XV Edition GIZ Law Journal

AFRICAN UNION

AFRICAN UNION

Despite all the above cited positive trajectory in the African Human Rights System, challenges still prevail which continue to raise questions of the effectiveness of the African system towards the promotion and protection of human rights for all. The continent is plagued with widespread violations of human rights, often on a massive scale 38 . The independence and integrity of most of the institutional mechanisms established has often been put to test. Some national institutions continue to be under funded, while regional/continental mechanisms continue to face backlash in line with the execution of their mandates, some threatened with closure, as others witness Member States withdrawals from some of their jurisdictions. This article introduces the main legal instruments and institutional mechanisms that are key to the protection and promotion of human rights in Africa, highlighting some of the challenges faced in this regard. Specific focus is given to the African Commission and the African Court, with their respective founding treaties. Also, special attention is given to the recent withdrawal of four (4) AU Member States from the declaration that allows individuals and Non-Governmental Organisations (NGOs) to file cases against their Member States. This seeks to cast light to the fact that no regional alternative mechanisms are left in circumstances where a given state denounces regional/continental agreements. 2. African Human Rights Instruments and Mechanisms 2.1 The African Charter on Human and Peoples’ Rights Central to the African Human Rights System is the African Charter on Human and Peoples’ Rights (African Charter), adopted in 1981 and came into force in 1986. The African Charter is the most ratified

This has in some instances inhibited the effective execution of the Commission’s mandate and timely provision of redress to victims of grave human rights violations. b) State Reporting Procedures: Each State Party is required to submit a report, every two years on its efforts to comply with the African Charter 41 . State reports are intended to enable State Parties to measure themselves against the provisions of the Charter, and provide a tool to the African Commission to assess a given State’s compliance to the same. This is ultimately intended to Support constructive dialogue between the State and the Commission as well as guarantee respect and protection for human and Peoples’ rights. Despite the provision of state reporting guidelines, state reporting to the African Commission remains inconsistent and delayed. Only eleven (11) State Parties have submitted all their reports, while nineteen (19) are late by one or two reports, eighteen (18) are late by 3 or more reports and six (6) have not submitted any reports 42 . This has been worsened by the slow implementation rate of Commission recommendations emerging from State Party reports. Also, although NGOs are permitted to submit alternative/shadow reports to the Commission, this avenue continues to be affected by the shrinking civic space in most State Parties, which by implication limits access of NGOs to State Party reports they are supposed to be reacting to.

peoples. As such, AU regards the realization of human rights as one of its objectives and principles as attested in objectives (e) and (h) and Principles (m) of the Constitutive Act of the AU 36 . The OAU and its successor AU has over the years adopted various human rights instruments, which in part have informed several written constitutions of AU Member States towards the promotion and protection of human rights. Human rights are widely recognized on the continent as key to economic development, peace and security aswell as important ingredients for effective governance of African countries. Explicitly, the Constitutive Act of the AU provides for a right of humanitarian intervention in Member States by the Union, in cases of grave rights violations 37 , one of the mandates of the AU Peace and Security Council. Besides incorporation of international human rights standards and principles in national, regional and continental normative frameworks, institutional mechanisms have been established and operationalized to monitor, promote and protect human rights in Africa. Today, over 48 AU Member States have national institutions/agencies mandated to promote and protect human rights. Regional economic integration bodies such as the Economic Community of West African States (ECOWAS) and the East African Community Courts of Justice were established to deal with among other things disputes between Member States. Although these Courts are not generally considered to be human rights courts, as their core mandates are not human rights, they can consider individual complaints regarding fundamental human rights or directly apply human rights treaties. While at the continental level, judicial and quasi-judicial bodies have been established and operationalized to further provide redress mechanisms for human rights abuses and violations by AU Member States.

AU normative instrument, with currently 54 State Parties. The Charter provided for the establishment of the African Commission, which came into existence in 1987, with its secretariat based in Banjul, The Gambia. The Commission is an autonomous treaty organ with the mandate of promoting and ensuring the protection of human and peoples’ rights in Africa 39 , as well as interpreting the provisions of the Charter upon request by a State Party, Organs of the AU or individuals. It consists of eleven (11) members chosen from amongst African personalities, nominated by States Parties to the African Charter and elected by the AU Assembly of Heads of State and Government. The Members serve in their personal capacities, for a six-year term eligible for re-election. To monitor State Parties’ compliance to the African Charter, the African Commission uses various mechanisms, including: a) Promotional Missions: The Commission undertakes on-site and fact-finding missions to State Parties to promote human and peoples’ rights in line with Article 45 of the African Charter 40 . In this regard, State Parties are obliged to facilitate the undertaking of promotional missions, including responding promptly to any request by the African Commission for authorization to undertake such missions. In some cases, however, authorizations for promotional visits have either been delayed or not granted at all.

39 Rule 3 of the Rules of Procedure of the African Commission on Human and Peoples’ Rights, 2020 adopted by the African Commission during its 27th Extra-Ordinary Session held in Banjul (The Gambia) from 19 February to 04 March 2020. The Rules of Procedure were adopted by the African Commission on Human and Peoples’ Rights

during its 2nd Ordinary Session held in Dakar (Senegal) from 2 to 13 February, 1988, revised initially during its 18th Ordinary Session held in Praia (Cabo-Verde) from 2 to 11 October 1995 and once again during its 47th Ordinary Session held in Banjul (The Gambia) from 12 to 26 May, 2010.

40 Article 45 The functions of the Commission shall be: (1) To promote human and peoples’ rights and in particular (a) to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights, and should the case arise, give its views or makes recommendations to governments. 41 Article 62 of the African Charter on Human and Peoples’ Rights 42 Status of State Parties Reports to the African Commission on Human and Peoples’ Rights, https://www.achpr.org/statereportsandconcludingobservations

36 Constitutive Act of the AU (2000), Articles 3 Objectives (e) and (h) and Article 4 Principle 4 (m) https://au.int/sites/default/files/pages/34873-file constitutiveact_en.pdf 37 Article 4 (h) of the Constitutive Act of the AU. 38 Heyns, Christof and Killander, Magnus, The African Regional Human Rights System (November 10, 2006). INTERNATIONAL PROTECTION OF HUMAN RIGHTS: ACHIEVEMENTS AND CHALLENGES, Felipe Gomez Isa & Koen de Feyer, eds., Bilbao: University of Deusto, 2006, Available at SSRN: https:// ssrn.com/abstract=1356505

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