XV Edition GIZ Law Journal

AFRICAN UNION

AFRICAN UNION

The last few months have seen some turmoil in the African Human Rights System, with pressure mounting on the African Commission on Human and Peoples’ Rights (ACHPR) from the political organs of the African Union (AU). This finally led to the withdrawal of the observer status of the South African based NGO Coalition of African Lesbians (CAL) by the ACHPR. Besides the references made to the unclear notion of African values, the institutional independence of the ACHPR has been called into question more generally – is this an indication that the ongoing AU reform process might lead to a change in the Commission’s mandate and potentially its curtailment? While the political climate regarding LGBTI rights (Lesbian, Gay, Bisexual, Transgender and Intersex people) at the AU level that is conveyed by the withdrawal of CAL’s observer status is hostile, UNDP has started to develop a global LGBTI inclusion index within the Sustainable Development Goals (SDG) and has therefore consulted African human rights institutions, civil society actors and the GIZ. Withdrawal of CAL’s observer status by the ACHPR and threat to its independence For certain types of participation and activities at the ACHPR’s sessions, African non-governmental organizations (NGOs) need to obtain observer status with the Commission. This allows them to actively engage with the Commission on matters of common interest, to be allowed to attend sessions and make statements, having access to documents and submit their reports to the Commission. According to the ACHPR’s regulations 21 , observer status may be granted if the objectives of the NGO conform with the

principles of the 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), if the NGO works in the field of human rights in Africa and if it provides the Commission with a set of documents on its finances and structure. The withdrawal of CAL’s observer status comes after years of political struggle. The organization first applied for observer status with the ACHPR in 2008, which the latter rejected two years later arguing that the organization did not promote or protect any of the rights enshrined in the African Charter. CAL applied once again in 2014, followed by an Africa wide campaign calling for the ACHPR to reconsider its previous decision. The ACHPR finally approved CAL’s observer status in 2015. In the same year, the Executive Council of the AU asked the ACHPR to revoke its decisions on observer status in accordance with “fundamental African values, identity and good traditions,” and requested it to withdraw CAL’s status “in line with those African Values”. 22 An advisory opinion, filed by CAL together with the Centre for Human Rights from University of Pretoria, at the African Court on Human and Peoples Rights (AfCHPR) on the legality of the above directive, was struck out because the applicants lacked the legal capacity to request such an opinion. 23 The ACHPR, on its part, initially refused to revoke CAL’s observer status. In its Activities’ Report of January 2018, it addressed CAL’s observer status and affirmed that:

Title: 30 years African Commission on Human and Peoples Rights

Surprisingly, the ACHPR this time reacted almost immediately and communicated the withdrawal of CAL’s observer status on 8 August 2018, making it impossible for CAL to further directly engage with the ACHPR. In the above-mentioned decision at the June Summit, the AU Executive Council asked the ACHPR to also submit its revised criteria on observer status to the State parties for their consideration and adoption and made clear that these criteria “should be in line with the already existing criteria on the accreditation of NGOs to the AU, taking into account African values and traditions”. 26 Besides the fact that there is no consistent definition of what “African values” are, the criteria for granting observer status are very different in nature related to the particular institution it is granted for. Where it might make sense to restrict the observer status to the AU in its quality of being a political organ (i.e. requirement to be registered through the government, formation of joint committees when operating in the same field of competence), the idea of granting observer status at the ACHPR emanates from the principle of accessibility and broad participation, aiming at giving civil society organizations a platform for

“a. The decision on the grant of the Observer Status was properly taken in terms of the Commission’s established processes and criteria. b. The Commission is mandated to give effect to the African Charter under which everyone is entitled to the rights and subject to the duties spelt out in the Charter, and it is the duty of the Commission to protect those rights in line with the mandate entrusted to it under Article 45 of the Charter, without any discrimination because of status or other circumstances. c. While fulfilling this mandate, the Commission remains alive to and mindful of the imperative not to encroach on domestic policy matters that fall outside its purview. d. The Commission will continue to scrutinize the notion of ‘African Values’ within the framework of its mandate to interpret the African Charter.” 24 Seemingly unimpressed by the ACHPR’s argument, the AU Executive Council again reiterated for the Commission to withdraw CAL’s observer status at the AU Summit in Mauritania in June 2018, this time giving the Commission a deadline to comply with the decision before the end of the year. 25

* Legal interns in the GIZ programme “Support to the African Governance Architecture (AGA)” 21 Resolution 361 on the Criteria for Granting and Maintaining Observer Status to Non-Governmental Organizations working on Human and Peoples’ Rights in Africa 22 Executive Council of the African Union, Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/ Dec.887(XXVII), para. 7. 23 For details see AfCHPR, Request for Advisory Opinion by the Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbians, No. 02/2015, Advisory Opinion of 28 September 2017, paras 46-57.

24 ACHPR, 43rd Activity Report, para. 51, available at http://www.achpr.org/files/activity-reports/43/43rd_activity_report_eng.pdf (accessed 24 September 2018). 25 Executive Council of the African Union, 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. 8(vii). 26 Id., para. 8 (iv).

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