13–24. 74 AHG/Dec.160 (XXXVII). See C. R. Majinge, ‘Regional arrangements and the maintenance of international peace and security: The role of the African Union Peace and Security Council’, 48 Can. Y.B. Int’l L. 97 (2010) 97–149. 75 Protocol Relating to the Establishment of the Peace and Security Council of the African Union, adopted 9 July 2002, Article 2(1). 76 Protocol Relating to the Establishment of the Peace and Security Council of the African Union, adopted 9 July 2002, Article 19. 77 C. A. Odinkalu, ‘From architecture to geometry: the relationship between the African Commission on Human and Peoples’ Rights and organs of the African Union’, 35 HRQ (2013) 850–869, at 863 and 864. 78 Communiqué PSC/PR/COMM.(DLVII), adopted at its 551st meeting held on 17 October 2015. The mission was taken in December 2015, see Press release on the launch of the fact-finding mission of the African Commission on Human and Peoples’ Rights in the Republic of Burundi, 9 December 2015. 79 Decision (PSC/PR/COMM/l.(CDXCVI) of the Peace and Security Council of the AU, adopted during its 496th meeting held on 27 March 2015; see African Commission, Resolution on the Human Rights Situation in the Sahrawi Arab Democratic Republic—ACHPR/Res. 340 (LVIII) 2016, 20 April 2016. 80 Undertaken in June 2013, Press Release on the African Commission on Human and Peoples’ Rights Fact- finding Mission to the Republic of Mali, 24 June 2013; as requested by PSC: decision adopted at its 327th meeting which was held on 14 July 2012 and approved by the Assembly of Heads of State and Government in its Solemn Declaration on the Situation in Mali during its 19th Ordinary Session held in Addis Ababa, Ethiopia, from 16 to 17 July 2012. 81 See e.g. in relation to Burundi, 40th Activity Report of the African Commission on Human and Peoples’ Rights, Submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights, December 2015, para 21.

764

35. Article 58: Serious or Massive Violations and Emergencies

those States, suggestions that the PSC has not considered all of these reports and even where it did, for example in the case of Burundi, it did not implement its findings, and there were delays in publishing the reports,82 renders the engagement between the two organs a ‘fruitless gesture’.83 Amnesty’s analysis of reference to each other’s documents reveals that ‘neither the PSC nor the [African Commission] makes regular mention of the other when evaluating conflict situations or making decisions about future courses of action’.84 Despite these disappointments, the African Commission has reiterated its commitment in general terms to collaborate with the PSC in conflict situations,85 and has also sought joint missions and investigations with the PSC on numerous issues, including, for example, sexual abuse against women in the DRC,86 and alerting the PSC to concerns over the Jos region of Nigeria in 2010,87 and the re-run of the presidential election in Kenya in October 2017.88

F. Referral to the African Court Article 118 of the African Commission’s 2010 Rules of Procedure provides three circumstances in which cases can be referred to the African Court by the African Commission. Relevant for our purposes here is Rule 118(3): The Commission may, pursuant to Rule 84(2) submit a communication before the Court against a State Party if a situation that, in its view, constitutes one of serious or massive violations of human rights as provided for under Article 58 of the African Charter, has come to its attention.

Rule 121(3) determines the content of the application and file to the Court should include ‘the facts which reveal serious or massive violations’. There have been only two occasions on which the Commission has used this provision. In App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, the Respondent State tried to argue that rather than submit the case to the African Court, the correct procedure would have been to alert the Assembly under Article 58, thus juxtaposing this provision against Rule 118.89 The African Court did not agree, 82 Amnesty International, Counting Gains, Filling Gaps. Strengthening African Union’s Response to Human Rights Violations Committed in Conflict Situations, London, 2017, AI Index AFR 01/6047/2017, at 59. 83 Amnesty International, Counting Gains, Filling Gaps. Strengthening African Union’s Response to Human Rights Violations Committed in Conflict Situations, London, 2017, AI Index AFR 01/6047/2017, at p.9. 84 Amnesty International, Counting Gains, Filling Gaps. Strengthening African Union’s Response to Human Rights Violations Committed in Conflict Situations, London, 2017, AI Index AFR 01/6047/2017, at 59. 85 Resolution on Human Rights in Conflict Situations, ACHPR/Res. 332 (EXT.OS/XIX) 2016, 25 February 2016. 86 Resolution on the Crimes committed against Women in the Democratic Republic of Congo (DRC), ACHPR/Res.173, 24 November 2010. 87 30th Activity Report of the African Commission on Human and Peoples’ Rights (African Commission), May 2011, para 258. 88 Press Statement of the African Commission on Human and Peoples’ Rights on the re-run of the presidential election in Kenya on 26 October 2017 and the need for confidence-building African Union engagement, 23 October 2017: ‘Emphasizes the necessity of the African Union’s confidence-building engagement in Kenya and in this regard calls on the AU Peace and Security Council to initiate such engagement with the Government of Kenya on steps that should be taken for ameliorating the mounting tension and normalizing the political and legal environment.’ 89 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, 27 May 2017, para 48.

F. Referral to the African Court

765

holding instead that Article 3(1) of the Protocol establishing the Court, on which it based its jurisdiction, did not provide for any further requirements and referral or otherwise to the Assembly under Article 58 was ‘not relevant as far as the material jurisdiction of the Court is concerned’.90 As the Applicant pointed out in the case, submission under Article 58 should be ‘only one avenue’;91 ‘the Commission has a choice either to follow the procedure set out in article 58 of the ACHPR or use the process to engage the Court’.92 Rule 84(2) of the African Commission’s Rules of Procedure, dealing with serious or massive violations, stipulates that the Commission ‘may also . . . refer the matter to the African Court’, thus there is nothing to stop the African Commission at the same time referring it to the Assembly. The African Court did not say anything about the definition of ‘serious or massive violations’, one presumes because this is a determination of the African Commission in accordance with the latter’s own Rules of Procedure, and not of relevance for the jurisdiction of the Court. Neither was it raised nor addressed when considering exhaustion of domestic remedies.93 The second matter where the African Commission has submitted a case to the Court on the basis of serious or massive violations is against Libya and the situation in early 2011. While the African Court ultimately struck out the case after the African Commission asked that the matter be stood down given inability to gather further evidence,94 this was not before it had ordered provisional measures on 25 March 2011.95 In a speedy response, to the credit of the African Court,96 it considered violent suppressions of demonstrators resulting in loss of life, excess use of force by security forces against the population and ‘serious violations of the right to life, and to the integrity of persons, freedom of expression, demonstration and assembly’.97 A determination on whether the situation was such of ‘extreme gravity and urgency and when necessary to avoid irreparable harm to persons’, such that it warranted the order of provisional measures, may relate to the ‘serious or massive’ violations, although the two are not mutually dependant. The African Court cited the PSC concern with the situation in the country, calls from the Secretary General of the Arab League, and UN Security Council resolutions denouncing the ‘gross and systematic violations of human rights’ in the country, to hold that the grounds for ordering provisional measures had been met.98 90 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, 27 May 2017, para 53. 91 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, 27 May 2017, para 50. 92 A. Rudman ‘The Commission as a party before the Court –Reflections on the complementarity arrangement’ PER/PELJ 2016 (19), at 18. 93 App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya, 27 May 2017, paras  91–95. 94 App. No. 004/2011, African Commission on Human and Peoples’ Rights v. Great Socialist People’s Libyan Arab Jamahiriya, Order on the Merits, 15 March 2013, para 20. 95 App. No. 004/2011, African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya, Order for Provisional Measures, 25 March 2011. 96 See R. Murray, ‘The African Court on Human and Peoples’ Rights’ order for provisional measures against Libya: Greater promise for implementation of human rights in Africa?’ 4 EHRLR (2011) 464; J. Oder, ‘The African Court on Human and Peoples’ Rights’ order in respect of the situation in Libya: A watershed in the regional protection of human rights?’, 11 AHRLJ (2011) 495–510. 97 App. No. 004/2011, African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya, Order for Provisional Measures, 25 March 2011. 98 App. No. 004/2011, African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya, Order for Provisional Measures, 25 March 2011, paras 21–22.

766

35. Article 58: Serious or Massive Violations and Emergencies

G. Conclusion Complainants, civil society organisations and others have urged the African Commission to make greater use of Article 58.99 However, if this request is heeded, it needs to be accompanied by a clearer articulation of criteria for when the Article 58 threshold will be met, what specific procedures will be followed, and transparency in how the African Commission comes to its decisions.

99 Amnesty International, Counting Gains, Filling Gaps. Strengthening African Union’s Response to Human Rights Violations Committed in Conflict Situations, London, 2017, AI Index AFR 01/6047/2017. Pretoria Principles on Ending Mass Atrocities Pursuant to Article 4(h) of the Constitutive Act of the African Union, 6–7 December 2012, Principle 18.

36. Article 59 Confidentiality and Publication 1. All measures taken within the provisions of the present Chapter shall remain confidential until the Assembly of Heads of State and Government shall otherwise decide. 2. However the report shall be published by the Chairman of the Commission upon the

decision of the Assembly of Heads of State and Government. 3. The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.

A. Introduction Article 59 has come under considerable criticism from civil society, academics and others due, in part, to the resulting consequences of enabling a political organ of the former Organisation of African Unity (OAU) and now African Union (AU) to determine whether findings of the African Commission are published, or indeed amended before they are published; and, in part, because of the approach taken by the African Commission itself to the provision. The drafting history of the African Charter on Human and Peoples’ Rights (ACHPR) reveals that Article 59(1) and (2) only appeared in the Dakar Draft in 1979 and were not found in the earlier M’Baye draft.1 As Killander notes, neither did discussions around the establishment of the African Commission make any reference to confidentiality.2 Yet both the OAU and AU ministerial organs have at times read this provision as entitling them not only to suspend or delay publication but also to do so if States have expressed their reservations about the content of the African Commission’s reports and other documents and asked for them to be amended. They, and indeed the African Commission itself, have taken what Killander calls ‘a restrictive reading of article 59 of the African Charter [which thereby] gives the Assembly the power to decide what the Commission can publish’.3 Indeed, as will be seen below, the OAU and AU organs have used this power on a number of occasions. The African Court did not come into existence until over twenty years after the ACHPR was adopted, and its procedures are defined by the Protocol establishing the Court, so Article 59 does not apply and neither is a comparable provision found in the Protocol. While the pleadings before the Court are confidential, the hearings are not.4

1 M. Killander, ‘Confidentiality versus publicity: Interpreting Article 59 of the African Charter on Human and People’s Rights’, 6 AHRLJ (2006) 572–581, at 583. 2 M. Killander, ‘Confidentiality versus publicity: Interpreting Article 59 of the African Charter on Human and People’s Rights’, 6 AHRLJ (2006) 572–581, at 583. See also B. G. Ramcharan ‘The travaux préparatoires of the African Commission on Human Rights’ (1992) 13 Human Rights Law Journal 307 3 M. Killander, ‘Confidentiality versus publicity: Interpreting Article 59 of the African Charter on Human and People’s Rights’, 6 AHRLJ (2006) 572–581, at 573. 4 Article 10 of the Protocol; Rule 43 of the Rules of Court.

768

36. Article 59: Confidentiality and Publication

Neither does the Court have to seek the authorisation of the Assembly or Executive Council for the publication of its judgments or report,5 it simply has to ‘notify’ them of the judgments and ‘submit’ a report.6 The African Charter on the Rights and Welfare of the Child (ACRWC) provides that ‘[e]‌very communication to the Committee shall contain the name and address of the author and shall be treated in confidence’, and Article 45(3), by requiring that ‘[t]he Committee shall publish its report after it has been considered by the Assembly of Heads of State and Government’, bears some similarities to Article 59 of the ACHPR without restricting publication to the authorisation of the Assembly. Interestingly its African Committee of Experts on the Rights and Welfare of the Child’s (ACERWC) own Guidelines on Communications appear to add this restriction in by providing that: A decision on a Communication adopted by the Committee shall only be made public by the Committee and the parties after the Assembly of the African Union has considered and adopted the Committee’s Report in accordance with article 45 (3) of the African Children’s Charter. Upon the adoption of the Committee’s Report by the Assembly, the Secretariat of the Committee shall notify the parties to a Communication within 30 days of the authorisation to publish and disseminate the decision on the Communication. The Secretariat shall also publicise the decision on the Committee’s website. The implementation of the recommendations of the Committee in its decision on a Communication by parties upon receipt of decision shall not be affected by the prohibition on publication as provided under this Rule.7

There is inevitably a balance that will need to be struck between the importance of ensuring State and other actors’ trust by maintaining certain discussions private, and transparency and to uphold at the very least the perception of independence of the African Commission. Confidentiality is found at numerous places throughout the African Commission’s Rules of Procedure, for example, with respect to the functions of the Secretary who is required to ‘ensure confidentiality of the Commission’s records where appropriate’ and ‘make available to the general public documents which are not confidential, including States Reports, by ensuring that they are posted on the website of the Commission’;8 as well as in relation to sessions.9 A more general provision is found in Rule 22 entitled ‘Confidentiality of the work of the Commission’ which provides that ‘staff of the Secretariat must observe the principle of confidentiality in all matters that the Commission considers confidential as stipulated under the Charter and these Rules’. Rule 61 states that ‘[r]‌eports, decisions, session documents and all other official documents of the Commission and its subsidiary mechanisms shall be documents for general distribution unless the Commission decides otherwise. Upon their adoption by the Commission, reports shall be published in accordance with Article 59(2) of the Charter’.

Article 28 of the Protocol; Rule 65 of the Rules of Court. Articles 29 and 31 of the Protocol. 7 African Committee of Experts on the Rights and Welfare of the Child, Revised Guidelines for the Consideration of Communications, Section XIX, paras 4 and 5. 8 9 Rule 18. Rule 31. 5 6

C. The Relationship between Article 59(1), (2) and (3)

769

B. ‘All Measures Taken within the Provisions of the Present Chapter Shall Remain Confidential until the Assembly of Heads of State and Government Shall Otherwise Decide’ It is unfortunate that reprinting errors of the ACHPR, including the version that has on occasion been available on the African Commission’s own website, have referred to ‘Charter’ instead of ‘Chapter’.10 One of the consequences of this apparently innocuous mistake are that there is confusion as to whether confidentiality applies to all of the African Commission’s reports and findings rather than simply the communications mechanism as the original wording implied. This is of contemporary concern, with the AU’s Executive Council, in flexing its muscles in July 2018 and whilst eroding the Commission’s independence, calling on the Commission to ‘observe confidentiality at all stages of the work . . . in line with Article 59’.11 The African Commission produces a range of documents and materials and these have expanded over the years. As noted in Chapter 31 (Article 45), the African Commission’s mandate is often presented as falling into two categories ‘promotional’ and ‘protective’. Whilst communications logically fall into the latter, the other aspects of the African Commission’s work such as missions12 (if not termed ‘promotional’ or ‘protective’) and resolutions could sit in either or both. In addition, some of the mechanisms the African Commission have developed over the years are expressly provided for in the ACHPR (e.g. communications) but some are not (e.g. missions, its special mechanisms, adoption of General Comments, etc.) and their relationship with the communication procedures, or its ability to examine them are not articulated in the ACHPR (Article 62 reports). Therefore, the exact reach of Article 59 is potentially rather ambiguous.

C. The Relationship between Article 59(1), (2) and (3) In the early years of the African Commission, authorisation and subsequent publication of the Activity Report was not an issue, indeed, as Killander notes, the decisions adopting these reports by the OAU organs were drafted by the Commission itself.13 Article 59(2) and 59(3) at first glance appear to be repetitive. However, when read alongside Article 59(1) and considering that this is an article relating to the communications procedure (‘the present Chapter’) then Article 59(2) seems to refer to the decision on the communications, and Article 59(3) to the Activity Report of the African Commission produced under Article 54. The latter mirrors what is found in the ACRWC. Read in this way, decisions on communications remain confidential until the Assembly decides otherwise (Article 59(1)) and if it decides as such (Article 59(2)), then that decision 10 F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 652. F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, noting also W. Benedek, ‘The ninth session of the African Commission on Human and Peoples’ Rights’, 12 HRLJ (1991) 216. 11 Decision on the Report on the Joint Retreat of the Permanent Representatives’ Committee (PRC) and the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.1015 (XXXIII), para 6(viii), my italics. 12 M. Killander, ‘Confidentiality versus publicity: Interpreting Article 59 of the African Charter on Human and People’s Rights’, 6 AHRLJ (2006) 572–581, at 574. 13 M. Killander, ‘Confidentiality versus publicity: Interpreting Article 59 of the African Charter on Human and People’s Rights’, 6 AHRLJ (2006) 572–581, at 574.

770

36. Article 59: Confidentiality and Publication

will be published by the Commission. The African Commission’s report on its activities produced under Article 54 need only be ‘considered’ by the Assembly (and therefore one presumes it does not have to authorise its publication) before being published by the African Commission (Article 59(3)).14 Unfortunately in practice this division between the three provisions is not so clearly articulated and over the years the OAU and AU ministerial organs and the African Commission have taken a more expansive but not particularly consistent approach. Indeed, the AU organs, in their decisions, ‘adopt and authorise the publication of ’ the Activity Reports of the African Commission.15 Furthermore, Rule 61 of the African Commission’s Rules of Procedure provide that ‘[r]‌eports, decisions, session documents and all other official documents of the Commission and its subsidiary mechanisms shall be documents for general distribution unless the Commission decides otherwise. Upon their adoption by the Commission, reports shall be published in accordance with Article 59(2) of the Charter’. An assessment of each of the outputs of the African Commission will be undertaken below to assist in clarifying the approach. The other challenge is to determine what ‘published’ means. In the African Commission’s early years it appeared to mean that the document was produced in hard copy and disseminated publicly. So the Activity Report of the African Commission, as will be noted below, contained much (although not all) of the documents it produced, providing a relatively easy place to identify what had been ‘published’. Other documents were disseminated at the sessions in hard copy. With the advent of the internet and a website, the presumption is now that ‘published’ refers to ‘available on the African Commission’s website’. This has proved in practice to be a much less reliable format in terms of a comprehensive library of the African Commission’s work. Links are often broken, reports and documents not available and, with respect to decisions on communications in particular, even if they are available they may well not be so until several months after their adoption by the Assembly. Consequently, it is never quite clear if the lack of ‘publication’ on the website is due to deliberate responses to AU/State concerns, a decision of the African Commission to keep the information confidential, or the paucity of logistical support at the Secretariat to ensure regular updates are posted.

D. Communications Placed as it is, in the chapter of the ACHPR entitled ‘Procedure of the Commission’ and immediately after the provisions relating to the inter-State and individual communications procedures, it is presumed that Article 59 applies, and some argue solely, to the communication procedure. The combined reading of Article 59(1) and (2) is that ‘all measures’ that are to remain confidential are those ‘measures’ relating to the individual communication procedure, and that, they will remain confidential ‘until the Assembly . . .shall otherwise decide’. This decision of the Assembly, one could argue,16 is that which is referred to in Article 59(2) which the African Commission shall then take as its authorisation to publish the report (on the decision). F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 353. E.g. Decision on the Twenty Ninth, Thirtieth and Thirty First Activity Reports of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.689(XX). 16 Although this approach, as noted above, however, is contradicted by Rule 61. 14 15

D. Communications

771

Rule 31 of the African Commission’s Rules of Procedure also reads: ‘The Commission shall ensure the confidentiality of all case files, including pleadings. This provision shall not be interpreted to prohibit the prompt sharing of pleadings with the parties to a Communication’.17 Further, Rule 110, entitled ‘Decision on the merits’, notes that the Commission: shall deliberate on Communications in private, and all aspects of the discussions shall be confidential. The decision of the Commission shall be signed by the Chairperson and the Secretary, shall remain confidential and shall not be transmitted to the parties until its publication is authorized by the Assembly. The decision of the Commission shall be posted on the Commission’s website after its publication is authorized by the Assembly.

These provisions have been interpreted to mean that all submissions by the parties and all deliberations by the African Commission, including meetings held during the private sessions of the Commission as well as any hearings, prior to the authorisation and adoption of the decision on inadmissibility or merits by the Assembly, remain confidential.18 As the Working Group on Communications has reiterated that with respect to communications and Article 59: only Parties to Communications are entitled to receive information relating to their Communications, before the AU Policy Organs have authorised publication of the Activity Report of the Commission in which the decisions on those Communications are referenced. Parties to Communications may obtain such information by writing to the Secretariat of the Commission, which is the official channel for correspondences between the Commission and those wishing to contact the Commission and Commissioners. However, once the Activity Report of the Commission has been authorised for publication by the AU policy organs, the general public can have access to the text of the decisions referenced in that Report.19

There are a number of challenges with this all-encompassing approach to communications. Firstly, it has made it difficult for amicus curiae submissions given that no information is provided by the African Commission, other than a case list in its Activity Report, and neither can it be provided by the parties themselves, on the subject matter or content of the communication whilst it is pending before the African Commission. Secondly, a little explored perspective arises with follow-up and implementation of the decisions and the extent to which any procedures or discussion around this aspect, post-authorisation by the Assembly, should be public. Presently, the African Commission publishes very little information about the measures taken by the State to implement the recommendations in the decision. There is some mention in its Activity Reports.20 Rule 31. E.g. ‘The African Commission adopted the procedure on the notification of its decisions and mission reports, as well as the procedure of adoption of its mission reports. In this regard the African Commission decided to notify its decisions to all parties to communications as soon as they are taken and in the same vein remind them to adhere to the provisions of article 59 of the African Charter prohibiting the publication of these decisions until the AHG/AU has authorised’, Final Communique of the 36th Ordinary Session of the African Commission on Human and Peoples’ Rights, held in Dakar, Senegal, from 23 November–7 December 2004, para 20. Similarly, 18th Activity Report of the African Commission on Human and People’s Rights, para 55. 19 Report of the Chairperson of the Working Group On Communications, by Commissioner Lucy Asuagbor, presented during the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, paras 14 and 15. 20 E.g. see e.g. ‘State Compliance with the Commission’s Decisions, Request for Provisional Measures and Letters of Urgent Appeal’, 42nd Activity Report of the African Commission on Human and Peoples’ Rights, 2017, Section VII. 17 18

772

36. Article 59: Confidentiality and Publication

On a couple of occasions it has held a hearing around implementation but it is not clear whether these are public or in private. There could be a presumption that as issues to do with implementation relate to communications, then the confidentiality principle will necessarily continue beyond the adoption of the decision by the AU. This would be somewhat concerning given that the visibility of the decision and the measures taken by the State to implement it are considered crucial, in some contexts, to the extent to which it is actually complied with. Yet at the moment what is in the public domain and what remains confidential has not been clarified by the African Commission. Thirdly, Article 59(1) and (2) thereby enable the political bodies of the OAU and now AU to prevent publication of African Commission decisions, placing the independence of the latter in question. This has occurred on several occasions over the years. In the adoption of the African Commission’s eighth Activity Report, one of the earliest reports in which communications were included, there was some sense of the OAU organs flexing their muscles, with the decision adopting this report ‘request[ing] the Commission to continue to respect the principle of confidentiality of its reports pursuant to Article 59 of the Charter’.21 Later examples are more explicit. When considering the 20th Report of the African Commission, the Assembly authorised its publication with the exception of a decision against Zimbabwe,22 instead asking Zimbabwe: to communicate to the ACHPR, within two (2) months following the adoption of this decision, its observations on the said decision, and [the African Commission] to submit a report thereon at the next Ordinary Session of the Executive Council; Also invites Member States to communicate within two (2) months following the reception of [African Commission] notification, their observations on the decisions that [the African Commission] is to submit to the Executive Council and /or the Assembly.23

Interference has waxed and waned over the years. The 21st Activity Report was adopted without comment, only that ‘Member States to which the ACHPR has made recommendations on the protection of human rights in their countries to work with the ACHPR and other relevant national and organs of the African Union to ensure the effective implementation of these recommendations’.24 And ironically, with the adoption of the 22nd Activity Report, it simply took note of ‘the determination expressed by all parties to work towards strengthening and ensuring the independence of the ACHPR’.25 Many subsequent reports were also adopted without comment.26 However, for the 37th Activity Report, the Executive Council: 21 Resolution on the African Commission on Human and Peoples’ Rights, 31st Ordinary Session of the Assembly of Heads of State and Government, Addis Ababa, Ethiopia, 26–28 June 1995, AHG/Res.240 (XXXI), para 4. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 654. 22 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006. 23 Decision on the Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.310  (IX). 24 Decision on the 21st Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/ Dec.344 (X). 25 Decision on the 22nd Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec. 372 (XI). 26 Decision on the Twenty Fifth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.482(XIV); Decision on the Twenty-Seventh Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.548(XVI); Decision on the Twenty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.583(XVII).

E. Activity Reports

773

invites the [African Commission] to provide the Member States concerned by certain paragraphs of the report and the communications therein for such amendments as are deemed necessary and justified; As regards communications 426/12 and 392/10 concerning the Government of Rwanda, Council Requests that the cases in question be expunged from the report of the African Commission for the period June–December 2014 until Rwanda is offered the opportunity of oral hearing on the two cases, as requested through various correspondence to the ACHPR and authorised the publication of the report.27

Unfortunately, this looks likely to be a trend that may continue, with respect to the African Commission’s 38th Activity Report, where the Executive Council of the AU urged the African Commission to: Observe the due process of law in making decisions on complaints received; Consider reviewing its rules of procedure, in particular, provisions in relation to provisional measures and letters of urgent appeals in consistence with the African Charter on Human and Peoples’ Rights; Take the appropriate measure to avoid interference by NGOs and other third parties in its activities.28

This is clearly concerning. Whilst there is some argument for the fact that States do not necessarily know that the African Commission will be adopting a resolution against them, with communications they have been part of the process that leads the African Commission to adopt a decision, submitting, if they wish, comments on pleadings submitted by the complainants at various stages. To give the State the option of providing further comments on the actual decision of the African Commission, once the Commission has adopted it, appears to have no further reason other than to suggest at the African Commission has somehow got it wrong or at the very least not given the State already the chance to comment on the case, which if the Rules of Procedure are followed, is clearly not the case. The victim and complainant do not have this further opportunity.

E. Activity Reports Some of the explanations for the lack of clarity on what precisely is covered by confidentiality in Article 59 stems from the varying content of the Activity Reports of the African Commission. The first Activity Report of the African Commission was adopted in April 1988 and contained a brief overview of its activities to date with annexes covering States parties to the ACHPR, members of the Commission, agendas of the sessions and a copy of the Rules of Procedure. A number of recommendations were also attached as annexes and related to the headquarters, financial regulations, programme of action, dealing with Article 62 reports, and registration forms for communications.29

27 Decision on the Thirty-Seventh Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.864(XXVI). 28 Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.887(XXVII). 29 First Activity Report of the African Commission on Human and Peoples’ Rights, Adopted on 28 April 1988, covering the period from November 1987 through April 1988 (1st–3rd Session). Adopted by the Council of Ministers of the OAU in February 1992: CM/Res.1379 (LV) Resolution on African Commission on Human and Peoples’ Rights.

774

36. Article 59: Confidentiality and Publication

Roll forward twenty years and its Activity Reports are detailed and encompassed not only resolutions adopted at the sessions but also mission reports and decisions on communications. However, with the imposition of a page limit by the AU in 2011,30 the reports do not contain the communications which are in theory published separately in an annex. These are not produced with the Activity Report on the website, rather the texts of the communications appear under the ‘communications’ section of the website. On the majority of occasions the African Commission’s reports, ‘with annexures’,31 have simply been adopted by the AU organs and their publication authorised,32 sometimes with comments commending the African Commission for its work33 as well as requiring States to ‘honour their commitments’ under the ACHPR and cooperate with the African Commission.34 In several decisions, the AU organs have ‘endorsed’ the recommendations contained within the Report, noting the Commission’s achievements and urging states to take action to address the decisions and recommendations of the African Commission.35 The OAU and AU organs have from time to time reminded the African Commission to ‘continue to respect the principle of confidentiality of its reports pursuant to Article 59 of the Charter’,36 and as was seen above with respect to communications and below with respect to resolutions, they have not been averse to questioning the content of these documents and asking the African Commission to amend them accordingly. Viljoen attributes a change in approach with the fact that in 2003 the Executive Council was given authorisation to examine the African Commission’s Activity Reports.37 It having more time to scrutinise their contents, this had a ‘downside of increasing attempts at bedevilling and thwarting scrutiny’.38 Consequently, it has not authorised publication in some instances. For example, in commenting on the 29th Activity Report of the African Commission, not only does the Executive Council then call on the African Commission to include other issues in its report, but also ‘to incorporate in its report, the responses by Member States in order to See 30th Activity Report of the African Commission on Human and Peoples’ Rights, 2011. Decision on the 18th Annual Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec. 220 (VII); Decision on the 18th Annual Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/AU/Dec.77 (V). 32 Decision on the Report of the Activities of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.922(XXIX); Decision on the Activities of the African Commission on Human and People’s Rights (ACHPR), EX.CL/Dec.948(XXX). Decision on the 16th Annual Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.11 (II). Decision on the 18th Annual Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec. 220 (VII); Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/ Dec.257 (VIII). Decision on the 18th Annual Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/AU/Dec.77 (V). 33 E.g. Decision on the Report of Activities of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.200  (XI). 34 Decision on the Thirteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, AHG/Dec.153 (XXXVI); Decision on the African Commission on Human and Peoples’ Rights: Twelfth Annual Activity Report, AHG/Dec.133 (XXXV); Decision on the Tenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, AHG/Dec. 123 (XXXIII); Resolution on the African Commission on Human and Peoples’ Right, AHG/Res.250 (XXXII). 35 Decision on the Thirty-Fourth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.775(XXIII); Decision on the Thirty-Fifth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.804(XXIV); Decision on the Thirty-Sixth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.841(XXV). 36 Resolution on the African Commission on Human and Peoples’ Rights, AHG/Res.240 (XXXI). 37 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 198. 38 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 199. 30 31

F. Sessions

775

have a balanced view’, as well as ‘to categorize the claims made against Member States and highlight the efforts made by Member States in respect of Human Rights; Requests the ACHPR to engage concerned Member States in the verification of the facts and resubmit its report to the 19th Ordinary Session of the Executive Council’.39 On occasion, the AU organs have authorised the publication of the report with the exception of certain documents,40 or indeed authorised its publication whilst reminding the Commission to ‘carry out the necessary consultations with the Member States concerned regarding allegations of human rights violations, thus enabling it to present a balanced report to the AU Policy Organs’.41

F. Sessions The African Commission holds two Ordinary Sessions per year and has the option of holding extraordinary sessions, a practice which is becoming increasingly common. Rule 31 gives the option of holding private sessions, during which ‘deliberations shall remain confidential’ and to which only the Secretary, members of the Secretariat and ‘persons providing technical or secretarial assistance to the Commission’ will be present. In practice, private sessions are held usually during the second half of the ordinary sessions of the African Commission, but can also be held on the odd day or over a period of a few hours during the first part of the session. As Rule 31(4) permits, ‘[t]‌he Chairperson of the Commission may communicate to the public general information on deliberations in Private Sessions, subject to the exigencies of Article 59 of the Charter and any special directions by the Commission’. Roughly half of the African Commission’s two-week sessions are open to the public to attend. Media presence is common, particularly during the opening ceremony. A final communiqué is produced of each session but this contains little detail of the discussions held and is really only a summary of the conclusions reached. Beyond this no information is provided by the African Commission on the oral deliberations at the session, either from those that were in public or those in private. There are several references to the possibility that detailed notes are taken of the sessions but the norm is that these will not be disclosed. On only a handful of occasions have detailed notes been provided by the African Commission, via its website,42 they are not comprehensive and it is not clear why this happened in these instances and not at any other time. Reference to one occurrence, where information was requested on discussions that may have taken place in the private part of the sessions, indicates that such material is unlikely to be shared, at least beyond the detail given in the final communiqué.43 39 Decision on the Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.639(XVIII). See also Decision on the Activity Report of the African Commission on Human and People’s Rights, EX.CL/Dec.666(XIX). 40 E.g. resolutions, see Decision on the Nineteenth Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec 101 (VI). 41 Decision on the Twenty Ninth, Thirtieth and Thirty First Activity Reports of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.689(XX). 42 E.g. ‘Daily Notes’ 50th Ordinary Session, see http://www.achpr.org/sessions/50th/info/daily-notes/. In addition, 54th Session, http://www.achpr.org/news/2013/10/d99/. 43 ‘On 7th April 2000, the State Party sent a fax to the Secretariat requesting for a copy of the report of the 26th Ordinary Session. 25. In view of the requirements of Article 59 of the Charter, the Secretariat instead sent to the State Party a copy of the Final Communiqué of the said session. It also intimated it of the decision of

776

36. Article 59: Confidentiality and Publication

G. Resolutions and General Comments Although falling under Article 45, resolutions are not explicitly mentioned by the ACHPR. Yet over the years the African Commission has adopted resolutions either on particular States, or thematic issues, as well as the more recent innovation of General Comments interpreting in detail substantive provisions of the ACHPR. As noted above, for many years the texts of resolutions were included in the Activity Reports of the African Commission. Now they are, in theory, available on the website and listed only in name in the Activity Report. Because General Comments are a recent development, the African Commission did not have a history of including them in its Activity Reports. As a result, it appears to have adopted them itself, at a session, without including them in its Activity Report and thereby requiring authorisation from the AU. At its 2nd Extraordinary Session in December 1995 the African Commission examined the situation in Nigeria, including issues which had been the subject of communications and on which decisions had already been published. In a document entitled ‘Account of internal legislation of Nigeria and the dispositions of the Charter of African Human and Peoples’ Rights’ considered at this 2nd Extraordinary Session, the response of the government to the decisions is included and this contains criticisms of the Commission’s procedure and decisions.44 One of the concerns relates to ‘breach of confidentiality’ and where it was claimed that a resolution adopted by the Commission in March 1995 breached confidentiality requirements.45 The African Commission responded that this resolution on Nigeria ‘is not a “measure taken” within the meaning of [Article 59(1)]. The “present chapter” refers to Chapter III of the Charter, dealing with communications. The resolution on Nigeria does not refer to communications in this way. There is no bar on resolutions of the Commission being disseminated however the Commission sees fit’.46 This seems to imply that if a resolution did deal with communications then it may fall within Chapter III and the confidentiality rule. There have been a number of occasions on which States have contested the content of the resolutions of the African Commission which were contained in Activity Reports. This arose most visibly with the adoption of the 19th Activity Report of the African Commission. This report had contained resolutions relating to Eritrea, Ethiopia, The Sudan, Uganda and Zimbabwe. The usual approach for several years including this was for the non-governmental organisation (NGO) forum which precedes each session to adopt a series of resolutions and present these to the African Commission for its consideration. The African Commission had fallen into the practice of adopting some of these resolutions at the end of its session as its own, often with little amendment. It is perhaps the Commission during that session,’ Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 24. 44 ‘Account of internal legislation of Nigeria and the dispositions of the Charter of African Human and Peoples’ Rights’, Second Extraordinary Session, Kampala, 18–19 December 1995, DOC II/ES/ACHPR/4, reprinted in Murray & Evans, Documents of the African Commission on Human and Peoples’ Rights, Vol.1, Hart Publishing, 2001, at 472. 45 Resolution on Nigeria, ACHPR/Res.16, 22 March 1995. 46 ‘Account of internal legislation of Nigeria and the dispositions of the Charter of African Human and Peoples’ Rights’ Second Extraordinary Session, Kampala, 18–19 December 1995, DOC II/ES/ACHPR/4, reprinted in Murray & Evans, Documents of the African Commission on Human and Peoples’ Rights, Vol.1, Hart Publishing, 2001, at 472.

H. Missions and Mission Reports

777

not surprising therefore that States would at some stage start to object on the basis that NGOs carried too much influence over the African Commission, particularly as there had been a practice of adopting resolutions similar to those adopted by the NGO forum that precedes each session. In its Decision the Assembly refused to authorise the publication of the resolutions on these particular States and instead called on the States to ‘make available to the African Commission within three (3) months of the adoption of the present Decision, their views on the said Resolutions and the [African Commission] to submit a Report thereon to the next Ordinary Session of the Executive Council’.47 More concerning, however, it then went on to call upon the African Commission ‘to ensure that in future, it enlists the responses of all States parties to its Resolutions and Decisions before submitting them to the Executive Council and/or Assembly for consideration’.48 In theory there is nothing problematic with obtaining the ‘responses’ of States who are the subject of resolutions that it is considering adopting, if this will lead to a discussion on the issues faced by the State. However, this was not the way in which this was read: it was seen as implying a restriction on what the African Commission could say and a threat by the AU not to authorise publication if States were not happy with its conclusions, a clear impingement on its independence. As Viljoen notes ‘with one sweep, the Assembly, following the advice of the Council, obliterated the carefully drawn distinction in Article 59(1) between “promotional” activities (such as resolutions) and “protective” activities (decisions and protective missions)’.49 However, it depends on the distinction between resolutions which may be considered promotional and those which are protective and find specific violations. In the latter, there may be some argument for States giving their views on them before their publication.50 Similar warnings are raised by the AU organs when adopting the 32nd and 33rd Activity Report of the African Commission calling on it to ‘respect its procedures when considering reports submitted to it, and consult Member States concerned, as appropriate prior to the issuance of its resolutions’.51

H. Missions and Mission Reports The African Commission over the years has undertaken visits to States parties. As noted in Chapter 31 (Article 45), these have been ‘promotional missions’, ‘protective missions’, but also ‘advocacy visits’, ‘informal visits’, ‘country missions’ and ‘research and information visits’, among others. The distinction between them is not at all clear, particularly as the Rules of Procedure make reference simply to ‘promotion missions’52 and ‘protection

47 Decision on the Nineteenth Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec 101 (VI); Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.257 (VIII). 48 Decision on the Nineteenth Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec 101 (VI); Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.257 (VIII). 49 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 200–201. 50 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 201. 51 Decision on the 32nd and 33rd Combined Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.752(XXII). 52 Rule 70, Rules of Procedure of the African Commission 2010.

778

36. Article 59: Confidentiality and Publication

missions’.53 It is apparent with respect to the latter, certainly, at least some aspects of the visit, if not all, have been confidential.54 In the past some mission reports were included in the Activity Reports of the African Commission. This is no longer the case. It was with the mission to Zimbabwe and the report upon which where the government claimed it did not have a chance to comment which precipitated the change55 The report was contained in the African Commission’s 17th Activity Report. In its decision on the African Commission’s report, the Executive Council noted that ‘some [of the African Commission] reports on the State Parties are presented in the form of observations; and Invite [the African Commission] to ensure that in future its mission reports are submitted together with the comments of the State Parties concerned and to indicate the steps taken in this regard during the presentation of its annual Activity Report’.56 It ‘suspended’ the publication of the report ‘pending the possible observations by the Member States concerned’.57 The Assembly reiterated this but with slightly different wording: ‘presented without their observations’.58 Both organs then ‘invite [the African Commission] to ensure that in future its mission reports are submitted together with the comments of the State Parties concerned and to indicate the steps taken in this regard during the presentation of its annual Activity Report’ and consequently ‘[suspended] the publication of the 17th Annual Activity Report . . . pending the possible observations by the Member States concerned’.59 Then, once the States’ responses were attached to the 17th Report, the Executive Council and then Assembly adopted and authorised its publication.60 The African Commission then follows this requirement, at its 36th Session in December 2004, noting that it ‘decided to adopt its mission reports before sending them for comments to the States Parties to which missions were made. The African Commission decided to give States Parties a three (3) month deadline to submit their comments. This deadline could be extended for three (3) extra months, if need be’.61 Subsequent mission reports have not been included in Activity Reports.

Rules 81 and 82, Rules of Procedure of the African Commission 2010. E.g. ‘Without sacrificing or compromising confidentiality and privacy, whenever desirable, Messrs. Lino Hadonou, Cyrille Oguin and Luc Ebah accompanied us throughout the mission,’ Prisons in Benin Report on a Visit, 23–31 August 1999, By Prof. E.V.O. Dankwa, Special Rapporteur on Prisons and Conditions of Detention in Africa. 55 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 199. 56 Decision on the Sixteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec11. 57 Decision on the Sixteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec  11. 58 Decision on the 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.49(III). 59 Decision on the 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.155 (V); Decision on the 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights, Assembly/AU/Dec.49(III). 60 Decision on the 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR) EX.CL/Draft/Dec.185 (VI). Decision On 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), Assembly/AU/Dec.56(IV). 61 18th Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/199 (VII), para 56. 53 54

J. Decisions on Granting of Observer and Affiliate Status

779

I. Article 62 State Reports and Related Documents Although for many years, particularly prior to the advent of the internet and the Commission’s website, it was difficult to obtain a copy of the Article 62 report written by the State despite the presumption having always been that the reports are public. This is reiterated by Rule 61(2) entitled ‘Distribution of reports and other official documents’: Reports and additional information submitted by States Parties under Article 62 of the African Charter shall be documents for general distribution in the Working Languages of the African Union and shall be posted on the Commission’s website as soon as they are received at the Secretariat of the Commission.

In addition, Rule 18 of the African Commission’s Rules of Procedure provide that: The Secretary to the Commission is responsible for the activities of the Secretariat under the supervision of the Chairperson. The Secretary shall specifically: ‘ensure confidentiality of the Commission’s records where appropriate’ and ‘make available to the general public documents which are not confidential, including States Reports, by ensuring that they are posted on the website of the Commission’.

The African Commission has recommended States share drafts of their Article 62 reports for consultation at the national level and, in accordance with Rule 18, the Commission itself now places the submitted report on its website prior to the examination at the next session. This permits organisations, national human rights institutions (NHRIs) and others to read its contents and submit their own shadow reports, which some do, but which are not made available on the website. Oral examination of the State report is during the public session.62 The African Commission now produces Concluding Observations on each State report, and again the presumption is that they are all public. Unfortunately Concluding Observations are not consistently made available on the African Commission’s website despite, as is discussed in Chapter 38 (Article 62), the 2010 Rules of Procedure of the African Commission providing that they should form part of the Commission’s Activity Report and subsequently posted on its website once the report has been adopted.63 The latter could imply that the Concluding Observations are also subject to approval of the AU organs before they can be published, although in practice it is not clear if this is in fact the case.

J. Decisions on Granting of Observer Status and Affiliate Status There do not appear to be any instances where the OAU or AU organs have questioned the granting of affiliated status to NHRIs. This is in contrast to that for observer status to NGOs and civil society organisations. It was with the adoption of 11th Activity Report that the Assembly for the first time asked the African Commission ‘for reasons of efficiency, to review its criteria for granting observer status and to suspend further granting of observer status until the adoption of the new criteria’.64 See Chapter 38 (Article 62). Rule 77(3), Rules of Procedure of the African Commission 2010. 64 Annual Activities of the African Commission on Human and Peoples’ Rights, AHG/Dec. 126 (XXXIV). 62 63

780

36. Article 59: Confidentiality and Publication

However, the decision of the African Commission in April 2015 to grant observer status to the Coalition of African Lesbians (CAL) caused significant controversy not only during the session but subsequently. Although the African Commission announced its decision in its final communiqué,65 the Executive Council afterwards noted the ‘observations and comments of Member States’66 and requested the African Commission to: take into account the fundamental African values, identity and good traditions, and to withdraw the observer status granted to NGOs who may attempt to impose values contrary to the African values; in this regard, Requests the ACHPR to review its criteria for granting Observer Status to NGOs and to withdraw the observer status granted to the Organization called CAL, in line with those African Values.67

It then recommended that the Assembly authorise the publication of the report ‘after its update and due incorporation of the proposals made by Member States and agreed upon, within that report, as reflected in these conclusions’.68 In its 39th Activity Report the African Commission noted that in response to this decision of the Executive Council it had conducted a ‘detailed legal analysis’, merely noting that this was also now a matter before the African Court,69 referring to the attempt, albeit unsuccessful, by CAL and the Centre for Human Rights at the University of Pretoria to challenge this request through the African Court’s advisory opinion procedure.70 The observer status was not, at this stage, withdrawn formally, but CAL was not listed among the NGOs on the Commission’s website. The AU did not leave it at that, and in the subsequent decision on the 39th Report the Executive Council reiterated its call on the African Commission to review its criteria for granting observer status but this time ‘to Non-Governmental Organizations (NGOs) as well as representation before the ACHPR by non-African individuals and groups and to report, through the Permanent Representatives’ Committee (PRC), to the next ordinary Session scheduled for July 2016’.71 Finally, as noted, in July 2018 the AU went a step further and not all called for withdrawal for observer status for CAL but also that the African Commission submit its revised criteria for observer status to the AU for its consideration and approval.72 In a disheartening show of undermining its own independence, the African Commission relented and withdrew, quietly and one could argue, cowardly, observer status for CAL.

65 Final Communiqué of the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 21 April–7 May 2015, para 25. 66 Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.887(XXVII). 67 Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.887(XXVII). 68 Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/Dec.887(XXVII). 69 39th Activity Report of the African Commission on Human and Peoples’ Rights, 2015, paras 49–51. 70 Request for Advisory Opinion by the Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbians, No. 002/2015, Advisory Opinion, 28 September 2017. 71 Decision on the Activities of the African Commission on Human and People’s Rights (ACHPR), EX.CL/ Dec.902(XXVIII)Rev.1. 72 Decision on the Report of the Joint Retreat of the Permanent Representatives’ Committee (PRC) and the African Commission on Human and Peoples’ Rights (ACHPR), EX.CL/Dec.1015 (XXXIII).

K. Conclusion

781

K. Conclusion The approach to Article 59 is confusing and restrictive. It also opens the African Commission to criticism for the potential to be influenced not only by States, through the AU, but also others. Greater transparency and consistency would enhance the African Commission’s independence and credibility.

37. Articles 60 and 61 Applicable Principles Article 60 The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the

United Nations of which the Parties to the present Charter are members. Article 61 The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by Member States of the Organisation of African Unity, African practices consistent with international norms on Human and Peoples’ Rights, customs generally accepted as law, general principles of law recognised by African States as well as legal precedents and doctrine.

A. Introduction Listed under Chapter IV, entitled ‘applicable principles’, these two articles are often employed together. These provisions have their origins in a pragmatic solution to enable the Commission to have some standards to refer to if there was no African human rights instrument.1 In adoption the African Charter on Human and Peoples’ Rights (ACHPR) there was some logic in retaining such clauses and certainly they have proved useful in practice, given that many African States are also party to African Union (AU) and UN instruments on human rights.2 Thus they can assist, arguably, in ensuring a consistency of approach between the regional and international systems, although ironically, as Viljoen notes, it took some time before the African Commission exploited these provisions and in its earlier examples it used them to justify differences of the African system from others.3 Drafts of the ACHPR listed specific treaties adopted by the UN and Organisation of African Unity (OAU), although these were, given the proliferation of instruments,4 sensibly omitted from the final version. F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 344. F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 76. 3 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 345, citing Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad. 4 Article 58 of the Dakar Draft read: ‘The Commission shall draw inspiration from international laws on human rights, particularly from the provisions of the various African instruments on human rights—from the provisions of the Charter of the United Nations, of the Charter of the Organization of African Unity, from the Universal Declaration of Human Rights, and from the provisions of other instruments adopted by the United Nations and by African countries in the field of human rights, more especially the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Optional Protocol thereto, the International Convention on the Elimination of All Forms of Racial 1 2

A. Introduction

783

As will be seen below the African Commission and the African Court have shown themselves open to taking an expansive approach to the use of, and reference to, other documents beyond their own. Indeed, at times, the African Commission in particular appears to be more willing to rely on others’ jurisprudence and documents when interpreting provisions of the ACHPR than on its own. In addition, there are numerous occasions where the African Commission has clearly drawn upon treaties, documents and other jurisprudence from a variety of different sources, particularly UN, European and Inter-American case law, but without necessarily referring expressly to Articles 60 and 61. Furthermore, the African Commission does not always clarify how it has used any international standards or case law from other treaty bodies. For example, South Africa in one communication argued that the Commission should consider decisions of the UN Human Rights Committee which had held communications inadmissible for failing to ‘substantiate, for purposes of admissibility, that the conduct’ was a violation.5 The African Commission, without referring to any of the Committee’s jurisprudence, simply found in favour of the complainant, noting that there was prima facie evidence of violations.6 The wording in Article 60, ‘other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights’, is ambiguous and does not make it clear whether the African Commission should only be drawing upon those instruments to which the African State in question is bound. The African Commission, certainly when drafting its resolutions, general comments and principles and guidelines, has drawn upon the whole gamut of international and regional standards and documentation to create its own interpretation of the ACHPR provisions, and is not always scrupulous in considering whether or not a particular State has ratified a specific treaty. The African Court has similarly referred to Articles 60 and 61,7 despite these being addressed to the African Commission. Article 7 of the Protocol Establishing the African Court provides the Court with the jurisdiction to apply not only the provisions of the ACHPR but also ‘any other relevant human rights instruments ratified by the States concerned’. For instance, in the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania, and Reverend Christopher R Mtikila v United Republic of Tanzania, the Court drew upon Inter-American Court cases, which the Respondent had raised, but also noted that it concurred with a UN Human Rights Committee General Comment ‘as an authoritative interpretation of Article 25 of the ICCPR, which reflects the spirit of Article 13 of the Charter, and which in accordance with Article 60 of the Charter is an “instrument adopted by the United Nations on

Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the United Nations Convention relating to the Status of Refugees and the Protocol thereto, the Declaration on the Elimination of Discrimination Against Women, the OAU Convention on the Suppression of Mercenarism in Africa as well as the provisions of various instruments adopted within the specialized agencies of the United Nations such as the ILO, UNESCO, FAO and WHO.’ 5 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 61. 6 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 77. 7 In Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania and Reverend Christopher R Mtikila v United Republic of Tanzania, 009/2011 and 011/2011, para 107.3.

784

37. Articles 60 and 61: Applicable Principles

human and peoples’ rights” that the Court can “draw inspiration from” in its interpretation of the Charter’.8 In another matter the African Court used Article 14(3)(d) of the ICCPR and its reference to free legal assistance and held that ‘read together’ with Article 7 of the ACHPR, this ‘guarantees for any one charged with a criminal offence the right to be automatically assigned a Counsel free of charge, where he does not have the means to pay him, whenever the interests of justice so require’, drawing in part on the wording of the ICCPR.9 The use of standards and documents from the UN treaty bodies and special procedures, and the Inter-American and European systems may assist, in theory, the African Commission and Court to develop ‘nuanced legal reasoning’, something which the two bodies have been criticised for failing to deliver.10 It is therefore regrettable that their approach is not consistent. In some communications and documents, reference to other UN, regional and other jurisprudence and instruments is extensive11 while in others it is limited,12 with no obvious rationale. From time to time the African Commission refers generally to ‘other relevant international human rights norms’, but without saying what these are.13 It also often uses its own resolutions but frequently in conjunction with other international documents.14 The African Court for its part has been willing to apply the jurisprudence of the African Commission as well as its own,15 noting in some instances that it has been ‘persuaded by the reasoning’ of the African Commission.16

B. ‘Draw Inspiration From’ Reference to international and regional documents is pervasive and apparent across all elements of the African Commission’s work. It has cited them in its press releases,17

8 In Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania and Reverend Christopher R Mtikila v United Republic of Tanzania, 009/2011 and 011/2011, para 107.3. 9 In the Matter of Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016, para 138. 10 M. Hailbronner ‘Laws in conflict: The relationship between human rights and international humanitarian law under the African Charter on Human and Peoples’ Rights’ 16 African Human Rights Law Journal (2016) 339–364, at 361. 11 E.g. applying the formula adopted by the European Court of Human Rights around justification for restrictions on the right to freedom of expression, see African Court, In the Matter of Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014, paras 124 et seq. 12 See e.g. In the Matter of the Beneficiaries of Late Norbert Zongo et al v Burkina Faso, App. No. 013/2011, Judgment of 28 March 2014. 13 Communication 322/06, Tsatsu Tsikata v Ghana, 29 November 2008 and 14 October 2014, para 32. 14 E.g. ‘The [African] Commission reiterates that the purpose of its mandate is to consider complaints alleging such perceived judicial bias and prejudice, and undue interference by the executive with judicial independence, in accordance with Article 7 of the [African] Charter, its Resolution on the Respect and the Strengthening on the Independence of the Judiciary (1996) 2, and other relevant international human rights norms; in accordance with Articles 60, 61 of the [African] Charter’; Communication 322/06, Tsatsu Tsikata v Ghana, 29 November 2008 and 14 October 2014, para 32. 15 See e.g. In the Matter of Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of 3 June 2016, para 121, referring to the African Commission’s decision in Communication 368/ 09, Abdel Hadi, Ali Radi and others v Republic of Sudan, November 2013. 16 E.g. In the Matter of Alex Thomas v United Republic of Tanzania, App. No. 005/2013, Judgment, 20 November 2015, para 64, citing Communication 333/2006, Southern African Human Rights NGO Network v Tanzania, May 2010, para 64 with respect to the requirement that only ordinary remedies have to be exhausted. 17 E.g. Press Release on the Situation in Zimbabwe, 18 June 2007, referring to the UN Declaration on Human Rights Defenders.

B. ‘Draw Inspiration From’

785

decisions on communications,18 resolutions on thematic issues and States,19 in mission reports20 and when drafting general comments, principles and guidelines and additional protocols to the ACHPR.21 The rationale for referencing these other UN and international documents varies. On the one hand, it use of such documents by African bodies enables African States to acquire some ownership over norms that may have been developed outside the continent.22 In addition, it could also be seen as a way of raising awareness among African States of their international obligations and thereby helping to concretise or implement them.23 It is clear that when clarifying the detail of specific aspects of rights, the African Commission and the African Court have found it helpful to mention the jurisprudence of other bodies. This may be because they have utility in ‘establish[ing] the importance of regional and international human rights instruments as benchmarks for the application and interpretation of the Charter’;24 or to ‘fortify . . . its reasoning’25 by identifying an ‘established principle of international law’,26 or ‘internationally accepted standard’.27 In one communication, for example, when asked to consider the manner in which the death penalty had been imposed, the African Commission drew upon Article 6 of the ICCPR and ‘relied’ upon the jurisprudence of its Human Rights Committee, ‘to hold that where a death sentence has been imposed, it must be carried out in such a way as to cause the least possible physical and mental suffering’;28 and to determine whether the length of 18 E.g. Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, 3 March 2011. 19 E.g. Resolution on the Safety of Journalists and Media Practitioners in Africa, ACHPR/Res.185, 12 May 2011, referring to United Nations Security Council’s Resolution 1738 (2006); UNESCO Resolution 29(1997) on ‘Condemnation of Violence Against Journalists’; Resolution on the Food Crisis in Somalia, ACHPR/Res.289, 29 July 2014: ‘sufficient food has to be acceptable, available, accessible and nutritionally adequate and healthy in accordance with General Comment No. 11 of the Committee on Economic, Social and Cultural Rights’. 20 E.g. Promotional Mission Report of Commissioner Jainaba Johm to the Republic of Benin, 7–11 August 2000), recommends that the government ‘keep on guaranteeing the rights and freedoms stated in the African Charter on Human and People’s Rights and other relevant human rights treaties the country is a party to; All the national legislations of Benin should be amended in line with international treaties Benin is a party to’. 21 See e.g. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, preamble. 22 See e.g. R. Murray, ‘Women’s Rights and the Organisation of African Unity and African Union: The Protocol on the Rights of Women in Africa’, in D. Buss and A. Manji, International Law: Modern Feminist Approaches, Hart Publishing, 2005, 253–272. 23 For example, see drafting of the Robben Island Guidelines, D. Long and R. Murray, ‘Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?’, 12 AHRLJ (2012) 311–347. 24 General Comment No. 2 on Article 14.1(a), (b), (c) and (f ) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. See also Experts Meeting on the Development of Guidelines for Pre-Trial Detention. Draft Guidelines on the Use and Conditions of Police Custody and Pre Trial Detention in Africa, Discussion Document, para 1.2. 25 In the Matter of Alex Thomas v United Republic of Tanzania, App. No. 005/2013, Judgment, 20 November 2015, para 95: ‘The Court is fortified in its reasoning by the decisions of the African Commission and the European Court of Human Rights and the Inter-American Court of Human Rights, which are courts of similar jurisdiction.’ 26 ‘It is a well-established principle of international human rights law that when a person is injured in detention or while under the control of security forces, there is a strong presumption that the person was subjected to torture or ill-treatment’, Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, para 168. 27 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 46. 28 Ng v. Canada, Communication No 469/ 1991, Human Rights Committee, 7 January 1994, UN doc. CCPR/C/49/D/469/1991, Para. 16.2 and 16.4, cited in Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 166.

786

37. Articles 60 and 61: Applicable Principles

detention on death row amounted to torture or other ill treatment or punishment.29 Article 60 of the Rome Statute was similarly used to assist the African Commission in identifying what constituted the ‘most serious crimes’ in the context of use of the death penalty as punishment.30 Article 60 of the ACHPR has been used by complainants in their submissions on communications to refer to provisions of other treaties containing similar rights to those found in the ACHPR. For example: Thus article 7 of the African Charter on Human and Peoples’ Rights is the main legal basis on which it anchors its argument. They also state that in recognition of Article 60 of the African Charter by which the African Commission is empowered to draw inspiration from other international instruments for the protection of human and peoples’ rights, they are drawing the attention of the African Commission to Article 14 of the International Covenant on Civil and Political Rights (ICCPR), Article 8 of the American Convention on Human Rights (American Convention) and Article 6 of the European Convention on Human Rights (European Convention).31

In one communication the African Commission, ‘bearing in mind the similarities within the two systems’,32 employed case law from the Inter-American Commission (Dayra María Levoyer Jiménez v Ecuador) and the latter’s interpretation that depriving the victim of their liberty beyond the maximum penalty for the offence was a violation of the presumption of innocence (included in Article 7(1)(b) of the ACHPR). It then applied this in the communication before it to conclude that: The prolonged imprisonment without conviction of the Victims for a period of about 16 years clearly violates their right to be presumed innocent in that it was meant as a sanction prior to the delivery of the judgment. As held by the Inter-American Court, the deprivation of a person’s liberty for a disproportionate time is the same as serving a sentence in advance of the judgment. The African Commission agrees with the Complainant that the Victims were criminally punished by presuming their guilt even before they were heard, in violation of the principle of presumption of innocence established in Article 7(1)(b) of the African Charter, Article XX of the Universal Declaration and rule XXX of the Principles and Guidelines on fair trial.33

The UNCAT definition of torture in Article 1 has been applied to allegations raised in one case, the African Commission explaining this as follows: In order to analyse the allegation of torture by the Victims, the African Commission will look at what amounts to torture in accordance with the Charter and other international instruments. Article 60 of the Charter has drawn inspiration from broader international law to deal with specific issues. Substantive international jurisprudence and practice has therefore developed in recent years regarding the nature of the prohibition of torture and cruel, inhuman and degrading treatment and the obligations of states to protect its citizens against such treatment.34 29 Citing Randolph Barrett and Clyde v Jamaica, Communication 270/271/1988 (30 March 1992), cited in Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 172. 30 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 203. 31 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 128. 32 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 207. 33 Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, para 209. 34 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, para 161.

B. ‘Draw Inspiration From’

787

Indeed, in this particular communication the African Commission draws extensively on jurisprudence from the UN Human Rights Committee and the UN Special Rapporteur on Torture, as well as other UN documents, to identify the right to prompt access to medical services during detention;35 and prompt access to a lawyer when in detention.36 In another communication the African Commission held that its views on freedom of political debate ‘affirms those of the Inter-American Court’, applying the latter’s interpretation directly to the situation before it: ‘[F]‌reedom of expression is a cornerstone upon which the very existence of a society rests. It is indispensable for the formation of public opinion. It is also a condition sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.’ The Inter-American Court states that: ‘when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to “receive” information and ideas’. It is particularly grave when information that others are being denied concerns the human rights protected in the African Charter as did each instance in which Mr Ghazi Suleiman was arrested.37

Although in most cases to the African Commission takes the international or regional jurisprudence and simply applies it to the matter in hand, in some it has distinguished these from its own findings. For example, when considering the practice of the European and Inter-American human rights bodies that six months was the time limit for submission of a communication to the particular treaty body, the African Commission held that ‘[t]‌his notwithstanding, each case must be treated on its own merit’.38 ‘Drawing inspiration from’ other documents has led the African Commission to imply rights into the ACHPR which are not expressly there, such as rights to housing or shelter, right to food and to water.39 While commended by some, Viljoen expresses caution, recommending that it instead ground its decisions in existing rights, rather than to ‘invent’ such rights thus placing the Commission’s ‘legitimacy and many other interpretive gains at risk’.40 More generally, besides interpreting the content of the substantive provisions of the ACHPR, Articles 60 and 61 have also been used as justification for the creation of special mechanisms focusing on particular themes or rights. For example, the Special Rapporteur on Human Rights Defenders owes its establishment in part to parallel procedures at the level of the UN, leading the African Commission to acknowledge that it had:

35 Citing Human Rights Committee General Comment No.20, (1992) UN Doc. HRIC/GEN/I/Rev.6 (1994), para 11; and the Istanbul Protocol, UN Doc. HR/P.PT/8/Rev.1; and Human Rights Committee’s decision in Communication Osbourne Wright and Eric Harvey v Jamaica, 27 October 1995. See also Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt. 36 Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, citing Human Rights Committee Concluding Observations, Israel, 21 August 2003, UN Doc.CCPR/CO/78/ ISR, para 13; and UN Special Rapporteur on Torture reports, Un Doc.E/CN.4/1989/15, para 241. 37 Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, paras 49–50. 38 Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights) v Kenya, 7 November 2011. 39 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001. 40 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 347–8.

788

37. Articles 60 and 61: Applicable Principles

since 1995 established the practice of special procedures as a result of the urgency of some human rights issues, not without the support of civil society, and also in implementation of Article 60 of the African Charter which stipulates that.41

There is a difference between ‘drawing inspiration from’ and ‘supervising the application and implementation of ’ another treaty on the State. Yet this line is not always clearly defined. On the one hand the African Commission has held that Articles 60 and 61: do not authorise the Commission to supervise the application and implementation of other international treaties such as the SADC [Southern African Development Community] Treaty. Accordingly, the Commission will restrict itself to a determination of the responsibility of the Respondent States arising from the provisions of the African Charter that have been invoked by the Complainant.42

The wording of Article 60 would imply that it would use the documents as an aid to a ‘progressive interpretation of the Charter’.43 However, on the other hand it appears to go further. For instance: In interpreting and applying the African Charter, the African Commission relies on its own jurisprudence, and as provided by Articles 60 and 61 of the African Charter, on appropriate and relevant international and regional human rights instruments, principles and standards. The African Commission is, therefore, more than willing to accept legal arguments with the support of appropriate and relevant international and regional human rights instruments, principles, norms and standards taking into account the well-recognised principle of universality which was established by the Vienna Declaration and Programme of Action of 1993 and which declares that ‘all human rights are universal, indivisible, interdependent, and interrelated’.44

The same can be seen with its consideration of international humanitarian law, as discussed below.45 Yet one cannot necessarily always discern an overriding trend towards using these other sources to adopt a more or less progressive interpretation of the ACHPR. For instance, it has read into the ACHPR the obligation of States to ‘progressively realise’ their obligations on economic, social and cultural rights, arguably diluting the immediacy that the language of the African Charter implies: The obligation to progressively and constantly move towards the full realisation of economic, social and cultural rights, within the resources available to a State, including regional and international aid, is referred to as progressive realisation. While the African Charter does not expressly refer to the principle of progressive realisation this concept is widely accepted in the interpretation of economic, social and cultural rights and has been implied into the Charter in accordance with articles 61 and 62 of the African Charter. States parties are therefore under a continuing duty to move as

41 Report on the Implementation of the Mandate of the Special Rapporteur on Human Rights Defenders in Africa of the African Commission on Human and Peoples’ Rights. Theme: ‘Promoting and Protecting the Rights of Human Rights Defenders in Africa: 8 Years After’. Ms Reine Alapini-Gansou, Special Rapporteur on Human Rights Defenders in Africa, 52nd Ordinary Session, The Mechanism of the Special Rapporteur on Human Rights Defenders Eight Years After, para 14. 42 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014. 43 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 345. 44 Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, paras 47–48. 45 Section D.

C. ‘International Law on Human and Peoples’ Rights’

789

expeditiously and effectively as possible towards the full realisation of economic, social and cultural rights.46

Conversely, it has not taken the same stance towards the African Charter’s omission of a non-derogation principle holding on numerous occasions that despite what may be found under other international treaties, the African Charter does not permit States to derogate from any rights at any time.47

C. ‘International Law on Human and Peoples’ Rights’ In terms of the range of sources of international law to which the African Commission and African Court have referred, these are varied. They include UN Security Council resolutions;48 resolutions of the former UN Human Rights Commission and its Sub- Committee on the Promotion and Protection of Human Rights;49 case law of the UN human rights treaty bodies, such as the Human Rights Committee, including decisions which do not refer to African States;50 OAU and AU treaty provisions;51 judgments of the European Court of Human Rights;52 decisions from the Inter-American Commission and judgments of its Court;53 as well as ‘general principles of international law’.54 In addition, there are frequent references to authors and writings from academics and reports of civil society organisations.55 These clearly encompass not only binding instruments and documents but also ‘soft law’. It is not immediately apparent how the African Commission chooses from which international or regional human rights law it should draw inspiration. One can discern that in communications it may be led by the parties in terms of what they include in their submissions. In other contexts it may be the availability of material at its 46 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. 47 See Chapter 2 (Article 1). See e.g. Communication 275/03, Article 19 v Eritrea, 30 May 2007, para 98. 48 Resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, ACHPR/Res.88, 5 December 2005. 49 Resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, ACHPR/Res.88, 5 December 2005. 50 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana, 12 October 2013, para 172, referring to Human Rights Committee decision in Randolph Barrett and Clyde v Jamaica, Communication 270/271/1988 (30 March 1992). 51 Resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, ACHPR/Res.88, 5 December 2005: OAU Convention on the Prevention and Combating of Terrorism. 52 Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others, 30 April 2014, e.g. para 140. 53 E.g. Communication 301/05, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v Ethiopia, 12 October 2013, paras 207–208. 54 Resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, ACHPR/Res.88, 5 December 2005. 55 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 51, referring to:. Kathleen E. Mahoney and Paul Mahoney, ‘Human Rights in the Twenty-first Century: A Global Challenge’; Alexander Kiss ‘Concept and Possible Implications of the Right to Environment’. Communication Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, paras 241 and 277, noting Rachel Murray and Steven Wheatley (2003), ‘Groups and the African Charter on Human and Peoples’ Rights’, Human Rights Quarterly, Vol. 25, p. 222; and Arjun Sengupta, ‘Development Cooperation and the Right to Development’, Francois-Xavier Bagnoud Centre Working Paper No. 12, (2003), available at www.hsph.harvard.edu/fxbcenter/working_papers.htm.

790

37. Articles 60 and 61: Applicable Principles

Secretariat. This perhaps explains, certainly in its earlier years and prior to common use of the internet, why there was more reference to European and UN jurisprudence than to other documentation. Resolutions are often grounded by reference to relevant UN treaties and those of the AU. These reflect not only the background to these resolutions, namely that the African Commission was prompted to adopt them in light of other international and regional initiatives; but also recognition of the existence of standards elsewhere. As has been noted previously, the Robben Island Guidelines setting out standards on torture protection and prevention were the consequence, in part, of attempts to encourage African States not only to recognise the importance of prohibition of torture, but also to ratify the UN Optional Protocol to the UN Convention Against Torture (OPCAT).56 It is therefore no surprise that the Robben Island Guidelines are a ‘patchwork’ of provisions derived from various international documents.57 Attempts to reference domestic non-African case law have been limited. In one communication the Zimbabwe government contested the complainant’s attempt to draw upon, under Article 60, the concept of wrongful death in English law, as this was not an international convention or international law, particularly as the national legislation came from a State that was not party to the ACHPR.58 Furthermore, with respect to the requirement that Zimbabwe pass legislation to create an action for bereavement damages, it similarly argued that the only basis on which the complainant was calling for such was English law.59 Rather than addressing the concerns of the State specifically, the African Commission simply noted that the African Charter did not provide a definition of wrongful death or equivalent killings. Instead the Commission made reference to the provisions on extrajudicial, summary and arbitrary executions in the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials to apply principles such as proportionality to the situation. It also subsequently referred to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law to determine that the victims had a right to compensation.60

D. International Humanitarian Law Humanitarian law is not, it is argued, ‘international law on human rights’, and thus not covered by Article 61, or customary international law.61 In Communication 279/03-296/ 56 D. Long and R. Murray, ‘Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?’, 12 AHRLJ (2012) 311–347. 57 D. Long and R. Murray, ‘Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?’, 12 AHRLJ (2012) 311–347, at 328. 58 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 12 October 2013, para 90. 59 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 12 October 2013, para 103. 60 Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 12 October 2013. 61 M Hailbronner ‘Laws in conflict: The relationship between human rights and international humanitarian law under the African Charter on Human and Peoples’ Rights’ 16 African Human Rights Law Journal (2016) 339–364, at 346. See also Chapter 24 (Article 23).

E. African Sources and ‘African Practices’

791

05 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan the African Commission found violations of many rights in the ACHPR in the context of the conflict in the Darfur region of Sudan, including rape, extrajudicial killings and evictions from homes,62 drawing principally upon human rights instruments and documents. In contrast, in the inter-State communication brought by the DRC against Burundi, Rwanda and Uganda,63 the African Commission, as highlighted by Hailbronner, ‘oscillates’ between ‘whether it will merely interpret African Charter rights during armed conflicts in light of humanitarian law standards, or whether it will directly apply humanitarian law through articles 60 and 61’.64 The communication alleged violations of the ACHPR resulting from activities of the armed forces of the three States in the DRC. Finding violations of numerous articles of the ACHPR, the Commission further held that: killings, massacres, rapes, mutilations and other grave human rights abuses committed while the Respondent States’ armed forces were still in effective occupation of the eastern provinces of the Complainant State reprehensible and also inconsistent with their obligations under Part III of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 and Protocol 1 of the Geneva Convention.65

This appears to go beyond merely ‘drawing inspiration from’ international documents in the interpretation of the African Charter, and rather ‘treats international humanitarian law essentially as a part of the Charter, incorporated by article 61’.66

E. African Sources and ‘African Practices’ For an institution that prides itself on being ‘African’ it is ironic that there is comparably less reference to African instruments, African national case law and writings from African scholars, than there is to sources outside of the continent. While in its earlier years one might explain this through the likelihood of greater availability of mostly European or UN documents at the African Commission’s Secretariat and more familiarity with these sources among those litigating before the African Commission. However, with the advent of the internet there is now no excuse,67 even recognising accessibility may be variable dependent on the particular State. As noted above, the rationale and drive to adopt, for example, resolutions, guidelines and principles and more recently general comments on particular thematic issues in the ACHPR has sometimes been prompted by initiatives taking place at the level of the UN, thereby further providing some logic for why documents and jurisprudence internal to the continent may be overlooked. 62 Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009. 63 Communication 227/99, DRC v Burundi, Rwanda and Uganda, 29 May 2003. 64 M. Hailbronner ‘Laws in conflict: The relationship between human rights and international humanitarian law under the African Charter on Human and Peoples’ Rights’ 16 African Human Rights Law Journal (2016) 339–364, at 348–9. 65 Communication 227/99, DRC v Burundi, Rwanda and Uganda, 29 May 2003, para 79. 66 M. Hailbronner ‘Laws in conflict: The relationship between human rights and international humanitarian law under the African Charter on Human and Peoples’ Rights’ 16 African Human Rights Law Journal (2016) 339–364, at 349. 67 F. Viljoen, International Human Rights Law in Africa, Oxford University Press, 2007, at 346.

792

37. Articles 60 and 61: Applicable Principles

Over the years one can now, however, discern evidence of a greater willingness to include African sources in the range of the African Commission’s documents. One can find listed among the texts underpinning its resolutions on certain themes, States, and issues, are AU treaties and decisions of AU organs.68 In marked contrast to its early years, there is also now greater inclusion of African national case law, certainly, in the elaboration of principles by the African Commission. For example, in its Explanatory Note on Principles on Freedom of Association and Assembly, the African Commission, cites, referring to Articles 60 and 61 among others, Malawi High Court judgments which hold that there are particular challenges where rights are violated through executive decree;69 and judgments of the Supreme Courts of Zimbabwe and Uganda, regarding the importance of laws being drafted clearly to enable them to be understood.70 Furthermore, complainants in their submissions on communications also appear to utilise national cases more, and have referred to domestic court judgments in relation to the State against which the communication is brought: The Complainants refer the African Commission to the of case of Maauwe & Motswetla concluded in 2006 by the Court of Appeal of the Respondent State to buttress the point that the criminal justice system in the Respondent State is not infallible. They argue that, because the criminal justice system is capable of being fallible, the Courts should not ignore subsequent cogent evidence which if admitted could lead to the imposition of a lesser sentence other than the death penalty. It is forcefully submitted by the Complainants that Article 4 of the African Charter will be violated where a State Party through its judiciary imposes the death penalty pursuant to an institutionalized process that can result in an innocent person, or a person not deserving of the death penalty, being executed because material facts revealed post-appeal cannot be considered by the Court.71

The mention in Article 61 to ‘African practices consistent with international norms on human rights’, in earlier drafts of the Charter was linked directly to the ‘evidence of customs generally accepted as law’,72 implying that only those African practices which had been considered to be customary international law should be taken into consideration by the African Commission. In the final version the two concepts were separated. Exactly what are ‘African practices’ is not clear, and has, as discussed in Chapter 19 (Article 18), arisen in the context of women’s rights in particular and Article 29.73 The African Commission has tended to look outside not inside the continent, as does the AU. For example, when drafting the Malabo Protocol establishing the African Court of Justice and 68 E.g. Resolution on the Human Rights Situation in Togo, ACHPR/Res. 397 (LXII) 2018, 9 May 2018, referring to articles of the Constitutive Act and the African Charter on Democracy, Elections and Governance; Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.298 (EXT.OS/ XVII) 20, 28 February 2015 citing Declaration of the Assembly of Heads of State and Government of the African Union (Doc.Ass/AU/Decl.3(XXIV)). 69 Explanatory Note, p.4, Malawi Law Society and others v President and others, Malawi High Court (2002). 70 Law Society of Zimbabwe v The Minister of Transport and Communications and another, Supreme Court of Zimbabwe (2004); Obbo and another v Attorney General, Supreme Court of Uganda, 2004; Explanatory note, p.5. 71 Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, para 116. 72 Dakar Draft, Article 59, read: ‘The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, their general or special international conventions, laying down rules expressly recognised by the Member States of the OAU, African practices consistent with international norms on human rights considered as evidence of customs generally accepted as law, the general principles of law recognised by African states as well as jurisprudence and legal doctrine’. 73 See Chapter 28 (Articles 27–29).

E. African Sources and ‘African Practices’

793

Human and Peoples’ Rights, while its provisions draw extensively on the Rome Statute and the Statutes and practices of the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY), the AU made little use of examples of good practice from Africa.74 More positive examples of African practices could clearly be utilised by the African Commission and African Court in their interpretation of the ACHPR.

74 Amnesty International, Malabo Protocol. Legal and Institutional Implications of the Merged and Expanded African Court, Amnesty International, London, 2016, AFR 01/3063/2016, at p.15. See more generally, T. Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone, Cambridge University Press, 2009.

38. Article 62 State Reporting Each State Party shall undertake to submit legislative or other measures taken, with a view every two years, from the date the present to giving effect to the rights and freedoms recCharter comes into force, a report on the ognised and guaranteed by the present Charter.

A. Introduction While the ACHPR does not state expressly who should receive the reports produced by States under Article 62, the African Commission, as one of its first activities, gave itself this task on the basis that it was ‘difficult to see which other organ of the OAU could accomplish this work’ and that it ‘is the only appropriate organ of the OAU capable not only of studying the said periodic reports, but also of making pertinent observations to States Parties, after providing them with general guidelines on the form and contents of the reports which they should submit, pursuant to Article 62 referred to above’.1 This recommendation was subsequently endorsed by the Assembly.2 The record of submissions of State reports over the years, akin to what one sees before human rights treaty bodies with similar procedures, has not been particularly positive. The African Commission’s regular updatesof how many States have submitted their reports3 make depressing reading, and although there are, as at June 2018, only six States that have yet to submit any report at all, thirty-nine are late with at least one report, and half of these with three or more.4 Even if one considers that there are nine States who are listed as fully compliant with their Article 62 obligation, this masks a less positive picture as the African Commission now permits States to combine all out-of-date reports into one in an attempt to encourage recalcitrant countries to submit. Thus many reports cover not just a two-year period, but some over a decade or more.5 The extent to which these are then able to achieve the ‘constructive dialogue’, wording borrowed from the UN

Recommendation on Periodic Reports, ACHPR/Res.3R, 28 April 1988. Considering that the Assembly of Heads of State and Government of the AU (the Assembly) at its 24th Ordinary Session, authorised the African Commission to examine State Reports submitted in accordance with Article 62 of the African Charter, Resolution on the African Commission on Human and Peoples’ Rights, AHG/Res. 176 (XXIV), para 5. 3 It recorded the first State to submit an Article 62 was the Great Socialist Peoples’ Libyan Arab Jamahiriya, see Third Activity Report of the African Commission on Human and Peoples’ Rights, adopted 29 April 1990, para 23. 4 http://www.achpr.org/states/ 5 E.g. see Angola’s second periodic report which covered the period of 1999 to 2010, Republic of Angola, Implementation of the African Charter on Human and Peoples’ Rights Report, Luanda, August 2010. For Botswana, its first periodic report was for even longer: Republic of Botswana, First Periodic Report to the African Commission on Human and Peoples’ Rights Implementation of the African Charter on Human and Peoples Rights, 1986–2007. See generally, Danish Centre for Human Rights The African Commission on Human and Peoples’ Rights, Examination of state reports: Egypt and Tanzania (11th Session) (1995). 1 2

A. Introduction

795

system, which the African Commission has itself said this process aims to achieve,6 is of course debatable. The State reporting procedure cannot be viewed in isolation. States will also have obligations under UN treaties of which they are members, as well as at the regional level. The African Union’s (AU’s) Solemn Declaration on Gender Equality, for example, commits States to submit annual reports on progress in gender mainstreaming7 to the AU Commission8 and indeed many have done so.9 The African Peer Review Mechanism (APRM) similarly encompasses ‘periodic reviews of the policies and practices of participating states to ascertain progress being made towards achieving the mutually agreed goals and compliance with adopted political, economic and corporate governance values, and socio-economic development codes and standards’,10 examined through a State’s self-assessment responses to questionnaires and subsequent country visits. Sub- regional organisations equally have additional reporting obligations.11 There was some discussion, when considering reporting guidelines to the Maputo Protocol on the Rights of Women, that States send to the African Commission not only the reports they had submitted under the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the AU Solemn Declaration and sub-regional initiatives (such as the SADC Protocol), but also additional information on aspects that were distinct to the Maputo Protocol.12 In the end this was not adopted on the basis that such a scheme ‘would create extra work for the commissioners as they would have to read through three other reports. It was also observed that States too would find it a difficult task to make cross-references between the reports’, and that there were not always that many similarities between the regional and international instruments.13 Although the Article 62 process can be justifiably criticised, there are some positives. It has been employed by the individual Commissioners in their capacity as special rapporteurs and members of working groups of the African Commission to probe States on activities they have taken to address thematic issues. In addition, the Commission has asked questions of States around implementation of their decisions on individual communications, noting this in its Concluding Observations;14 pressing and urgent matters; as well 6 See Guidelines for National Periodic Reports, 1989, para 2. G. W. Mugwanya, ‘Examination of State Reports by the African Commission: An appraisal’, 2 AHRLJ (2001) 268–284, at 273. 7 Solemn Declaration on Gender Equality in Africa, July 2004, para 12. 8 Guidelines for Reporting on the AU Solemn Declaration on Gender Equality in Africa, Adopted at the First African Union Conference of Ministers Responsible for Women and Gender, Dakar, Senegal, 12–15 October 2005, AU/MIN/CONF/WG/2  (I). 9 See for statistics on submissions and overview, Abridged Eleventh Report of the African Union Member States and Twelfth Report of the African Union Commission (AUC) Chairperson on the Implementation of the African Union Solemn Declaration On Gender Equality In Africa (SDGEA), 2016. 10 APRM, Guidelines for Countries to Prepare for and to Participate in the African Peer Review Mechanism (APRM), para 10. 11 E.g. SADC Protocol on Gender and Development, 2008, Article 35(4) requires States parties to submit reports every two years to the Executive Secretary of SADC showing what progress has been made in implementing its provisions. 12 J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6–7 August 2009’, 9 AHLRJ (2009) 615–643, at 628. 13 J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6–7 August 2009’, 9 AHLRJ (2009) 615–643, at 628–629. 14 E.g. Concluding Observations on Mauritania’s report, 16 February 2012.

796

38. Article 62: State Reporting

as on contentious issues such as sexual orientation and gender identity, and, prior to it taking up their plight fully, indigenous peoples.15 All of this takes place in a public forum in front of other African States, several hundred civil society organisations from across Africa, national and international NGOs, national human rights institutions (NHRIs), as well as representatives of the AU and UN. The political impact of such an examination, while difficult to measure, should not be underestimated.

B. ‘Every Two Years’ Compared with the requirements under UN human rights treaties, every two years is a burdensome task.16 The M’Baye Draft did not contain a timeframe in which the reports would be required, although it did require that the (at that stage) ‘Inter- African Commission’ establish a ‘programme’ through which ‘all reports shall be rendered . . . within two years of the entering into force’ of the African Charter.17 The two years cited there could be read as applying to time available for the African Commission to determine the scheme, not the regularity of the reports to be submitted by States. Yet, in the subsequent draft, the Dakar Draft, the provision there reflects Article 62 of the ACHPR and sets out the two-year requirement found therein.18 Indeed, if governments are to do this properly then one could argue that two years does not give them sufficient time to achieve this. The difficulty with Article 62 and the reporting procedure is that it aims, on the one hand, to ensure the regularity of exchange with whoever monitors submissions, and yet on the other, this is done through the medium of a written report. In reality, the rather cumbersome procedure of drafting a report at the national level, submitting it to a regional body, being called for an oral presentation, sending a delegation to the session to discuss it, and then following up with written responses (leaving aside other reports that the State may have to submit to other treaty bodies) has not resulted in regularity. Instead, it is arguable that finding others ways to encourage States to engage with the monitoring body, in this case the African Commission, need also to be explored. While a State who offers to hold the session of the Commission in its country is sometimes shamed into then presenting its report at the same time19 (and it could in theory take advantage of the slight unease the African Commissioners may feel criticising the record of their host20) this is only likely to capture a handful of States. The presence of at least twenty-five States at each session (although they may of course not always be the same States) provided they have some opportunity to engage both formally and informally with the African Commission, may repair some of the gaps left by the lack of reporting under Article 62. 15 E.g. questions asked of the Namibian State delegation at the 29th session in Tripoli, Libya, in May 2001, on file with author. 16 F. Viljoen, ‘Review of the African Commission on Human Rights: 21 October 1986 to 1 January 1997’, in C. Heyns (ed) Human rights law in Africa 1997 (1999) 102. 17 18 Article 14 of the M’Baye Draft. Dakar Draft, Article 60. 19 Indeed the 2010 Rules of Procedure, Article 28(3) note that ‘[a]‌ny country wishing to host a session of the Commission should commit itself to respecting the provisions of Article 62’. 20 M. Evans and R. Murray, ‘The State reporting mechanism of the African Charter’, in M.D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, 2nd edition, Cambridge University Press, 2008, 49–75, at 75.

C. ‘A Report on the Legislative and Other Measures Taken’

797

In order to address the deficiencies in the regularity of the reporting under Article 62, the African Commission has adopted a number of measures over the years.21 Firstly, the 1995 Rules of Procedure of the African Commission provided that if the State ‘failed to comply with Article 62’ (by which one presumes it means ‘submit a report’), then in order to encourage the State the African Commission would ‘fix the date for the submission of that State party’s report’.22 Secondly, it has called upon the States themselves to submit their reports, sending them letters23 and adopting resolutions reminding them of their obligations in this regard.24 Thirdly, it has required that States combine several overdue reports into one.25 Fourthly, it has published lists of States which have fulfilled their obligations, and those who have not, in resolutions,26 in its Activity Reports,27 in reports at sessions, and now as a section on its website which colour-codes compliant/ non-compliant States.28 Fifthly, the African Commission has undertaken promotional missions to encourage, among other things, the State to submit its Article 62 report.29 Finally, it has asked that the Assembly and AU organs remind States of their Article 62 obligations,30 a request to which the Executive Council, former Council of Ministers, and Assembly have been prepared to accede.31 The rationale behind continuing to require regular submission of reports is that this will not only ‘enhance the work of the Commission, improve the conditions of the population under their jurisdiction, and contribute to the promotion of the rule of law in Africa’,32 but in recognition that it is not possible for the African Commission to achieve its mandate without the cooperation of States.33

C. ‘A Report on the Legislative and Other Measures Taken’ Adopting the approach that used to be taken by UN treaty bodies, the African Commission in 1989 required that States submit first an ‘initial general report’, and then subsequently a ‘detailed periodic report’.34 This initial report was to be ‘the foundation report on which 21 M. Evans and R. Murray, ‘The State reporting mechanism of the African Charter’, in M.D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights, The System in Practice, 1986–2000, 2nd edition, Cambridge University Press, 2008, 49–75, at 54–56. 22 Rule 81(2) Rules of Procedure, 1995. 23 Rule 76(1) and (2), 2010 Rules of Procedure of the African Commission. 24 E.g. Resolution Reiterating the Importance of Compliance with Reporting Obligations under the African Charter, ACHPR/Res.108, 30 May 2007. 25 See Thirteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1999–2000, AHG/222 (XXXVI), para 19. 26 Resolution Reiterating the Importance of Compliance with Reporting Obligations under the African Charter, ACHPR/Res.108, 30 May 2007. 27 Starting with its Sixth Activity Report of the African Commission on Human and Peoples’ Rights 1992– 1993, adopted on 7 April 1993, para 10. Seventh Activity Report of the African Commission on Human and Peoples’ Rights, 1993–1994, Adopted on 27 April 1994, Annex V. Rule 76(3), 2010 Rules of Procedure of the African Commission. 28 http://www.achpr.org/states/ 29 E.g. Resolution on the Human Rights Situation in Africa, ACHPR/Res.40, 15 November 1999. 30 Resolution Reiterating the Importance of Compliance with Reporting Obligations under the African Charter, ACHPR/Res.108, 30 May 2007. 31 E.g. Resolution AHG/207 (XXVIII). 32 Resolution Reiterating the Importance of Compliance with Reporting Obligations under the African Charter, ACHPR/Res.108, 30 May 2007. 33 Resolution Reiterating the Importance of Compliance with Reporting Obligations under the African Charter, ACHPR/Res.108, 30 May 2007. 34 Guidelines for National Periodic Reports, para 3.

798

38. Article 62: State Reporting

the subsequent ones will be based’ and include a description of ‘programmes and institutions relevant to the substantive provisions of the ACHPR’.35 The periodic report would then report on measures taken, progress made, and ‘difficulties limiting success which they encountered in their efforts’.36 States should also include key legislation, regulations, and judicial decisions.37 Reports ought to note challenges in implementing the African Charter and protocols.38 The African Commission, in addition to its Guidelines on Economic, Social and Cultural Rights (‘Tunis Guidelines’),39 on the Maputo Protocol40 and ‘indicative questions on Article 5’,41 has adopted two sets of general guidelines over the years to assist States in drafting their reports on the presumption that greater clarity on their content will increase compliance with Article 62.42 The first, in 1989, read more like an interpretation of the ACHPR, were rather clunky in their approach43 and oddly included some very detailed provisions on how States should report on the elimination of all forms of racial discrimination, apartheid and discrimination against women in particular, which drew heavily on obligations under the respective UN treaties.44 The result, argues Quashigah, was that they were ‘more likely to confuse than to guide’.45 Recognising that these ‘probably serve as a disincentive to the object’,46 the second set of Guidelines, adopted nearly a decade later, went almost the other way in their brevity, amounting to only one page and simply providing that the initial report should include the history of the State; basic documents such as the constitution, international instruments to which the State was party; and ‘how is the party implementing’ the rights in the Charter, listing general categories but singling out women, children, the disabled and the family.47 Whilst it has adopted specific Guidelines on thematic issues in the context of state reporting, this has only been done in a few discreet instances. For other rights it has simply Guidelines for National Periodic Reports, para 4. Guidelines for National Periodic Reports, para 4. 37 Guidelines for National Periodic Reports, para 5. 38 Rule 73(1), Rules of Procedure of the African Commission 2010. 39 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), 24 October 2011. 40 See 1. Reporting on the Maputo Protocol below. 41 State Periodic Reporting under Article 62 of the African Charter on Human and Peoples’ Rights Indicative Questions to State Parties in respect of Article 5 of the African Charter, http://www.achpr.org/news/ 2016/06/d221/ 42 J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6–7 August 2009’, 9 AHLRJ (2009) 615– 643, at 621. A. Danielsen, The State Reporting Procedure under the African Charter (1994). 43 M. Evans & R. Murray ‘The state reporting mechanism of the African Charter’ in M. Evans & R. Murray (eds) The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2006 (2008) 49, at 63. 44 Guidelines for National Periodic Reports, See R. Murray and M. D. Evans, Documents of the African Commission on Human and Peoples’ Rights, Hart Publishing, Oxford, 2001, pp.49–79. 45 K. Quashigah, ‘The African Charter on Human and Peoples’ Rights: Towards a more effective reporting system’, 2 AHRLJ (2002) 261–300, at 264. 46 Amendment of the General Guidelines for the Preparation of Periodic Reports by States Parties, 23rd Ordinary session, Banjul, The Gambia, 20–29 April 1998, DOC/OS/27 (XXIII), as reprinted in R. Murray and M. D. Evans, Documents of the African Commission on Human and Peoples’ Rights, Hart Publishing, Oxford, 2001, pp.80–81. 47 Amendment of the General Guidelines for the Preparation of Periodic Reports by States Parties, 23rd Ordinary session, Banjul, The Gambia, 20–29 April 1998, DOC/OS/27 (XXIII). See discussion on amendments, R. Murray, ‘Report on the 1997 Sessions of the African Commission on Human and Peoples’ Rights, 19(5-7) Human Rights Law Journal (1998) 169–185, at 184–185. 35 36

C. ‘A Report on the Legislative and Other Measures Taken’

799

highlighted particular issues States should include in their Article 62 reports. For example, in a 1995 resolution on prisons it urged States to ‘include in the reports submitted to the Commission under Article 62 of the Charter information on human rights affecting the human rights of prisoners’.48 In addition, when considering the abuses committed on the continent against persons with albinism, it has similarly requested that States include in the State report ‘information on the situation of persons with albinism including good practices in protecting and promoting the rights of persons with albinism’.49 As a result, the content of reports has varied considerably in length, size, comprehensiveness and honesty.50 Some of the earlier reports were often brief, for example, Nigeria’s initial report covering 1992–1994 amounted to twenty-five pages,51 in contrast with that of Tunisia which reached 104.52 More recent reports tend to be greater in depth and consequently length.

1. Reporting on the Maputo Protocol Article 26 of the Maputo Protocol places the reporting of its provisions under the supervision of the African Commission requiring States to include the measures they have taken to implement the Protocol in their Article 62 reports. With, as at June 2018, thirty- nine States now party to the Protocol, this is a further burden the African Commission must consider how to manage. In November 2009 it adopted the Guidelines on the Maputo Protocol, crafted with the assistance of the eminent Centre for Human Rights at the University of Pretoria, and intended to bring ‘clarity and precision to the reporting process’ under the Protocol.53 Unlike the 1989 Guidelines on National State Reporting and the Tunis Guidelines, which offered detailed interpretation of the provisions of the ACHPR, the Guidelines for the Maputo Protocol are more functional. They require that the State submit its Article 62 report in two parts, the first (Part A) covering all aspects of the ACHPR, the second (Part B) dealing with the Maputo Protocol. Here for the first time the African Commission also gives a page limit to States for Part B: fifty pages for the initial report, and thirty pages for the periodic reports.54 Initial reports should include reference to how the report was prepared as well as the legal framework in the State (the relationship between international law and national law; reservations to the Protocol and State institutions and instruments), before dealing with each of the specific provisions in the Resolution on Prisons in Africa, ACHPR/Res.19, 22 March 1995. Resolution on the prevention of attacks and discrimination against persons with albinism, ACHPR/ res.263, 5 November 2013. 50 See F. Viljoen, ‘Examination of state reports at the 27th session of the African Commission on Human and Peoples’ Rights: A critical analysis and proposals for reform’, 16 South African Journal on Human Rights (2001) 576–585, at 581. 51 The Periodic Report on Nigeria’s Human Rights Record to the African Commission on Human and Peoples’ Rights, 1 April 1993. 52 Premier Rapport Periodique de la Tunisie Au Titre de l’article 62 de la Charte Africaine des Droits de l’Homme et des Peuples, 1er volume, Mars 1995. 53 J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6–7 August 2009’, 9 AHLRJ (2009) 615–643, at 616. 54 Guidelines for State reporting under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. See discussion on this issue J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6-7 August 2009’, 9 AHLRJ (2009) 615–643, at 632–634. 48 49

800

38. Article 62: State Reporting

Protocol. With regard to the latter, States should provide relevant legislation, administrative measures, institutions and policies and programmes as well as other measures taken to implement the rights, remedies, challenges, accessibility and disaggregated statistics. The rights are grouped together into eight themes. For periodic reports, the Guidelines are short: States should include in their reports measures implementing and publicising the previous Concluding Observations, as well as implementing of any recommendations made by special mechanisms during country visits; progress in implementation more generally; challenges faced in doing so; and future plans. As Biegon points out, prior to the Guidelines being produced, for the States who were party to the Maputo Protocol and that had submitted Article 62 reports to the African Commission, their reports centred the discussion of women’s rights around Article 18(3) and not the provisions of the Protocol thereby they ‘simply ignored their reporting obligations under the Protocol, or alternatively, they have erroneously presumed that the obligation is duly discharged when they deal with Article 18(3) in their report’.55 A snapshot of recent State reports reveals the positive impact of the Maputo Guidelines, with States now including separate sections on the Protocol alongside their presentation of the provisions of the ACHPR.56

2. Reporting under the Tunis Guidelines on Economic Social and Cultural Rights Adopted in October 2011 these Guidelines were intended to ‘give further guidance to states parties . . . on the implementation of their obligations to realise the enjoyment of economic, social and cultural rights under the Charter’ and are to be used ‘in conjunction with the 1989 general Guidelines’.57 The Tunis Guidelines sit between the 1989 Guidelines on National State Reporting and the Maputo Protocol Guidelines, providing as they do some detailed interpretation of each of the economic, social and cultural rights, as well as a section on the types of documents and information each report should contain. The Maputo Protocol clearly mirrors the recommendations in the Tunis Guidelines that States, for example, must indicate national legislation, how international law relates to national law, and provide information on remedies, as well as give statistics.

D. The Procedure The State will draft the report at the national level. Questions have been asked by the African Commission during the oral examination about the manner in which the reports have been drafted and who was included in the process.58 This report will then be 55 J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6–7 August 2009’, 9 AHLRJ (2009) 615–643, at 624–625. 56 E.g. Republic of Togo, 6th, 7th and 8th Periodic Reports of the State of Togo on the Implementation of the African Charter on Human and Peoples’ Rights (Article 62 of the Charter) August 2017; Islamic Republic of Mauritania, 10th, 11th, 12th, 13th and 14th Periodic Reports of the Islamic Republic of Mauritania on the implementation of the provisions of the African Charter on Human and Peoples’ Rights, July 2016. 57 State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines), para 1. 58 See e.g. in relation to South Africa’s initial report, F. Viljoen, ‘State reporting under the African Charter on Human and Peoples’ Rights: A boost from the south’, 44 JAL (2000) 110–118, at 115.

D. The Procedure

801

submitted to the Secretariat of the African Commission. The 2010 Rules of Procedure provide that both the report and ‘additional information submitted by States parties under Article 62’ are considered to be ‘documents for general distribution’.59 Further, these are documents which should be ‘in the working languages of the African Union’.60 If anyone addresses the Commission in a language other than a working language, they are required to ensure the interpretation into an AU language,61 but what the Rules do not clarify is who is to undertake the translation into other working languages. In reality there is no consistency in which languages each report will be available. It may sometimes depend on the country, particularly if the report has originally been produced in Arabic or Portuguese, they will often be translated into either French or English. With the presence of Lusophones on the African Commission the demand for more documents to be produced in this language also increased, particularly given that the Commissioners will each be responsible for several State reports. Certainly there have been occasions in the past where reports have not been translated in languages sufficient to enable all Commissioners to participate in the process.62 For many years the reports were not available prior to the session at which they would then be examined, particularly in the early days of the internet, leaving those interested in seeing an advance copy (for example in order to be able to write a shadow report) having to seek it direct from the State.63 As the African Commission’s website developed, so it is now usual for reports to be placed there, sometimes a month or so, prior to, the session in line with Rules 61(2) and 74(1) of the 2010 Rules of Procedure. Shadow reports are encouraged64 but are not, however, also included on the website and so it is difficult to ascertain how many organisations and NHRIs make use of this opportunity. Rule 75(5) stipulates that during consideration of the State report ‘the Commission shall explore all the pertinent information relating to the human rights situation in the State concerned, including statements and shadow reports from National Human Rights Institutions and NGOs’. There is clear evidence that the African Commission regularly draws upon comments and submissions by civil society organisations and others in the questions it asks during the examination. Rule 74(3) enables the Secretary to invite ‘specific institutions to submit information relating to the state report within a time limit that he/she may specify’.65 Whether this has been done is not made publicly available. Once the report has been received, Rule 75(1) of the 2010 Rules of Procedure provides that the ‘Chairperson of the Commission shall, through the Secretary inform States Parties of the opening date and venue of the session at which their respective reports shall 60 Rule 61(2). Rule 61(2). Rule 36(1), Rules of Procedure of the African Commission, 2010. 62 See e.g. re the reports of Algeria, Mozambique and Mauritius at the 19th Ordinary Session, R. Murray, ‘Report on the 1996 Sessions of the African Commission on Human and Peoples’ Rights –19th and 20th Ordinary Sessions: 26 March–4 April, and 21–31 October 1996’, 18(1-4) Human Rights Law Journal (1997) 16–27, at  24–27. 63 M. Evans and R. Murray, ‘The State reporting mechanism of the African Charter’, in M.D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights, The System in Practice, 1986–2000, 2nd edition, Cambridge University Press, 2008, 49–75, at 71. 64 Rule 74(2) of the 2010 Rules of Procedure reads: ‘Institutions, organizations or any interested party wishing to contribute to the examination of the Report and the human rights situation in the country concerned, shall send their contributions, including shadow reports, to the Secretary at least 60 days prior to the examination of the Report.’ 65 See also similarly, 1995 Rules, Rule 82. 59 61

802

38. Article 62: State Reporting

be considered’ and States are required to send representatives to present their report at the session.66 It is to be noted that this Rule does not require that the Commission identify a specific day and time for the examination of the report and it is not clear if the African Commission provides this information to the State in practice. Draft and final agendas of these sessions are produced and published on the website of the African Commission usually a couple of weeks in advance. Yet, it is still common for the agenda to be changed, a few days in advance or even on the day itself. In addition, travel from some parts of Africa across the continent is still notoriously difficult and unreliable resulting in it being common for State delegates being unable to arrive on time for their examination. While the African Commission does appear to make efforts to accommodate changes in schedule these logistical challenges inevitably impact on the efficiency of the State reporting process. States have arrived with varying sizes of delegations and with varying seniorities and knowledge of the reports. These have included, for example, at one end of the spectrum, a lawyer from the Attorney General’s office with the Ambassador of Zimbabwe in Dakar, to present the second and third periodic reports,67 to the large team including the Permanent Secretary of the Ministry of Justice of Zambia in the Gambia at the 41st Ordinary Session in May 2007. Clearly ministerial level delegations not only provide some indication of the seriousness with which they take the African Commission, but also anything that the African Commission asks is more likely to be noted and potentially acted upon at home. The 1995 Rules, Rule 83, specifically required that the representative sent by the State to the session ‘should be able to reply to questions put to him/her by the Commission’, thus presuming a certain level of seniority of the delegate. The omission of this in the 2010 Rules may be explained by the higher level of representative chosen by States that appears to have increasingly become the norm. On one occasion with the particularly recalcitrant Seychelles, the African Commission decided to examine its report in the absence of the State.68 Seychelles submitted its initial report in September 1994. The African Commission held a session in October 1996 in nearby Mauritius,69 and in 1999 it noted that ‘despite repeated demands made to its Government, has refused, on several occasions, to abide by the Commission’s request, under the pretext that the resources to implement such an obligation were not provided by the State’.70 Considering that this ‘persistent behaviour represents a deliberate violation of the Charter’, and condemning ‘this unspeakable behaviour on behalf of an OAU Member State, party to the Charter’ it urged the OAU Assembly also to express its disapproval.71 The State then submitted its second periodic report covering the period of Rule 75(2), 2010 Rules of Procedure. See R. Murray, ‘Report on the 1997 Sessions of the African Commission on Human and Peoples’ Rights, 19(5-7) Human Rights Law Journal (1998) 169–185. 68 Resolution concerning the Republic of Seychelles’ Refusal to Present its Initial Report, ACHPR/Res.39, 5 May 1999. See also R. Murray, ‘Report on the 1998 Sessions of the African Commission on Human and Peoples’ Rights’, 21 HRLJ (2000) 374–398, at 378–379. 69 20th Ordinary Session. 70 Resolution concerning the Republic of Seychelles’ Refusal to Present its Initial Report, ACHPR/Res.39, 5 May 1999. 71 Resolution concerning the Republic of Seychelles’ Refusal to Present its Initial Report, ACHPR/Res.39, 5 May 1999. The Assembly makes no reference to this specific request when adopting the African Commission’s report at its Summit in July 2009, although it does call on all States to fulfil their obligations and lend assistance to the African Commission, see Decision on the African Commission on Human and Peoples’ Rights: Twelfth Annual Activity Report, AHG/Dec.133 (XXXV). 66 67

D. The Procedure

803

1994–2004, in January 2004.72 One of the objectives of the promotional mission to the country later that year in July 2004 was to persuade it to attend a session to present its Article 62 report.73 Despite this ongoing encouragement, and numerous opportunities to send a representative, the African Commission eventually ran out of patience: The Initial Report of the Republic of Seychelles was considered in the absence of the State since the State of Seychelles did not send a representative to the Session. The Initial Report of the Republic of Seychelles was received by the Secretariat of the Commission on 21st June 2004 and was scheduled for consideration at the 36th, 37th and 38th Ordinary Session. However, this Report was not considered due to the absence of the Republic of Seychelles to present the Report, despite several reminders. Consequently, the African Commission decided to examine this Report in the absence of the Seychelles delegation. The Commission regretted the fact that it had not been afforded the opportunity to have constructive discussions with the Member State.74

Concluding Observations were adopted at the 39th Ordinary Session in May 2006. Still by 2015 when it undertook a further promotional mission to the country, it was reminding the State of its obligation to submit, by then five, overdue reports.75 Why it chose to take such a drastic response to Seychelles and not to others who have been, arguably, equally remiss in fulfilling their Article 62 obligations76 is not entirely clear. Its comments on the relative wealth of this State compared with others on the continent who have submitted and presented their reports may help to explain the African Commission’s approach, as might the geographical proximity of one of the sessions in 1996 to Seychelles which did not go unnoticed. In an attempt to address this issue, Rule 75(4) of the 2010 Rules of Procedure specifies that ‘[i]‌f a State Party fails to send a representative to the session of the Commission at which its report is to be examined, consideration of the report shall be rescheduled for the next session. If, at the said session, the concerned State Party, after due notification, fails to send a representative, the Commission shall consider the State Report’. In reality the African Commission tends to give States considerable leeway and has so far not enforced this provision perhaps reflecting its preference for constructive dialogue over confrontation certainly in the context of Article 62. If the State does send a representative, then the examination will take place during the public part of the session. It usually lasts for around two to three hours, and this has not changed over the years. It is now more formalised than it was previously, with the head of the State delegation being given around ten minutes to make their presentation; this is then followed by questions from Commissioners, lead first by a Commissioner ‘rapporteur’ selected to lead on the report, and then followed by other Commissioners in turn. Commissioners who are special rapporteurs or chairs of thematic working groups tend to be the ones to ask questions around their particular mandates. This may result in 72 Report by the Government of the Republic of Seychelles to the African Commission on Human and Peoples Rights. Pursuant to Article 62 of the African Charter on Human and Peoples’ Rights, 1994–2004. 73 Report of the Promotional Mission to the Republic Of Seychelles, July 2004, p.6. 74 Twentieth Activity Report of the African Commission on Human and Peoples’ Rights, June 2006, EX.CL/279 (IX), paras 12 and 13. 75 Report of the Human Rights Promotion Mission to the Republic of Seychelles, 6–10 April 2015, para 239. 76 See e.g. failure of other States to send representatives to present their reports: S. Malstrom & G. Oberleitner, ‘18th ordinary and 2nd extra-ordinary session of the African Commission on Human and Peoples’ Rights. (1996) 14 Netherlands Quarterly of Human Rights 93; K. Quashigah, ‘The African Charter on Human and Peoples’ Rights: Towards a more effective reporting system’, 2 AHRLJ (2002) 261–300, at 276–277.

804

38. Article 62: State Reporting

some grouping of themes, but this appears to be more by chance than design and it has happened, particularly given that Commissioners can ask twenty or thirty questions at a time, that some questions are repeated by different Commissioners. One presumes that the State has received these questions in advance, although there is nothing to stop each Commissioner from posing additional questions on the day if they so wish and indeed this may be particularly useful if there has been a recent or imminent activity in the State about which they Commission would like further information. There tends to be no statement from the Commission at the time as to their thoughts on the content of the report, but one can sometimes tell by the tenor of the questions and the way in which they are posed what the individual Commissioner, even if not the whole Commission, thinks about a particular issue.77 After this list of questions, which can take over an hour, the State is then given a period to consider its responses. Depending on the time of day, this may be the break or lunch period or overnight, to return the next morning. The State will then give its answers and the different members of the delegation may share responding to the questions. Again, there is no consistency in how they choose to do so and they may not always follow the order in which the Commissioners asked the questions. It is therefore difficult to keep track, if one is listening to the responses, on whether the State has indeed answered all the questions posed. On some occasions, but not all, the Commissioners, in particular the rapporteur, may come back at the end of these answers, to pick up on a few issues which were not addressed by the State, and occasionally the State may respond back again. However, the main ‘dialogue’ between the Commission and the State is in the set of questions posed and then the set of responses given, not, as one might imagine (and which might be considerably more effective) a one-question/one-answer process. A record of the oral examination is not provided by the Commission so unless one is present in the room one is reliant on other sources of information produced by those who are.78 Information provided by the African Commission is extremely limited and amounts to little more than passing references in the final communiqué or the Concluding Observations, if they are made available. The State delegate will then return home. The Commission’s Rules make no reference to the requirement that States provide written answers subsequent to the oral examination, although the African Commission has asked States to send them.79 These are not made public. The African Commission will then produce Concluding Observations on the report.80 The 2010 Rules of Procedure cites the existence of ‘Guidelines of the 77 See re oral examination of the reports at the 27th Session: F. Viljoen, ‘Examination of state reports at the 27th session of the African Commission on Human and Peoples’ Rights: A critical analysis and proposals for reform’, 16 South African Journal on Human Rights (2001) 576–585. 78 See e.g. F. Viljoen, ‘Examination of state reports at the 27th session of the African Commission on Human and Peoples’ Rights: A critical analysis and proposals for reform’, 16 South African Journal on Human Rights (2001) 576–585; R. Murray, ‘Report on the 1997 Sessions of the African Commission on Human and Peoples’ Rights, 19(5-7) Human Rights Law Journal (1998) 169–185; R. Murray, ‘Report on the 1996 Sessions of the African Commission on Human and Peoples’ Rights: –19th and 20th Ordinary Sessions: 26 March–4 April, and 21–31 October 1996’, 18(1-4) Human Rights Law Journal (1997) 16–27; R. Murray, ‘Report of the 1999 Sessions of the African Commission on Human and Peoples’ Rights’, 22 HRLJ (2001) 172–198; R. Murray, ‘Report on the 1998 Sessions of the African Commission on Human and Peoples’ Rights’, 21 HRLJ (2000) 374–398. 79 See e.g. Concluding Observations and Recommendations on the 4th and 5th Periodic Report of the Republic of Sudan, para 20 which notes that the State did not commit to providing written responses. 80 Rule 77(1), Rules of Procedure of the African Commission 2010.

D. The Procedure

805

Commission on Concluding Observations’,81 but this appears to be an internal document and not available publicly. The Concluding Observations are to be sent to the State within thirty days after the conclusion of the Session at which they are adopted,82 which could of course be different from the Session at which the report was examined. Despite the 1995 Rules of Procedure making reference to the possibility of the Commission issuing ‘general observations’ (now termed ‘Concluding Observations’) following examination of the report,83 this practice did not take place straight away84 and has not been applied consistently. The 2010 Rules require that the Concluding Observations be included in the Commission’s activity report and posted on the website after adoption of the report,85 yet again the former has not happened and the latter, randomly. As a result not all Concluding Observations are available in the public domain and it is not clear why, whether this is deliberate or there is simply a lack of available resources to make them available on the website (or to ensure that the links to them are maintained). The content of the Concluding Observations has changed over the years. When they were first produced they tended to be a few pages in length,86 and whilst critical did not always cover all the gaps missed by the State during the oral examination nor in its actual report. Later Concluding Observations have more depth. For example, Concluding Observations adopted in 2016 in response to South Africa’s combined reports ran to nearly thirty pages and after outlining the composition of the delegation presenting the report at the session, went on to highlight an extensive list of positive developments under various headings, before looking at issues restricting the enjoyment of human rights and concerns. Recommendations were both specific (for example, adopt a declaration under Article 34(6) of the Protocol Establishing the African Court) and general (e.g. ‘expedite the process of land acquisition and distribution’).87 Once this procedure has been completed, for many States this will be the end of the ‘dialogue’ with the Commission under Article 62 at least for a significant number of years. There are various measures that have been put in place to ensure that the adoption of the Concluding Observations does not mean the end of the process. Rule 78 of the African Commission’s Rules of Procedure require that the Commission identify, within them, ‘issues that require urgent attention on the part of the State Party’, as well as the date of the next periodic report.88 In practice this does not appear to have been done rigorously.89 Commissioners are required to follow up implementation of the 82 Rule 77(2). Rule 77(3), Rules of Procedure of the African Commission 2010. Rule 85(3) and 86(2), Rules of Procedure of the African Commission, 1995. 84 For example, see in relation to South Africa’s initial report in 2000, F. Viljoen, ‘State reporting under the African Charter on Human and Peoples’ Rights: A boost from the South’, 44 JAL (2000) 110–118. 85 Rule 77(3), Rules of Procedure of the African Commission 2010. 86 E.g. Consideration of Reports submitted by States Parties under the Terms of Article 62 of the African Charter on Human and Peoples’ Rights, Concluding Observations and Recommendations on the Initial Report of the Republic of Niger, Thirty-Fifth Ordinary Session, 21 May–4 June 2004, in Banjul, The Gambia. This was five pages long. 87 Concluding Observations and Recommendations on the Combined Second Periodic Report under the African Charter on Human and Peoples’ Rights and the Initial Report under the Protocol to the African Charter on the Rights of Women in Africa of the Republic of South Africa, adopted 18 June 2016. 88 Rules of Procedure of the African Commission 2010. 89 E.g. the Concluding Observations in relation to Liberia’s periodic report in 2015 simply mention the need to submit its report in a ‘timely’ fashion but does not give the exact date, Consideration of Reports Submitted by State Parties under Article 62 of the African Charter on Human and Peoples’ Rights, Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Liberia on the Implementation of the African Charter on Human and Peoples’ Rights, 28 February 2015. 81 83

806

38. Article 62: State Reporting

recommendations when on their promotional visits to States and as part of their promotional mandate, and the Assembly of the AU is also be informed by the Commission of the Concluding Observations.90

E. Conclusion While the African Commission, with its increasingly detailed questions and comments during the State reporting examination and in the Concluding Observations, appears to have addressed criticisms in the early 2000s that it should ‘adopt a more critical examination and assessment attitude’,91 there are still concerns with the Article 62 procedure. The extent to which the dialogue is an effective one is difficult to measure when the documentation relevant to the Article 62 process is not always consistently available. There are now numerous guidelines, both general and thematic, which do not necessarily ‘speak to each other’.92 Written responses from States are not seen and Concluding Observations are not always produced or disseminated publicly. The State may be having this in-depth discussion with the African Commission but not all of that conversation is public. If this were the only procedure available under the ACHPR to monitor State compliance with its obligations this would be concerning. However, in combination with the other mechanisms that the African Commission has developed over the years, and with the advent of the Court, it is perhaps better to consider it a sometimes-useful tool in the African Commission’s box of means of interacting with the State.

Rule 78, Rules of Procedure of the African Commission 2010. K. Quashigah, ‘The African Charter on Human and Peoples’ Rights: Towards a more effective reporting system’, 2 AHRLJ (2002) 261–300, at 279. 92 J. Biegon, ‘Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review of the Pretoria Gender Expert Meeting, 6–7 August 2009’, 9 AHLRJ (2009) 615–643, at 636. 90 91

39. Articles  63–68 Signature, Ratification and Adherence, Reservations and Protocols Article 63 The present Charter shall be open to signature, ratification or adherence of the Member States of the Organisation of African Unity. The instruments of ratification or adherence to the present Charter shall be deposited with the Secretary General of the Organisation of African Unity. The present Charter shall come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority of the Member States of the Organisation of African Unity.

force, the Charter shall take effect three months after the date of the deposit by that State of the instrument of ratification or adherence.

PART III: GENERAL PROVISIONS

Article 68 The present Charter may be amended if a State Party makes a written request to that effect to the Secretary General of the Organisation of African Unity. The Assembly of Heads of State and Government may only consider the draft amendment after all the State Parties have been duly informed of it and the Commission has given its opinion on it at the request of the sponsoring State. The amendment shall be approved by a simple majority of the State Parties. It shall come into force for each State which has accepted it in accordance with its constitutional procedure three months after the Secretary General has received notice of the acceptance.

Article 64 After the coming into force of the present Charter, members of the Commission shall be elected in accordance with the relevant Articles of the present Charter. The Secretary General of the Organisation of African Unity shall convene the first meeting of the Commission at the Headquarters of the Organisation within three months of the constitution of the Commission. Thereafter, the Commission shall be convened by its Chairman whenever necessary but at least once a year. Article 65 For each of the States that will ratify or adhere to the present Charter after its coming into

Article 66 Special protocols or agreements may, if necessary, supplement the provisions of the present Charter. Article 67 The Secretary General of the Organisation of African Unity shall inform members of the Organisation of the deposit of each instrument of ratification or adherence.

A. Introduction The African Charter was adopted on 1 June 1981 and came into force on 21 October 1986. As at June 2018 there were fifty-four States Parties, with the newly independent South Sudan being the last to deposit its instrument of ratification in 2016. This is near universal ratification with the exception of Morocco. The content of these latter provisions of the African Charter on Human and Peoples’ Rights (ACHPR) are crucially important at the start of treaty’s journey, but can tend, once the treaty comes into force, to have little relevance. As will be revealed below, Articles 6368 went through a number of changes during the drafting of the Charter, ultimately their final form was to persuade States to ratify and to do so as quickly as possible.

808

39. Articles 63–68

A provision found in an earlier draft of the ACHPR on denunciation of the Charter was not included in the final version. Article 61 of the M’Baye Draft permitted States Parties to ‘denounce this Charter at the expiration of a five-year period starting from the date of its entry into force by means of a notice given one year in advance. Notice of the denunciation shall be addressed to the Secretary-General of the Organization of African Unity who shall inform the other States Parties’. Such a denunciation would result in ‘releasing the State Party concerned from the obligations contained in this Charter with respect to any act that may constitute a violation of those obligations that have been taken by that state prior to the effective date of denunciation’. No similar provision nor indeed any article on withdrawal is included in the final version and no explanation in the drafting materials is provided as to why.

B. Signature, Ratification, Deposit of Instruments and Coming into Force Article 63 requires that the ACHPR will come into force three months after a simple majority of States of the Organisation of African Unity (OAU) have ratified or adhered to it. In the drafting of the instrument this was considered to be ‘too high’.1 Yet this was not amended and in fact differs from the additional protocols to the Charter where fifteen ratifications are required.2 The African Commission has celebrated a number of anniversaries of the ACHPR and its own establishment. These have been used, in more recent years, to enable it to take stock of its activities.3 ‘African Human Rights Day’ also now takes place on 21 October each year, to mark the coming into force of the ACHPR and on the basis that such occasions ‘make it possible to widely disseminate the regional or international instruments, and the human rights and fundamental liberties they proclaim, and revive interest in these rights and liberties as well as promote a better awareness thereof ’.4 The African Charter comes into force for the State three months after the deposit of the instrument of ratification.5 Article 65 has been said by the African Commission, to commit the State ‘to applying in full’ the ACHPR.6 Conversely, it has been employed by States in communications to argue

1 Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia, 7–19 January 1981). 2 E.g. Protocol to the African Charter on Human and Peoples; Rights on the Rights of Older Persons in Africa, Article 26(1). Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 29. Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Article 34(3). 3 E.g. 61st Ordinary Session, November 2017, where the African Commission celebrated its 30th anniversary: Final Communiqué of the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017; 25th anniversary of the African Commission: Final Communiqué of the 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, held in Yamoussoukro, Côte D’Ivoire, from 9–22 October 2012. 4 Resolution on the Celebration of an African Day of Human Rights, ACHPR/Res.1, 14 April 1989. See also, e.g. Statement by the African Commission on Human and Peoples’ Rights on Africa Human Rights Day, 21 October 2015. 5 E.g. Cameroon deposited its instrument of ratification on 18 September 1989 and the Charter came into force on 18 December 1989, Cameroon: Initial Report, 2001–2003, 1 June 2004, para 2. 6 Republic of Angola, Implementation of the African Charter on Human and Peoples’ Rights, Report, Luanda, August 2010, para 37.

C. Reservations and Declarations

809

that violations alleged to have begun prior to the entry into force for that particular State will not be ratione temporis and therefore the African Commission will not have jurisdiction to examine the case.7 For example, Mozambique in one case submitted that the alleged victim was arrested in October 1974 prior to the ACHPR coming into force for that State on 22 February 1989.8 The African Commission has held that ‘[i]‌n principle, a State cannot be held liable for events which occurred before the applicability of the Charter to it’.9 Where the matters giving rise to the allegations have been found to continue beyond the date of entry into force, the African Commission has found a violation of the ACHPR.

C. Reservations and Declarations The M’Baye Draft contained a provision permitting reservations provided that they were ‘in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969’.10 The explanation given for its inclusion was to encourage the swift entry into force of the Charter, the provision being considered ‘an innovation; but it is a device intended to reduce the negative effects of a long period of time lapse before a given number of ratifications could be registered’.11 Subsequent drafts did not contain an explicit reservation clause and although there is no express explanation as to why it was deleted, an examination of discussion around other provisions reveals that there was an attempt to reach consensus on all the articles so as to avoid the need for any reservations to the treaty as a whole. For example, when discussing Article 4 and the right to life in the drafting of the final version of the Charter: Some delegations (Angola, Cape Verde, Guinea Bissau and Mozambique) made some reservations on this article. The Chairman, at the request of some delegations, insisted that the principle of consensus which prevailed during discussions be maintained and the spirit of dialogue be kept up so that participants might avoid making reservations.12

States were encouraged at this meeting to withdraw their reservations to various parts of the Charter, focusing on particular provisions which appeared to raise the most concern.13 Tanzania, Burundi, Kenya, Zambia and Ghana reasserted their reservations,14 although of these only Zambia made a formal reservation to the African Charter. Its reservation

See further Chapter 34 (Article 56). Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v Mozambique, 1 April 2011, paras 53–55. 9 Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa, 18 October 2013, para 74. 10 Article 58, M’Baye Draft. 11 The draft was prepared for the Meeting of Experts in Dakar, Senegal from 28 November to 8 December 1979, by Kéba Mbaye. CAB/LEG/67/1, Introduction. 12 Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia, 7–19 January 1981), Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, para 38. 13 E.g. the mandate of the African Commission to interpret the ACHPR and serious and massive violations under Article 58. Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia, 7–19 January 1981), Annex II, Rapporteur’s Report, CAB/LEG/67/ Draft Rapt. Rpt (II) Rev.4, para 118. 14 Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia, 7–19 January 1981), Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, paras 121–125. 7 8

810

39. Articles 63–68

focused on different issues than those over which it had raised concerns in the drafting of the ACHPR.15 It reserved that Article 13(3) should read: ‘Every individual shall have the right of access to any place, services or public property intended for use by the general public’, the purpose of this being ‘to exclude any claim for the right to use by all citizens of all public property other than as fairly established’.16 It stated that Article 37 should instead read: ‘Immediately after the first election the Chairman of the Assembly of Heads of State of the Organisation of African Unity shall announce the names of those members referred to in Article 36’, in order to ‘avoid calling on the Chairman, who is after all a Head of State, carrying out the rather menial exercise of drawing lots. It being understood that the Secretary-General of the Organisation of African Unity would draw such lots’. Finally, it wished for an extra article to be inserted to read: After the establishment of the Commission all members of the OAU not ratifying or adhering to the Charter shall submit reports to the Commission, at appropriate intervals, on the position of their laws and practices in regard to the matters dealt with in the Charter, showing the extent to which effort has been given, or is proposed to be given, to any of the provisions of the Charter by legislation or administrative action and stating the difficulties which prevent or delay ratification or adherence to the Charter.

The purpose of this was to ensure ‘early universal ratification of the Charter’ and that ‘all members of the OAU should carry some responsibility, under the Charter, for the state of human and peoples’ rights in their respective countries’.17 Two other States submitted reservations to the Charter and these were not among the list of those who the drafting reports cite as expressing reservations previously. Egypt’s reservation related to Articles 8(3) and Articles 18(3), which it considered should be subject to Islamic law and Article 9 which should be subject to Egyptian national law.18 South Africa’s reservation is of a slightly different character, perhaps not surprising in light of the recent dismantling of apartheid and the commitment of the new regime at that time to human rights and to rejoining continental organisations. It thus in its reservation stated that there should be ‘consultation between States parties to the Charter, inter alia, to: consider possible measures to strengthen the enforcement mechanisms of the Charter; clarify the criteria for the restrictions of rights and freedoms recognised and guaranteed in the Charter; and bring the Charter into line with the United Nations’ resolutions regarding the characterisation of Zionism’.19 The African Commission has made relatively little comment on the compatibility of these reservations with the ACHPR. It has called on Egypt to withdraw the reservations ‘particularly those on the equality of women’, but without giving any further reasoning.20 However, in a decision on a communication in 2018 relating to the practice of the Baha’i faith in Egypt, the issue of the reservation arose.21 Highlighting particular words in the

15 In the final version, Articles 58 and 63, see Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’ Rights (Banjul, The Gambia, 7–19 January 1981), Annex II, Rapporteur’s Report, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, paras 124. 16 17 18 Reservation of Zambia. Reservation of Zambia. Reservation of Egypt. 19 Reservation of South Africa. 20 Egypt: 7th and 8th Periodic Reports, 2001–2004, Concluding Observations, 10 February 2014 37th Ordinary Session, para 24. 21 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, paras 149–167.

D. Sessions

811

reservation: ‘Having accepted all the provisions of the African Charter . . . with the reservation that Article 8 . . . be implemented in accordance with Islamic law’, the African Commission held that the intention of the State was to ‘modify the legal effects of the guarantees of Article 8’ and was hence a reservation.22 The Commission further considered that it does have the power to ‘assess and pronounce its views on the validity of a reservation to the Charter’, inherent in its interpretative mandate.23 Consequently, in accordance with Article 19 of the Vienna Convention on the Law of Treaties, and noting the generality of the reservation with respect to domestic/Islamic law, the latter did not recognise the Baha’i faith as a religion. As the reservation of the State affected a specific aspect, the freedom to manifest a non-recognised religion, of a particular right (Article 8), this did not impact on the African Charter’s ‘raison d’être’.24 Accordingly, the reservation to Article 8 was not incompatible with the object and purpose of the treaty. More generally, and conversely, the African Commission has stated that if States have adopted the ACHPR without reservation they have ‘thus agreed to accept the authority and the essential role of the Commission in the promotion and protection of Human and Peoples’ Rights throughout Africa’.25 This could be read as implying that reservations questioning the African Commission’s authority would stand, but without further explanation and clarification this is an unwise and unlikely conclusion.

D. Sessions The only provision in the ACHPR which explicitly deals with the holding of sessions is Article 64, although inevitably Article 45 is of some relevance here. The first session of the African Commission, according to Article 64 was to be convened by the Secretary- General of the OAU within three months of the Commission being constituted (they were elected at the 29th Ordinary Session of the Assembly of the OAU in July 1987, and this did indeed happen, albeit just over the three months required, on 2 November 1987 in Addis Ababa, Ethiopia).26 Subsequent sessions are to be held ‘whenever necessary but at least once a year’.27 In fact, from the start, the African Commission chose to hold sessions at least twice a year,28 in the first and latter half of each year.29 The first extraordinary session was held in June 1989, and not until December 1995 did it hold another extraordinary one.30 With a recognition that it needed to deal with the backlog 22 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 152. 23 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 154. 24 Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 164–165. 25 Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States Parties, ACHPR/Res.97, 29 November 2006. 26 First Activity Report of the African Commission on Human and Peoples’ Rights, adopted 28 April 1988, para 7, as reprinted in R. Murray and M. Evans, Documents of the African Commission on Human and Peoples’ Rights, Hart Publishing, Vol.1, 2001, 129–171. 27 Article 64. 28 Rule 2, 1988 Rules of Procedure of the African Commission on Human and Peoples’ Rights. Rule 26(1), 2010 Rules of Procedure. 29 Subsequently, three sessions were held in 1988 and three again in 1989 (although one of these was an extraordinary session), and thereafter it reduced this to two per year. 30 The third extraordinary session was held in September 2004.

812

39. Articles 63–68

of communications, it has, since 2008, held mostly a further two extraordinary sessions per year.31 The earlier sessions varied in length from one day (the first session) to nine or ten days, increasing to two weeks in November 1999 and continuing in this vein since,32 although the African Commission has recently recommended Ordinary Sessions run for twenty-one days each and extraordinary for fifteen days.33 Impacting positively on maximising its visibility, the African Commission has always held sessions across the African continent in addition to the host State, The Gambia.34 It has not been afraid of travelling to countries which are experiencing conflict (e.g. Burundi in May 1999) and has covered the length and breadth of the continent. The Rules of Procedure enable the African Commission to hold sessions at the headquarters of the African Union (AU),35 but as at June 2018 it has only made use of this opportunity twice.36 Not all Member States have hosted a session, perhaps predictably given that it is an expensive endeavour,37 and some States, in addition to The Gambia, have accommodated the meetings more than once.38 Holding sessions away from the headquarters inevitably poses logistical challenges but it has the benefit of enabling local organisations to attend the discussions. Although authorities in some situations have attempted to prevent civil society organisations from the home State in particular from attending the sessions, blocking their access to the meeting hall,39 the result of this presence in the State has prompted human rights NGOs and civil society organisations to subsequently apply for observer status and has stimulated the submission of communications and other forms of engagement with the African Commission. Rule 29 of the 2010 Rules of Procedure requires that the Secretary inform Commissioners at least sixty days before the Session of the dates and venue of the Ordinary Session, although notification for extraordinary sessions is only required to be ‘as soon as possible’. For many years where and when the sessions would be held was a moveable feast. Although final communiqués now state the location and dates of the following session and this, by and large, is adhered to, in the past even if such information was given this could be changed at the last minute. When an Ebola crisis was taking place 2014–2015 the African Commission cancelled the 56th Session twice,40 an understandable and arguably sensible decision given the situation, and actually contrary to its general reliability at that time. However, in the 1990s and early 2000s cancellations, postponements and changes of country, often within a couple of weeks of previously made plans, were a

Rule 27, 2010 Rules of Procedure. The 1988 Rules presumed that the session would last two weeks each, Rule 2. See also Rule 26(1) Rules of Procedure 2010. 33 Decision on the African Commission on Human and Peoples’ Rights, EX.CL/ Dec.995 (XXXII), January 2018. 34 Rule 28(1) of the 2010 Rules of Procedure; see Rule 4, 1995 Rules of Procedure. 35 Rule 28, 2010 Rules of Procedure of the African Commission. 36 1st Ordinary Session, 2 November 1987; 14th Ordinary Session, 1–10 December 1993. 37 Rule 28(2) of the 2010 Rules of Procedure read: ‘In the event that a State Party invites the Commission to hold a session in its country, that State Party shall sign an agreement with the Commission to host the session of the Commission, which agreement shall vest the State Party with the responsibility for all additional expenses incurred by the Commission as a result of the session being held outside its headquarters, in conformity with the relevant rules of the African Union.’ 38 E.g. Libya hosted the first in 1989 and the 29th in 2001; Mauritania, the 21st in 1997 and the 62nd in 2018; and South Africa, the 31st in 2002 and the 3rd Extraordinary Session in 2004. 39 E.g. as happened in the 62nd session in Mauritania in 2018. 40 37th Activity Report of the African Commission on Human and Peoples’ Rights, 2015, para 6. 31 32

E. Protocols to the ACHPR

813

common pattern and often done with little explanation. The ability of representatives of governments, civil society organisations and national human rights institutions (NHRIs), as well as those from sub-regional, regional and international organisations, to amend their agendas at the last minute inevitably impacted not only on their capacity and willingness to attend but also their perception of the African Commission as an organisation to be taken seriously. As was noted in Chapter 29 (Articles 30–40), the African Commission regularly hosts the sessions in The Gambia, the country of its headquarters. The exact location of the sessions is often a hotel rather than the physical building of the Commission’s headquarters, in part because it does not have the space to accommodate several hundred delegates but also because, in the past, of the ongoing tensions in persuading the government to obtain what it considers to be an appropriate building for its offices. Of the two weeks of an Ordinary Session the first half is mostly held in public, although there are private sessions during this time,41 and it is here in the public session where representatives of governments, civil society organisations, NHRIs and representatives of international and regional organisations can attend alongside other participants. Discussed during this part of the session is ‘the human rights situation in Africa’: a general agenda item which permits States to give a brief update on measures they have taken; civil society organisations’ responses and critiques of action or inaction on the part of States and comments by NHRIs; applications for observer status and affiliate status; reports of special mechanisms; and State reporting.42 In recent years the African Commission has adopted a practice of holding ‘panels’, a single hour or half and half focusing on particular thematic issues with presentations from a small group of speakers followed by questions and comments from the floor. In the private session communications are discussed as well as reports and other issues yet to be settled upon by the African Commission. The deliberations here, according to Rule 31 of its Rules of Procedure, ‘shall remain confidential’, and although the Secretary, members of the Secretariat and ‘persons providing technical or secretarial assistance to the Commission’ may be present during these private sessions they can be asked to leave by the Commission.43 ‘General information on deliberations in the private session’ can be communicated publicly by the Chair of the Commission but this is still subject to Article 59 of the African Charter.44 Rule 28 of the 2010 Rules of Procedure provide that the African Commission can hold joint sessions with the African Court, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and ‘any other African regional human rights organ’. This is a useful mechanism to facilitate detailed inter-organ collaboration and discussion. It has done this on a few occasions,45 and although they can occur prior to one of its ordinary sessions the deliberations do not tend to be open.

E. Protocols to the ACHPR Article 66, hidden at the end of the ACHPR, could easily be considered to be an afterthought but in fact the additional instruments adopted to ‘supplement the provisions’ of 42 Rule 25(2), 2010 Rules of Procedure. See Chapter 38 (Article 62). Rule 31(1) Rules of Procedure of the African Commission 2010. 44 Rule 31(4) Rules of Procedure of the African Commission 2010. 45 See e.g. Activity Report of the African Court for the Year 2013, EX.CL/825 (XXIV), paras 88–90. 41 43

814

39. Articles 63–68

the ACHPR have had a far-reaching impact on its content as well as its functioning. As at June 2018 the OAU and AU had adopted three additional Protocols to the Charter (establishing the African Court, and on Women’s Rights, and on the Rights of Older Persons) with others under consideration.46 All of these documents have been the result of civil society lobbying, at various levels, but in particular at the level of the African Commission, the latter having a central role to play not only in the origins of the instruments but also their drafting, subsequently encouraging States to ratify and building into their provisions a role for itself in their monitoring. As with all instruments which are added on to a ‘base’ treaty, there is the question of whether the development of the procedures, organs, and rights might have been better done under the existing treaty than separately in another document which required additional ratification by States. Considerations here are inevitably different when considering the establishment of a separate judicial body, the African Court, than for the protocols on thematic issues such as those on women’s rights, older persons, persons with disabilities, and nationality. Yet, there are a number of reasons raised as to why a protocol was a better solution than simply a resolution adopted by the African Commission which were considered by some to provide ‘a limited avenue for the protection of the beneficiaries’. A protocol, on the other hand, can increase attention on the issues.47 Having standards developed under the ACHPR, however, ‘does not obviate the need for a specific instrument targeted at a particular class of people or problem’.48 For women’s rights and the rights of persons with disabilities, UN instruments to which many African States were party already existed. It was natural to question, therefore, ‘[i]‌nstead of trying to reinvent the wheel, African countries can simply ratify and domesticate’ these UN treaties.49 A number of reasons were advanced for the need for an additional protocol to the ACHPR, including addressing any omissions or deficiencies in the existing instruments; the ability to use existing bodies, such as the African Commission, to monitor implementation of the rights rather than creating a new institution; and to have something ‘home grown’, to be able to tailor the standards to African specificities.50 With this in mind, however, the drafters have noted the importance of not diluting international standards found in UN treaties to which many African States are party, but also the need to advance rights and go beyond what is already available.51 See further below. S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. 219 (2013) 219–249, at 239–240. 48 M. Mutua, ‘Standard setting in human rights: critique and proposals’, 29 Human Rights Quarterly (2007) 547–623, at 623. 49 S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. 219 (2013) 219–249, at 224. See also L. O. Oyaro, ‘Africa at crossroads: The United Nations Convention on the Rights of Persons with Disabilities’, 30(2) Am. U. Int.L.R. (2015) 347–376, who argues for the CRPD to be prioritised rather than a protocol on the rights of persons with disabilities. 50 S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. 219 (2013) 219–249, at 224–226. L. O. Oyaro, ‘Africa at crossroads: The United Nations Convention on the Rights of Persons with Disabilities’, 30(2) Am. U. Int.L.R. (2015) 347–376. H. Combrinck and L. Mute, ‘developments regarding disability rights during 2013: The African charter and African commission on human and peoples’ rights’, 2 Afr. Disability Rts. Y.B. (2014) 309–317, at 315. 51 H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African charter and African commission on human and peoples’ rights’, 2 Afr. Disability Rts. Y.B. (2014) 309–317, at 315. 46 47

E. Protocols to the ACHPR

815

The African Court Protocol provided a precedent for women’s rights organisations to lobby for something more than a mere resolution which would not have the legal or political clout of a binding separate treaty. Thanks to the sustained enthusiasm, commitment and clever strategic planning of organisations such as Women in Law and Development in Africa (WILDAF) and the International Commission of Jurists (ICJ), the Maputo Protocol has not fallen into the trap of being an instrument that was adopted but never came into force.52 The subsequent development of Guidelines on State reporting,53 the continued use of its provisions by the Special Rapporteur on the Rights of Women and willingness to highlight it during her work, has kept the Maputo Protocol on the agenda, visible and a document which has had real impact. This positive example has then encouraged others lobbying for greater recognition of other thematic issues to push for more additional protocols. Indeed, the M’Baye Draft foresaw protocols being used precisely for this reason: Any State Party and the Commission may submit proposed additional protocols to this Charter for consideration by the OAU Assembly of Heads of State and Government with a view to gradually including other rights and freedoms within its system of protection.54

1. The Protocol Establishing the African Court The African Court on Human and Peoples’ Rights, after a rather delayed start, has been operational since 2006.55 In part because of the six-year delay in acquiring the necessary ratifications to come into force, in part because of the political considerations of the need for both this Court and the African Court of Justice which had been provided by the 52 For a detailed account of the drafting history of the Maputo Protocol see L. Guignard, La fabrique de l’égalité par le droit Genèse et usages transnationaux du protocole de Maputo sur les droits des femmes de l’Union africaine, Thèse présentée et soutenue à l’École normale supérieure Paris-Saclay, le 2 juillet 2018. 53 54 See Chapter 19 (Article 18). Article 60(1) M’Baye Draft. 55 For discussion on the African Court prior and post its establishment and operationalisation see: A. O’Shea, ‘A critical reflection on the proposed African Court on Human and Peoples’ Rights’, (2001) 2 African Human Rights Law Journal, 285; B. Pityana, ‘Reflections on the African Court on Human and Peoples’ Rights’, (2004) 4 AHRLJ 121; J. Harrington, ‘The African Court on Human and Peoples’ Rights’ in M.D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002 305–334; N. Krisch, ‘The establishment of an African Court on Human and Peoples’ Rights’, 58 Heidelberg Journal of International Law (1998) 713; G. J. Naldi and K.D. Magliveras, ‘Reinforcing the African System of human rights: The Protocol on the establishment of a Regional Court on Human and Peoples’ Rights’, 16 NQHR (1998) 431; N.J. Udombana, ‘Toward the African Court on Human and Peoples’ Rights: Better late than never’, 3 Yale Human Rights and Development Law Journal (2000) 45; G.J. Naldi, ‘Observations on the Rules of the African Court on Human and Peoples’ Rights’, 14 AHRLJ (2014) 366–392; I. Österdahl, ‘The jurisdiction ratione materiae of the African Court on Human and Peoples’ Rights: A comparative critique’, (1998) 7(2) Review of the African Commission on Human and Peoples’ Rights 132; and A. P. van der Mei ‘The new African Court on Human and Peoples’ Rights: Towards an effective human rights protection mechanism for Africa?’ (2005) 18 Leiden Journal of International Law 113; M. Mutua, ‘The African Human Rights Court: A Two Legged Stool?’ (1999) 21 Human Rights Quarterly 342 at 357–362 and also F. Viljoen, ‘A Human Rights Court for Africa, and Africans,’ (2004) 30 Brooklyn Journal of International Law 1 at 14–22; A.A. Mohammed, ‘Individual and NGO Participation in Human Rights Litigation before the African Court on Human and Peoples’ Rights: Lessons from the European and Inter-American Courts of Human Rights,’ (1999) 43(2) Journal of African Law 201 at 202, 203; E. de Wet, ‘The Protection Mechanism under the African Charter and the Protocol on the African Court on Human and Peoples’ Rights,’ in G. Alfredsson et al., International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Moeller (The Hague: Martinus Nijhoff, 2001) at 724, 725; G. Bekker, ‘The African Court on Human and Peoples’ Rights: Safeguarding the Interests of African States’, Journal of African Law, 51, 1 (2007), 151–172.

816

39. Articles 63–68

AU’s Constitutive Act, and in part because of the restrictive approach to standing which only permits individuals and NGOs to submit cases directly before the Court if the State has made an additional declaration accepting the jurisdiction of the Court (only eight have done so),56 this was not the most propitious of starts for the African Court. It is perhaps not surprising that there was no rush of cases being submitted to the Court when it eventually started operating in 2006. However, in the ten years since then it has now acquired a relatively respectable docket, and although many of the cases have related to standing or are against the host State, Tanzania, the innovative approach of a number of individuals and organisations to test the limitations of the Protocol in this regard, and some political cases that have been before it have propelled it into an organ that is now deserving of attention. Therefore, although it has only been able to get its teeth into the substantive issues in a handful of cases, its judgments, orders and jurisprudence highlight some interesting issues. Included within those cases that it has been asked to consider, both contentious and advisory, are some fascinating contemporary political issues such as the consequences of the ‘Arab Spring’, the International Criminal Court in Africa and the suspension of the Southern African Development Community (SADC) Tribunal. As at June 2018 thirty States out of a total of fifty-five in the African Union have ratified the Protocol. Sensitisation visits undertaken by the Court have had some degree of success.57

a. Brief Background to the Court The idea of a court on human rights for the African continent had been around for some time,58 but during the drafting of the ACHPR the reluctance of African States to agree to the establishment of a judicial body meant that the resulting institution was what appeared on paper to be a relatively weak African Commission.59 However, the call for a human rights court to ‘complement the protective mandate of the Commission’ was always in the background, and although a ‘slavish imitation of the European and Inter- American’ systems with both commissions and courts was unlikely,60 there would appear to be some presumption that States which had failed to take the African Commission seriously would pay more adherence to the legally binding rulings of an African Court. Discussions at various points at the level of the African Commission on the need to consider the establishment of an African court arose sporadically over the years in the context of improving implementation of the African Charter61 and the effectiveness of the African 56 Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Rwanda, Tanzania and Tunisia. Rwanda did make a declaration but this has since been withdrawn. 57 Annual Report of the African Court, 2013, pp.16–23. 58 As far back as 1960s: see African Conference on the Rule of Law, Lagos, 3–7 January 1961. See also Chapter 1 (Introduction). 59 K. Hopkins, ‘The effect of an African court on the domestic legal orders of African States’, 2 AHRLJ (2002) 234; I. Kane and A. Motala, ‘The Creation of a new African Court of Justice and Human Rights’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, Cambridge, 2nd edition, 2008; A. O’Shea, ‘A critical reflection on the proposed African Court on Human and Peoples. Rights’, 1(2) African Human Rights Law Journal (2001), 285–298; B. Pityana, ‘Reflections on the African Court on Human and Peoples’ Rights’, 4(1) African Human Rights Law Journal (2004), 121–129. 60 J. Harrington, ‘The African Court on Human and Peoples’ Rights’ in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002 305–334, at 317. 61 See Conclusions and Recommendations of the Seminar on the National Implementation of the African Charter on Human and Peoples’ Rights in the internal legal systems in Africa, 26–30 October 1992, Banjul,

E. Protocols to the ACHPR

817

Commission. This culminated in 1994 with the adoption of the African Commission’s Seventh Annual Activity Report whereby the OAU Assembly decided to set up an intergovernmental committee to examine the possibility of an African Court as a way to ‘enhance the efficiency of the Commission’.62 The issue of the Court thereafter remained a regular item on the African Commission’s agenda with debate during its public sessions,63 thus enabling it to feed comments from NGOs through to the OAU.64 It took part in the seminars drafting the Protocol establishing the Court65 and subsequently advocated for its ratification.66 However, as Julia Harrington notes, ‘one reason why the recitation of the history of the Protocol given in the preamble fails to mention the several preliminary drafts . . . may be that it reflects the discomfort of African States with the important role played by non-State actors in the drafting process’.67 The Protocol to the African Charter on Human and Peoples’ Rights Establishing the African Court on Human and Peoples’ Rights (‘Protocol on the African Court’) on the African Court was adopted in 1998. An eleven-member bench of independent judges is provided with a contentious and advisory jurisdiction for the Court.68 Under Article 5, the African 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 and African Intergovernmental Organizations, can submit cases to the Court. In addition, the Court ‘may entitle Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol’.69 Those who have the capacity to request an advisory opinion from the Court include a Member State of the African Union, the African Union itself or any of its organs, or ‘any African organization recognized by’ the AU.70

The Gambia, Sixth Activity Report of the African Commission on Human and Peoples’ Rights, 1992–1993, adopted on 7 April 1993, Annex VIII, para 7. 62 Resolution on the African Commission on Human and Peoples’ Rights, 30th Ordinary Session, 13–15 June 1994: ‘See Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1993–1994, adopted on 27 April 1994 AHG/198 (XXX) Rev.2, para 39. 63 E.g. see Agenda of the 16th Ordinary Session, as provided in Eighth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, adopted on 22 March 1995, ACHPR/RPT/ 8th, Annex II, para 6(c). Agenda of the 19th Ordinary Session, Ninth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1995–1996, adopted on 3 April 1996, AHG/207 (XXXII), Annex IV. The African Commission also established a working group to consider the issue: Final Communiqué of the Sixteenth Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, 23 October–3 November 1994, para 41. Final Communiqué of the Twentieth Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, 2–11 November 1997, para 11. 64 See e.g. Final Communiqué of the Twenty-First Ordinary Session of the African Commission on Human and Peoples’ Rights, Nouakchott, 15–24 April 1997, para 12. 65 See Seminar with the International Commission of Jurists, Draft Protocol on the Establishment of an African Human Rights Court, Nouakchott, Mauritania, 11–14 April 1997. 66 See e.g. Final Communiqué of the Twenty-Third Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul 20–29 April 1998, para 16: ‘it was decided that each Commissioner would endeavour to sensitize Heads of States and governments of countries that had been assigned to them, on the need for this Court, and hence the need to ratify the Protocol’. Also Twelfth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1998–1999, Adopted 5 May 1999, para 31. 67 J. Harrington, ‘The African Court on Human and Peoples’ Rights’ in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002 305–334, at 308. 68 Articles 11 and 17 of the Protocol. 69 70 Article 5(3) of the Protocol. Article 4(1) of the Protocol.

818

39. Articles 63–68

The Court is based in Arusha, Tanzania. The Protocol came into force, with the necessary fifteen ratifications in January 2004, a relatively quick turnaround for international treaties. However, it was a further two years before the Court was to become operational and judges appointed due to parallel discussions taking place around the African Court of Justice. This additional judicial body which had its origins in the Constitutive Act of the African Union,71 as it transformed from the Organisation of African Unity, required States to ratify its protocol before it could come into being. There was a recognition that the existence of two judicial bodies on the African continent may cause confusion in terms of their respective remits, and may be expensive to run and so a compromise was reached: the African Court on Human and Peoples’ Rights, whose Protocol was already in force, should commence operations. In 2008 a Protocol on the Statute of the African Court of Justice and Human Rights, merging the now functioning African Court on Human and Peoples Rights with the non-existent African Court of Justice, was adopted.72 In the background, while this was being developed, concerns were increasing towards the perceived anti-African bias of the International Criminal Court (ICC),73 as well as with respect to a series of European arrest warrants culminating with its indictment of the serving president of Sudan, Al- Bashir and Uhuru Kenyatta in Kenya.74 This led to a backlash against the ICC, endorsed by the African Union.75 A regional, African alternative to the ICC was therefore floated. While developments took place regarding amendments to the protocol establishing the proposed African Court of Justice and Human Rights which would enable it to take on this function, in the meantime the Assembly of the AU also suggested that the AU Commission consider ‘in consultation with the African Commission on Human and Peoples’ Rights and African Court on Human and Peoples’ Rights the implications of the Court being empowered to try international crimes’.76 Although not clear from the wording, it is apparent that ‘the Court’ being referred to is the African Court of Justice and Human Rights. This process, which has been criticised for its complexity, lack of transparency and now with the concerns that amendments have now resulted in sitting Article 5. G. J. Naldi and K. D. Magliveras, ‘The African Court of Justice and Human Rights: A judicial curate’s egg’, 9 International Organisations Law Review (2012) 383. 73 N. J. Udombana, ‘ “Can these dry bones live?” In search of a lasting therapy for the AU and ICC toxic relationship’, 1(1) African Journal of International Criminal Justice (2014) 57–76. 74 Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of Sudan, Assembly/AU/Dec.221 (XXII), 2009; Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245 (XIII), Rev.1; Decision on the Implementation of Assembly Decisions on the International Criminal Court, Assembly/AU/Dec.366 (XVII). 75 See Decision on the application by the ICC prosecutor for the indictment of the President of the Republic of the Sudan, Assembly/AU/Dec.221 (XII); Assembly AU/Dec.296 (XV); Decision on Africa’s Relationship with the International Criminal Court (ICC), Ext/Assembly/AU/Dec.1 (Oct 2013): ‘underscores that this is the first time that a sitting head of State and his deputy are being tried in an international court and stresses the gravity of this situation which could undermine the sovereignty, stability and peace in that country and in other Member States as well as reconciliation and reconstruction and the normal functioning of constitutional institutions’, para 5. Further, ‘no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office; that the trials of President Uhuru Kenyatta and Deputy President William Smaoei Ruto, who are currently serving leaders of the Republic of Kenya, should be suspended until they complete their terms of office’, paras 10(i) and (ii). 76 Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, Doc. Assembly/AU/Dec.213 (XII) and Assembly/AU/Dec.271(XIV). 71 72

E. Protocols to the ACHPR

819

heads of state and senior officials being granted immunity before the Court,77 has now concluded with the adoption of the Protocol at the Summit in July 2014.78 This has yet to come into force.79 In the midst of these developments at the AU, the African Court on Human and Peoples’ Rights has quietly continued to receive cases and decide on them.

b. Composition of the Court The Court is composed of eleven judges who work on a part-time basis. A full-time Registry, with the Registrar, Deputy Registrar and other necessary staff, sits in Arusha.80 The Registrar and Deputy Registrar are appointed by the Court for five years from among those with ‘the highest moral standard and shall possess the necessary legal, administrative and linguistic knowledge and experience for the discharge of the functions linked to the post’.81 Other staff are appointed by the Court or by the Registrar with the approval of the President.82 The judges, Registrar, Deputy Registrar and staff of the Court are required to take an oath and solemn declaration when taking up their posts,83 being similar in all but one respect: the judiciary are required to maintain confidentiality of deliberations even after their term of office has expired. Despite the Protocol being commended for requiring that ‘due consideration shall be given to adequate gender representation in the nomination process’84 and that in ‘the election of the judges, the Assembly shall ensure that there is adequate gender representation’,85 in practice this has not been particularly successful with only four women having been elected to the Court as at June 2018. This does not compare favourably with the African Commission’s consistently more balanced membership. The President and Vice President of the Court are elected for two years,86 from among the absolute majority of all the judges of the Court.87 Their role is to represent the Court, direct and supervise its administration, promote it, and present the Activity Report to the Assembly of the AU.88 The Rules of Court also provide that when electing the President and Vice President of the Court or the composition of the Registry, ‘the Members of the Court shall pursue, to the greatest extent possible, a policy aimed at securing a balanced representation of gender, the principal legal traditions and the main regions of Africa’.89 Rule 3 of the Rules of Court states that whilst judges are equal with respect to exercise of

77 For discussion see M. du Plessis, ‘Implications of the AU Decision to give the African Court jurisdiction over international crimes’, Institute for Security Studies Paper, No.235, June 2012, http://www.issafrica. org/uploads/Paper235-AfricaCourt.pdf. A. Huneeus, ‘International criminal law by other means: The quasi- criminal jurisdiction of the human rights courts’, 107(1) AJIL (2013) 1–44. 78 Decision on Draft Legal Instruments, Assembly/AU/Dec.529(XXIII). See Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court, 22 January 2016, Index No. AFR 01/3063/2016. For discussions see I. Kane and A.C. Motala, ‘The creation of a new African Court of Justice and Human Rights’, in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2006, 2nd edition, Cambridge University Press, 2008, Chapter 12. R. Murray, The Human Rights Jurisdiction of the African Court of Justice and Human and Peoples’ Rights’, in C. Jallow and K. Clarke, The African Court of Justice and Human and Peoples’ Rights, 2016. 79 80 See Chapter 1 for an overview of its contents. Rule 20, Rules of Court. 81 Rule 21(1) and (2), Rules of Court. Rule 22 applies these requirements to the Deputy Registrar. 82 83 84 Rule 24, Rules of Court. Rules 4, 23 and 24(2), Rules of Court. Article 12(2). 85 86 87 Article 14(3). Rules of Court, Rule 9(1). Rule 10(3), Rules of Court. 88 89 Rule 11, Rules of Court. Rule 13, Rules of Court.

820

39. Articles 63–68

their functions, the President and Vice President take precedence before the other members who are then ranked in terms of their date of term of office.90 For judges there are requirements regarding incompatibility,91 but this does not appear to have been an issue so far in the composition of the bench, in contrast to concerns raised regarding previous members of the African Commission.92 Resignation, suspension or removal is governed by the Protocol93 and Rules of Court,94 but so far has not proved necessary to apply. Nationals of State parties to a case are barred from hearing the case. In addition, Rule 8(4) provides that: No Member of the Court shall take part in the consideration of any case if: a) he/she has previously acted, in relation to the case, as agent, counsel or advocate for one of the parties, or as a member of a national or international court or a commission of inquiry or in any other capacity; b) he/she has a personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship with any of the parties; c) he/she has expressed opinions publicly, through the communications media, in writing, through his or her public actions or otherwise, that may, objectively adversely affect his or her impartiality; d) for any other reason, his/her independence or impartiality may, legitimately, be called into doubt.

c. Functioning of the Court The Court holds four ordinary sessions every year of about fifteen days each,95 with the possibility of extraordinary sessions.96 The sessions take place in Arusha, although Article 25(1) of the Protocol and Rule 16 permits it to hold them elsewhere. The Court has issued Practice Directions in accordance with Rule 19 of the Rules of Court. These set out practical matters such as the hours of the Court, the procedures before the Court and the form of written and oral submissions and time limits.97 The quorum of seven judges is required as per Article 23 of the Protocol and Rule 17 of the Rules of Court and the official languages of the Court are those of the AU.98 The Court can also permit anyone appearing before it to use ‘a language of his or her choice, if it is shown that he or she does not have sufficient knowledge of any of the official languages of the Court’.99 Rule 27 provides that the ‘procedure before the Court shall consist of written, and if necessary, oral proceedings’. Parties can be represented or assisted by legal counsel by a person of the party’s choice, with free legal representation ‘if the interests of justice so require’.100 In the Consolidated matter of Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania, and Reverend Christopher R Mtikila v United Republic of Tanzania, the Court noted that, with respect to a request for legal aid by an applicant who had been invited to attend a public hearing by the Court, that ‘the Court could not grant the requested

Rule 3(1), (5) and (6) respectively. 92 Protocol, Article 18, Rules of Court, Rule 5. See Chapter 29 (Articles 30–40). 93 Articles 15, 19 and 20, Protocol on the Establishment of the African Court. 94 Rules 6 and 7. 95 Rules of Court, Rule 14. The sessions are usually held in March, June, September and December, but can be ‘at any other period as the Court may deem fit’; see Practice Directions, para 3. 96 97 98 Rule 15, Rules of Court. Practice Directions. Rule 18. 99 Rule 18(3) Rules of Court. 100 Article 10(2) of the Protocol Establishing the African Court; Rule 28, Rules of Court. 90 91

E. Protocols to the ACHPR

821

legal aid as the Court had no legal aid policy in place’.101 However on other occasions the African Court has provided ‘assistance’ to the applicant to enable them to attend hearings of the Court.102 The African Court has since adopted a Legal Assistance Policy to ‘facilitate indigent applicants to be able to effectively litigate applications before the Court’, and has called for applications for those lawyers able to be on a roster to assist such applicants.103 The policy directs that legal aid is available to individuals and groups of individuals, the Court considering the indigence of the applicant, equality of arms and interest of justice to determine who is eligible. It is funded through AU Member States’ contributions and voluntary funding can also be made. States who have ‘an interest in a case’ can request to be joined to it.104 States party to a case ‘have the obligation to cooperate so as to ensure that all notices, communications or summonses addressed to persons residing in their territory or falling under their jurisdiction are duly executed’,105 and this applies ‘to any proceeding that the Court decides to conduct or order in the territory of a State party to a case’.106 The Court will undertake a preliminary examination of issues of jurisdiction and admissibility.107 Oral hearings have been held in several cases in accordance with Article 10 of the Protocol and Rule 43 of the Rules of Court. Cases will be heard in open court unless the Court, on its own motion or the request of a party, decides that ‘it is in the interest of public morality, safety or public order’ to hold it in camera.108 Rule 45 provides the Court with the ability, on its own motion or at the request of the parties or the African Commission, to obtain evidence ‘which in its opinion may provide clarification of the facts of the case’. This can include hearing witnesses or experts, and asking ‘any person or institution of its choice to obtain information, express and opinion or submit a report to it on any specific point’.109 The Court can also request one or more of its judges to conduct an inquiry, visit or take other evidence.110 Questions can be put to the parties, the African Commission, experts and witnesses and each of these can be examined, in the case of the Commission, ‘if appropriate’, by representatives of the parties, cross examined and re-examined.111 A verbatim recording is made of each hearing.112

d. Locus Standi and Direct Access of Individuals and NGOs to the Court It was always going to be unlikely that a State would bring a case against another State, so the Court is therefore dependent on the African Commission, other intergovernmental organisations or NGOs and individuals to fill its docket. Given that the vast majority of the communications before the African Commission have been brought by the latter it was to be expected that they would be a key source of cases. During the drafting of the Protocol the issue of access by individuals and NGOs directly to the Court (namely without having first to go through the African Commission) was contentious. Negotiations around earlier drafts of the Protocol included wishes that there be limited App. Nos. 009/2011, and 011/2011, para 45. Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment, para 13. 103 Activity Report to the African Court for the year 2013, EX.CL/825 (XXIV), paras 35–38. 104 Article 5(2) of the Protocol and Rule 33(2), Rules of Court. See also Rule 53 Rules of Court. 105 106 Rule 32(1), Rules of Court. Rule 32(2), Rules of Court. 107 Rule 39, Rules of Court. 108 Rule 43(1) and (2), Rules of Court. Reasons must be given in such instances, Rule 43(3). 109 110 Rule 45(1) and (2) Rules of Court. Rule 45(3), Rules of Court. 111 112 Rule 47(2), Rules of Court. Rule 48, Rules of Court. 101 102

822

39. Articles 63–68

access by NGOs and individuals to the Court,113 addressing this with the idea of a separate declaration by the States in the Nouakchott draft.114 The final draft of the Protocol is disappointing, requiring not only that the Respondent State has to have ratified the Protocol but that it must also have adopted an additional declaration under Article 34(6) to provide the Court with jurisdiction to hear cases directly from individuals or NGOs. As only eight States have so far done so, progress in the first decade of the Court’s existence has been slow.115 A considerable number of the cases which have been brought before the Court have thus not succeeded because they are brought by individuals or NGOs against States which have not made a declaration under Article 34(6) of the Protocol.116 Michelot Yogogombaye v Republic of Senegal117 concerned Hissein Habré, the former president of Chad and at that time in exile in Senegal, and the decision by the Senegalese legislature, to apply its criminal laws retrospectively to try him for crimes committed during his rule in Chad. The applicant, a national of Chad living in Switzerland, brought the case before the African Court alleging that this was contrary to the principle of non-retroactivity of criminal law in Article 7(2) of the ACHPR among other matters. The Court sought from the AU Commission the list of States that had made an Article 34(6) declaration and finding that Senegal was not one of those that had done so, held that it did not have jurisdiction to hear the case. There was consequently no need to examine or rule on admissibility. A range of innovative arguments have been raised to try to bypass the restrictions of Article 5, including that States have an obligation to submit an Article 34(6) declaration;118 and that Article 34(6) was incompatible with the Protocol and the ACHPR.119 None have proved successful. Neither have attempts to hold the AU as an entity itself 113 See e.g. Government Legal Experts meeting on the Question of the Establishment of an African Court on Human and Peoples’ Rights, 6–12 September 1995, Cape Town, South Africa, Report, OAU/LEG/EXP/ AFC/HPR (I), see as reproduced in 8(2) AJICL (1996) 493–500. See discussion J. Harrington, ‘The African Court on Human and Peoples’ Rights’ in M. D. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000, Cambridge University Press, 2002 305–334. 114 Draft (Nouakchott) Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights, OAU/LEG/EXP/AFCHPR/PROT (2). 115 D. Juma, ‘Access to the African Court on Human and Peoples’ Rights: A case of the poacher turned gamekeeper’, 4 Essex Human Rights Law Review (2007) 1–21; M. Ssenyonjo, ‘Direct access to the African Court on human and peoples’ rights by individuals and non governmental organisations: An overview of the emerging jurisprudence of the African court 2008–2012’, 2(1) International Human Rights Law Review, (2013) 17–56. F. Viljoen, ‘Understanding and overcoming challenges in accessing the African Court on Human and Peoples’ Rights’, 67 ICLQ (2018) 63–98. The eight States are: Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Senegal, Tanzania and Tunisia. Rwanda made a declaration and then later withdrew it. This did not prevent the African Court from ruling on the matter pending before it at that time, App. No. 003/2014, Ingabire Victoire Umuhoza v Republic of Rwanda, Ruling on Withdrawal of Declaration, 3 June 2016; and subsequent judgment 24 November 2017. 116 e.g. Delta International Investments SA, MR AGL de Lange and Mrs M De Lange v Republic of South Africa, which alleged violations of torture and rights to dignity, property, information, privacy and discrimination where the Court held that as South Africa had not yet made a declaration under Article 34(6) of the Protocol, ‘it is evident that the Court manifestly lacks jurisdiction to receive the Application submitted’ and therefore struck it off the list; App. No. 002/2012, Decision of 30 March 2012, paras 9 and 10. 117 App. No. 001/2008, Judgment, 15 December 2009. 118 Separate opinion of Judge Fatsah Ouguergouz, Michelot Yogogombaye v Republic of Senegal, para 26. In the Matter of Femi Falana v The African Union, App. No. 001/2011, Judgment of 26 June 2012. Democratic Party v Secretary General of the East African Community and 4 others, 29 November 2013, EACJ First Instance Division, Ref. No. 2, of 2012: regarding the argument, which did not succeed, that States under the East African Community (EAC) Treaty were obliged to submit an Article 34(6) declaration under the Protocol Establishing the African Court. 119 P.4.

E. Protocols to the ACHPR

823

accountable under the ACHPR;120 or using the advisory jurisdiction of the Court.121 Hence, while the Court may have a certain degree of sympathy with individuals and NGOs not being able to access it directly under the constraints of Article 5,122 this it considers to be an issue for the Member States to determine, by amending the Protocol, not the Court. Article 34(6) enables States to make the declaration not just at the time of ratification by ‘any time thereafter’, and this could include after the application has been submitted to the Court,123 a possibility identified by Justice Ouguergouz in Michelot.124 If so then one would presume that the case must first be transferred to the State otherwise they will be, according to the Judge, ‘deprived of the possibility of accepting the jurisdiction of the Court by way of a forum prorogatum’. In this respect any application filed against a State party to the Protocol which has not yet made the optional declaration, should be transmitted, for information purposes, to that State to enable it to accept the jurisdiction of the Court to hear the matter’.125 The African Court has held that the African Committee of Experts on the Rights and Welfare of the Child does not have standing under Article 5(1)(e) of the Protocol to bring cases to the Court as it is not representative of States and thus cannot claim to be an ‘intergovernmental’ organisation.126 It did go on to hold that there ‘did not appear to be a conceivable reason why the Committee was not included among the organs that can bring cases’ in Article 5(1), but that its ‘hands are tied by the Protocol’.127

e. Sources  of Law The Protocol permits the African Court not only to rule on violations of the provisions of the ACHPR but also, interestingly, ‘any other relevant human rights instruments ratified by the States concerned’.128 This can be AU, UN and sub-regional treaties. Despite being criticised as ‘highly unusual’,129 the African Court has not been inhibited from applying other treaties in its judgments. For example, in Ayants droit de feus Norbert Zongo et al v Burkina Faso,130 the Court found violations not just of the ACHPR, but also the International Covenant on Civil and Political Rights (ICCPR), the Economic Community of West African States (ECOWAS) Treaty and rather unusually (given it 120 In the Matter of Femi Falana v The African Union, App. No. 001/2011, Judgment of 26th June 2012, para 43. See also Dissenting Opinions of Justices Akuffo, Ngoepe and Thompson in Femi Falana. 121 In the Matter of Femi Falana v The African Union, App. No. 001/2012. 122 Separate Opinion of Judge Fatsah Ouguergouz in Femi Falana, para 37: ‘same as Mr Falana, I am in favour of the automatic access to the Court by individuals and non-governmental organizations’. 123 Separate opinion of Judge Fatsah Ouguergouz, Michelot Yogogombaye v Republic of Senegal, para 28. 124 Michelot Yogogombaye v Republic of Senegal, Separate Opinion of Judge Fatsah Ouguergouz. 125 Ekollo Moundi Alexandre v Republic of Cameroon and Republic of Nigeria, App. No. 008/2011, Decision of 23rd September 2011, Dissenting Opinion of Ouguergouz, para 8. Emmanuel Joseph Uko and others v Republic of South Africa, App. No. 004/2012, dissenting opinion of Judge Ouguergouz, paras 4–5. 126 Request No. 002/2013, The African Committee of Experts on the Rights and Welfare of the Child on the Standing of the African Committee of Experts on the Rights and Welfare of the Child before the African Court on Human and Peoples’ Rights, Advisory Opinion, 5 December 2014, para 73. 127 Request No. 002/2013, The African Committee of Experts on the Rights and Welfare of the Child on the Standing of the African Committee of Experts on the Rights and Welfare of the Child before the African Court nnHuman and Peoples’ Rights, Advisory Opinion, 5 December 2014, paras 75 and 76. 128 Article 7, Protocol Establishing the African Court. 129 C. Heyns, ‘The African regional human rights system: In need of reform?’, 2 AHRLJ (2001) 155–174, at 167. 130 App. No. 013/2011, Judgment.

824

39. Articles 63–68

is not an instrument that can be ratified) the Universal Declaration of Human Rights (UDHR), but not the American Convention nor the European Convention on Human Rights as the State ‘is not and cannot be a Party’131. It is willing to rule on violations of the ICCPR, even where the State has not ratified the Optional Protocol granting the Human Rights Committee jurisdiction to examine individual complaints.132 It has used its interpretation and subsequent finding of a violation on one provision in the ACHPR then to conclude that it does not need to look at a similar right in another treaty. For example, finding a violation of the right to equality before the law in Article 3 of the Charter, the Court simply then went on to conclude that ‘[i]‌n substance Article 14(1) of the ICCPR guarantees in the same manner as Article 3 of the Charter the right to equality, especially before courts and tribunals. The Court having ruled on the alleged violation in Article 3 of the Charter does not deem it necessary to make a ruling on the same allegation in relation to Article 14 of the ICCPR’.133 In interpreting the ACHPR it has also drawn upon other regional bodies’ case law as well as that of the UN treaty bodies, citing Article 60 of the ACHPR, even though this provision is addressed to the African Commission. For example, in one judgment the Court noted its agreement with a UN Human Rights Committee General Comment ‘as an authoritative interpretation of Article 25 of the ICCPR, which reflects the spirit of Article 13 of the Charter, and which in accordance with Article 60 of the Charter is an “instrument adopted by the United Nations on human and peoples’ rights” that the Court can “draw inspiration from” in its interpretation of the Charter’.134

f. Jurisdiction and Admissibility The African Court has made it clear it is not an appeal court from the decisions of national courts, rather it is there to determine the compliance by States with their international obligations.135 As is noted in Chapter 34 (Article 56), it has adopted the same reasoning as the African Commission when it comes to ratione loci, ratione materiae, ratione personae and ratione temporis,136 although with respect to the latter, the date of the coming into force for the State of the African Court Protocol, as well as the dates of the Article 34(6) declaration, are also relevant factors.137 In the Matter of the Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema dit Ablasse, Ernest Zongo and Blaise Ilboudo and Le Mouvement Burkinabé des Droits de l’Homme et des Peuples,138 the Court distinguished between the allegations regarding the different rights, namely the right to life, to fair trial, and the other allegations on Articles 3 and 9 of the ACHPR, and one presumes Articles 2(3) and 19(2) of the ICCPR and Article 66(2) of the ECOWAS Treaty when considering ratione temporis. With respect to the right to life and the alleged assassination of Norbert Zongo in December 1998, the 131 Thobias Mang’ara Mango and Shukurani Masegenya Mango v United Republic of Tanzania, App. No. 005/ 2015, Judgment of 11 May 2018, para 35. 132 133 Norbert Zongo, Judgment, para 48. Norbert Zongo, Judgment, para 170. 134 In Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania and Reverend Christopher R Mtikila v United Republic of Tanzania, App. Nos. 009/2011 and 011/2011, para 107.3. 135 In the Matter of George Maili Kemboge v The United Republic of Tanzania, App. No. 002/2016, 11 May 2018, para 19; Ernest Mtingwi v Republic of Malawi, App. No. 001/2013, Judgment of 15 March 2013, para 14. 136 See Chapter 34 (Article 56), see also e.g. Lohé Issa Konaté v Burkina Faso, Judgment, para 41. 137 138 Lohé Issa Konaté v Burkina Faso, Judgment, para 38. No. 013/2011.

E. Protocols to the ACHPR

825

Respondent State argued that this was an ‘instant’ and outside the temporal scope of the jurisdiction of the Court. To this the Court drew upon Article 14(1) of the Articles of State Responsibility of the International Law Commission (ILC) to find that the assassination took place after Burkina Faso has ratified the ACHPR but before it had ratified the Protocol establishing the Court. But it held that it did not have jurisdiction rationae temporis to examine the violation of the right to life, because this was an instantaneous event which took place prior to the entry into force for Burkina Faso of the Protocol which provides the Court with jurisdiction.139 It did however find that the violations on the right to a fair trial were continuing beyond the date of the entry into force of the Protocol.140 In Urban Mkandawire v Republic of Malawi141 it was the date the ACHPR came into force for the State as being relevant to determine ratione temporis, not the date for the Protocol. Regarding the individual’s dismissal from the University of Malawi in violation of Articles 4, 5, 7, 15 and 19 of the ACHPR, it was alleged the violations took place in 1999, whereas the Protocol only came into force for Malawi in 2008. However, the Court held that the ACHPR came into force in 1986 and Malawi ratified in 1989, therefore its provisions are binding on the State from that date. At the time of the alleged violations, the Charter was already binding on it, as well as the violations regarding Articles 7 and 15 being continuing.142 Dissenting opinions of two judges picked up on this issue.143 Some clarity in the dissonance between this judgment and the previous could be provided if one considers the Separate Opinions of Justices Akuffo and Thompson who noted144 distinctions between treaties that conferred rights, such as the ACHPR, and treaties that established a mechanism for enforcement of such, the protocol, and that the non-retroactivity principle should be applied differently in these two cases.145

g. Issues of Admissibility Article 6(2) of the Protocol provides that ‘[t]‌he Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter’, and Rule 40 of the Rules of Court follows the general approach of Article 56 but the wording is slightly different. In considering admissibility it can request the opinion of the African Commission,146 and subsequently consider the case or refer it to the Commission.147 In practice, although Article 6(2) and Rule 40 could imply that the African Court applies different admissibility conditions, it has applied the provisions of Article 56 to the cases before it, also drawing upon African Commission jurisprudence and that of other regional and international courts and commissions in its application to the facts of the case.148

140 No. 013/2011, para 68. No. 013/2011, para 77. Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment. 142 Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment, para 32. 143 Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Joint dissenting opinion of Judges Gerard Niyungeko and El Hadji Guisse, para 8. 144 In the Matter of the Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema dit Ablasse, Ernest Zongo and Blaise Ilboudo and Le Mouvement Burkinabé des Droits de l’Homme et des Peuples, App. No. 013/2011, paras  92–93. 145 Separate Opinions of Justices Akuffo and Thompson, In the Matter of the Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema dit Ablasse, Ernest Zongo and Blaise Ilboudo and Le Mouvement Burkinabé des Droits de l’Homme et des Peuples, App. No. 013/2011, pp.3–4. 146 147 Article 6(1) of the Protocol. Article 6(3) of the Protocol. 148 See Chapter 34 (Article 56). 139 141

826

39. Articles 63–68

Just as before the African Commission, so as before the African Court many issues of admissibility relate to the requirement to exhaust domestic remedies, again where it has followed the African Commission’s reasoning149 and that of other regional bodies.150

h. Relationship with the Commission Among one of the most interesting aspects of the African Court is the relationship with the African Commission.151 The Protocol provides that the purpose of the Court is to ‘complement the protective mandate’ of the African Commission.152 This is achieved in several ways: firstly through its advisory jurisdiction whereby the African Commission can submit a request;153 secondly through its contentious jurisdiction by receiving a case from the African Commission;154 and lastly by the Court itself referring cases to the African Commission.155 The matter cannot be pending before both the African Commission and Court at the same time.156 The African Court is also to involve the Commission in other ways such as when considering admissibility,157 determining its own rules of procedure158 and notifying others of its judgment.159 The Rules of Procedure of the African Commission entitle the African Commission to hold joint sessions with the African Court (as well as with the African Committee of Experts on the Rights and Welfare of the Child).160 In fact the African Commission and African Court have held regular meetings and the African Court has sent representatives to the sessions of the African Commission.161 Celebrations including ‘2016 as the African year of human rights’ have also been initiated and developed as collaborative ventures between the two institutions.162 i. Article 6(3) of the Protocol Article 6(3) under ‘admissibility’ allows the Court to ‘consider cases or transfer them to the Commission’. Rule 29(5) notes further that in so doing, the Court ‘shall transmit to the Commission a copy of the entire pleadings so far filed in the matter accompanied by a summary report. At the request of the Commission, the Court may also transmit the original case file’.163 The Registrar will notify ‘immediately’ the parties before the Court of the transfer to the Commission.164 149 In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania and Reverend Christopher R Mtikila v United Republic of Tanzania, App. Nos. 009/2011 and 011/2011. Matter of the Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema dit Ablasse, Ernest Zongo and Blaise Ilboudo and Le Mouvement Burkinabé des Droits de l’Homme et des Peuples, App. No. 013/2011. 150 E.g. Lohé Issa Konaté v Burkina Faso, Judgment, para 108. Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment, paras 40–41. 151 F. Viljoen, ‘Understanding and overcoming challenges in accessing the African Court on Human and Peoples’ Rights’, 67 ICLQ (2018) 63–98 152 Article 2, Protocol Establishing the African Court. 153 Article 4, Protocol Establishing the African Court. 154 Article 5(1)(a), Protocol Establishing the African Court. 155 Article 6(3), Protocol Establishing the African Court. 156 As required by Rule 29(6) of the Rules of Court, see Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment, para 33. See also Emmanuel Joseph Uko and others v Republic of South Africa, App. No. 004/2012. 157 Article 6, Protocol Establishing the African Court. 158 Articles 8 and 33, Protocol Establishing the African Court. 159 Article 29, Protocol Establishing the African Court. 160 Rule 115, Rules of Procedure of the African Commission. Rule 29 of the Rules of Court. 161 See e.g. Activity Report of the African Court for the Year 2013, EX.CL/825 (XXIV), paras 88–90. 162 Activity Report of the African Court for the Year 2013, EX.CL/825 (XXIV), paras 91–94. 163 164 Rules of Court. Rule 29(5)(b).

E. Protocols to the ACHPR

827

The Court has on numerous occasions referred cases to the Commission.165 Yet whilst the role of the Court, according to the Protocol, is to complement the protective mandate of the Commission, the role of the Commission vis-à-vis the Court is not expressly articulated. The grounds for referral to the African Commission are not well explained, recognised in particular by one Justice, Judge Fatsah Ouguergouz.166 It is necessary to consider at what stage in the proceedings the case is transferred to the Commission. In some instances, it has been transferred to the Commission prior to a ruling by the Court on admissibility.167 This also raises the question whether transfer should occur simply because the Court does not have jurisdiction. Indeed, applications have been transferred to the Commission under Article 6(3) in a number of cases after the Court has held that it lacked jurisdiction on the basis of a failure by the State to make an Article 34(6) declaration.168 In Association Juristes D’Afrique pour la Bonne Gouvernance v Republique de Côte d’Ivoire,169 the case was rejected as the Applicants did not have observer status before the African Commission. There is some logic in referring the case back to the Commission, as the Court did on this occasion, although no detailed reasoning is given beyond noting that ‘in view of the allegations raised in the application it would be appropriate to transfer the case to the African Commission’.170 The African Commission has noted in passing in its Activity Reports that it is now discussing cases which have been transferred to it from the African Court, on some occasions not identifying the cases, on others stating their names.171 Conversely there are also cases where the Court did not refer the matter to the African Commission when on the face of it, compared with others in which it has done, it is not clear why.172 Indeed, the decision to transfer is usually found tucked away at the end of the Court’s decision and mentioned fleetingly, rather than with a well-reasoned conclusion. It is perhaps the Dissenting Opinion of Judge Ouguergouz in the Ekollo case which is the most illuminating on this issue, as he provides his reasons for not wishing to refer this case to the African Commission.173 He argued that as the Court had lacked jurisdiction to hear the case (given that Cameroon was not a party to the Protocol and Nigeria had not adopted a declaration under Article 34(6)), ‘the transfer to the African Commission of an application in respect of which the Court found that it manifestly lacks jurisdiction is not founded in law. . . . Indeed the heading of this Article 6 (“Admissibility of cases”) 165 E.g. Daniel Amare, 005/ 2011 and 006/ 2011, Daniel Amare and Mulugeta Amare v Republic of Mozambique and Mozambique Airlines; Association Juristes d’Afrique Pour La Bonne Gouvernance c. Republique de Côte d’Ivoire. 166 See in particular Ekollo M Alexandre v Republic of Cameroon and Federal Republic of Nigeria, App. No. 008/2011, Decision of 23 September 2011. 167 Ekollo M Alexandre v Republic of Cameroon and Federal Republic of Nigeria, App. No. 008/2011, Decision of 23 September 2011. 168 Daniel Amare and Mulugeta Amare v Republic of Mozambique and Mozambique Airlines, App. No. 005/ 2011, Decision of 16 June 2011; Soufiane Ababou v Peoples’ Democratic Republic of Algeria, App. No. 002/2011, Decision of 16 June 2011; Ekollo M Alexandre v Republic of Cameroon and Federal Republic of Nigeria, App. No. 008/2011, Decision of 23 September 2011. 169 170 App. No. 006/2011. Para 10. 171 E.g. 31st Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/717 (XX), 2011, para 17. 172 E.g. National Convention of Teachers Trade Union v Gabon, App. No. 012/2011, Decision of 15 December 2011. 173 Ekollo Moundi Alexandre v Republic of Cameroon and Republic of Nigeria, App. No. 008/2011, Decision of 23 September 2011.

828

39. Articles 63–68

strongly suggests that the action available to the Court, in paragraph 3, applies primarily to the consideration of the admissibility of a case over which the jurisdiction of the Court has already been established’.174 The purpose of this provision, he argues, is to enable the African Commission to give an opinion on the admissibility of a matter, and thereafter to promptly, under Rule 119(2), transfer this back to the Court for it to continue to consider ‘the underlying idea is that once it has deemed an application admissible, the Court may then embark on a consideration of the merits’.175 Overall, however, it is crucial, as Ouguergouz contends, that the Court adopt clear criteria for when it will refer cases to the African Commission so as to ensure greater and more in-depth consideration of this aspect of their relationship.176 ii. Submission of Cases by the African Commission to the Court What has generated particular attention on discussion on the Court is the ability of the Commission to submit cases to the Court under Article 5 of the Protocol as elaborated upon in Rules 118 of the Commission’s Rules of Procedure. Rule 29(3) of the Rules of Court notes: (a) In a case brought before the Court by the Commission under Article 5(1)(a) of the Protocol, its application shall be accompanied by its Report as well as all documents pertaining to the proceedings. (b) The Court may, if necessary, hear one or more Commissioners assisted by such Legal Officers of the Commission’s Secretariat and/or experts as the Commission shall designate or appoint. (c) The Court may also, if it deems it necessary, hear, under Rule 45 of the Rules, the individual or NGO that initiated a communication to the Commission pursuant to Article 55 of the Charter.177

From the perspective of the African Commission, its Rules of Procedure, Rule 118, read: Rule 118 Seizure of the Court 1. If the Commission has taken a decision with respect to a communication submitted under Articles 48, 49 or 55 of the Charter and considers that the State has not complied or is unwilling to comply with its recommendations in respect of the communication within the period stated in Rule 112(2), it may submit the communication to the Court pursuant to Article 5(1)(a) of the Protocol and inform the parties accordingly. 2. If the Commission has made a request for Provisional Measures against a State Party in accordance with Rule 98, and considers that the State has not complied with the Provisional Measures requested, the Commission may pursuant to Article 5(1)(a) of the Protocol, refer the communication to the Court and inform the Complainant and the State concerned. 3. The Commission may, pursuant to Rule 84(2) submit a communication before the Court against a State Party if a situation that, in its view, constitutes one of serious or massive violations of human rights as provided for under Article 58 of the African Charter, has come to its attention. 4. The Commission may seize the Court at any stage of the examination of a communication if it deems necessary. 174 Ekollo Moundi Alexandre v Republic of Cameroon and Republic of Nigeria, App. No. No. 008/2011, Decision of 23 September 2011, Dissenting Opinion of Judge Ouguergouz, paras 12–14. 175 Ekollo Moundi Alexandre v Republic of Cameroon and Republic of Nigeria, App. No. 008/2011, Decision of 23 September 2011, Dissenting Opinion of Judge Ouguergouz, paras 15–17. 176 Ekollo Moundi Alexandre v Republic of Cameroon and Republic of Nigeria, App. No. 008/2011, Decision of 23 September 2011, Dissenting Opinion of Judge Ouguergouz, paras 27–35. 177 Rules of Court.

E. Protocols to the ACHPR

829

The African Commission has referred only three cases under this Rule. One of the difficulties the African Commission faces is that in order to submit cases to the Court on the basis of failure to implement, whether this be provisional measures or the decisions on communications (Rules 118(1) and (2)), it firstly needs to have acquired evidence of what measures the State has or has not taken to implement. While the African Commission does write letters to the parties to the communication to ask what measures have been taken, they do not always respond, as noted in Chapter 33 (Articles 55 and 57). Even if they do, it may not always receive information from both parties or information that is credible or corroborative. Further, consideration of implementation requires the African Commission to make some analysis of whether the measures taken by the State were satisfactory or not. As noted in Chapter 33 (Articles 55–57), this is more complex than it may at first appear and depends on various factors, such as whether the recommendations were sufficiently precise to enable the State to know exactly what was required and to enable the African Commission to be able to assess if they had been implemented or not, the timeframe in which the State responded, and the adoption of clear criteria for assessment. These are all deficient to a greater or lesser extent in the African system. For Rule 118(3), as noted in Chapter 35 (Article 58), what situations amount to ‘serious or massive violations’ has also not been consistently or comprehensively interpreted by the African Commission, thereby not providing it with a channel that is necessarily any easier than those relating to non-implementation. The first case was where African Commission referred a case against Libya to the African Court in March 2011 on the basis of ‘serious and massive violations’ in the context of the government’s actions taken against civilians in 2010 and 2011.178 Unfortunately, after numerous (successful) requests for extensions of time to ‘allow the situation in Libya to evolve sufficiently to permit the gathering of the required evidence’,179 both the Respondent State (on the basis that the Respondent government was no longer in existence’) and the Applicant (on the basis ‘until the circumstances on the ground in Libya permit the gathering of the necessary evidences and testimonies’) asked the Court to stand the case down.180 After further lack of responses from the parties, the African Court finally struck out the case. What started out as a promising submission, prompting a quick response from the Court when it issued provisional measures, ended up not being the positive story one hoped it would be.181 The second matter filed was also against Libya. The communication before the African Commission was Communication 411/12: Mr Saif Al-Islam Gaddafi (represented by Mishana Hosseinioun) v Libya.182 This related to the detention in a secret location and ill-treatment of the individual in Libya without him being charged with any offence in 178 App. No. 004/2011, African Commission on Human and Peoples’ Rights v Great Socialist Peoples’ Republic of Libyan Arab Jamahiriya, Order for Provisional Measures, 25 March 2011. 179 In the Matter of African Commission on Human and Peoples’ Rights v The Great Socialist Libyan People’s Arab Jamahiriya, App. No. 004/2011, Order, 15 March 2014, para 14. 180 In the Matter of African Commission on Human and Peoples’ Rights v The Great Socialist Libyan People’s Arab Jamahiriya, App. No. 004/2011, Order, 15 March 2014, paras 18 and 19. 181 See R. Murray, ‘The African Court on Human and Peoples’ Rights’ Order for provisional measures against Libya: Greater promise for implementation of human rights in Africa?’, [2011] EHRLR 465–474; J. Oder, ‘The African Court’s Order against Libya: A watershed in the regional protection of human rights?’, 11 AHRLJ (2017) 495–510. 182 Combined 32nd and 33rd Activity reports of the African Commission on Human and Peoples’ Rights, 2012, EX.CL/782(XXII), p.7. Filed at the Court, this then became African Commission on Human and Peoples’ Rights v The Great Socialist Libyan People’s Arab Jamahiriya, App. No. 002/2013, Judgment, 3 June 2016.

830

39. Articles 63–68

violation of Articles 6 and 7 of the ACHPR. In addition to the issuing of provisional measures to prevent harm to him,183 the Court was asked by the Commission to pass a judgment in default under Rule 55 of the Rules of Court. After a lack of communication from the State, it then responded with documentation indicating a series of hearings and applications for Mr Kadhafi/Gaddafi’s continued detention before the national courts. With further lack of engagement from the State (and having ordered additional provisional measures in the meantime to stay the execution of the individual), the Court finally passed a judgment in default. This held that the Court had personal jurisdiction as the Applicant was the African Commission, listed under Article 5 of the Protocol, and that Libya had violated Articles 6 and 7 of the ACHPR, ordering it to end the legal proceedings before the national courts.184 The judgment does not make it clear the basis on which the African Commission submitted the case to the Court other than a reference to the failure of the government to comply with the Commission’s provisional measures.185 The third is against Kenya, before the African Commission as Communication 381/ 09, Centre for Minority Rights Development (CEMIRIDE) (Kenya) and Minority Rights Group v Kenya,186 and before the African Court as App. No. 006/2012, In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya.187 This case related to a complaint before the Commission by the Ogiek community in the Mau Forest in Kenya alleging their eviction from the Forest by the Kenyan government, in violation of Articles 1, 2, 4, 14, 17(2) and (3), 21 and 22, and 58(1). The application asked the Court to order the State to halt the eviction, recognise their right to the land, and pay compensation for loss suffered. In addition to an Order for Provisional Measures,188 the African Court, in a judgment in May 2018, found the government in violation of Articles 1, 2, 8, 14, 17 (2) and (3), 21 and 22, but not Article 4.189 With respect to the ability of the African Commission to refer this case, it is difficult to find any reasoning when considering the documentation available through the African Commission itself. However, the judgment of the Court reveals that the African Commission referred the case on the basis of the State’s failure to implement its provisional measure (Rule 118(2)) and serious or massive violations (Rule 118(3)). With respect to the first ground, the Commission had issued its provisional measure in November 2009, but decided to refer the case to the Court ‘following the lack of response from the Respondent’ only in July 2012, two and half years later.190 Given that provisional measures are there to deal with matters of urgency this considerable delay impacts on the potential impact any Court ruling can have.

Order of 18 April 2012. African Commission on Human and Peoples’ Rights v The Great Socialist Libyan People’s Arab Jamahiriya, App. No. 002/2013, Judgment, 3 June 2016. 185 African Commission on Human and Peoples’ Rights v The Great Socialist Libyan People’s Arab Jamahiriya, App. No. 002/2013, Judgment, 3 June 2016, para 6. 186 Combined 32nd and 33rd Activity reports of the African Commission on Human and Peoples’ Rights, 2012, EX.CL/782(XXII), p.7. 37th Activity Report of the African Commission on Human and Peoples’ Rights, 2014, p.20. 187 Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012. 188 In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/ 2012, Order of Provisional Measures, 15 March 2015. 189 In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/ 2012, Judgment, 26 May 2017. 190 In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/ 2012, Judgment, 26 May 2017, paras 4 and 5. 183 184

E. Protocols to the ACHPR

831

The Respondent State had queried the standing of the original complainants in the communication before the African Commission on the basis that they did not have authority to represent the Ogiek community, and were not acting on their behalf. The African Court considered this to be irrelevant, noting that it was simply governed by Article 5(1) of the Protocol which included the African Commission among those who were able to submit a case to the African Court.191 The State was not required to have made an Article 34(6) declaration in order for the Commission to submit a case to the Court.192 The African Court also gave leave for the two complainants in the original communication before the African Commission to intervene before the Court.193 Although civil society organisations have called upon the African Commission to submit other cases, it has so far failed to do so.194 The Commission does not appear to have adopted any criteria to determine when it will submit cases to the Court (at least any which it has made public). Even if many cases had been referred by the African Commission to the Court on the basis of failure to comply with the former’s decisions, there is no guarantee that implementation will be follow. As Juma notes, the presumption is that by referring the case to the Court a binding decision will induce compliance,195 which in practice may make little difference as the reasons States comply are complex and due to a multiplicity of factors.196 iii. Use of African Commission Jurisprudence The African Court is not obliged to follow the jurisprudence or reasoning of the African Commission, nevertheless it does show a respect for the latter’s findings and is increasingly drawing upon them in its own reasoning. The Court has had relatively few opportunities to decide on the merits of the case and where it could have referred to jurisprudence of the African Commission and other bodies, it has not always used the opportunities one might have expected it to. Remarkably therefore in Affaire Ayants droit de feus Norbert Zongo et al v Burkina Faso,197 the Court made very little reference to case law, either from the African Commission or other human rights mechanisms, in its judgment.

i. Interventions and Amicus Article 5(2) and Rule 53 of the Rules of Court provide that interventions, applications for leave to intervene have to be submitted prior to the close of written proceedings.198 The Practice Directions also note that ‘an individual or organisation that wishes to act as amicus curiae shall submit a request to the Court, specifying the contribution they would like to make with regard to the matter’. The Court will then examine this and, at its own 191 In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/ 2012, Judgment, 26 May 2017, para 58. 192 In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/ 2012, Judgment, 26 May 2017, para 60. 193 In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/ 2012, Judgment, 26 May 2017, para 14. 194 See Resolution Calling on the Republic of Kenya to Implement the Endorois Decision, ACHPR/ Res.257, 5 November 2013. 195 D. Juma, Provisional measures under the African Human Rights System: The African Court’s Order against Libya’, 30(2) Wisconsin International Law Journal 344–373, at 350–351. 196 197 See Chapter 33 (Article 55) for further discussion. App. No. 013/2011. 198 Rule 53(1), Rules of Court. F. Viljoen, ‘Understanding and overcoming challenges in accessing the African Court on Human and Peoples’ Rights’, 67 ICLQ (2018) 63–98

832

39. Articles 63–68

discretion,199 ‘determine within a reasonable time from the date of the receipt of the request, whether to not to accept the request’.200 If the request is granted it will notify the individual or organisation and invite them to make submissions ‘at any point during the proceedings’. It will also provide the application and subsequent pleadings to them.201 Similarly, the amicus brief will ‘immediately’ be sent to all the parties to the case.202The Court can also approach an individual or organisation for an amicus brief.203 Amicus briefs have been submitted in a handful of cases.204

j. Amicable Resolution Article 9 of the Protocol reads: ‘The Court may try to reach an amicable settlement in a case pending before it in accordance with the provisions of the Charter.’ There are two ways this can be achieved: through an out-of-court settlement, or under the auspices of the Court itself. In relation to the former, Rule 56 of the Rules of Court provides that parties can settle their case amicably at any time before judgment. Such a settlement will then be forwarded to the Court ‘which shall render judgment limited to a brief statement on the facts and the solution adopted’. The Court can still continue to proceed with the case even if it has been informed of an amicable settlement. Under the auspices of the Court itself, it can also promote a confidential amicable settlement ‘based on respect for human and peoples’ rights’.205 In both cases the Court will render judgment ‘limited to a brief statement on the facts and the solution adopted’, although the Court still has some discretion to proceed with the case anyway.206 The Court has used this mechanism. For example, in the case brought by the African Commission against Kenya, it ‘proposed’ to the parties that they pursue an amicable settlement, although the Applicant did not wish to pursue this.207

k. Provisional or Interim Measures The Court has ordered provisional measures on several occasions208 through its power in Article 27 of the Protocol: ‘in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary’. This can be done at the request of a party or the African Commission or on its own accord, the Rules of Court also adding that such it ‘deems necessary in the interest of the parties or of justice’.209 For cases of ‘extreme urgency’, the Court can convene an extraordinary session.210 200 Practice Directions, para 47. Practice Directions, paras 42 and 43. 202 Practice Directions, para 44. Practice Directions, para 46. 203 Practice Directions, para 45. 204 E.g. by PALU, In the Matter of African Commission on Human and Peoples’ Rights v The Great Socialist Libyan People’s Arab Jamahiriya, App. No. 004/2011, Order, 15 March 2014, para 4. Also, Amicus Curiae Submission Presented to the African Court on Human and Peoples’ Rights, By The Human Rights Implementation Centre, University of Bristol and The Centre for Human Rights, University of Pretoria under Rule 45(1) of the Rules of the Court, In respect of App. No. 006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya and its Ruling on Reparations, 22 December 2017, on file with author. 205 206 Rule 57(1), Rules of Court. Rules 56 and 58, Rules of Court. 207 In the Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/ 2012, Judgment, 26 May 2017, paras 31–39. 208 E.g. App No. 004/2011, African Commission on Human and Peoples’ Rights v Great Socialist Peoples’ Republic of Libyan Arab Jamahiriya, Order for Provisional Measures, 25 March 2011. 209 210 See also Rule 51, Rules of Court. Rule 51(2), Rules of Court. 199 201

E. Protocols to the ACHPR

833

Similar to the African Commission, the Court has held that ‘before ordering provisional measures, the Court need not conclusively satisfy itself that it has jurisdiction on the merits of the case, but simply needs to satisfy itself, prima facie, that it has jurisdiction’.211 It justifies its approach based on the State’s ratification of the Protocol and its acceptance of the Court’s jurisdiction under Article 34(6). As to what measures the Court may order, there are restrictions. The Court has held that if what is being sought ‘corresponds in substance, to one of the reliefs sought in the substantive case’, it will not order it as this would ‘adversely affect consideration of the substantive case’.212 This resulted in the Court refusing to order the Applicant’s release but being willing to order that he receive appropriate medical care, a ruling with which three judges dissented.213 A request for provisional measures should ‘state reasons, specifying in detail the extreme gravity and urgency, and the irreparable harm likely to be caused as well as the relief sought’.214 It should be filed ‘within a reasonable time’ (although from what is not clear),215 ‘be accompanied by all necessary supporting documents, in particular, if any, relevant domestic court or other decisions, together with any other material which could substantiate the applicant’s allegations’.216 Those that are ‘incomplete, or do not include sufficient information necessary to enable it to make a decision’, will not be considered by the Court.217 There is some suggestion that it may be possible to request provisional measures without a case pending: ‘where the case is already pending before the Court, the request [for provisional measures] shall bear the case number’.218 However, this has not been the practice of the Court so far, and neither, so far, of the Commission. Provisional measures will be alerted not only to the parties to the case but also the African Commission, Assembly, Executive Council and African Union Commission.219 In African Commission on Human and Peoples’ Rights v Republic of Kenya, 006/2012, the African Court found a ‘a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Ogiek community with regard to the violation of their rights’ under the Charter.220 It was thus willing to grant provisional measures and ordered that the Kenyan government ‘immediately reinstates the restrictions it had imposed on land transactions in the Mau Forest Complex and refrains from any act or thing that would or might irreparably prejudice the main application before the Court’.221

l. Remedies Ordered by the Court The Court has a broad remit, which it has used222 under Article 27(1) to ‘make appropriate orders to remedy the violation including the payment of fair compensation or reparation’. Indeed, it states the Court ‘shall’ do so if there is a violation found. This is Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Order of Provisional Measures, para 13. Lohé Issa Konaté v Burkina Faso, App. No. 004/2013, Order of Provisional Measures, para 19. 213 App. No. 004/2013, Lohé Issa Konaté v Burkina Faso, Joint Dissenting Opinion of Judges Augustino Ramadhani, Duncan Tambala and Elsie N. Thompson on Order for Provisional Measures (4 October 2013). 214 215 Practice Directions, para 49. Practice Directions, para 53. 216 217 Practice Directions, para 51. Practice Directions, para 52. 218 219 Practice Directions, para 50. Rule 51(3), Rules of Court. 220 Matter of African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012. 221 In the Matter of the African Commission on Human and Peoples’ Rights v The Republic of Kenya, App. No. 006/2012, Order of Provisional Measures, 15 March 2013, para 25. 222 See the ‘remedies’ section under each of the chapters on the substantive rights. 211 212

834

39. Articles 63–68

consolidated by Rule 63 of the Rules of Court, which provides that this can be part of the same decision establishing the violation or ‘if circumstances so require, by a separate decision’.223 Rule 34 stipulates that where the Applicant wishes to be granted reparation under Article 27(1), then the request should be included in the application initially submitted to the Court, with amounts and evidence relating to reparation submitted at a subsequent time within the limits set by the Court. Some general rules have been set out by the African Court with respect to granting reparations. Firstly, it has, drawing upon international law and jurisprudence of the International Court of Justice, among others, held that Article 27(1) of the Protocol requires that ‘any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation’.224 The Applicant will need to provide evidence to support any application for reparations. For example, in its Judgment on Reparations in the Norbert Zongo case,225 the Court noted that it would not consider reparations in respect of one of the rights claimed to have been violated in the case, the right to free expression, as ‘no argument was advanced and no specific application for reparation filed in furtherance of the Brief on Reparations’ for this right.226 Therefore, ‘it is not enough to show that the Respondent State has violated a provision of the Charter; it is also necessary to prove the damages that the State is being required by the Applicant to indemnify. In principle, the existence of a violation of the Charter is not sufficient, per se, to establish a material damage’.227 The same will apply to non-pecuniary damages where the Applicant will need to produce evidence ‘to support the claim that these damages were directly caused by the facts of this case. The Court will not speculate on the existence, seriousness and magnitude of the non-pecuniary damages claimed’.228 The Court can order a particular remedy even if not requested specifically by the Applicant,229 which is ‘pursuant to Article 27 of the Protocol and the inherent powers of the Court’.230 Furthermore, it has been willing to award, in the handful of cases which have reached the merits and reparations stage, a variety of remedies. These have included guarantees of non-repetition, just satisfaction and compensation. For example, it has required the State to take ‘constitutional, legislative and other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of 223 E.g. Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania. 224 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 27. 225 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015. 226 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 2. 227 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 31. 228 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 37. 229 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 44. 230 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 44.

E. Protocols to the ACHPR

835

the measures taken’.231 The finding of violations by the Court can itself constitute satisfaction.232 Therefore, ‘judgment per se can constitute a sufficient form of reparation for moral damages’, and it has ordered the State to publish the decision of the Court within a set period of time, and translate this into local languages at the expense of the State, including that the judgment appear in the official gazette, in a ‘national newspaper with widespread circulation’, as well as on an ‘official website of the Respondent State and remain available for a period of one year’.233 This is particularly useful, given the lack of awareness of the African Commission’s decisions, at least, at the national level. It held in one case that it was not prepared to order the release of an individual detained in violation of Article 7, that it would only order such in ‘exceptional and compelling circumstances’ but that there was nothing to stop the State doing so itself.234 With respect to claims for damages, the Court has cited international law including the Draft Articles on Responsibility of States for Internationally Wrongful Acts, to require that States to make full reparation for any damage caused. However, there needs to be ‘a causal link between the wrongful act that has been established and the alleged prejudice’.235 Here the Court notes ‘such link may result from the violation of a human right, as an automatic consequence, without any need to prove otherwise’, citing a presumption from the Inter-American Court in this regard.236 It thus concluded in this case: ‘there is hardly any doubt that the close relatives of Norbert Zongo and his three companions suffered moral damage arising from the shortcomings ascribable to the Respondent State for having failed to seek out, prosecute and bring to trial those responsible . . . and in particular the unduly prolonged procedure which in the end turned out to be fruitless’.237 Damages can be for both ‘material and moral damages’,238 which the African Court, drawing on a dictionary definition, then notes as follows: material damage is ‘one that affects economic or material interest, that is interest which can immediately be assessed in monetary terms’, and moral damage as ‘one that affects the reputation, sentiments or affection of the natural person who enjoys diplomatic protection or who can be sued’.239 Christopher Mtilika, Judgment of 14 June 2013. Association pour le Progres et la Défénse des Droits Des Femmes Maliennes (APDF) and Institute for Human Rights and Development in Africa (IHRDA) v Republic of Mali, App. No. 046/2016, Judgment of 11 May 2018, para 135(xi). 233 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 45. 234 Amiri Ramadhani v United Republic of Tanzania, App. No. 010/2015, Judgment of 11 May 2018, para 85; Alex Thomas v Tanzania, App. No. 005/2013, Judgment of 20 November 2015, para 157. 235 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 24. 236 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 55. 237 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 56. 238 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 26. 239 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 27. 231 232

836

39. Articles 63–68

With respect to the latter, the Applicants in Zongo claimed damages for the ‘pain, physical and emotional suffering and trauma . . . throughout the duration of the lengthy legal procedure, which is entirely ascribable to the Burkinabé authorities’. They requested amounts for the beneficiaries of Norbert Zongo, Ernest Zongo, Blaise Ilboudo and Abdoulaye Ablassé (beneficiaries including the spouse, mother, six stepmothers, children and brothers/step brothers and sisters/step sisters).240 Examining the notion of a ‘victim’ in international human rights law, the African Court held that this was ‘not necessarily be limited to that of first-line heirs of a deceased person in accordance with national law. This notion may indeed encompass not only first-time heirs but also possibly other close relatives of the deceased, who can reasonably be considered as having suffered moral prejudice as a result of the violation of the human rights in question’,241 but that ‘the issue as to whether a given person may be considered as one of the closest relatives entitled to reparation has to be determined on a case-by-case basis, depending on the specific circumstances of each case’.242 As to the amount of damages, it has been willing to set a quantum, basing its reasoning on ‘the applicable principle is that of full reparation, commensurate with the prejudice suffered’, with the purpose to ‘wipe out all the consequences of the illegal act and re- establish the situation which would, in all probability, have existed if that act had not been committed’.243 Rule 30 of the Rules of Court states that ‘unless otherwise decided by the Court, each party shall bear its own costs’. A finding of violations does not necessarily imply that the State will pay the costs.244

m. Advisory Opinions The Protocol provides in Article 4: 1. At the request of a Member State of the OAU, the OAU, any of its organs, or any African organization recognized by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission. 2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate or dissenting decision.

If the subject matter of the request for the advisory opinion relates to that which is pending in a communication before the African Commission, the Court will not consider it.245 240 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 36. 241 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 46. 242 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 49. 243 Judgment on Reparations. In the Matter of Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo and the Burkinabé Human and Peoples’ Rights Movement v Burkina Faso, App. No. 013/2011, 5 June 2015, para 60. 244 In Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania and Reverend Christopher R Mtikila v United Republic of Tanzania, App. Nos. 009/2011 and 011/2011, para 125. 245 Rule 68, Rules of Court. Request No 002/2012, The Pan African Lawyers’ Union (PALU) and Southern African Litigation Centre (SALC), Order, 15 March 2013.

E. Protocols to the ACHPR

837

As to who can request an advisory opinion has been an issue of some interest.246 Firstly Member States of the AU can request an opinion, an opportunity used only by Mali so far, as well as an individual stating they were acting on behalf of Libya.247 The State does not have to be a party to the Protocol, simply the Constitutive Act, to use the Court’s advisory jurisdiction. Of the two applications neither have been fully entertained by the Court because of lack of information from the applicants.248 Who is an AU organ is not as straightforward an issue as one might expect. Although the Constitutive Act of the AU lists its organs as the Assembly, the Executive Council, the Pan-African Parliament, the African Court of Justice, the AU Commission, the Permanent Representatives Committee, the Specialized Technical Committees, the Economic, Social and Cultural Council and the Financial Institutions, it does also state that ‘other organs that the Assembly may decide to establish’.249 There has been an ongoing discussion about whether the African Commission on Human and Peoples’ Rights and the African Committee on the Rights and Welfare of the Child are organs of the AU. Their omission from this list is, in part, explained by the fact that the former, certainly, did not push for its inclusion when the Constitutive Act was being drafted. Since then various resolutions and decisions of the Executive Council and Assembly of the AU have considered the matter, concluding that both the Commission and the Committee are organs of the AU.250 This was subsequently reiterated by the African Court itself.251 However, being an AU organ is not the same as being ‘an organisation recognised by the AU’ for the purposes of Article 4. In three cases, brought by the Socio-Economic Rights Action Center (SERAP) and Legal Defence and Assistance Project (LEDAP) and others, the Court was asked to consider cases brought by civil society organisations on the basis that they are ‘African organisations recognised by the OAU’ for the purposes of Article 4 of the Protocol.252 In answer to a Request for Advisory Opinion by the NGO SERAP, the African Court set out consequences for the other requests pending before it submitted by NGOs.253 Interpreting ‘any African organization’ in Article 4, the African Court held that while ‘organisation’ refers to both inter-governmental and non-governmental: that an organization can be considered ‘African’, with regards to NGOs, which are relevant in the present Request, if they are registered in an African State, has structures at the sub-regional, regional or continental level, or undertakes its activities beyond the territory where it is registered, as well as any organization in the Diaspora recognized as such by the African Union.254

246 AP van der Mei, ‘The advisory jurisdiction of the African Court on Human and Peoples’ Rights’, 5 African Human Rights Law Journal (2005) 27–46, at 32–37. F. Viljoen, ‘Understanding and overcoming challenges in accessing the African Court on Human and Peoples’ Rights’, 67 ICLQ (2018) 63–98. 247 Request for an Advisory Opinion 002/2011 Advocate Marcel Ceccaldi on behalf of the Great Socialist Peoples’ Libyan Arab Jamahiriya. 248 249 Demande d’Avis Consultatif, No. 001/2011. Article 5, Constitutive Act. 250 See Chapters 29 and 30 (Articles 30–40; and Articles 41–44). 251 Request No. 002/2013, The African Committee of Experts on the Rights and Welfare of the Child on the Standing of the African Committee of Experts on the Rights and Welfare of the Child before the African Court nn Human and Peoples’ Rights, Advisory Opinion, 5 December 2014. 252 R. W. Eno, ‘The jurisdiction of the African Court on Human and Peoples’ Rights’, 2 African Human Rights Law Journal (2002) 223–233. 253 Request For Advisory Opinion By The Socio-Economic Rights And Accountability Project (SERAP), No. 001/ 2013 Advisory Opinion 26 May 2017. 254 Request for Advisory Opinion by the Socio-Economic Rights And Accountability Project (SERAP), No. 001/ 2013 Advisory Opinion 26 May 2017, para 48.

838

39. Articles 63–68

Crucially, however, it interpreted ‘organizations recognised by the African Union’ as not being the same as ‘those recognized by any organ of the African Union. Had the authors of the Protocol wanted to also target African organizations recognized by any organ of the African Union, they would certainly not have hesitated to make this clear’.255 Consequently, ‘the term “recognized by the African Union” cannot be understood as meaning “recognized by the African Commission on Human and Peoples Rights” ’.256 This was disappointing for not only SERAP but also, given the applicability of this ruling to other requests, to a number of other organisations.257 If the NGO can show that it has observer status before the AU itself (and it is not entirely clear how this is acquired) or has signed a Memorandum of Understanding with it, then they will be ‘recognised’ as such by the AU.258 The conclusions of the Court have led one of its justices, Judge Rafaa Ben Achour, to note that ironically Article 4 is now more restrictive than access under Article 5 for NGOs, and his hope that the AU will amend Article 4 of the Protocol accordingly or enable NGOs with observer status before the African Commission to similarly obtain observer status before it.259 Article 4 of the Protocol provides that the advisory opinion can be given on ‘any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission’. This is a broad scope, going beyond the ACHPR to other ‘instruments’ not just treaties,260 but as yet the African Court has had no real opportunity to test this given the outcome of the few requests it has so far received.

n. Implementation and Compliance As noted in Chapter 33 (Articles 55–57), ratification of the ACHPR and even a finding of violation by the African Commission does not necessarily mean that the State will implement the Commission’s decisions, resolutions or Concluding Observations.261 The African Commission has not fully articulated a procedure by which it will monitor implementation of its decisions. The Court’s is more prescribed in the Protocol itself and in the way in which it has now interpreted its mandate. Article 31 of the Protocol provides that ‘the Court shall submit to each regular session of the Assembly, a report on its work during the previous year. The report shall specify, in particular, the cases in which a State 255 Request for Advisory Opinion by the Socio-Economic Rights And Accountability Project (SERAP), No. 001/ 2013 Advisory Opinion 26 May 2017, para 58. 256 Request for Advisory Opinion by the Socio-Economic Rights And Accountability Project (SERAP), No. 001/ 2013 Advisory Opinion 26 May 2017, para 56. 257 Request for Advisory Opinion by Rencontre Africain pour la Defense des Droits de l’Homme, No. 002/2014, Advisory Opinion, 28 September 2017. Request for Advisory Opinion by the Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbians, No. 002/2015, Advisory Opinion, 28 September 2017. Request for Advisory Opinion by the Centre for Human Rights University of Pretoria, Federation of Women Lawyers Kenya, Women’s Legal Centre, Women Advocates Research and Documentation Centre, Zimbabwe Women Lawyers Association, No. 001/2016, Advisory Opinion, 28 September 2017; Request for Advisory Opinion by l’Association Africaine de Defense des Droits de l’Homme, No. 002/2016, Advisory Opinion, 28 September 2017. 258 Request for Advisory Opinion by the Socio·Economic Rights and Accountability Project (SERAP), No. 001/ 2013 Advisory Opinion 26 May 2017, paras 53–54. 259 Individual Opinion of Judge Rafaa Ben Achour, The Four Advisory Opinions of 28 September 2017. 260 AP van der Mei, ‘The Advisory jurisdiction of the African Court on Human and Peoples’ Rights’, 5 African Human Rights Law Journal (2005) 27–46, at 38. 261 See for general discussion, R. Murray and D. Long, Implementation of the Findings of the African Commission on Human and Peoples’ Rights, Cambridge University Press, 2015.

E. Protocols to the ACHPR

839

has not complied with the Court’s judgement.’ The Rules of Court also state that in the case of interim measures that in the case of non-compliance ‘the Court shall make all such recommendations as it deems appropriate’ and can request information from the parties on implementation.262 The African Court has reported on the status of implementation of its judgments firstly through an increasingly detailed section of its Activity Report. It has raised concerns, however, with the timing of such. Despite being required to submit a report to ‘each regular session of the Assembly’, since a directive from the African Union Commission (AUC) in 2012 this has lessened to only once a year. Thus, in the context of Libya: There is, thus, no mechanism that allows the Court to report to the policy organs outside the reporting requirement outlined in Article 31 and the AUC Directive . . . The directive of the AUC for organs to report only once a year made it difficult for the Court to bring to the attention of the Executive Council, Libya’s non-compliance with its Order. In May 2013, when the matter was to be brought to the attention of the Executive Council, the Court was not scheduled to present any report, as it had presented a report in January, 2013. Although, the PRC was informed about the non-compliance, and a report presented to it, the PRC only noted the report under “Any other business”, and did not transmit same to the Executive Council because it was not on its agenda.263

In this case, the African Court adopted an Interim Report notifying the Executive Council of Non-Compliance by a State,264 in relation to App. No. 002/2013, African Commission on Human and Peoples’ Rights v Libya, specifically with respect to the Order of Provisional Measures issued by the Court on 15 March 2013. As the government had not yet notified the Court of the measures taken to implement the Order, and noting that ‘an Order of Provisional Measures issued by the Court is as binding as any judgment of the Court’, that by failing to inform the Court of measures taken to implement it has failed to comply with a judgement of the Court. As a result, it was reporting the matter to the Assembly and under Rule 54(1) of its Rules of Court recommending that the ‘Assembly express itself on Libya’s non-compliance with the Court Order’ and for the Assembly to call on Libya to report to the Court within fourteen days, for the Assembly to adopt a broader decision calling on States to comply with Court’s judgments and Orders, and for the Assembly ‘to take such other measures as it deems appropriate to ensure that Libya fully complies with the Court order’.265 Beyond this discrete example, the Court has required, as part of its judgment or ruling on reparations, for the State to submit a report to the Court on the measures it has taken to ensure compliance with the judgment.266 This would appear to be an actual report that the State submits and the African Court will not rely simply on information sent by the Applicants.267 Rule 51(4) and (5), Rules of Court. Activity Report of the African Court for the Year 2013, paras 111–114. 264 Interim Report of the African Court on Human and Peoples’ Rights notifying the Executive Council of Non-Compliance by a State, in accordance with Article 31 of the Protocol. 265 Interim Report of the African Court on Human and Peoples’ Rights notifying the Executive Council of Non-Compliance by a State, in accordance with Article 31 of the Protocol, http://www.african-court.org/en/ images/documents/Reports/AFCHPR_Interim_Report__Non_compliance_by_a_State__-_Libya.pdf 266 Ruling on Reparations on App. No. 011/2011, Rev Christopher R Mtikila v United Republic of Tanzania, para 46(6). 267 See e.g. 2016 Activity Report of the African Court on Human and Peoples’ Rights, 1 January–31 December 2016, EX.CL/999 (XXX), January 2017, para 21. 262 263

840

39. Articles 63–68

The Activity Report of the Court now lists the implementation status of its cases and makes an assessment whether the Court’s order has been ‘complied with’ or ‘not complied with’,268 although the criteria on which it bases this assessment is not made clear. The ability of the State to implement the ruling of the African Court may depend in part on how specific the Court is in setting out what the State is required to do to remedy the violations. On the one hand, ordering the State to ‘take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken’,269 arguably fails to give the State sufficient direction, and consequently, may not assist the Court when it comes to determining if the State has responded appropriately. On the other, if the State is properly committed to complying with its international human rights obligations, it should be able to determine for itself what is needed. In any event, the African Court has become more detailed in its orders to States on how they should remedy the violations. And States in turn have asked for more information from the African Court, through requests for interpretation of judgments, on what action they should take.270 The role of the African Court in monitoring implementation of its own judgments is also, it would seem, to be shared with the political organs of the AU. Article 29 of the Protocol and Rule 64 of the Rules of Court provide that those notified of any judgement will include the Commission, Assembly, AU Commission and ‘any person or institution concerned of the judgment’. The Executive Council will also be notified and ‘shall monitor its execution on behalf of the Assembly’.271 Proposals are being considered to clarify further the reporting process by the African Court on compliance by States and the role of the Court vis-à-vis the AU organs.272

2. The Maputo Protocol on the Rights of Women in Africa The origins of the Maputo Protocol lay in a recognition, led by women’s rights organisations, that aside from Article 18(3) and the provision on non-discrimination in Article 2, the ACHPR made insufficient reference to the rights of women on the continent.273 A series of conferences organised by WILDAF and the International Commission of

Activity Report of the African Court for the Year 2013, p.9. In Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania and Reverend Christopher R Mtikila v United Republic of Tanzania, App Nos. 009/2011 and 011/2011, para 126(3). 270 App. No. 002/2017, Interpretation of Judgment of 3 June 2016, Mohamed Abubakari v United Republic of Tanzania, Judgment 28 September 2017; App. No. 003/2017, Interpretation of the Judgment of 18 November 2016, Actions pour la Protection des Droits de l’Homme v Republic of Côte D’Ivoire, Judgment 28 September 2017; App. No. 001/2017, Interpretation of Judgment of 20 November 2015, Alex Thomas v United Republic of Tanzania, Judgment 28 September 2017. 271 Rule 64(2), Rules of Court. 272 See e.g. R. Murray, D. Long, V. Ayeni, A. Some, ‘Monitoring implementation of the decisions and judgments of the African Commission and Court on Human and Peoples’ Rights’, 1 African Human Rights Yearbook (2017) 150–166. 273 WILDAF ‘The African Charter on Human and Peoples’ Rights and the Additional Protocol on Women’s Rights’ (accessed 25 January 2001). L. Kois ‘Article 18 of the African Charter on Human and Peoples’ Rights: A progressive approach to women’s human rights’ (1997) 3 East African Journal of Peace and Human Rights 92 94–95. See also M. Mubiala ‘Le projet de Protocol a la Charte Africaine des Droits de I’homme et des Peuples relatif aux Droits de la Femme en Afrique’ (2000) Human Rights Droits de I’homme 23. 268 269

E. Protocols to the ACHPR

841

Jurists in collaboration with the African Commission and its Special Rapporteur on the Rights of Women274 encouraged the Organisation of African Unity (OAU) to endorse the need for a separate instrument on the rights of women.275 A number of drafts were created,276 culminating in the ‘Kigali’ draft adopted at the session of the African Commission in 1998,277 when there was a realisation that parallel processes had been taking place at the level of the OAU to draft an instrument on harmful traditional practices, under the leadership of the Women’s Unit of the OAU.278 In a sensible move, the OAU asked that both documents be combined to produce a single instrument which would encompass harmful traditional practices but also cover the breadth proposed by the Kigali draft. The resulting Protocol is an interesting mix of international standards, drawn from the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), issues considered to be of particular relevance to the African continent, and the interpretation of the articles in the ACHPR for women.279 Several States have made reservations to the Protocol.280 Monitoring the implementation of the Protocol is through the submission of reports to the African Commission under Article 62 of the ACHPR, as permitted under the Rules of Procedure of the African Commission.281 274 WILDAF, “The African Charter on Human and Peoples’ Rights and the additional Protocol on Women’s Rights”, (1999) WILDAF News 18; x Draft Terms of Reference for the Special Rapporteur on the Rights of Women in Africa DOC/0S/34c (XXIII) Annex 11, 1996. F. Banda, ‘Blazing a Trail: The African Protocol on Women’s Rights Comes into Force’, 50(1) JAL (2006) 72–84; F. Banda, Women, Law and Human Rights: An African Perspective, Hart Publishing, 2005; M. S. Nsibirwa, ‘A brief analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’, 1 AHRLJ (2001) 40–63; R. Murray, ‘A feminist perspective of the African human rights system’, (2000) AHRJ 205. K. Davis, ‘The Emperor is still naked: Why the Protocol on the Rights of Women in Africa leaves women exposed to more discrimination’, 42 Vanderbilt Journal of Transnational Law (2009) 949–992. 275 Resolution AHG/Res 240 (XXXI). Rachel Rebouché, ‘Health and reproductive rights in the Protocol to the African Charter: Competing influences and unsettling questions’, 16 Wash. & Lee J. Civ. Rts. & Soc. Just. 79 (2009). 276 Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, DOC/ OS/34c (XXIII) Annex. 14; Draft Protocol to the African Charter on the Rights of Women, 15 November 1999, DOC/OS (XXVII)/159b. 277 Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, [Final Version], 13 September 2000, CAB/LEG/66.6. 278 R. Murray, ‘Women’s Rights and the Organization of African Unity and African Union: The Protocol on the Rights of Women in Africa’, in D. Buss; A. Manji, International Law: Modern Feminist Approaches, ed., Hart Publishing, 2005, 253–272. 279 For more discussion see Chapter 3 (Article 2) and Chapter 19 (Article 18). See also R. Murray, ‘Women’s Rights and the Organization of African Unity and African Union: The Protocol on the Rights of Women in Africa’, in D. Buss and A. Manji, International Law: Modern Feminist Approaches ed., Hart Publishing, 2005, 253–272. F. Viljoen, ‘An introduction to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’, 16 Wash.Lee JCR and Soc.Just (2009) 11–46. 280 E.g. Instrument of Ratification of the Republic of The Gambia, 25 May 2005, to Articles 5, 6, 7 and 14 of the Protocol; Instrument of Ratification of the Republic of Namibia, 11 August 2004, to Article 6(d) ‘until legislation regarding the recording and registration of customary marriages is enacted’. Instrument of ratification Republic of South Africa, 17 December 2004, reservations to Articles 4(j), 6(d), 6(h), 1(f ), 31. 281 Rule 73 of the 2010 Rules of Procedure of the African Commission reads: ‘Contents of State Reports: Pursuant to Article 62 of the African Charter and other relevant legal instruments which supplement them, including the Protocol to the African Charter on the Rights of Women in Africa in its Article 26, States Parties shall submit reports in accordance with the guidelines of the Commission, on the measures they have taken to give effect to the provisions of the African Charter and on the progress they have made. Reports shall indicate the challenges, if any, affecting the implementation of the African Charter and its relevant protocols’. See Chapter 38 (Article 62).

842

39. Articles 63–68

The African Court on Human and Peoples Rights has now delivered its first judgment on the Maputo Protocol,282 giving hope that the provisions of this instrument will not be forgotten and could have real impact.283

3. Protocol on Rights of Persons with Disabilities The initial idea for a protocol on the rights of persons with disabilities and ‘vulnerable groups’ was raised in the first AU Ministerial Conference on Human Rights in Kigali in 2003.284 The African Commission subsequently transformed its focal point into a working group and then designated it to consider the issue, at that time a protocol on both disabled persons and ‘ageing’.285 Expert seminars have been held and drafts produced,286 although as Viljoen and Biegon note, ‘progress has been slow’.287 Although many African States may have already ratified the UN Convention on the Rights of Persons with Disabilities (CRPD), one of the reasons for the adoption of an African instrument was a recognition that the UN treaty did not adequately address issues of specific relevance to Africa such albinism, HIV/AIDS and traditional practices.288 As Combrinck and Mute point out, the African Commission endeavoured to address the rights of persons with disabilities in its other mechanisms such as State reporting, and through the adoption of resolutions,289 prior to and consequently with the Working Group which it established specifically for this purpose.290 Discussions took place around 282 Association pour le Progres et la Défénse des Droits Des Femmes Maliennes (APDF) and Institute for Human Rights and Development in Africa (IHRDA) v Republic of Mali, App. No. 046/2016, Judgment of 11 May 2018. 283 See e.g. Implementing the Protocol on the Rights of Women in Africa: Analysing the Compliance of Kenya’s Legal Framework, Oxfam, March 2014. Status of Implementation of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, By Justice Lucy Asuagbor Commissioner, Special Rapporteur on the Rights of Women in Africa (African Commission on Human and Peoples’ Rights), 60th Meeting, Commission on the Status of Women, 18 March 2016, New York. 284 E.g. Kigali Declaration, 1st African Union (AU) Ministerial Conference on Human Rights in Africa meeting on 8 May 2003 in Kigali, Rwanda, para 20. L. O. Oyaro, ‘Africa at crossroads: The United Nations Convention on the Rights of Persons with Disabilities’, 30(2) Am. U. Int.L.R. (2015) 347–376. 285 Resolution on the Transformation of the Focal Point on the Rights of Older Persons in Africa into a Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res.143, 27 May 2009. For a detailed discussion of the process to draft the protocol on the rights of disabled persons and older persons, see H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African Charter and African Commission on human and peoples’ rights’, 2 Afr. Disability Rts. Y.B. (2014) 309–317. 286 ‘Draft Protocol on the Rights of People with Disabilities in Africa’ (‘Accra Draft’), Yuen ‘Report of the Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa’ 52nd ordinary session of the African Commission on Human and Peoples’ Rights (9–22 October 2012), L. Mute ‘Concept on the List of Issues to Guide Preparation of a Protocol on the Rights of Persons with Disabilities’ (24 August 2012), with a Zero draft produced: L. Mute ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities’ (28 April 2013). 287 F. Viljoen and J. Biegon, ‘The feasibility and desirability of an African Disability Rights Treaty: Further norm-elaboration or firmer norm-implementation?’, 30(2) South African Journal on Human Rights, Vol. 30, Issue 2 (2014), 345–365, at 347. 288 S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. 219 (2013) 219–249, at 228. F. Viljoen and J. Biegon, ‘The feasibility and desirability of an African Disability Rights Treaty: Further norm- elaboration or firmer norm-implementation?’, 30(2) South African Journal on Human Rights, Vol. 30, Issue 2 (2014), 345–365 289 See Chapters 3 and 19 (Article 2 and Article 18). H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African charter and African commission on human and peoples’ rights’, 2 Afr. Disability Rts. Y.B. (2014) 309–317. 290 ACHPR/Res.143,  2009.

E. Protocols to the ACHPR

843

whether the issues were better addressed through a separate treaty rather than a protocol attached to the ACHPR,291 but there was a recognition by the Working Group that ‘Africa’s human rights architecture will remain lopsided and incomplete without a human rights instrument affirming or reaffirming the rights of persons with disabilities’292 and that as the CRPD did not address issues relevant to an African context, it was better to create a ‘home-grown’ instrument, but one which does not undermine the CRPD and which can ‘raise the bar’ on standards for persons with disabilities.293 Ultimately the decision to have a protocol rather than a treaty was because there was a belief, according to Commissioner Laurence Mute, that the rights of persons with disabilities be ‘anchored on Africa’s flagship human rights instrument, the African Charter’, and would also enable use to be made of the existing infrastructure and mechanisms of the African Commission to monitor its implementation.294 The detail of the current draft is provided for in Chapter 19 (Article 18).

4. Rights of Older Persons The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa was adopted by the AU in January 2016, although it has yet to achieve any of the fifteen ratifications necessary for it to come into force.295 It arose out of initiatives in part at the AU, including its Policy Framework and Plan of Action on Ageing, which provided for an additional protocol to be elaborated,296 picked up on in the Kigali Declaration one year later.297 Initially perceived as a Protocol on both the rights of persons with disabilities and older persons, the two matters were then separated into two instruments.298 Monitoring the implementation of the Protocol is through reporting under Article 62 of the ACHPR,299 adopting the approach of the Maputo Protocol, and although it is the African Commission here who has the mandate to interpret its provisions, it can ‘refer matters of interpretation and enforcement’ to the African Court and the latter can hear ‘disputes arising from the application or implementation of this Protocol’.300 This does

291 H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African charter and African commission on human and peoples’ rights’, 2 Afr. Disability Rts. Y.B. (2014) 309–317; see Secretariat of the African Decade for Persons with Disabilities, ‘The Architecture for an African Disability Rights Treaty’, available at: www.africandecade.org [accessed 14 December 2018]. 292 H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African charter and African commission on human and peoples’ rights’, 2 Afr. Disability Rts. Y.B. (2014) 309–317, at 314. 293 H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African Charter And African Commission on Human and Peoples’ Rights’, Afr. Disability Rts. Y.B. (2014) 309–317, at 315. See further discussion on the suitability of adopting Protocols, in Chapter 39 (on Articles 63–68). S. A. D. Kamga, ‘A call for a protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’, 21 Afr. J. Int’l & Comp. L. (2013) 219–249, at 228. 294 H. Combrinck and L. Mute, ‘Developments regarding disability rights during 2013: The African charter and African commission on human and peoples’ rights’, 2 Afr. Disability Rts. Y.B. (2014) 309–317, at 316. 295 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, Article 26(1). 296 Adopted at the 25th Ordinary Session of the OAU Labour and Social Affairs Commission in Ouagadougou, Burkina Faso, in April 2002, and then the 38th Ordinary Session of the Assembly of Heads of State and Government in Durban, South Africa, para 4.1. 297 298 Kigali Declaration, 2003, para 20. See Chapter 19 (Article 18). 299 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, Article 22. 300 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, Article 22.

844

39. Articles 63–68

not make it clear if communications can be brought on the basis of the Protocol’s provisions before the African Commission in the first instance or not.

5. Other Protocols Additional initiatives for other protocols to the ACHPR include a Protocol on the Right to Nationality,301 following on from a report commissioned by the African Commission on the issue;302 as well as a Protocol on the Rights of Citizens to Social Protection and Social Security.303

F. Amendments to the ACHPR The African Charter has never been amended although the suggestion that it should be has been raised on a number of occasions by those who argue for stronger provisions and which reflect the changing political and legal landscape since its creation,304 and also by the African Commission itself.305 Sometimes this has been in passing, with no concrete proposals given as what should be changed.306 In other instances, amendment has been offered as a way of dealing with ‘the issue of incompatibility of the members of the Commission’,307 and in light of the Protocol establishing the Court.308 On a very basic level changes to the African Charter are clearly required given that it still refers to the OAU and its organs and these now no longer exist, with their functions vis-à-vis the African Commission having been replaced with respective AU bodies. Given that any amendments will only come into force for each State that accepts it, changes of this nature of the ACHPR in practice necessitate all Member States’ acceptance. Yet the original text with references to the OAU and its organs is still the one on both the Commission’s and AU’s websites. One presumes that opening up even this to 301 Resolution on the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on the Right to Nationality in Africa, ACHPR/Res.277, 12 May 2014. 302 Study on the Right to Nationality in Africa by the Commission, adopted during its 55th Ordinary Session held from 28 April to 12 May 2014 in Luanda, Angola; See Chapter 14 (Article 13). See also Resolution ACHPR/Res.234, 23 April 2013 303 Intersession Activity Report of Commissioner Yeung Kam John Yeung Sik Yuen in his joint capacity as Commissioner and Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa, 59th Ordinary Session of the African Commission on Human and Peoples’ Rights, 21st October–4th November 2016, Banjul, the Islamic Republic of The Gambia. 304 See e.g. C. Heyns, ‘The African regional human rights system: In need of reform?’, 2 AHRLJ (2001) 155–174. 305 See e.g. at the 19th session, R. Murray, ‘Report of the 1996 Sessions of the African Commission on Human and Peoples’ Rights. 19th and 20th Ordinary Sessions: 26 March–4 April, and 21–31 October 1996’, 18 HRLJ (1997) 16–27, at 18. 306 E.g. in his speech to the 12th Ordinary Session in October 1992 it was noted that the Minister of the government of The Gambia ‘was in the process of establishing contacts with other friendly countries to initiate amendments to the Charter’, Final Communiqué of the 12th Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, 12–21 October 1992, para 6. ‘Amendment to the African Charter’ has also been listed as an item on session agendas, see Agenda of the 19th Ordinary Session, Ninth Activity Report of the African Commission on Human and Peoples’ Rights 1995–1996, adopted 3 April 1996, AHG/207 (XXXII), Annex IV. Final Communiqué of the 19th Ordinary Session of the African Commission on Human and Peoples’ Rights, Ouagadougou, 26 March–4 April 1996, para 12: a need to ‘update’ the African Charter. 307 Agenda of the 21st Ordinary Session, April 1997, Tenth Annual Activity report of the African Commission on Human and Peoples’ Rights, 1996–1997, adopted 24 April 1997, Annex III, para 10. 308 See Agenda of the 25th Ordinary Session, Twelfth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1998–1999, adopted 5 May 1999, Annex II, para 9.

F. Amendments to the ACHPR

845

amendment, uncontroversial though it may seem, may give opportunities for debate on other aspects of the Commission’s work which is a risk not worth taking.309 It is a State party which has to initiate the request for an amendment, the African Commission being drawn in subsequently to give its opinion. The amendments can still come into force without African Commission approval, for each State that has accepted it. In earlier drafts of the ACHPR the African Commission was also able to propose amendments.310

309 See concerns on this issue: R. Murray, ‘Report of the 1996 Sessions of the African Commission on Human and Peoples’ Rights. 19th and 20th Ordinary Sessions: 26 March–4 April, and 21–31 October 1996’, 18 HRLJ (1997) 16–27, at 18. 310 M’Baye Draft, Article 59(1).

Index abortion female health and reproductive rights 467–68 lack of access to 166 right to health 425–28 access to information right of 271–73 see also right to receive information and freedom of expression access to justice 210–12 see also right to a fair trial access to property 373–74 see also right to property activity reports see confidentiality; inter-state communications and activity reports additional protocols 640 admissibility requirements individual communications 668–69 inter-state communications 659–60 jurisdiction and 824–25 protocols, issues concerning issues of 825–26 right to receive information and freedom of expression 268–69 advisory opinions 836–38 affiliated status 779–80 see also confidentiality African Charter on Human and Peoples’ Rights (ACHPR) adherence 807–45 amendments to 844–45 binding nature of 23 context 807–8 drafting 2–4 entry into force 808–9 future of 13–15 interpretation of provisions 2–4 national law, relationship with 17–19 ratification of 17–19,  808–9 reservations 809–11 sessions 811–13 signature 807–45 African Commission on Human and Peoples’ Rights 597–609 appointment of Commissioners 605–7 election 606–7 nomination 605–6 solemn declaration 607 Article 30 provisions 597 Article 31 provisions 597 Article 32 provisions 597 Article 33 provisions 597 Article 34 provisions 597 Article 35 provisions 597 Article 36 provisions 597 Article 37 provisions 597 Article 38 provisions 597 Article 39 provisions 597–98 Article 40 provisions 598 assessment of 609

competence in matters of human and peoples’ rights 600 composition 599–600 context 598–99 gender representation 604 geographical spread 603–4 good offices of 89, 265, 317, 362, 385, 457 high morality 600 impartiality 600–3 language 603–4 legal experience 600 nationality 603–4 obligation to implement 33–35 personal capacity 600–3 protocols 826–31 jurisprudence, use of 831–40 remedies 88, 89 removal 608 reports to 88, 183, 252, 265, 434 reputation 600 resignation 608 Secretariat see Secretariat seizure of 666–67 vacancy 608 African Committee of Experts on the Rights and Welfare of the Child (ACERWC) 6, 7, 470, 472, 611, 640, 675, 682, 767–68,  813 African Governance Architecture (AGA) 7 African Human Rights System 8–9 elaboration through protocols and treaties 10–12 African Peer Review Mechanism (APRM) 6, 521–22,  651 African Union (AU) key events and creation of 5–8 organs and institutions 650–53 African Unity 591–92 age 81–82 older persons 421–22 rights and protocols 843–44 see also non-discrimination albinism 78–79 see also non-discrimination ‘all stages of the proceedings’ 228–29 see also defence amicable settlement freedom of expression 291 freedom of movement 341 individual communications 669–71 inter-state communications 660 non-discrimination 87–88,  89 protocols 832 right to property 384 see also remedies amicus curiae 673–74 protocols 831–32

848

Index

amnesty obligations of member states 36–37 right to a fair trial 241–42 appeal right to 221–23 see also right to a fair trial applicable principles 782–93 African practices 791–93 African sources 791–93 Article 60 provisions 782 Article 61 provisions 782 context 782–84 ‘draw inspiration from’ 784–89 international humanitarian law 790–91 international law on human and peoples’ rights 789–90 appointments Commissioners 605–7 election 606–7 nomination 605–6 solemn declaration 607 Arab Maghreb Union (AMU) 12 arbitrary detention as torture 162 arrest and detention on discriminatory grounds 188 right of appeal against 197 rights upon 192–94 access to a lawyer 194 be provided with reasons 193–94 Embassy 194 medical examination 194 notification of family and friends 194 searches 193 on warrant 187–88 see also detention Article 1 see obligations of member states Article 2 see non-discrimination Article 3 see equality before the law and equal protection of the law Article 4 see right to life and integrity of the person Article 5 see respect of dignity, prohibition of slavery and torture and other forms of ill-treatment Article 6 see right to liberty and security of the person Article 7 see right to a fair trial Article 8 see freedom of conscience and religion Article 9 see right to receive information and freedom of expression Article 10 see freedom of association Article 11 see right to assemble Article 12 see freedom of movement Article 13 see participation in the government, access to the public service and to public property Article 14 see right to property Article 15 see right to work Article 16 see right to health Article 17 see right to education, cultural life and the promotion of morals and traditional values Article 18 see protection of the family, rights of women, older persons and persons with disabilities Article 19 see equality of peoples

Article 20 see people’s right to existence, self-determination and freedom from foreign domination Article 21 see disposal of wealth and natural resources Article 22 see right to development Article 23 see right to peace and security Article 24 see right to general satisfactory environment Article 25 see human rights teaching, education and publication Article 26 see independence of the courts and establishment of national institutions Articles 27–29 see individual duties Articles 30–40 see African Commission on Human and Peoples’ Rights Articles 41–44 see Secretariat Article 45 see mandate of the Commission Article 46 see procedure of the Commission Articles 47–54 see inter-state communications and activity reports Articles 55–57 see individual communications Article 58 see emergency situations; violations Article 59 see confidentiality Articles 60–61 see applicable principles Article 62 see confidentiality; state reporting Article 63 provisions 807 Article 64 provisions 807 Article 65 provisions 807 Article 66 provisions 807 Article 67 provisions 807 Article 68 provisions 807 assembly see right to assemble association see freedom of association Association for the Prevention of Torture (APT) 176, 646 AU Commission 601, 614, 623, 626, 678, 833, 839 authors anonymity of 693–98 protection of moral and material interests 456 bail possibility of 194–95 benefit sharing 533 see also right to development birth 76–77 see also non-discrimination budget of the African Commission see Secretariat burden of proof exhaustion of local remedies 741–42 individual communications 688–89 presumption of innocence 224 respect of dignity; slavery and torture 171–72 right to life 128 Center for Justice and International Law (CEJIL) 153 Chair and Vice-Chair see Secretariat charges joinder of 236 specificity of 236

Index see also right to a fair trial Charter principles (UN/OAU) 748–52 ‘by those states involved’ 750 ‘have been settled’ 748–50 in accordance with 750–52 see also individual communications children affected by HIV/AIDS 447 categorisation of 422–23 child labour 396–97 child soldiers 448 disabilities 448–49 girl-child 445–46 of migrant workers 448 rights of 471–75 right to a fair trial 244–45 working children 448 civil society engagement with 252 organisations (CSOs) 643–49 role of 355–56 clemency exhaustion of local remedies 740–41 obligations of member states 36–37 right to fair trial 241–42 climate change right to development 534 right to general satisfactory environment 555 see also environmental concerns clothing right to adequate 406 see also right to health Coalition of African Lesbians (CAL) 13–14, 65–66, 627, 644–45,  648–49 colour 62 see also non-discrimination Committee on Prevention of Torture in Africa (CPTA) respect of dignity; slavery and torture 144–45,  176–79 Committee on the Protection of the Rights of People Living with HIV 434–36 common heritage of mankind 530 see also right to development Common Market for Eastern and South Africa (COMESA) 12 communication individual see individual communications inter-state see inter-state communications and activity reports publication and see confidentiality community interests 378–79 see also right to property Community of Sahel-Saharan States (CEN-SAD) 12 compensation equality before the law 97–98 freedom of conscience and religion 264 freedom of expression 289 freedom of movement 340 government participation 363 non-discrimination 84–85 respect of dignity; slavery and torture 182 right to education, cultural life and the promotion of morals and traditional values 457 right to a fair trial 249–50

849

right to health 433 right to liberty and security of the person 202 right to life and integrity of the person 130 right to property 374, 383–84 right to work 399 see also costs; remedies complaints respect of dignity; slavery and torture 181 mechanisms 155–56 right to liberty and security of the person 203 compliance 838–40 conduct obligation of 30–31 see also obligations of member states Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA) 6 confidentiality of communications 230 provisions 769 publication and 767–81 activity reports 773–75 affiliated status 779–80 Article 59 provisions 767 Articles 59(1)-(3), relationship between 769–70 Article 62 provisions 779 assessment of 781 communications 770–73 context 767–68 general comments 776–77 mission reports 777–78 missions 777–78 observer status 779–80 official documents 779 resolutions 776–77 sessions 775 state reports 779 see also defence conflict right to life, violation of 122 conscience freedom of 256–57 see also freedom of conscience and religion constructive dialogue see dialogue corporal punishment 144–45 see also punishment corruption disposal of wealth and natural resources 518 costs equality 97–98 see also compensation; remedies courts access to: right to a fair trial 210–12 right to liberty and security of the person 190–91 application of rules 251 composition: amendments to 250 impartiality of 236–41 independence of see independence of the courts and establishment of national institutions reform: right to life and integrity of the person 131 respect for rulings 251–52

850

Index

cross-examination 232–33 see also defence culture African cultural values 593–95 definition of 449–52 development of 529–30 right to 452 ‘take part in cultural life’ 455–56 authors, protection of moral and material interests 456 national plans 456 national policies 456 national systems 456 scientific progress 456 see also right to education, cultural life and the promotion of morals and traditional values death in custody 111–12 death penalty 112–21 abolition/moratorium 112–18 Article 7 compliant trial 118–20 executions, rules on the conduct of 121 prohibition on implementation of 250 respect of dignity; slavery and torture 162–66 right to 227–33 adequate time and facilities for preparation 229–30 all stages of the proceedings 228–29 confidentiality of communications 230 cross-examination 232–33 equality of arms 231–32 legal assistance of choice 228 protection of lawyers 230–31 right to call witnesses 232–33 see also right to a fair trial; right to life and integrity of the person; Working Group on the Death Penalty declarations 809–11 degrading definition of 143 democracy 346–48 see also politics denial of responsibility respect of dignity; slavery and torture 172–73 Department of Political Affairs (of the AU) (DPA) 8 deportation family rights 462–63 respect of dignity; slavery and torture 167 deposit of instruments 808–9 deprivation of life 104–5 see also right to life and integrity of the person derogation 38–41 see also non-derogation; obligations of member states detention arbitrary detention as torture 162 arrest and detention on discriminatory grounds 188 continued 197–98 detainees 448 improvement in conditions of 180–81 incommunicado 157–59, 198–99,  463–64 length of 197–98 on remand 226

medical treatment in: denial of 159–60 right to health 409–10 in a place recognised by law 191–92 pre-trial 160,  196–97 release of individuals from 252 supervision of places of 203 see also arrest; respect of dignity, prohibition of slavery and torture and other forms of ill-treatment; Special Rapporteur on Prisons and Conditions of Detention development concept of 528–30 cultural 529–30 freedom of choice 529 right to see right to development dialogue constructive 87–88 government participation 362 non-discrimination 87–88 right to assemble 317 right to education, cultural life and the promotion of morals and traditional values 457 right to property 384 see also remedies differential treatment see non-discrimination dignity concept of 136–37 respect of see respect of dignity, prohibition of slavery and torture and other forms of ill-treatment disability children with disabilities 448–49 non-discrimination 78–79 Protocol on Rights of Persons with Disabilities 842–43 rights protection 476–79 Working Group on Rights of Older Persons and People with Disabilities 482–83 see also protection of the family, rights of women, older persons and persons with disabilities disappearances enforced 123 respect of dignity; slavery and torture 161 right to liberty and security of the person 198 see also right to life and integrity of the person discrimination against women 467 arrest and detention on grounds of 188 definition of 53–55 state obligation against 29 see also non-discrimination; obligations of member states disease 412–16 malaria 413 Tuberculosis (TB) 414–16 see also HIV/AIDS; right to health displacement displaced persons 448 right to protection from 327–28 see also freedom of movement; migrant workers disposal of wealth and natural resources 508–20 Article 21 provisions 508

Index context 508–11 freely dispose 512–13 non-state actors 511–12 remedies 518–19 special mechanisms 519–20 spoilation 513–15 state obligations 515–18 consent 516 cooperation with OAU/AU 516–17 cooperation with other African states 516–17 cooperation with UN agencies 516–17 corruption 518 encouragement of national activities 517 equitable distribution 517 establish machinery 515 monitor exploitation 515 participation 516 taxation 517 wealth and natural resources 512 domination equality of peoples 492–95 freedom from see people’s right to existence, self-determination and freedom from foreign domination double jeopardy 245 see also right to a fair trial duties of the individual see individual duties duty to investigate right to life and integrity of the person 108–10 violations and to punish 29–30 duty to prevent 110–11 duty to protect 106–8 duty to remedy any violations 41–43 see also obligations of member states duty to report freedom of association 305 freedom of expression 291 freedom of movement 341 government participation 362 right to assemble 317 right to education, cultural life and the promotion of morals and traditional values 457 right to property 384 right to work 399 East African Community (EAC) 12 Economic Community of Central African States (ECCAS) 12 Economic Community of West African States (ECOWAS) 12, 35, 54, 136–37, 185, 355–56, 395, 440, 549, 754, 823–24 Economic, Social and Cultural Council (ECOSOCC) 6, 643, 837 Economic Social and Cultural Rights 31–33 see also obligations of member states education human rights see human rights teaching, education and publication legal 572–73 right to see right to education, cultural life and the promotion of morals and traditional values effective remedy right to 215–16 see also right to a fair trial

851

elections 348–60 civil society, role of 355–56 independent institutions 356 limitations 359–60 observers 356–57 political parties, rights and duties of 352–53 right to stand for 350–51 right to vote 353–55 unconstitutional changes of government 357–59,  504 see also participation in the government, access to the public service and to public property embargoes 534–35 see also right to development Embassies 194 emergency situations 761–62 see also violations emoluments 624–25 see also Secretariat employment right to obtain 388–89 see also right to work; work enforced disappearance 123 see also disappearance; right to life and integrity of the person environment concept of 549–50 right to general satisfactory 547–57 see also right to general satisfactory environment environmental concerns 534 climate change 534 indigenous peoples 534 see also pollution equal opportunities 504 for promotion 391 equal pay see right to work equality of arms 231–32 see also defence equality of peoples 484–96 Article 19 provisions 484 context 484 domination 492–95 indigenous peoples 488–90 people, definitions of 484–88 relationship with other rights 491–92 individual rights 492 non-discrimination principle 491 remedies 496 special mechanisms 495–96 equality before the courts 212–13 see also right to a fair trial equality before the law and equal protection of the law 90–100 Article 3 provisions 90 before the law/of the law 92–93 context 90–93 relationship with Article 2 90–92 right to equality 90–92 equal protection of the law (Article 3(2)) 96–97 equality before the law (Article 3(1)) 94–96 permissible limitations 96 right to 94–96

852 equality before the law and equal protection of the law (cont.) remedies 97–100 compensation and costs 97–98 guarantees of non-repetition 99 obligation to investigate, prosecute and punish 99–100 obligation to report 100 rehabilitation 99 restitution 99 satisfaction 98 equitable distribution right to development 533 wealth and natural resources 517 ethnic groups 62 see also non-discrimination evictions 464 see also housing evidence freedom of association 304–5 freedom of conscience and religion 263–64 freedom of expression 291 freedom of movement 338 of non-discrimination 82–83 obtained by illegal means 220–21 respect of dignity; slavery and torture 171–73 blanket denial of responsibility 172–73 burden of proof 171–72 right to a fair trial 220–21, 248–49 right to liberty and security of the person 201–2 right to life and integrity of the person 128 rules of evidence 128 right to property 381 executions rules on the conduct of 121 see also death penalty; Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions exhaustion of local remedies exceptions to the requirement to 731–39 actors 715–16 against a number of states 738 climate of fear 733–35 exhaustion 718–20 in existence at the time 717–18 fear of the individual 733–35 independent judiciary 729–31 judicial remedies 726–29 justiciability of the claim 716–17 local remedies 729 other exceptions 738–39 ousting of national court’s jurisdiction 731–32 subject matter of the claim 716–17 sufficient remedies 724–26 unduly prolonged 732–33 violations, serious or massive 735–38 individual communications 713–42 amnesties 740–41 available remedies 721–22 burden of proof 741–42 clemencies 740–41 complainant, presence in the state 739–40 effective remedies 722–24

Index inter-state communications 658–59 reasonable time 743–48 before the African Court 748 date of exhaustion of local remedies 746 seizure of the matter by the Commission 747 within 743–46 see also individual communications existence right to see people’s right to existence, self-determination and freedom from foreign domination expression, freedom of see right to receive information and freedom of expression extraordinary rendition respect of dignity; slavery and torture 162 fair trial see right to a fair trial family individual duties 585–87 rights 461–63 concept of the family 462 deportations 462–63 evictions 464 expulsion 462–63 housing rights 464 incommunicado detention 463–64 mass transfer 464 nationality, deprivation of 462–63 see also protection of the family, rights of women, older persons and persons with disabilities female genital mutilation (FGM) 420, 451–52, 460, 473, 594 financial resources 616–20 see also Secretariat forced labour 396 see also right to work fortune 76 see also non-discrimination freedom of association 294–306 Article 10 provisions 294 context 294–96 relationship with Articles 9 and 11 5–296 evidence 304–5 justifiable restrictions 301–3 not compelled to join an association 303–4 remedies 305 duty to report 305 guarantees on non-repetition 305 restitution 305 right to free association 296–301 special procedures 305–6 freedom of conscience and religion 253–65 Article 8 provisions 253 collective or individual nature of the right 259 context 253–56 evidence 263–64 freedom of conscience 256–57 freedom to worship 258–59 limitations on the right 259–62 established by law 260 in line with Article 27(2) 261 necessity 262 non-discriminatory 262 not applied in a manner to vitiate the right 260

853

Index proportionality 261–62 purpose of the limitation 260–61 reasonableness 261–62 profession and free practice of religion 257–58 remedies 264–65 compensation 264 good offices of the African Commission 265 legislative amendment 264 religious sites, ownership and access to 264 report to the African Commission 265 Shari’a Law 262–63 freedom of expression see right to receive information and freedom of expression freedom of movement 318–43 Article 12 provisions 318 Article 12(1) 325  –31 Article 12(2) 329–31 right to leave 330 right to return 330–31 freedom of movement 314–26 ‘provided he abides by the law’ 328–29 right to protection from displacement 327–28 right to residence 326–27 Article 12(3) 331–33 Article 12(4) 334 Article 12(5) 335–36 context 318–24 definitions 320–24 state obligations 324 evidence 338 limitations 336–37 remedies 338–39 amicable resolution 341 compensation 340 duty to report 341 guarantees on non-repetition 340 other 341 restitution 339–40 special mechanisms 341–43 gender Gender Is My Agenda Campaign (GIMAC) 465–66 identity 65–71 representation 604 see also children; female genital mutilation; non- discrimination; sex; women general comments 639–40,  776–77 geographical spread ACHPR 603–4 government participation see participation in the government, access to the public service and to public property; self-determination guarantees of non-repetition equality 99 freedom of association 305 freedom of expression 290 freedom of movement 340 government participation 362 non-discrimination 86–87 right to assemble 316 right to health 431–32

right to property 385 right to work 398–99 see also remedies habeas corpus lack of availability of 236 see also right to a fair trial health see medical treatment; mental health; right to health; women HIV/AIDS children affected 447 Committee on the Protection of the Rights of People Living with HIV 434–36 non-discrimination 79–80 spread of disease 414–16 those at risk, vulnerable to and affected by 434–36 holidays 391 see also right to work honour 279 see also right to receive information and freedom of expression housing family rights 464 right to health 408–9 human rights Article 25 provisions 558 context 558 human rights education 558–60 international law on 789–90 national human rights institutions (NHRIs) 560–64 teaching, education and publication 558–64 see also African Commission on Human and Peoples’ Rights humiliation definition of 143–44 ill-treatment see respect of dignity, prohibition of slavery and torture and other forms of ill-treatment impartiality ACHPR 600–3 courts/tribunals 236–41 see also right to a fair trial incommunicado detention family rights 463–64 respect of dignity; slavery and torture 157–59 right to liberty and security of the person 198–99 see also detention independence of the courts and establishment of national institutions 565–75 admissibility conditions, relationship with 567–68 Article 26 provisions 565 relationship with Article 7 566–67 context 565 independence of the courts 568–73 adequate resources 572 appointment process 570–71 competence 569–70 courts 569 dismissal 571–72 freedoms 572

854

Index

independence of the courts and establishment of national institutions (cont.) independence of the courts (cont.) immunities 572 jurisdiction 569–70 legal education 572–73 military tribunals 573 promotion 571–72 security of tenure 571–72 special tribunals 573 state obligation to comply with court orders 573 suspension 571–72 training 572–73 national institutions 574 remedies 574–75 independent monitoring mechanisms respect of dignity; slavery and torture 155–56 indigenous peoples environmental concerns 534 equality of peoples 488–90 protection of vulnerable groups 446–47 individual communications admissibility of 684–752 Article 56 provisions 684 Article 56(1) provisions 693–98 Article 56(2) provisions 698–706 Article 56(3) provisions 706–11 Article 56(4) provisions 711–13 Article 56(5) provisions 713–42 Article 56(6) provisions 743–48 Article 56(7) provisions 748–52 assessment of 752 authors, anonymity and 693–98 burden of proof 688–89 Charter principles (UN/OAU) 748–52 compatibility with OAU Charter 698–706 context 684–88 diligent prosecution, lack of 689–90 exhaustion of local remedies 713–42 see also exhaustion of local remedies inadmissibility, review of decision on 690–93 joinder of the parties 697–98 language, use of disparaging or insulting 706–11 locus standi 696–97 mass media, news dissemination 711–13 prima facie violations 701–3 ratione loci 703–5 ratione materiae 701–3 ratione personae 706 ratione temporis 705 standard of proof 688–89 striking out 689–90 procedure 664–83 admissibility 668–69 amicable resolution 669–71 amicus curiae 673–74 Article 55 provisions 664 Article 57 provisions 664 closure 679–80 competence 666–67 conflicts of interest 674–75 context 664–65 decision on the merits 671–72

evidence 676–77 experts 673 hearings 673 implementation 680–82 jurisdiction 666–67 legal aid 675 legal representation 675 merits 668–69 preliminary objectives 667–68 procedure for consideration of 665–72 proof 676–77 provisional measures 678–79 review of decision on merits 672 seizure of the African Commission 666–67 special mechanisms 683 withdrawal 679–80 witnesses 673 Working Group on Communications 683 individual duties 576–96 Article 27–29 provisions 576 Article 27 581–83 Article 28 584–85 Article 29 585–96 African cultural values 593–95 African Unity 591–92 to the family 585–87 social and national solidarity 592–93 to society 587–88 to the state 588–91 taxes 595–96 assessment of 596 context 576–81 information right to receive 269–71 see also right to receive information and freedom of expression inhuman definition 142–43 innocence see presumption of innocence Institute for Human Rights and Development in Africa (IHRDA) 22, 48, 223–24, 251–52, 647–48, 672, 698 integrity of the person see right to life and integrity of the person inter-state communications and activity reports 655–63 Article 47 provisions 655 Article 48 provisions 655 Article 49 provisions 655 Article 50 provisions 655 Article 51 provisions 655 Article 52 provisions 655 Article 53 provisions 655 Article 54 provisions 655, 662–63 complaints 658–60 admissibility requirements 659–60 amicable settlement 660 exhaustion of domestic remedies 658–59 merits 660 procedure 658 conciliation 657–58 context 656–57 DRC v Burundi, Rwanda and Uganda CASE 660–62 negotiation 657–58

Index internally displaced persons (IDPs) 6–7, 11, 48–49, 74, 199–200, 318–19, 320, 327–28, 331, 332, 341–42, 343, 406–7, 417–18, 444, 542–43, 619, 650 International Commission of Jurists (ICJ) 2–3, 638–39, 645, 815 International Committee of the Red Cross (ICRC) 156, 543, 754 International Court of Justice (ICJ) 659–60, 672, 751, 834 International Criminal Court (ICC) 11–12, 228, 498, 696–97, 815–16,  818–19 International Criminal Tribunal for Rwanda (ICTR) 792–93 International Criminal Tribunal for the former Yugoslavia (ICTY) 170,  792–93 international engagement 35 see also obligations of member states international humanitarian law 790–91 see also applicable principles International Law Commission (ILC) 30,  824–25 International Working Group on Indigenous Affairs (IWGIA) 495–96,  524–25 interpreters right to 219 see also right to a fair trial investigations right to a fair trial 250–51 right to health 432 right to life and integrity of the person 129 right to property 384 joinder of the parties 697–98 journalistic duties 288 see also right to receive information and freedom of expression justiciability of claims 716–17 judicial independence 729–31 judicial remedies 726–29 jurisdiction 37–38 see also obligations of member states labour child 396–97 women 471 language ACHPR 603–4 education and cultural life 452–53 non-discrimination 70–72 use of disparaging or insulting 706–11 lawyers protection of 230–31 see also defence legal aid individual communications 675 right to a fair trial 217–19 legal assistance of choice 228 see also defence Legal Defence and Assistance Project (LEDAP) 837 legal experience ACHPR 600 legal representation access to 194 individual communications 675

855

legislative measures 19–20 annulment and amendment 202, 251, 264 ‘other’ measures 20–21 reform 129 state reporting 797–800 see also obligations of member states liberty of the person see right to liberty and security of the person life imprisonment 161–62 right to see right to life and integrity of the person living, right to gain a 389–90 see also employment; right to work; work living standards 403–9 see also right to health local remedies see exhaustion of local remedies locus standi individual communications 696–97 protocols 821–23 mandate of the Commission 629 Article 45 provisions 629 functions 629 interpretative see procedure of the Commission Maputo Protocol on the Rights of Women in Africa other protocols and 840–42 reporting on 799–800 marriage 469–71 mass media news dissemination 711–13 mass transfer 464 see also family: rights maternal health 425–29 abortion 425–28 involuntary treatments 428–29 maternity leave 392 see also abortion; right to health; women media and broadcasting 276–78 see also politics; right to receive information and freedom of expression medical research 418–19 medical treatment in detention, denial of 159–60 medical examination 194 medicines and services: access to 410–12 traditional medicine 416–17 see also right to health mental health physical vs 401–2 right to health 166–67 see also right to health merits see individual communications migrant workers children of 448 military tribunals 573 see also independence of the courts and establishment of national institutions mission reports 777–78 missions 777–78 morality high, in the ACHPR 600 morals, promotion of see right to education, cultural life and the promotion of morals and traditional values

856

Index

moratorium see death penalty movement see freedom of movement national human rights institutions (NHRIs) human rights education 560–64 procedure of the Commission 643–49 national institutions establishment of see independence of the courts and establishment of national institutions national origin 74–76 see also non-discrimination nationality ACHPR 603–4 deprivation of 462–63 natural resources, disposal of see disposal of wealth and natural resources Network of African National Human Rights Institutions (NANHRI) 563 New Partnership for Africa’s Development (NEPAD) 6, 521–22,  527–28 non-derogation 134–36 right to a fair trial 207 see also derogation; respect of dignity, prohibition of slavery and torture and other forms of ill-treatment non-discrimination 1–89 Article 2 provisions 44 context 44–48 differential treatment: justifiability of 56–58 justifications for 55–58 whether the right has been violated 56 discrimination, definition of 53–55 equal pay 393–95 equality of peoples 491 evidence of 82–83 freedom of conscience and religion 262 grounds under Article 2 60–82 age 81–82 albinism 78–79 ‘any other status’ 77–82 birth 76–77 colour 62 disability 78–79 ethnic group 62 fortune 76 gender identity 65–71 HIV/AIDS 79–80 language 70–72 national and social origin 74–76 political opinion 73–74 race 60–62 religion 72–73 sex 62–65 sexual orientation 65–71 remedies 83–89 African Commission: amicable settlement 87–88, 89 compensation 84–85 constructive dialogue 87–88 guarantees of non-repetition 86–87 obligation to investigate, prosecute and punish 87 recommendations directed at complainants 88–89 rehabilitation 86

restitution 85 satisfaction 85–86 special mechanisms 89 as a stand-alone right 48–53 state duties under Article 2 58–59 see also discrimination non-governmental organisations (NGOs) access to the African Court 821–23 procedure of the Commission 643–49 non-refoulement safeguards against 182 non-retroactive criminal punishment 242–43 see also right to a fair trial non-state  actors disposal of wealth and natural resources 511–12 obligation to protect 25–26 obligation to investigate, prosecute and punish equality 99–100 non-discrimination 87 respect of dignity; slavery and torture 152–54 see also remedies obligation to prevent 149–50 obligation to protect 25–28 extent of 26–28 non-state actors 25–26 respect of dignity; slavery and torture 150–52 right to life and integrity of the person 106–8 see also obligations of member states obligation to refrain right to life and integrity of the person 130 obligation to remedy 154–55 obligation to report equality 100 see also remedies obligations of member states 16–43 ACHPR: binding nature of 23 ratification and national law 17–19 adopt legislative or other measures 19–21 legislative measures 19–20 ‘other’ measures 20–21 amnesty 36–37 Article 1 provision 16 clemency 36–37 context 16–17 derogation 38–41 duty to remedy any violations/right to a remedy 41–43 jurisdiction 37–38 other actors 37 pardons 36–37 state obligations 23–35 of conduct 30–31 duty to investigate violations and to punish 29–30 Economic Social and Cultural Rights 31–33 to fulfil 29 international engagement 35 not to discriminate 29 obligation to implement African Commission findings 33–35 to promote 28–29 to protect 25–28 to respect 24

Index of result 30–31 violation of other rights 21–23 obligations to prohibit and to punish 148–49 observer status 779–80 Office of the High Commissioner for Human Rights (OHCHR) 10 official documents 779 older persons 479–80 Working Group on Rights of Older Persons and People with Disabilities 482–83 see also protection of the family, rights of women, older persons and persons with disabilities Open Society Justice Initiative (OSJI) 647–48 opinions, right to express and disseminate 273–79 see also right to receive information and freedom of expression Organisation for African Unity (OAU) 1–2 Organisation pour l’Harmonisation des Droits d’Affaires en Afrique (OHADA) 70–71 ownership of property 369–71 see also right to property Pan-African Human Rights Institute (PAHRI) 13 Pan-African Parliament (PAP) 6, 626, 837 pardons 36–37 see also obligations of member states parental leave 392 see also maternal health participation in the government, access to the public service and to public property 344–63 Article 13 provisions 344 Article 13(1) 348–60 elections 348–60 election observers 356–57 independent institutions 356 limitations 359–60 right to stand for 350–51 right to vote 353–55 rights and duties of political parties 352–53 role of civil society 355–56 unconstitutional changes of government 357–59 Article 13(2) 360–61 Article 13(3) 361 context 344–46 democracy 346–48 political models 346–48 remedies 361–63 compensation 363 dialogue 362 duty to report 362 good offices of the African Commission 362 guarantees of non-repetition 362 restitution 363 satisfaction 363 paternity leave 392 see also maternal health peace see right to peace and security Peace and Security Council (PSC) 357, 539, 651, 678, 713, 762–64 peaceful enjoyment of property 372–73 see also right to property Penal Reform International (PRI) 173–76

857

‘people’ definitions of see equality of peoples peoples’ right to existence, self-determination and freedom from foreign domination 497–507 Article 20 provisions 497 Article 20(2) and 20(3) 504–6 context 497–99 remedies 506–7 right to existence 499–504 self-determination 500–4 see also self-determination Permanent Representatives’ Committee (PRC) 621, 780, 839 police accountability 160 politics political models 346–48 political opinion: non-discrimination and 73–74 political debate and speech 278–79 political parties: rights and duties of 352–53 see also elections; right to receive information and freedom of expression pollution 554 see also environmental concerns polygamy see marriage possession of property 373 see also right to property pre-trial detention 160 see also detention preamble to the M’Baye Draft 9–10 presumption of innocence 223–27 burden of proof 224 lack of reasoning 226 length of detention on remand 226 right to silence 227 standard of proof 224 statements by public officials 225–26 see also right to a fair trial prima facie violations 701–3 prisoners 422 privileges and immunities see Secretariat procedure of the Commission 629–54 Article 46 provisions 629 context 629–31 cooperation with other entities 642–54 AU organs and institutions 650–53 AU and former OAU 650–51 United Nations 651–53 civil society organisations (CSOs) 643–49 European systems 653 Inter-American systems 653 national human rights institutions (NHRIs) 643–49 non-governmental organisations (NGOs) 643–49 sub-regional systems 654 implementation 654 interpretative mandate 636–40 additional protocols 640 general comments 639–40 guidelines 636–40 interpretative mechanisms 640 principles 636–40 resolutions 637–39

858 procedure of the Commission (cont.) meetings 640–41 special mechanisms 631–36 creation 632–34 missions 634–36 types 631–32 visits to state 634–36 urgent appeals 641–42 workshops 640–41 profession of belief see freedom of conscience and religion promote, state obligation to 28–29 see also obligations of member states property rights see right to property proportionality freedom of conscience and religion 261–62 prosecutions right to health 432 right to liberty and security of the person 203 right to property 384 see also obligation to investigate, prosecute and punish prosecutors role of 216–17 protection of the family, rights of women, older persons and persons with disabilities 458–83 Article 18 provisions 458 children’s rights (Art 18(3)) 471–75 context 458–61 disability 476–79 family rights (Arts 18(1) and (2)) 461–63 concept of the family 462 deportations 462–63 evictions 464 expulsion 462–63 housing rights 464 incommunicado detention 463–64 mass transfer 464 nationality, deprivation of 462–63 older persons 479–80 remedies for violations of 480–81 special mechanisms 481–82 Special Rapporteur on the Rights of Women 481–82 Working Group on Rights of Older Persons and People with Disabilities 482–83 women’s rights (Art 18(3)) 464–71 decision-making 471 discrimination 467 health and reproductive rights 467–68 labour 471 marriage 469–71 polygamy 469–71 representation 471 rural development 471 sexual violence 468–69 violence 468–69 women human rights defenders 467 protocols ACHPR, to the 813–44 African human rights system, elaboration of 10–12 Maputo Protocol on the Rights of Women in Africa 840–42

Index other 844 Protocol Establishing the African Court 815–40 access to the court, by individuals and NGOs 821–23 admissibility issues 825–26 admissibility and jurisdiction 824–25 advisory opinions 836–38 African Commission, relationship with 826–31 African Commission jurisprudence, use of 831–40 amicable resolution 832 amicus 831–32 Article 6(3) of 826–28 background 816–19 compliance 838–40 court composition 819–20 functioning of the court 820–21 implementation 838–40 interim measures 832–33 interventions 831–32 locus standi 821–23 provisional measures 832–33 remedies ordered by the court 833–36 sources of law 823–24 Protocol on Rights of Persons with Disabilities 842–43 rights of older persons 843–44 submission of cases to the court 828–31 provisional measures 832–33 public hearing right to a fair trial 214–15 public interest 378–79 see also right to property public property see participation in the government, access to the public service and to public property public service see participation in the government, access to the public service and to public property publication see confidentiality punishment corporal punishment and 144–45 definition of 144–48 right to a fair trial 246 right to property 384 treatment 145–48 quorum see Secretariat race 60–62 see also non-discrimination ratione loci 703–5 ratione materiae 701–3 ratione personae 706 ratione temporis 705 reasonable time right to a fair trial 233–36 see also exhaustion of local remedies reasonableness freedom of conscience and religion 261–62 reasoning see presumption of innocence recommendations directed at complainants 88–89 see also remedies refugees see displaced persons

Index rehabilitation equality 99 non-discrimination 86 right to liberty and security of the person 202 see also remedies release of individuals from detention 252 right to liberty and security of the person 202 right to life and integrity of the person 131 religion non-discrimination and 72–73 see also freedom of conscience and religion remedies disposal of wealth and natural resources 518–19 equality before the law and equal protection of the law 97–100 compensation and costs 97–98 guarantees of non-repetition 99 obligation to investigate, prosecute and punish 99–100 obligation to report 100 rehabilitation 99 restitution 99 satisfaction 98 equality of peoples 496 freedom of association 305 duty to report 305 guarantees on non-repetition 305 restitution 305 freedom of conscience and religion 264–65 compensation 264 good offices of the African Commission 265 legislative amendment 264 religious sites, ownership and access to 264 report to the African Commission 265 freedom of movement 338–39 amicable resolution 341 compensation 340 duty to report 341 guarantees on non-repetition 340 other 341 restitution 339–40 government participation 361–63 compensation 363 dialogue 362 duty to report 362 good offices of the African Commission 362 guarantees of non-repetition 362 restitution 363 satisfaction 363 independence of the courts and establishment of national institutions 574–75 non-discrimination 83–89 African Commission 88, 89 amicable settlement 87–88, 89 compensation 84–85 constructive dialogue 87–88 guarantees of non-repetition 86–87 obligation to investigate, prosecute and punish 87 recommendations directed at complainants 88–89 rehabilitation 86 restitution 85 satisfaction 85–86

859 ordered by the court 833–36 peoples’ right to existence, self-determination and freedom from foreign domination 506–7 respect of dignity; slavery and torture 179–83 African Commission, report back to 183 amend legislation 180 bringing perpetrators to justice 183 compensation 182 complaints 181 improvement in conditions of detention 180–81 investigation of violations 181 national and international bodies, supervision by 183 non-refoulement, safeguards against 182 overview mechanisms 181 release of victims 183 training 182 right to assemble 316–17 dialogue 317 duty to report 317 good offices of African Commission 317 guarantees on non-repetition 316 responsibilities on complainants 317 special procedures 317 right to development 536 right to education, cultural life and the promotion of morals and traditional values 456–57 compensation 457 dialogue 457 duty to report 457 good offices of the African Commission 457 restitution 457 right to a fair trial 249–52 civil society 252 compensation 249–50 composition of courts 250 court application of rules 251 death sentences 250 investigations 250–51 legislative amendment 251 release of individuals from detention 252 report to the African Commission 252 respect for ruling of the court 251–52 right to general satisfactory environment 555–56 right to health 431–34 compensation 433 guarantees of non-repetition 431–32 investigation 432 other 433–34 prosecution 432 report to the African Commission 434 restitution 432 right to liberty and security of the person 202–4 annulment/amendment of legislation 202 compensation 202 complaints procedures 203 declaration of violation 204 investigations 203 prosecutions 203 rehabilitation 202 release of the individual 202

860

Index

remedies (cont.) right to liberty and security of the person (cont.) reporting 204 supervision of places of detention 203 training 203 right to life and integrity of the person 129–31 court reform 131 investigations 129 legislative reform 129 obligation to refrain 130 prosecute those responsible 129 provision of compensation 130 release of individuals 131 right to peace and security 546 right to property 381–85 amicable resolution 384 compensation 383–84 dialogue 384 duty to report 384 good offices of the African Commission 385 guarantees of non-repetition 385 investigate 384 prosecute 384 punish 384 reparations 385 restitution 382–83 right to receive information and freedom of expression 289–91 compensation 289 duty to report 291 guarantees on non-repetition 290 restitution 290–91 right to work 398–99 compensation 399 duty to report 399 guarantees of non-repetition 398–99 restitution 398 see also exhaustion of local remedies remuneration for work 390–91 see also right to work reparations right to property 385 reporting see state reporting reprisals 167 reproductive health 419–21 reproductive rights 467–68 see also abortion; right to health; women reputation 279 see also right to receive information and freedom of expression residence right to 326–27 see also freedom of movement resolutions 637–39,  776–77 respect state obligation to 24 see also obligations of member states respect of dignity, prohibition of slavery and torture and other forms of ill-treatment 132–83 complaints mechanisms 155–56 context 132–39 absolute prohibition 134–36 dignity, concept of 136–37 legal status 137–39 non-derogation 134–36

definitions 139–48 degrading 143 humiliation 143–44 inhuman 142–43 punishment 144–48 corporal punishment and 144–45 treatment 145–48 torture 140–41 duty of the State 148–55 obligation to investigate 152–54 obligation to prevent 149–50 obligation to protect 150–52 obligation to remedy 154–55 obligations to prohibit and to punish 148–49 evidence 171–73 blanket denial of responsibility 172–73 burden of proof 171–72 independent monitoring mechanisms 155–56 relationship with Articles 6 and 7 156–57 remedies ordered 179–83 African Commission, report back to 183 amend legislation 180 bringing perpetrators to justice 183 compensation 182 complaints 181 improvement in conditions of detention 180–81 investigation of violations 181 national and international bodies, supervision by 183 non-refoulement, safeguards against 182 overview mechanisms 181 release of victims 183 training 182 special mechanisms 173–79 CPTA 176–79 Special Rapporteur on Prisons and Conditions of Detention 173–76 specific contexts in which Article 5 has arisen 157–70 abortion, lack of access to 166 arbitrary detention as torture 162 death penalty 162–66 deportation 167 disappearances 161 extraordinary rendition 162 incommunicado detention 157–59 life imprisonment 161–62 medical treatment in detention, denial of 159–60 mental health 166–67 police accountability 160 pre-trial detention 160 reprisals 167 slavery 167–70 solitary confinement 157–59 responsibilities of the State right to life and integrity of the person 105–12 deaths in custody 111–12 duty to investigate 108–10 duty to prevent 110–11 duty to protect 106–8 restitution equality 99 freedom of association 305

Index freedom of expression 290–91 freedom of movement 339–40 government participation 363 non-discrimination 85 right to education, cultural life and the promotion of morals and traditional values 457 right to health 432 right to property 382–83 right to work 398 see also remedies result, obligation of 30–31 see also obligations of member states right to assemble 307–17 Article 11 provisions 307 context 307–8 evidence 316 permissible limitations 311–16 remedies 316–17 dialogue 317 duty to report 317 good offices of African Commission 317 guarantees on non-repetition 316 responsibilities on complainants 317 special procedures 317 right to assemble freely with others 308–11 state duties 310–11 right to development 521–37 Article 22 provisions 521 benefit sharing 533 common heritage of mankind 530 context 521–26 development, concept of 528–30 cultural development 529–30 freedom of choice 529 duty bearer and ownership rights 526–28 embargoes 534–35 environment (Art 24) 534 climate change 534 indigenous peoples 534 equitable distribution of resources 533 mechanisms 534 remedies 536 sanctions 534–35 special mechanisms 536–37 state duties 530–33 consent 531–33 consultation 531–33 participation 531 right to education, cultural life and the promotion of morals and traditional values 437–57 Article 17 provisions 437 Article 17(2) and (3) 449–56 relationship between 449 context 437 culture: definition of 449–52 right to 452 take part in cultural life 455–56 language 452–53 remedies 456–57 compensation 457 dialogue 457 duty to report 457 good offices of the African Commission 457

861

restitution 457 right to education 437–49 access to education 440–41 choice of school 443 conditions of teaching staff 442–43 fellowship 442 free primary and secondary education 441–43 fundamental education 444 tertiary and adult education 443–44 state obligations 453–55 traditional values 449–52 vulnerable groups 444–49 child soldiers 448 children affected by HIV/AIDS 447 children of migrant workers 448 children with disabilities 448–49 detainees 448 displaced persons 448 girl-child 445–46 indigenous peoples 446–47 war victims 448 working children 448 right to a fair trial 205–52 access to the courts 210–12 access to justice 210–12 Article 7 provisions 205 children’s rights 244–45 clemency and amnesty 241–42 context 205–7 double jeopardy 245 equality before the courts 212–13 evidence 220–21,  248–49 evidence obtained by illegal means 220–21 fair hearing 213–14 legal aid 217–19 no derogation 207 non-retroactive criminal punishment 242–43 presumption of innocence 223–27 burden of proof 224 lack of reasoning 226 length of detention on remand 226 right to silence 227 standard of proof 224 statements by public officials 225–26 prosecutors, role of 216–17 public hearing 214–15 punishment 246 relationship with other rights 248 remedies for violation of 249–52 civil society, engagement with 252 compensation 249–50 composition of courts, amendments to 250 court application of rules 251 death sentences, prohibition on implementation of 250 investigations 250–51 legislative amendment 251 release of individuals from detention 252 report to the African Commission 252 respect for ruling of the court 251–52 right to an appeal 221–23 right to defence 227–33 adequate time and facilities for preparation of defence 229–30 all stages of the proceedings 228–29

862

Index

right to a fair trial (cont.) right to defence (cont.) confidentiality of communications 230 cross-examination 232–33 equality of arms 231–32 legal assistance of choice 228 protection of lawyers 230–31 right to call witnesses 232–33 right to effective remedy 215–16 right to have one’s cause heard 207–10 right to interpreter 219 sentencing 246 trial in presence of the accused 219 trial within reasonable time by impartial court/ tribunal 233–41 by impartial court or tribunal 236–41 within a reasonable time 233–36 institutional structures and lack of speedy trial 235 joinder of charges or accused 236 lack of availability of habeas corpus and other safeguards 236 specificity of charges 236 victims 246–47 right to general satisfactory environment 547–57 Article 24 provisions 547 climate change 555 concept of the environment 549–50 context 547–49 pollution 554 remedies 555–56 special mechanisms 556–57 state obligations 550–54 waste disposal 554 right to health 400–36 access to health care 410–12 access to medicines and services 410–12 adequate standard of living 403–9 right to adequate clothing 406 right to food 404–6 right to housing 408–9 right to water 406–8 Article 16 provisions 400 categories of individuals 421–25 children 422–23 disabled persons 423–24 older persons 421–22 prisoners 422 women 424–29 Committee on the Protection of the Rights of People Living with HIV 434–36 context 400–1 environmental conditions 417–18 HIV/AIDS: spread of disease 414–16 those at risk, vulnerable to and affected by 434–36 medical research 418–19 physical and mental health 401–2 remedies 431–34 compensation 433 guarantees of non-repetition 431–32 investigation 432 other 433–34 prosecution 432

report to the African Commission 434 restitution 432 sexual and reproductive health 419–21 social security, right to 402–3 special mechanisms 434–36 spread of disease 412–16 HIV/AIDS 414–16 malaria 413 Tuberculosis (TB) 414–16 state obligations 429–31 traditional medicines 416–17 treatment in detention 409–10 right to leave and return see freedom of movement right to liberty and security of the person 184–204 absoluteness 185 Article 6 provisions 184 context 184 evidence 201–2 remedies 202–4 annulment/amendment of legislation 202 compensation 202 complaints procedures 203 declaration of violation 204 investigations 203 prosecutions 203 rehabilitation 202 release of the individual 202 reporting 204 supervision of places of detention 203 training 203 right to liberty 185–91 access to the courts 190–91 arrest and detention on discriminatory grounds 188 arrest on warrant 187–88 authority of competent persons 187–88 bring before the courts 190–91 laid down by law 188–90 right to security 199–201 individual security 200 national security 200–1 safeguards for those deprived of liberty 191–99 bail, possibility of 194–95 continued detention 197–98 detention in a place recognised by law 191–92 disappearances 198 incommunicado detention 198–99 length of detention 197–98 pre-trial detention 196–97 right of appeal against arrest 197 rights upon arrest 192–94 access to a lawyer 194 be provided with reasons 193–94 Embassy 194 examination by a Doctor 194 notification of family and friends 194 rules around searches 193 right to life and integrity of the person 101–31 absolute nature of 104–5 Article 4 provisions 101 burden of proof 128 conflict and the violation of 122 context 101 death penalty 112–21 abolition/moratorium 112–18

Index Article 7 compliant trial 118–20 executions, rules on the conduct of 121 deprivation of life 104–5 enforced disappearances 123 evidence 128 importance of 102–92 ‘life’, concept of 102–92 concept 103–92 start of life 102–3 reading rights 121–22 remedies 129–31 court reform 131 investigations 129 legislative reform 129 obligation to refrain 130 prosecute those responsible 129 provision of compensation 130 release of individuals 131 responsibility of the State 105–12 deaths in custody 111–12 duty to investigate 108–10 duty to prevent 110–11 duty to protect 106–8 right to a remedy 112 rules of evidence 128 single and multiple violations of 112 special mechanisms 124–28 use of force 123–24 right to peace and security 538–46 Article 23 provisions 538 Article 23(1) provisions 539–43 Article 23(2) provisions 543–46 contextual provisions 538–39 remedies 546 right to property 364–85 access 373–74 Article 14 provisions 364 compensation 374 context 364–65 evidence 381 limitations 377–81 in accordance with the law 380–81 compensation 381 general interest of the community 378–79 interest of the public need 378–79 proportionate 379–80 ownership 369–71 peaceful enjoyment of the property 372–73 possession 373 property 367–69 remedies 381–85 amicable resolution 384 compensation 383–84 dialogue 384 duty to report 384 good offices of the African Commission 385 guarantees of non-repetition 385 investigate 384 prosecute 384 punish 384 reparations 385 restitution 382–83 right-holders 365–67 state obligations 374–77

863

right to receive information and freedom of expression 266–93 amicable settlement 291 Article 9 provisions 266 context 266–68 evidence 291 journalistic duties 288 limitations on the right 280–88 arbitrariness 285–87 democratic society 282–85 exceptionalism 285–87 grounds on which the right can be restricted 287–88 legitimate purpose 282–85 minimalism 285–87 within the law/provided by the law 280–82 relevance to admissibility requirements 268–69 remedies 289–91 compensation 289 duty to report 291 guarantees on non-repetition 290 restitution 290–91 right of access to information 271–73 right to express and disseminate opinions 273–79 honour and reputation 279 media and broadcasting 276–78 political debate and speech 278–79 right to receive information 269–71 special mechanisms 291–93 right to a remedy 41–43 right to life and integrity of the person 112 see also obligations of member states; remedies right to work 386–99 Article 15 provisions 386 child labour 396–97 context 386–87 equal pay for equal work 393–96 equal pay 395–96 equality 393–95 non-discrimination 393–95 equitable and satisfactory conditions 390–93 equal opportunity for promotion 391 holidays 391 leisure 391 maternity leave 392 parental leave 392 paternity leave 392 remuneration 390–91 rest 391 right to strike 392–93 safe and healthy 390 Trade Union rights 392–93 forced labour 396 limitations 397–98 remedies 398–99 compensation 399 duty to report 399 guarantees of non-repetition 398–99 restitution 398 right to work 387–90 definition of work 388 right to gain a living 389–90 right to obtain employment 388–89 slavery 396

864 rural development women and 471 sanctions 534–35 see also right to development satisfaction equality 98 government participation 363 non-discrimination 85–86 see also remedies schooling see right to education, cultural life and the promotion of morals and traditional values scientific progress right to enjoy the benefits of 456 searches rules around 193 Secretariat 610–28 appointment of Secretary: Article 41 provisions 610 budget of the African Commission 616–25 allowances 624–25 Article 44 provisions 610 emoluments 624–25 financial resources 616–20 logistical resources 621–24 procedural for approval 621 staffing 621–24 Chair and Vice-Chair 626–27 Article 42 provisions 610 consensus 627 context 610–13 headquarters 625–26 privileges and immunities 627–28 Article 43 provisions 610 quorum 627 role of the Secretary 613–16 voting 627 security see right to peace and security security of the person see right to liberty and security of the person self-determination 500–4 consent 503–4 elections 504 equal opportunities 504 external 500–3 internal 503–4 participation 503–4 unconstitutional changes of government 504 see also people’s right to existence, self-determination and freedom from foreign domination sentencing 246 see also right to a fair trial sessions 775 sex 62–70 gender identity 65–70 sex 62–65 sexual health 419–21 sexual orientation 65–70 see also female genital mutilation; non- discrimination; right to health Shari’a Law 262–63 see also freedom of conscience and religion

Index silence right to 227 see also presumption of innocence; right to a fair trial slavery prohibition of 167–70 right to work 396 see also forced labour; respect of dignity, prohibition of slavery and torture and other forms of ill-treatment social duties see individual duties social origin 74–76 see also non-discrimination social security right to 402–3 see also right to health Socio-Economic Rights Action Center (SERAP) 837 solidarity social and national 592–93 see also individual duties solitary confinement 157–59 see also respect of dignity, prohibition of slavery and torture and other forms of ill-treatment sources of law 823–24 Southern African Development Community (SADC) 12, 654, 728, 788, 815–16 special mechanisms disposal of wealth and natural resources 519–20 equality of peoples 495–96 freedom of association 305–6 freedom of movement 341–43 individual communications 683 procedure of the Commission 631–36 creation 632–34 missions 634–36 types 631–32 visits to state 634–36 protection of the family, rights of women, older persons and persons with disabilities 481–83 respect of dignity; slavery and torture 173–79 right to assemble 317 right to development 536–37 right to general satisfactory environment 556–57 right to health 434–36 right to life and integrity of the person 124–28 right to receive information and freedom of expression 291–93 Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions 124–26 Special Rapporteur on Prisons and Conditions of Detention 173–76 Special Rapporteur on the Rights of Women 481–82 special tribunals 573 see also independence of the courts and establishment of national institutions spoilation 513–15 see also disposal of wealth and natural resources standard of proof individual communications 688–89 presumption of innocence 224

Index state reporting 794–806 Article 62 provisions 794 assessment of 806 confidentiality and 779 context 794–96 ‘every two years’ 796–97 legislative and other measures 797–800 Maputo Protocol 799–800 Tunis Guidelines 800 procedure 800–6 statements by public officials 225–26 strike, right to 392–93 see also right to work striking out 689–90 see also individual communications sub-regional developments United Nations and 12 taxation disposal of wealth and natural resources 517 individual duties 595–96 teaching human rights see human rights teaching, education and publication right to see right to education, cultural life and the promotion of morals and traditional values torture arbitrary detention as 162 definition of 140–41 see respect of dignity, prohibition of slavery and torture and other forms of ill-treatment Trade Union rights 392–93 see also right to work training court 572–73 respect of dignity; slavery and torture 182 right to liberty and security of the person 203 treaties African human rights system, elaboration of 10–12 treatment definition 145–48 see also punishment trial in presence of the accused 219 see also right to a fair trial Tunis Guidelines on Economic Social and Cultural Rights reporting under 800 United Nations (UN) procedure of the Commission 651–53 sub-regional developments 12 United Nations Educational, Scientific and Cultural Organization (UNESCO) 487, 531–32, 782 United Nations High Commissioner for Refugees (UNHCR) 319, 330, 333,  733–34 United Nations Subcommittee on Prevention of Torture (UNSPT) 178 urgent appeals see procedure of the Commission use of force by law enforcement officials 123–24

865

values traditional see right to education, cultural life and the promotion of morals and traditional values victims right to a fair trial 246–47 of war 448 violations 753–66 African Court, referral to 764–65 Article 58: procedure 758–61 provisions 753 Article 58(3) 761–62 assessment of 766 context 753–54 Peace and Security Council, relationship with 763–64 scope and scale of 736–37 ‘serious or massive’ 735–38, 754–58 victims, number of 737–38 see also emergency situations; exhaustion of local remedies violence against women see women voting rights see elections vulnerable groups see right to education, cultural life and the promotion of morals and traditional values war victims of 448 warrants arrest on 187–88 waste disposal 554 see also right to general satisfactory environment water right to 406–8 see also right to health wealth disposal of see disposal of wealth and natural resources witnesses right to call 232–33 see also defence women 424–29 decision-making 471 discrimination 467 harmful traditional practices 429 health 467–68 human rights 467 labour 471 marriage 469–71 maternal health 425–29 abortion 425–28 involuntary treatments 428–29 maternity leave 392 reproductive rights 467–68 polygamy 469–71 representation 471 rights (Art 18(3)) 464–71 rural development 471 Special Rapporteur on the Rights of Women 481–82 violence against 424–25,  468–69 sexual violence 468–69

866 women (cont.) Women in Law and Development in Africa (WILDAF) 815,  840–41 work definition of 388 right to see right to work see also employment; right to work

Index Working Group on the Death Penalty 125–28 Working Group on Rights of Older Persons and People with Disabilities 482–83 workshops see procedure of the Commission worship freedom to 258–59 see also freedom of conscience and religion