XV Edition GIZ Law Journal

AFRICAN UNION

AFRICAN UNION

After all there should be no contradiction between a positive development of the African Union and the protection of its citizen rights. As Paul Kagame himself defined in an interview , that African citizens have to be able to trust in a stable and fair legal system. A comprehensive system of human rights protection could be the cornerstone in realizing this goal. It would be desirable that the African Union Whether the CAL case is to be seen as a proxy war for the institutional power struggle within the AU or not, the most evident question arising from it is the state of LGBTI rights in African countries. The series of events also trigger a deeper layer which is to figure out where the borderline between law and politics lies. The argument of the AU that the ACHPR would only be independent in a functional way remains opaque as the simple independence as organization contravenes the mandate of interpreting the African Charter and its principle of impartiality (Art. 31 ACHPR) when the political AU alone can determine how this interpretation looks like. As the principles of equality of individuals and anti-discrimination (Art. 2, Art. 3 ACHPR) are clearly enshrined among the protected rights through the ACHPR, the political argument that homosexuality is opposed to African values does not find its counterpart in the legal realm. Already in 2014, the ACHPR stated in a Resolution, that “Article 2 of the African Charter on Human and Peoples’ Rights prohibits discrimination of the individual on the basis of distinctions of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status” and called on “State Parties to ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals or criminal prosecution as sees this potential as well. The state of LGBTI in Africa

independent institutions with an according mandate does not go beyond a mere lip service. One way in which the weakening of the Commission could be orchestrated is through the ongoing AU reform process under Rwandan president and current AU Chairperson Paul Kagame. The reform, amongst other things, aims to review mandates and structures of AU institutions and to realign them. Especially the AU Human Rights institutions are being under scrutiny in their institutional set-up, with ideas ranging from establishing a Human Rights agency to disconnecting certain Human Rights institutions from each other. The ACHPR with its two core mandates of “promotion” and “protection” of Human Rights could be cut-off from its protection mandate, leaving this uniquely to the African Court. Rumors have gone so far as to claim that the reform even foresees to dissolve the ACHPR. While publicly available reform documents do not support such a drastic move, a review of the Commission’s mandate certainly fits to President Kagame’s declared aim to streamline AU institutions. The intent by AU Member States to revise the ACHPR’s mandate is also evident from the above-mentioned decision of the Executive Council, which calls on State parties to reassess the ACHPR’s jurisdiction to receive and decide about complaints of human rights violations, asking them to “conduct an analytical review of the interpretative mandate of the ACHPR in the light of a similar mandate exercised by the African Court and the potential for conflicting jurisprudence.” 30 It remains to be seen to what extent the outcome of the reform process will address the ACHPR and other AU human rights institutions. The AU is expected to hold an extraordinary session before the end of this year to nail down the reform ideas before President Kagame’s term ends in January 2019.

advocacy and being heard. Harmonizing the criteria for observer status for both the AU and the ACHPR will therefore effectively exclude most civil society organizations and NGOs preoccupied with defending human rights on the continent. Institutional implications of the Kagame reform process Besides the issue of CAL’s observer status, the Commission’s independence has also been called into question more generally. From an institutional perspective, interference in the independence of the ACHPR weakens the position and credibility of the organization. The recent decision of the AU Executive Council 27 further restricts the independence of the ACHPR by ordering it to “verify all allegations submitted to it and carry out due diligence with concerned State Parties before including such allegations in its activity reports to the Executive Council” and a call to “develop clear guidelines” on its engagement with “external actors”. 28 In its 30 years of existence, the country missions and the subsequent reporting about the Human Rights situation in the visited country has proven to be a live arm of the ACHPR to address Human Rights deficits as well as achievements at the national level. It goes without saying that the credibility and pertinence of these reports are expected to be diminished if they need to be approved by the political entities such as the AU and the national governments before publication. In the same decision, the Executive Council stated that the ACHPR’s independence was merely “functional in nature and not independent from the same organs that created the body”. 29 This statement unveils that the political will within the AU to establish

At about the same time, the ACHPRwill hold its annual session in Banjul alongside the NGO Forum and expectations are high for civil society representatives to speak out loudly against the caving into the political pressure of the ACHPR. Politically this is set in an environment tending to withdraw from accountability mechanisms. One example can be seen in the AU resolution of 2017 31 which demanded from the member states to withdraw from the ICC. Though only two members, South Africa and Burundi, have followed this request, the potential reshaping of the human rights system of the AU brings the question of accountability and the scope of human rights protection again to the agenda. Notably it will be necessary to consider the complete institutional setting to analyze the effect of changes to it. In theory a stronger mandate of the African Court would not necessarily be a bad thing. However, this also depends on a variety of factors. So far, only eight member states of the African Union (Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Tanzania, Tunisia) have accepted the competence of the African Court with regard to cases brought in directly by NGOs or individuals. For citizens or NGOs from the other member states, a case has to be submitted to the ACHPR first, where a first assessment and subsumption of facts is done before eventually transferring the file to the African Court for judicial review. Serving as a gateway to justice, the Commission still performs an important task for providing a comprehensive protection of human rights. In addition, the Court already is confronted with a high workload in relation to how it is equipped making the procedures lengthy. Therefore, reshaping the structure of both Human Rights institutions cannot be thought without considering these aspects.

27 Id., para 8 (v) 28 Id., paras 8(v), 8(vi). 29 Id., para. 5. 30 Id., para. 7(iii).

31 AU Assembly, 28th Ordinary Session, AU Assembly Doc. Dec.622(XVIII), 32 Bilanz, April 2018, p. 14. 33 African Commission on Human Rights, 55th Ordinary session, Resolution 275.

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