versión On-line ISSN 1996-2096
versión impresa ISSN 1609-073X
Afr. hum. rights law j. vol.9 no.1 Pretoria 2009
Japhet Biegon; Magnus Killander
IResearcher and LLD candidate, Centre for Human Rights, University of Pretoria, South Africa
The year 2008 saw significant developments towards harnessing the institutional framework for the promotion and protection of human rights in Africa. More financial resources were allocated to the system. The African Commission and Court adopted interim Rules of Procedure which, by the end of the year, were still not harmonised to enable the Commission to submit its first case to the Court. The slow progress towards making the Court operational impedes the impact of the African human rights system. Another impediment is the inadequate response of AU policy organs to gross human rights violations, undemocratic rule, and the question of impunity.
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* LLB (Hons) (Moi), Post-grad Dip Law (Kenya School of Law), LLM (Human Rights and Democratisation in Africa) (Pretoria); email@example.com
** Jur Kand (Lund), EMA (Padua); firstname.lastname@example.org
1 The 43rd ordinary session was held in Ezulwini, Swaziland, in May and the 44th ordinary session in Abuja, Nigeria, in November 2008. The 4th and 5th extraordinary sessions were held in Banjul, The Gambia, in February and July 2008.
2 F Viljoen International human rights law in Africa (2007) 416. [ Links ]
3 The African Commission has established a practice of acknowledging its external funders in its activity reports. Some of these funders include the Danish Institute for Human Rights, Rights and Democracy (a Canadian-based NGO) and the Danish International Development Agency (DANIDA).
4 Zimbabwe, eg, in response to the resolution on the human rights situation in Zimbabwe, adopted at the Commission's 38th ordinary session in 2005, stated as follows: 'The resolution of ACHPR is an improper reproduction of the Amnesty International resolution ... This brings to question the relationship of the ACHPR with Western NGOs, more particularly those based in Europe, like Amnesty International, which use their financial contributions to the ACHPR budget to unduly influence ACHPR decisions in pursuit of the agendas of Western countries to effect regime change in Zimbabwe. It follows therefore that the funding of the ACHPR by donors and influential NGOs should be brought under close scrutiny of the Executive Council. Failure to act could further compromise the mandate, the independence and the integrity of the ACHPR.' See response by the government of the Republic of Zimbabwe to the resolution on the human rights situation in Zimbabwe, African Commission's 20th Activity Report, EX CL/279 (IX) annex III, 106.
5 Before January 2008, the budget allocation from the AU to the African Commission was subsumed under that of the AU Commission's Political Affairs Department.
6 23rd & 24th Activity Report para 39.
7 23 rd Activity Report para 113; 24th Activity Report para 246.
8 24th Activity Report para 234(vi).
9 See 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 (XXXVII)05.
10 Rules 18(i), (j), 39(3), 40(1), 66(3), (4), 80(4) & 113(5). See also rules 62(2) & 63(1).
11 Rule 119.
12 Rule 115.
13 Rule 119(4). Such cases may also be referred to the Court by the African Commission on its own initiative without any communication having been received; compare rule 124(2).
14 Rule 124(1). The role of the African Commission before the Court is described as amicus curia though the Commission seems to have misunderstood this concept in that it provides that Commission shall submit pleadings, motions, etc before the Court; compare rule 115.
15 Rule 126(1).
16 See H Steiner et al (eds) International human rights in context: Law, politics, morals (2008) 1062. [ Links ]
17 23rd-24th Activity Report para 21.
18 23rd-24th Activity Report para 22.
19 25th Activity Report para 106.
20 23rd-24th Activity Report para 23.
21 23rd-24th Activity Report para 24.
22 Thirteen state parties to the African Charter have never presented a report to the Commission. The states are Botswana, Comoros, Côte d'Ivoire, Djibouti, Equatorial Guinea, Gabon, Guinea Bissau, Liberia, Malawi, São Tomé and Principe, Sierra Leone and Somalia. See 25th Activity Report para 108.
23 Eg, all the states that have never submitted a state report to the African Commission, save for Somalia, have submitted at least one report under the Convention on the Rights of the Child (CRC).
24 Press releases by Special Rapporteurs during the inter-session period play an equally important and similar role as resolutions.
25 Resolution on the human rights situation in Kenya; and Resolution on the human rights situation in Somalia.
26 Resolution on the human rights situation of migrants in South Africa; and Resolution on the run-off elections in Zimbabwe.
27 Resolution calling on state parties to observe a moratorium on the death penalty; Resolution on the human rights situation in the DRC; Resolution on joint promotional missions; Resolution on the human rights situation in the Republic of The Gambia; Resolution on maternal mortality in Africa; Resolution on the human rights situation in Somalia; Resolution on elections in Africa; Resolution on the human rights and humanitarian situation in Zimbabwe; Resolution on access to health and needed medicines in Africa. See 25th Activity Report para 117. The resolutions are available at http://www.achpr.org/english/_info/44th_Com%20Activity.html (accessed 20 March 2009).
28 The negotiations that led to the creation of a government of national unity in Kenya were done under the auspices of the AU with former UN Secretary-General, Kofi Annan, as the chief mediator. Although Zimbabwe's negotiations for a government of national unity were principally conducted under the auspices of the Southern African Development Community (SADC), it was backed by the AU. Indeed, the then AU Chairperson, President Jakaya Kikwete of Tanzania, attended the ceremony at which the power-sharing pact for Zimbabwe was signed.
29 It has been the practice of the African Commission to defer action on a communication when it is intending to conduct a mission to a country in respect of which the communication is filed against. See SOS-Enclaves v Mauritania (2000) AHRLR 147 (ACHPR 1999); Malawi African Association & Others v Mauritania (2000) AHRLR 149 (ACHPR 2000); Media Rights Agenda & Others v Nigeria (2000) AHRLR 200 (ACHPR 1998).
30 The Special Rapporteur on Human Rights Defenders and the Special Rapporteur on the Rights of Women undertook promotional missions to Libya and Tunisia in June 2008. The Chairperson of the Commission, the Chairperson of the Robben Island Guidelines follow-up committee and the Special Rapporteur on Prisons undertook a mission to Liberia in September 2008. See 25 th Activity Report para 79.
31 25th Activity Report para 79(vi).
32 24th Activity Report para 256.
33 25th Activity Report paras 123-124. The report indicates that three cases were decided on the merits. However, the decision on Communication 262/2002, MIDH v Côte dIvoire, was adopted already at the 43rd session (see 24th Activity Report para 256).
34 25th Activity Report para 125. These cases are Communications 302/05, Maitre Mambeolo v DRC, 242/01, Interights & IHRDA v Mauritania and 262/02, MIDH v Côte dIvoire.
35 25th Activity Report para 114.
36 Communication 292/2004, 24th Activity Report.
37 Communication 293/2004, 24th Activity Report.
38 See Ligue Camerounaise des Droits de l'Homme v Cameroon (2000) AHRLR 61 (ACHPR 1997); Ilesanmi v Nigeria (2005) AHRLR 48 (ACHPR 2005); Bakweri Land Claims Committee v Cameroon (2004) AHRLR 43 (ACHPR 2004).
39 Communication 246/02, 25th Activity Report.
40 Para 49.
41 Para 85.
42 Para 98.
43 Communication 300/2005, 25th Activity Report.
44 Para 69.
45 See S Ibe 'Beyond justiciability: Realising the promise of socio-economic rights in Nigeria' (2007) 7 African Human Rights Law journal 225 241-243. [ Links ] The Commission seemingly in para 66 misquotes one of the Nigerian judgments, Abacha v Fawehinmi, to include a statement on the justiciability of socio-economic rights.
46 Communication 308/2005, 25th Activity Report.
47 Para 94.
48 Para 100.
49 Para 110.
50 As above.
51 BD Mezmur & J Sloth-Nielsen 'An ice-breaker: State party reports and the 11th session of the African Committee of Experts on the Rights and Welfare of the Child' (2008) 8 African Human Rights Law Journal 596 597-598. [ Links ]
52 Viljoen (n 2 above) 180.
53 Decision on the report on the situation of refugees, returnees and internally displaced persons in Africa, Doc EX CL/460 (XIV), EX CL/Dec.462 (XIV).
54 Resolution on the Establishment and Appointment of a Focal Point on the Rights of Older Persons in Africa, adopted at the 42nd ordinary session of the African Commission, November 2007, http://www.achpr.org (accessed 23 March 2009).
55 25th Activity Report para 63(xi).
56 Decision on the Draft Statute of the African Union Commission on International Law, Assembly/AU/Dec 209 (XII).
57 Note verbale on the election of the members of the African Union Commission on International Law, BC/OLC/42.23/1353.09 vol II.
58 AU Constitutive Act, Preamble para 1.
59 See AU Assembly Decision on the Situation in Kenya Following the Presidential Election of 27 December 2007, Assembly/AU/Dec 187(X); and AU Assembly Resolution on Zimbabwe, Assembly/AU/Res.1(XI).
60 Report of the Pan-African Parliament election observer mission, presidential run-off elections and House of Assembly by-elections, Republic of Zimbabwe, 27 June 2008, PAP/S/RPT/76/08, para 18.1. During 2008, the Pan-African Parliament also undertook election observer missions to Angola, Ghana and Swaziland.
61 25th Activity Report para 64(vi).
62 See generally K Kindiki 'The African human rights system: Unnecessary overlaps or useful synergies?' (2006) 12 East African Journal of Peace and Human Rights 319. [ Links ]
63 'Spanish judge charges Rwanda's current military with genocide' Associated Press 6 February 2008 http://www.iht.com/articles/ap/2008/02/06/europe/EU-GEN-Spain-Rwanda.php (accessed 25 March 2009). [ Links ]
64 C McGreal 'Top Rwandan aide chooses French terror trial' Guardian 10 November 2008 http://www.guardian.co.uk/world/2008/nov/10/rwanda-congo-kabuye (accessed 24 March 2009). [ Links ]
65 Decision on the report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Assembly/AU/Dec 199 (XIII).
66 Decision on the application by the International Criminal Court for the indictment of the President of the Republic of the Sudan, Assembly/AU/Dec.221 (XII).
67 'AU warns of coups, anarchy if Sudan President indicted' http://sudan.net/news/posted/16105.html (accessed 2 August 2008). [ Links ]