XV Edition GIZ Law Journal

AFRICAN UNION

AFRICAN UNION

c) Consideration of Communications/Complaints : Complaints of alleged human rights violations to the African Commission can be lodged by both State Party 43 – against another State Party – and others 44 , interpreted to mean individuals and NGOs. Although not explicitly provided for in the Charter, the Commission receives communications from individuals and NGOs, which account for most of the communications brought to the Commission. Critiques of this procedure have indicated however that the frequency of these communications is not at the level that would have been expected, given the prevalence of human rights violations in Africa. This has been largely attributed to the general lack of awareness about the African Commission and its complaints management system, as well as the logistical nightmare of lodging a complaint at the Commission. Also, some people continue to be discouraged by the lack of compliance by State Parties to Commission’s recommendations, which are just that, recommendations, that have no accompanying enforcement mechanism, hence the unlikelihood of States to adhere to them. On another note, although the African Charter has no provision on interim measures by the Commission, requesting State Parties to abstain from causing irreparable damage, the Commission has in some cases, including emergencies invoked such measures. However, compliance of State Parties to these measures remains a challenges. This can be exemplified by the deliberate disregard of the interim measure that had been issued by the Commission to the Federal Government of Nigerian with regards to the case of Ken Saro-Wiwa and other Ogoni activists. Despite the interim measure the nine activists were executed by the Nigerian Government on 10 November 1995 45 .

Such outright disregard of the African Commission’s decisions and recommendations by State Parties continue to affect the effectiveness of the Commission as a regional body mandated to promote and protect human and peoples’ rights. d) Relationship with National and Specialized Human Rights Institutions and NGOs : In accordance with Article 45 (1) (c) of the African Charter, the African Commission is mandated to cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights. In a Resolution adopted at the 60th Ordinary Session of the Commission held in Niamey, Niger in May 2017, the Commission adopted new criteria for granting affiliate status to National Human Rights Institutions and other specialized human rights institutions 46 . In the same vein the Commission has enjoyed a cordial relationship with NGOs working on human rights in Africa, many of which have been granted observer status in line with the existing Commission criteria. These relationships have been instrumental in enhancing the Commission’s capacity towards the development of normative frameworks, resolutions and protocols to the African Charter, as well as logistical and financial support to the special mechanisms and initiatives of the Commission. Specifically, there is an institutionalized NGO Forum on the margins of the Commission sessions, which has been instrumental in curating and integrating perspectives of NGOs in Commission’s policy and decision-making processes. This affiliation has however not been without challenges, with the Commission sometimes forced by AU Policy Organs to withdraw observer status of some NGOs, while in other instances, it has been accused of relying largely

on inputs by NGOs to make recommendations to State Parties. One of the resultant effects of such backlash is the potential closure of the civic space at the Commission, further inhibiting access to redress mechanisms by the most vulnerable and marginalized persons in Africa. e) Special Rapporteurs, Committees and Mechanisms: Over the years, the Commission has created subsidiary mechanisms, including Special Rapporteurs, Committees and Working Groups 47 . These include Special Rapporteurs on Prison, Conditions of Detention and Policing in Africa; Rights of Women; Freedom of Expression and Access to Information; Human Rights Defenders and Focal Points on Reprisals in Africa; and Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa. Committees are, Committee for the Prevention of Torture in African; and the Committee on the Protection of the Rights of Persons with HIV (PLHIV) and those at Risk, Vulnerable to and Affected by HIV. While Working Groups are on Indigenous Populations/Communities and Minorities in Africa; Economic, Social and Cultural Rights; Death Penalty;

Extra-Judicial, Summary or Arbitrary Killings and Enforced Disappearances in Africa; Rights of Older Persons and People with Disabilities; and Extractive Industries, Environment and Human Rights Violations. These mechanisms have been credited for expanding the work of the Commission in its efforts to promote and protect human and peoples’ rights in Africa. On the other hand, however, the effectiveness of the mechanisms has been criticized, considering that they are largely funded by external partners and their effectiveness varies from one mechanism to the other. Despite the challenges faced by the African Commission in the execution of its mandate, the Commission continues to strengthen complementarities with other regional mechanisms, including the African Court and ACERWC. Leveraging the synergies and cooperations cultivated through the African Governance Architecture, the three regional mechanisms are working on establishing a joint monitoring framework to ensure implementation of recommendations, decisions and judgements by the three mechanisms. Also, through the Ten-Year Action

43 Article 47 of the African Charter on Human and Peoples’ Rights 44 Article 55 of the African Charter on Human and Peoples’ Rights 45 Doron Roy and Falola Toyin, “The Complex Life and Death of Ken Saro-Wiwa”, (29 July 2016) https://www.washingtonpost.com/news/monkey-cage/ wp/2016/07/29/the-complex-life-death-of-ken-saro-wiwa/ 46 370 Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa - ACHPR/

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Res.370(LX)2017 - https://www.achpr.org/sessions/resolutions?id=412 47 Special Mechanisms - https://www.achpr.org/specialmechanisms