RECENT DEVELOPMENTS

Human rights developments in the African Union during 2009

Japhet Biegon^I; Magnus Killander^II

^IResearcher and LLD candidate, Centre for Human Rights, University of Pretoria
^IIHead of research, Centre for Human Rights, University of Pretoria

SUMMARY

The year 2009 witnessed numerous human rights developments on the African continent. The African Union added a treaty on the protection of internally displaced persons to its already robust normative human rights framework. The African Commission reviewed and expanded its working groups, extended its reach to emerging issues, including climate change and the global financial crisis, and adopted reporting guidelines under the African Women's Protocol and a framework document on the abolition of the death penalty in Africa. For its part, the African Court handed down its first judgment, while the African Children's Committee further cemented its role in examining state reports under the African Children's Charter. This note provides an overview of these developments.

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* LLB (Hons) (Moi), PGDL (Kenya School of Law), LLM (Human Rights and Democratisation in Africa) (Pretoria); tehpajia@yahoo.com
** Jur Kand (Lund), EMA (Padua), LLD (Pretoria); magnus.killander@up.ac.za
1 See E Baimu 'The African Union: Hope for better protection of human rights in Africa?' (2001) 1 African Human Rights Law Journal 299.
2 For the main AU human rights instruments, see C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2007).
3 See Resolution on the general human rights situation in Africa, ACHPR/Res157(XLVI)09.
4 Art 45 African Charter.
5 Arts 26(1) & 32 African Women's Protocol.
6 In May and November 2009, the African Commission held its 45th and 46th ordinary sessions, respectively, in Banjul, The Gambia.
7 In April and October 2009, the Commission held its 6th and 7th extraordinary sessions in Banjul, The Gambia, and Dakar, Senegal, respectively.
8 See 26th Activity Report of the African Commission, para 150; 27th Activity Report of the African Commission, para 219.
9 Decision on Election of Members of the African Commission on Human and Peoples' Rights, EX.CL/Dec.497(XV) Rev 1.
10 As above.
11 27th Activity Report, para 23.
12 Commissioner Melo was re-elected to the Commission for a six-year period in July 2007. Her absence from the Commission is apparently linked to her appointment as Director of the Division of Philosophy and Human Rights of UNESCO in March 2009. She participated in the 6th extraordinary session of the Commission in Banjul, 30 March - 3 April 2009 but did not attend the 45th ordinary session in May, the 7th extraordinary session in October or the 46th ordinary session in November. She is not included in the list of members of the Commission published on the website of the Commission; see 'List and addresses of the commissioners of the African Commission on Human and Peoples' Rights' (updated January 2010), http://www.achpr.org/english/_info/members_achpr_en.html (accessed 16 March 2010), though the Commission took note of her absence from the November 2009 session; see 27th Activity Report of the African Commission, para 6.
13 This provision corresponds substantively with art 39(2) of the African Charter.
14 27th Activity Report, para 24.
15 See generally A Danielsen The state reporting procedure under the African Charter (1994); 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.
16 26th Activity Report of the African Commission, para 133.
17 27th Activity Report, para 198.
18 Comoros, Côte d'Ivoire, Djibouti, Equatorial Guinea, Eritrea, Gabon, Guinea Bissau, Liberia, Malawi, São Tomé & Principe, Sierra Leone and Somalia. See 27th Activity Report, para 199.
19 27th Activity Report, para 199.
20 Speech by The Honourable Bahame Tom Mukirya Nyanduga, the Acting Chairperson of the African Commission, at the opening ceremony of the 46th ordinary session of the African Commission (on file with the authors).
21 As above.
22 See 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' (2009) 9 African Human Rights Law Journal 615.
23 The draft guidelines have been annexed to Biegon (n 22 above) 639-643.
24 Final Communiqué of the 46th ordinary session of the African Commission, para 41.
25 See G Mugwanya 'Examination of state reports by the African Commission: A critical appraisal' (2001) 1 African Human Rights Law journal 110 111 (describing the 1989 Guidelines for National Periodic Reports as 'too detailed, lengthy and in some areas repetitive and unnecessarily complex'). See also K Quashigah 'The African Charter on Human and Peoples' Rights: Towards a more effective reporting mechanism' (2002) 2 African Human Rights Law journal 261;         [ Links ] F Viljoen 'State reporting under the African Charter on Human and Peoples' Rights: A boost from the South' (2000) 44 Journal of African Law 110 111.
26 F Viljoen International human rights law in Africa (2007) 372. See also Mugwanya (n 25 above) 279; Quashigah (n 25 above) 261.
27 The Commission adopted three resolutions during its 45th ordinary session, three during its 7th extraordinary session and 15 during its 46th ordinary session.
28 Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa, ACHPR/Res153(XLVI)09; Resolution on the Impact of the Ongoing Global Financial Crisis on the Enjoyment of Social and Economic Rights in Africa, ACHPR/Res159(XLVI)09.
29 Letter from the Gambian Attorney-General and Minister of Justice to the African Commission, AG/C/144/Part 5/(44), 15 October 2009 (on file with the authors).
30 Letter from the Gambian Office of the Secretary-General, President's Office, 28 October 2009, OP 209/400/01/Temp A/(22) (on file with the authors).
31 As above.
32 As above.
33 See press release by Commissioner Tom Nyanduga, Acting Chairperson of the African Commission http://www.achpr.org/english/Press%20Release/pressrelease_gambia_46_session.pdf (accessed 27 February 2010).
34 See generally R Murray 'The Special Rapporteurs in the African system' in Evans & Murray (n 15 above) 344.
35 See Resolution on the Appointment of the Special Rapporteur on Prisons and Conditions of Detention in Africa, ACHPR/Res156(XLVI)09 (appointing Commissioner Catherine Dupe Atoki as the new Special Rapporteur on Prisons); Resolution on the Appointment of the Special Rapporteur on the Rights of Women in Africa, ACHPR/ Res154(XLVI)09 (renewing the mandate of Commissioner Soyata Maiga as Special Rapporteur on the Rights of Women); Resolution on the Appointment of the Special Rapporteur on Human Rights Defenders in Africa, ACHPR/Res149(XLVI)09 (appointing Commissioner Mohamed Bechir Khalfallah as the new Special Rapporteur on Human Rights Defenders); Resolution on the Appointment of the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, ACHPR/Res160(XLVI)09 (appointing Commissioner Mohamed Fayek as the new Special Rapporteur on Refugees); Resolution on the Reappointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, ACHPR/ Res161(XLVI)09 (renewing the mandate of Commissioner Pansy Tlakula as the Special Rapporteur on Freedom of Expression).
36 See generally BTM Nyanduga 'Working groups of the African Commission and their role in the development of the African Charter on Human and Peoples' Rights' in Evans & Murray (n 15 above) 379.
37 See Resolution on the Renewal of the Mandate of the Working Group on Indigenous Populations/Communities in Africa, ACHPR/Res155(XLVI); Resolution on the Renewal of the Mandate of the Chairperson and the Members of the Working Group on the Death Penalty, ACHPR/Res152(XLVI)09; Resolution on the Appointment and Composition of the Working Group on Specific Issues Relevant to the Work of the Commission.
38 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/Res143(XXXXV)09.
39 Decision on the budget for the African Union for the 2009 financial year, AU Executive Council, EX CL/Dec 454(XIV), January 2009.
40 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/Res158(XLVI)09.
41 See Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa.
42 Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/Res148 (XLVI).
43 See generally P Alston (ed) Non-state actors and human rights (2005); A Clapham Human rights in the private sphere (1993).
44 See Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001).
45 While the African Charter impliedly permits the death penalty, the African Commission has been advocating for the abolition of the death penalty on the continent for a decade now. In 1999, the Commission adopted a resolution urging African states to 'consider a moratorium on executions' and to 'reflect on the possibility of abolishing the death penalty'. Similarly, in its decision in Interights & Others (on behalf of Bosch) v Botswana (2003) AHRLR 55 (ACHPR 2003), the Commission encouraged all states party to the African Charter to 'take all measures to refrain from exercising the death penalty'. This decision was followed in 2004 with the creation of the Working Group on the Death Penalty which was mandated to develop a strategic plan for the abolition of the death penalty. In 2008, the Commission reiterated its 1999 Resolution by urging states that still retain the death penalty to 'observe a moratorium on the execution of death sentences with a view to abolishing the death penalty'. On the death penalty in Africa, see L Chenwi Towards the abolition of the death penalty in Africa: A human rights perspective (2007); D van Zyl Smit 'The death penalty in Africa' (2004) 4 Africa Human Rights Law Journal 1.
46 Concept note for a regional conference on the death penalty for Central, East and Southern Africa (on file with the authors).
47 See Kigali Framework Document on the Abolition of the Death Penalty in Africa (on file with the authors) commending Burundi, Mali and Togo 'for being the latest countries to abolish the death penalty'.
48 See 'Kibaki saves 4 000 prisoners from hangman's noose' http://www.eastandard.net (accessed 9 February 2010).
49 See 'Owning AK-47 soon to be a hanging offence' http://www.nation.co.ke/News/-/1056/669076/-/unii2d/-/index.html (accessed 9 February 2010).
50 See 'Pardons and commutations in Nigeria' http://www.worldcoalition.org/modules/smartsection/item.php?itemid=360 (accessed 16 February 2010).
51 See 'Ugandan Anti-homosexuality Bill should not be adopted' http://www.chr.up.ac.za/press%20releases/Uganda-statement_1.pdf (accessed 10 March 2010).
52 See F Viljoen 'Communications under the African Charter: Procedure and admissibility' in Evans & Murray (n 15 above) 76.
53 Art 59 African Charter.
54 (2008) AHRLR 62 (ACHPR 2008).
55 (2008) AHRLR 93 (ACHPR 2008).
56 Communication 284/2004, 26th Activity Report.
57 Communication 297/2005, 26th Activity Report.
58 Communication 294/2004, 26th Activity Report.
59 Communication 266/2003, 26th Activity Report.
60 (2000) AHRLR 72 (ACHPR 1995).
61 Communication 276/2003, 27th Activity Report.
62 Para 298.
63 Communication 272/03, 27th Activity Report.
64 Para 65.
65 Para 121. The Commission comes to this conclusion after an excessively long analysis of art 1; see paras 93-121.
66 Para 138.
67 Communication 235/00, 27th Activity Report.
68 Para 116.
69 Communication 292/2004, 27th Activity Report.
70 Para 73.
71Yogogombaye v Senegal, Application 001/2008.
72 Art 115(2).
73 Art 115(4).
74 (1990) OAU Doc CAB/LEG/24.9/49 (1990).
75 Art 33(1) African Children's Charter.
76 The Committee held its 13th session from 20 to 22 April 2009 and its 14th session from 16 to 19 November 2009.
77 Art 43(1) African Children's Charter.
78 As above.
79 See J Sloth-Nielsen & B Mezmur 'Out of the starting blocks: The 12th and 13th sessions of the African Committee of Experts on the Rights and Welfare of the Child' (2009) 9 African Human Rights Law Journal 336.         [ Links ]
80 See Report of the 14th session of the African Children's Committee.
81 Art 44(1) African Children's Charter.
82 Report of the 14th session, para 31(iv).
83 Sloth-Nielsen & Mezmur (n 79 above) 336 346.
84 African Union Special Summit of Heads of State and Government on Refugees, Returnees, and Internally Displaced Persons in Africa, Kampala, Uganda, 22-23 October 2009.
85 Internal Displacement Monitoring Centre (IDMC) Internal displacement: Global overview of trends and developments in 2008 (2009) 9.
86 Preamble, para 5 Kampala Convention.
87 Art 4 Kampala Convention.
88 Art 5 Kampala Convention.
89 Art 5(2) Kampala Convention.
90 Art 3 Kampala Convention.
91 Arts 6 & 7 Kampala Convention.
92 Art 8 Kampala Convention.
93 'Press Release' issued by the Special Rapporteur on Refugees, Asylum Seekers, Returnees and Internally Displaced Persons, http://www.achpr.org/english/Press%20Release/Kampala%20CONVENTION_IDPs.pdf (accessed 26 January 2010).
94 Burundi, Central African Republic, Côte d'Ivoire, Comoros, Republic of Congo, Djibouti, Democratic Republic of Congo, Ethiopia, Equatorial Guinea, Gabon, The Gambia, Ghana, Liberia, Mali, Namibia, Nigeria, Rwanda, Saharawi Arab Democratic Republic, Sierra Leone, Somalia, Sâo Tomé and Principe, Togo, Uganda, Zambia and Zimbabwe.
95 Art 17 Kampala Convention.
96 The members of the Commission were appointed by the Assembly in July 2009. See Assembly/AU/Dec 249(XIII). Of the 11 members only one is a woman.
97 Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, Assembly/AU/Dec 213(XII) para 9.
98 Decision on the Hissène Habré case, Assembly/AU/Dec 240(XII); Decision on the Hissène Habré case, Assembly/AU/Dec 246(XIII).