On-line version ISSN 1996-2096
Print version ISSN 1609-073X
Afr. hum. rights law j. vol.12 n.1 Pretoria 2012
Magnus KillanderI; Adem K AbebeII
IHead of Research, Centre for Human Rights, University of Pretoria, South Africa
IIResearcher and LLD candidate, Centre for Rights, University of Pretoria, South Africa
This article considers human rights developments in the African Union (AU) during 2010 and 2011; two years that saw the work of the leading human rights institution on the African continent, the African Commission on Human and Peoples' Rights (African Commission), stagnate, in particular in its work on individual communications. Despite increased resources, the Commission and its Secretariat have been unable to increase the visibility and impact of its work. This situation was exacerbated by the interference with the work of the Commission by the political organs of the AU, most prominently by refusing to publish the Activity Report of the Commission. This delayed the publication of the 29th Activity Report by a year. The African Court on Human and Peoples' Rights is off to a slow start, spending much time and resources on trying to convince states to ratify the Protocol and make the declaration allowing individuals and NGOs to submit cases to the Court. The article also covers developments in the African Committee on the Rights and Welfare of the Child, which for the first time adopted a decision on a communication, the African Peer Review Mechanism and the AU policy organs.
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* Jur kand (Lund), EMA (Padua), LLD (Pretoria); firstname.lastname@example.org
** LLB (Jimma, Ethiopia), LLM (Human Rights and Democratisation in Africa) (Pretoria); email@example.com
4 F Viljoen International human rights law in Africa (2012) 293.
7 http://www.oas.org/en/iachr/mandate/financial_resources.asp (accessed 3 April 2012).
8 RoP Rule 7. This corresponds to the note verbale sent by the AU Commission calling for states to nominate members to the Commission. See Viljoen (n 4 above) 290-291.
9 RoP Rule 7(3).
10 RoP Rules 37(3)& 38.
11 Art 59 African Charter; RoP Rule 59.
12 M Killander 'Confidentiality v publicity - Interpreting article 59 of the African Charter on Human and Peoples' Rights' (2006) 6 African Human Rights Law journal 572-581. [ Links ]
13 RoP Rules 79, 80& 84.
14 RoP Rule 80(2).
15 RoP Rule 84(2).
16 30th Activity Report para 258.
17 29th Activity Report, para 174.
18 30th Activity Report, para 217.
19 30th Activity Report, para 219.
20 31st Activity Report, para 12.
21 RoP Rule 77(3).
22 Comoros, Cote d'Ivoire, Djibouti, Equatorial Guinea, Eritrea, Gabon, Guinea Bissau, Liberia, Malawi, Sao Tomé and Principe, Sierra Leone, Somalia. 31st Activity Report, Annexure.
23 Executive Council Decision EX.CL/Dec.639 (XVIII), adopted during the 18th ordinary session of the Council, in Addis Ababa, Ethiopia, from 27 to 28 January 2011, para 2.
24 30th Activity Report of the African Commission, paras 245 etseq. The information included here is based on this report.
25 31st Activity Report of the African Commission, para 24 et seq.
26 29th Activity Report, para 197. These resolutions include (i) Resolution on Elections in Africa; (ii) Resolution on Repealing Criminal Defamation Laws in Africa; (iii) Resolution on the Co-operation between the African Commission on Human and Peoples' Rights and the African Peer Review Mechanism; (iv) Resolution on the Deteriorating Situation of Indigenous People/Communities in Some Parts of Africa; (v) Resolution to Increase Members of the Working Group on Older Persons and People with Disabilities in Africa; (vi) Resolution on the Appointment of a Special Rapporteur on Human Rights Defenders in Africa; (vii) 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; (viii) Resolution on the Ratification of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights; (ix) Resolution on Crimes committed against Women in the Democratic Republic of Congo (DRC); (x) Resolution on Securing the Effective Realisation of Access to Information in Africa; and (xi) Resolution to Increase the Membership of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa.
27 30th Activity Report, para 233. These resolutions include (i) Resolution on the Appointment of the Special Rapporteur on Refugees, Asylum Seekers, Internally-Displaced Persons and Migrants in Africa; (ii) Resolution on the Rights of Indigenous Women in Africa; (iii) Resolution on the Appointment of Members of the Research Team on the Study of Freedom of Association in Africa; (iv) Resolution on the Safety of Journalists and Media Practitioners in Africa; (v) Resolution on the Renewal and Extension of the Mandate of the Advisory Committee on Budgetary and Staff Matters; and (vi) Resolution on the Nomination of Expert Members to the Working Group on the Rights of Older Persons and People with Disabilities in Africa.
28 31st Activity Report, para 22. These resolutions include (i) Resolution on the Human Rights Situation in the Great Socialist People's Libyan Arab Jamahiriya; (ii) Resolution on the Human Rights Situation in the Republic of Tunisia; (iii) Resolution on the Human Rights Situation in the Arab Republic of Egypt; (iv) Resolution on the Human Rights Situation in the People's Democratic Republic of Algeria; (v) Resolution on the Human Rights Situation in the Republic of Cóte d'Ivoire; (vi) Resolution on the Electoral Process and Participative Governance in the Republic of Benin; and (vii) Resolution on the Electoral Process and Participative Governance in the Federal Republic of Nigeria.
29 The Commission adopted resolutions relating to the renewal and reconstitution of its Special Mechanisms; membership of its Advisory Committee on Budgetary and Staff Matters and extending its mandate; Resolution Establishing a Working Group on Communications and Appointment of Members; Resolution on the General Human Rights Situation in Africa; Resolution on the Situation of Human Rights Defenders in Africa; and a Resolution on Indigenous Peoples' Rights in the Context of the World Heritage Convention and Designation of Lake Bogoria as a World Heritage Site.
30 In collaboration with the Special Rapporteur, the Centre for Human Rights co-ordinates the drafting of the law. The Draft Model Law is available at http://www.chr.up.ac.za/index.php/comments.html (accessed 27 April 2012).
31 29th Activity Report, annex II, para 9 (Cameroon), 15 (DRC).
32 29th Activity Report para 92.
33 RoP Rule 60.
34 However, it should be noted that the African Commission launched an improved website in May 2012 which includes some mission reports.
35 The communication number is 373/09, even though the request for review was submitted in 2004.
36 Interights & Others v Mauritania (2004) AHRLR 87 (ACHPR 2004).
37 Para 38.
38 Para 66.
39 Socio-Economic Rights and Accountability Project v Nigeria (2008) AHRLR 108 (ACHPR 2008).
40 Communication 306/05,Muzerengwa&110 Others vZimbabwe. The case concerned eviction from land without the provision of alternative land.
41 Para 73.
42 Communication 361/08, Zitha vMozambique.
43 Paras 93 & 94.
44 RoP Rule 108(1).
45 RoP Rule 108(2).
46 The Commission noted in the 30th Activity Report (para 239) that the decision would be included in the next Activity Report. However, it was not attached to the 31st Activity Report..This delay of publication of decisions is unfortunate, but unfortunately not unusual. Eg, the decision in Sudan Human Rights Organisation & Another v Sudan (2009) AHRLR 153 (ACHPR 2009), which was adopted at the Commission's session in May 2009, was only published in the 28th Activity Report adopted by the Assembly in July 2010.
47 The decision has been published by Interights on its website, see http://www.interights.org/files/195/Taba%20Judgment.pdf (accessed 18 May 2012).
48 2004 (7), 2005 (4), 2006 (13), 2007 (17), 2008 (6), 2009 (15), 2010 (5).
49 See eg Free Legal Assistance Group & Others v Zaire (2000) AHRLR 74 (ACHPR 1995).
50 RoP Rule 105.
51 RoP Rule 105(3).
52 RoP Rule 108(1).
53 RoP Rule 108(2).
54 RoP Rules 85 & 99(16).
55 RoP Rule 110(3).
56 RoP (2008) Rule 113(4).
57 RoP Rule 112(2).
61 Inter-American Court of Human Rights, Annual Report 2011 68.
62 Report of the 48th ordinary session of the African Commission on Human and Peoples' Rights para 22.
63 These cases have been merged by the Court. See Applications 9/2011 & 11/2011, The Tanganyika Law Society and the Legal and Human Rights Centre and Reverend Christopher Mtikila v the United Republic of Tanzania. The case involves the right of individuals to stand for elections as independent candidates.
64 Application 3/2011, Mkandawire v Malawi.
65 Application 13/2011, Beneficiaries of the Late Norbert Zongo - Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo and Burkinabe Human and Peoples' Rights Movement v Burkina Faso.
66 http://www.african-court.org (accessed 30 April 2012).
67 Application 4/2011, African Commission on Human and Peoples' Rights v Libya.
68 Order for provisional measures on Application 004/2011, http://www.african-court.org/en/cases/judgments-and-orders/ (accessed 5 March 2012). See 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?' (2011) 11 African Human Rights Law journal 495.
69 Oder (n 65 above) 499.
70 Report of the 48th ordinary session of the African Commission on Human and Peoples' Rights para 251.
71 Decision on the abuse of the principle of universal jurisdiction, Assembly/AU/ Dec.292(XV).
72 Activity Report of the 16th session of the Committee, paras 45-48.
73 Activity Report of the 17th session of the Committee, para 39.
74 Centre for Human Rights v Uganda.
75 Communication 2/2009, Institute for Human Rights and Development in Africa (IHRDA) and Open Society justice Initiative (on behalf of children of Nubian descent in Kenya) v The Government of Kenya (22 March 2011).
76 Activity Report of the 17th session of the Committee, para 35.
77 http://www.uneca.org/aprm/CountriesStatus.asp (accessed 4 April 2012).
78 'Zambia: APRM launched', Zambian Chronicle 9 February 2011, http://www.afrimap.org/newsarticle.php?id=2831 (accessed 4 April 2012). See also http://aprm-au.org/knowledge-network/zambia (accessed 4 April 2012). The Zambian self-assessment report is available online: http://www.scribd.com/Zambian-Economist/d/51493595-Zambia-APRM-Country-Self-Assessment (accessed 4 April 2012).
79 http://aprm-au.org/knowledge-network/sierra-leone (accessed 4 April 2012).
80 'President Koroma presents at African Peer Review Mechanism (APRM)' 1 February 2012,http://www.sierraexpressmedia.com/archives/34593 (accessed 4 April 2012).
81 'Governance: The Zambia Report will not be discussed at the Malabo Summit', http://www.iag-agi.org/spip/Governance-Zambia-Evaluation.html (accessed 4 April 2012).
82 http://www.nepadkenya.org/aprm.html (accessed 4 April 2012).
83 Angola, Cameroon, Liberia, Republic of Congo, Egypt, Gabon, Malawi, Mauritania, Sao Tomé and Principe, Senegal, Sudan and Togo.
86 Assembly/AU/Dec.269(XIV) Rev.1.
87 http://www.reuters.com/article/2011/04/21/us-ivorycoast-idUSTRE73014Z20110421 (accessed 4 April 2012).
88 http://www.voanews.com/english/news/africa/African-Union-Sanctions-Madagascars-Leaders-88262607.html (accessed 4 April 2012).
89 http://www.polity.org.za/article/institutionalising-the-au-sanctions-2010-03-18 (accessed 4 April 2012).
90 See generally K Magliveras 'The sanctions system of the African Union: Part success, part failure' http://aegean.academia.edu/KonstantinosMagliveras/Papers/1159844/THE_ SANCTIONING_SYSTEM_OF_THE_AFRICAN_UNION_PART_ SUCCESS_PART_FAILURE(accessed 4 April 2012).
93 See also Assembly/AU/ Dec.355(XVI) para 7 where the Assembly calls on states to ratify the Protocol and fully implement its provisions.
94 Assembly/AU/ Decl.1(XVI).
95 http://au.int/en/dp/pa/content/human-rights-strategy-africa (accessed 4 April 2012).
96 Para 23.