33 African System

Gudrun Gudmundsdottir

Introduction

The African Union (AU) is a regional intergovernmental organization that replaced the Organization of African Unity (OAU). The Assembly of the Heads of State and Governments of the OAU adopted the Constitutive Act that established the African Union in Lomé, Togo, on 11 July 2000. It became a legal and political reality in May 2001 and was officially launched in Durban, South Africa, on 10 July 2002. The new organization is loosely chapter on the European Union and is headquartered in Addis Ababa.

The OAU was established in 1963 to promote unity, solidarity and international cooperation among the newly independent African states. For decades, however, the organization’s struggle to achieve its stated goal of ‘a better life for the people of Africa’ was hindered by internal conflict and self-serving heads of state. It was hoped that the AU would have the authority and the ability to achieve true economic and political integration among its member states by promoting democratic values, defending human rights and providing a forum for internal and regional conflict.

With regard to human rights, the AU has a human rights focus that is more explicit than the OAU. The importance of human rights was not strongly recognized under the OAU Charter, which only made reference to the UN Charter and to the Universal Declaration of Human Rights. In contrast, the AU Act confirms the importance of human rights by the adoption of guiding principles such as gender equality, participation of the African peoples in the activities of the Union, social justice, peaceful co-existence of the member states, and respect for democratic principles, human rights, the rule of law, and good governance. Thus, apart from the individual obligation of member states to ensure the guarantee of human rights within their jurisdiction, the AU has undertaken an institutional obligation to ensure the effective guarantee of human rights in Africa in general.

Learning Outcomes

• To have an overview of the African Human Rights System Charter.
• To have an overview of the principle organs and human rights bodies. To examine standards and supervisory mechanisms.
• To look into various instruments for the protection of human rights.

The Principal Organs and Human Rights Bodies

The principal organs of the AU are the Assembly of the Union, the Executive Council, the Pan-African Parliament, the Court of Justice (expected to be merged with the African Court of Human and Peoples’ Rights, see below), the Commission, the Permanent Representatives Committee, the Peace and Security Council, the Economic, Social and Cultural Council, the Specialized Technical Committees and the Financial Institutions. In addition, the Assembly established the African Union Commission on International Law as an advisory organ. The African Union Advisory Board on Corruption was established as an autonomous organ within the AU under article 22 of the African Union Convention on Preventing and Combating Corruption adopted in Maputo on 11 July 2003.

In addition, three bodies directly relevant to human rights protection function under the African human rights system, the African Commission on Human and Peoples’ Rights, the African Court of Human and Peoples’ Rights (expected to be replaced by the African Court of Justice and Human and Peoples’ Rights, see below) and the African Committee on the Rights and the Welfare of the Child.

The Assembly of the Union

The Assembly is composed of the Heads of State and Governments and meets at least once a year. It is considered the supreme organ of the African Union and as such determines, monitors and implements common policies of the African Union; it receives, considers and takes decisions on reports and recommendations from other organs of the African Union. The Assembly elects the members of the African Commission on Human and Peoples’ Rights and the judges of the African Court of Human and Peoples’ Rights.

The Executive Council

The Executive Council is composed of Ministers of Foreign Affairs and meets at least twice a year in ordinary session. The Executive Council has two main functions: a) to co-ordinate and take decisions on policies in areas of common interest to member states, including, inter alia, foreign trade; environmental protection, humanitarian action and disaster response and relief; education, culture, health, human resources development and social security; and b) to consider issues referred to it and to monitor the implementation of policies formulated by the Assembly.

The African Union Commission

The Commission functions as the secretariat of the AU. It is composed of the Chairperson, the Deputy Chairperson and eight Commissioners, assisted by the Commission staff.

The Pan-African Parliament

Unlike the above-mentioned organs, which were established as organs of the AU only, the Pan-African Parliament is a single parliament serving two organizations, the AU and the African Economic Community (AEC). The AEC was established by the OAU, inter alia, to promote economic development and the integration of African economies.

The Protocol the Constitutive Act of the AU establishing the Parliament was adopted in March 2001, and entered into force 14 December 2003. As of December 2014, 47 AU member states had ratified the Protocol.

Members of the Pan-African Parliament are elected or designated by national parliaments. Each state party is entitled to elect five members to the Pan-African Parliament, at least one of which must be a woman. The Parliament has a consultative and advisory function that enables it to, inter alia, discuss and make recommendations on issues relating to human rights, democracy and good governance.

The Peace and Security Council

The Protocol Relating to the Establishment of the Peace and Security Council was adopted by the AU on 9 July 2002 and entered into force on 26 December 2003. The Peace and Security Council replaced the Mechanism on Conflict Prevention, Management and Resolution. It is a standing decision-making organ for the prevention, management and resolution of conflicts and is meant to be a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in the region.

The Council is composed of 15 member states of the Union that manifest, inter alia, commitment to uphold the principles of the Union, including humanitarian intervention (Article 5(2)(a)), respect for constitutional governance, the rule of law and human rights (Article 5(2)(g)). In order for the Council to function continuously, the Protocol requires the Council to be represented at the headquarters of the AU at all times (Article 8(1)). This will allow the Council to take decisions on short notice to intervene in humanitarian situations in order to prevent mass loss of life or massive violations of human rights.

The objectives of the Peace and Security Council include anticipating and preventing armed conflict (Article 3(b)) and massive violations of human rights. Its aim is to promote and encourage democratic practices, good governance, the rule of law, human rights, the respect for the sanctity of human life and international humanitarian law (Article 3(f)).

The Protocol provides for the establishment of the African Standby Force to assist the Council in situations requiring humanitarian intervention. The standby force is to be composed of standby contingents ‘for rapid deployment at appropriate notice’ (Article 13(1)). The functions of the African Standby Force include ‘intervention in member state in respect of grave circumstances or at the request of a member state in order to restore peace and security, in accordance with article 4(h) and (j) [of the AU Act]’ (Article 13(3)(c)).

The Economic, Social and Cultural Council

The Constitutive Act of the AU provides for an Economic, Social and Cultural Council (ECOSOCC) as ‘an advisory organ composed of different social and professional groups of the Member States of the Union’. This institution is meant to give the African peoples the possibility to participate in the activities of the AU.

The Statute of ECOSOCC, adopted in July 2004, defines it as an advisory organ of the AU composed of different social and professional groups of its member states. Its membership shall include states, African social groups, professional groups, NGOs and cultural organizations.

Standards and Supervisory Mechanisms

The African human rights system is founded on five treaties of the African Union, namely a) the African Charter on Human and Peoples’ Rights and its Protocols on the establishment of the Court of Justice and the Court on Human and Peoples’ Rights; b) the Protocol on the Rights of Women in Africa; c) the Convention on Specific Aspects of the Refugee Problem in Africa; d) the African Charter on the Rights and Welfare of the Child; and e) the African Charter on Democracy, Elections and Governance. In addition, mention should be made of the New Partnership for Africa’s Development (NEPAD), which seeks to address underdevelopment in Africa through the promotion of democracy, human rights, accountability, transparency and participatory governance.

INSTRUMENTS

The African Charter on Human and Peoples’ Rights

On 26 June 1981, the African Charter was unanimously adopted by the Assembly of Heads of State and Government. It became effective on 21 October 1986. As of December 2014, it had been ratified by 53 AU member states. The two principal organs charged with the supervision of states parties’ compliance with the African Charter are the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights (to be replaced by the single African Court of Justice and Human and Peoples’ Rights).

The African Charter is a binding treaty that covers four main categories of rights and duties: individual rights; rights of peoples; duties of states; and duties of individuals. The combination of the specific needs and values of African cultures and the international human rights standards has resulted in some distinctive features, compared to other regional conventions. The Charter covers economic, social and cultural rights, as well as civil and political rights and it confers rights upon peoples and not only individuals. Furthermore, the African Charter covers ‘third generation rights’, and gives due importance to the assumption that a person has duties as well as rights in a given community. Article 29 of the African Charter offers a list of duties, each implicitly embodying the ‘values of African civilization’.

Unlike other international human right conventions, the African Charter does not contain a general derogation clause allowing the states parties to suspend the enjoyment of certain rights during national emergencies. Instead, the African Commission has found that legitimate reasons for limiting rights and freedoms are found in Article 27(2) ACHPR, namely ‘the rights of others, collective security, morality and common interest’ (see Media Rights Agenda et al. v. Nigeria, Communications 105/93, 128/94, 130/94 and 152/96).

While not providing for derogation clauses, the African Charter contains a number of articles with provisions that limit the reach of these rights, and which have been referred to as ‘clawback clauses’. Article 9(2) ACHPR provides an example of a so-called ‘clawback clause’: ‘every individual shall have the right to express and disseminate his opinions within the law’. The term ‘within the law’ was by many experts interpreted to mean that no domestic legal provision limiting the right in question could be challenged under the African Charter. The Commission rectified this interpretation in one of its communications, when it found that the term ‘within the law’ was to be understood to refer to international law, not domestic law (Civil Liberties Organization in respect of the Nigerian Bar Association v. Nigeria, Communication 101/93) and has stated a general principle applying to all the rights and freedoms contained in the African Charter.

To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter (Media Rights Agenda et al. v. Nigeria).

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa was adopted by the AU on 11 July 2003 and entered into force on 15 November 2005. As of December 2014 the Protocol had been ratified by 36 AU member states.

The Protocol addresses a variety of civil, political, economic, cultural, and social rights. Of particular note are Articles 4, 5, and 14. Article 4 prohibits all forms of violence against women. Article 5 forbids all forms of female genital mutilation. Article 14 assures women a wide variety of health and reproductive rights, including the right to decide whether to have children, the number of children and the spacing of children; the right to choose any method of contraception; the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS; the right to be informed of one’s health status and of the health status of one’s partner; the right to have family planning education and, perhaps most significantly, the right to ‘medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’. This represents the first time that an international standard explicitly provides for the right of a woman to abortion. It is also unique in that it unequivocally denounces and declares female genital mutilation and related practices illegal.

The Protocol particularly addresses the special needs of women in times of armed conflict (Article 11). States are required to protect asylum-seeking women, refugees, returnees and internally displaced persons from acts of sexual violence that take place within the context of armed conflict and to ensure that such acts are considered as war crimes, genocide and/or crimes against humanity and to prosecute them accordingly.

The Protocol elaborates far more extensive human rights for women than any other international treaty. States parties to the Protocol are required to submit periodic reports indicating what legislative and other measures they have undertaken to fully realize the rights in the Protocol (Article 26). Moreover, the African Court of Justice and Human Rights can be seized in matters of interpretation arising from the implementation of the Protocol.

The Convention Governing the Specific Aspects of Refugee Problems in Africa

The African Refugee Convention was the first African regional convention to be adopted. It entered into force in 1969 and has, as of December 2014, been ratified by 45 AU member states. Its most celebrated feature is its expanded definition of who is a ‘refugee’. In comparison to the 1951 Refugees Convention, the AU definition focuses more on the objective circumstances that compelled flight. The fear of danger is not linked to the individual’s personal subjective reaction to a perceived adversity. In addition, the definition includes accidental situations not based on deliberate state action. Likewise, the source of danger need not be actions of the state or of its agents. The AU definition thus highlights the causal element of refugee situations and the jeopardy of human rights of those fleeing, as opposed to emphasizing the motive for flight, as is done in the 1951 Convention. Moreover, it contains an absolute prohibition of refoulement that allows for no exception to be made in times of national emergency or when national security is at stake.

The African Charter on the Rights and Welfare of the Child

The African Charter on the Rights and Welfare of the Child was adopted in July 1990 by the OAU Assembly. It entered into force on 29 November 1999 and had been ratified by 41 AU member states as of December 2014. The AU is the first regional organization to adopt a binding regional instrument safeguarding the rights of children. The Charter is in many respects more protective than its universal counterpart, the UN Convention on the Rights of the Child, especially with regard to refugee children, child marriages and child soldiers.

Compliance with the Charter is supervised by the African Committee of Experts on the Rights and Welfare of the Child which examines state reports and can make recommendations on individual and inter-state communications.

The African Charter on Democracy, Elections and Governance

The African Charter on Democracy, Elections and Governance was adopted by the AU Assembly in January 2007. It entered into force on 15 February 2012 and had been ratified by 23 AU member states as of May 2015. The Charter built on existing AU instruments and was inspired by the Inter-American Democratic Charter, which was adopted in September 2001 by a special session of the General Assembly of the Organization of American States (see above, Module 33A). Among its objectives is to promote adherence by each state party to the universal values and principles of democracy and respect for human rights (article 2(1)). The Charter institutionalises the link between human rights and democracy (Chapters 4 to 6)). It establishes a role for the African Commission in electoral monitoring (Chapter 7) and for the AU Peace and Security Council in responding to unconstitutional changes of government (Chapter 8). In addition to sanctions on states parties, juridical action i9s also envisioned against perpetrators (article 25(5), (9) and (10)).

INSTITUTIONS

The African Commission on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights was established in 1987 under the African Charter on Human and Peoples’ Rights to protect and promote human and peoples’ rights in Africa.

The African Commission was incorporated into the AU framework at the Durban Summit held in July 2002. The Commission is composed of 11 members, who are elected for a term of six years by secret ballot by the AU Assembly from a list of persons nominated by the states parties to the Charter. The Commission meets twice a year in ordinary sessions.

The African Charter provides the African Commission with three principle functions: examining state reports (Article 62 ACHPR), considering communications alleging violations of human rights from both individuals and states (Articles 47 and 55 ACHPR) and interpreting provisions in the African Charter (Article 45(3) ACHPR).

Under Article 62 ACHPR, member states are obliged to submit reports every two years on legislative and other measures they adopted in order to give effect to the provisions of the African Charter. The African Charter failed in Article 62 to identify the organ competent to review these reports. In order to remedy this situation, the African Commission adopted a resolution at its third session requesting the OAU Assembly to allow it to review state reports. The request was approved by the OAU Assembly, and the state reports are now presented to the African Commission for examination. Like UN treaty bodies, the African Commission has drawn up guidelines to help states submit reports that are sufficiently clear and detailed. Many states, however, have not yet submitted any reports, and some of the reports that have been submitted show a lack of commitment to carrying out serious self-evaluation. Following a review of a state’s report and a dialogue between the Commission and the state, the Commission issues Concluding Observations to the state.

The African Commission is empowered to receive and consider inter-state complaints under Article 47 ACHPR. The procedure governing inter-state communications has been used once.

The Commission has the power to consider communications from individuals and organizations alleging violations of human and peoples’ rights under Article 55 ACPHR. Initially this provision was interpreted to mean that the Commission could only accept communications revealing a series of serious and massive violations of human rights. The Commission, however, refuted this in Jawara v. The Gambia, Communications 147/95 and 146/96, where it stated that it is empowered to consider any communication from anyone, including NGOs, as long as rights contained in the African Charter come into play. After examining such communications, the Commission makes recommendations to the Assembly of the African Union and to the state party concerned. Recommendations are included in the annual reports of the Commission, which are made public once the AU Assembly has approved them.

In addition to examining state reports and receiving, examining and investigating communications, the African Commission may interpret any provision in the African Charter if requested to do so by AU member states, organs of the AU or African organizations. The Commission is also entitled to appoint members of the Commission as special rapporteurs to gather information about human rights violations. The Commission has appointed special rapporteurs on thematic issues such as extrajudicial executions, prisons and conditions of detention, women’s rights, human rights defenders, freedom of expression and access to information and refugees, asylum seekers and IDPs. Special Working Groups have also been established on Indigenous Populations/Communities and Economic, Social and Cultural Rights in Africa as well as a Focal Point on the Rights of Older Persons.

The African Court on Human and Peoples’ Rights

The original African Charter did not provide for the institution of a court of human rights. In June 1998, the OAU adopted the ‘Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights’, which came into force 25 January 2004. This Protocol was to be replaced by the ‘Protocol on the Statute of the African Court of Justice and Human Rights’ adopted by the AU Summit in July 2008 with the aim of ensuring adequate resources for the operation of a single effective court in Africa. The Protocol was further amended in June 2014 (see below). The 2008 Protocol as amended was to merge the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union but the 1998 Protocol would remain in force for a transitional period to enable the African Court on Human and Peoples’ Rights to implement measures necessary for the transfer of its prerogatives, assets, rights and obligations to the African Court of Justice and Human and Peoples’ Rights.

The Court on Human and Peoples’ Rights has its seat in Arusha, Tanzania. It is composed of 11 judges elected in their individual capacity by the AU Assembly. Judges serve for six-year terms and are eligible for re-election once. All judges, except the President of the Court, serve on a part-time basis.

Under its advisory jurisdiction, the Court is entitled to give advisory opinions on ‘any legal matter relating to the Charter or any other relevant human rights instruments’. Advisory opinions may be requested not only by a member state of the AU, but also by any organ of the AU, or an African NGO recognized by the AU.

The Court’s jurisdiction is not limited to cases or disputes that arise out of the African Charter, but also any relevant instruments, including international human rights treaties, which are ratified by the state party in question. Furthermore, in addition to the African Charter, the Court can apply as sources of law any relevant human rights instrument ratified by the state in question.

The African Commission, states parties and African intergovernmental organizations can bring a case to the African Court once a state ratifies the Protocol. As of December 2014, 26 States have accepted the Court’s jurisdiction. Individuals and NGOs however, do not have ‘automatic’ access to the Court. The Court cannot receive an individual petition unless the state party involved has made a declaration under Article 34 of the Protocol accepting the competence of the Court to receive such cases, cf. Article 5(3). As of December 2014, seven States have accepted this jurisdiction, Burkina Faso, Cote d’Ivoire, Ghana, Malawi, Mali, Rwanda and Tanzania. The Court is formally independent of the African Commission although it may request the Commission’s opinion with respect to the admissibility of a case brought by an individual or an NGO. The Court may also consider cases or transfer them to the African Commission, where it feels that the matter requires an amicable settlement, not adversarial adjudication.

The Court’s judgments are final and without appeal. They are binding on states. In its annual report to the AU, the Court shall specifically list states, which have not complied with its judgments.

The AU Executive Council is required to monitor the execution of the judgments on behalf of the AU Assembly.

The African Court of Justice and Human and Peoples’ Rights

The Constitutive Act of the AU provides for the establishment of the Court of Justice with authority to rule on disputes over interpretation of AU treaties, and for a Protocol on its statute, composition and functions. The Protocol to set up the Court was adopted in 2003, but is envisaged to be superseded by the ‘Protocol on the Statute of the African Court of Justice and Human Rights’ adopted in July 2008 creating a Court of Justice and Human Rights, which will incorporate the African Court on Human and Peoples’ Rights. It was to have two chambers, one for general legal matters and one for rulings on the human rights treaties. By a Protocol adopted in Malabo in June 2014, the Court, to be re-named the African Court of Justice and Human and Peoples’ Rights, will have a third section, an international criminal law section with three chambers, a PreTrial Chamber, a Trial Chamber and an Appellate Chamber.

The African Committee on the Rights and the Welfare of the Child

The African Committee on the Rights and the Welfare of the Child was established in 1999 under the African Charter on the Rights and Welfare of the Child. The 11 members of the Committee are elected by secret ballot by the AU Assembly from a list of persons nominated by the states parties to the Charter.

The mandate of the Committee includes the promotion and protection of the rights and welfare of the child; the collection and documentation of relevant information; the assessment of problems relating to children; the organization of meetings, the formulation and drafting of rules aimed at protecting children; and the monitoring of implementation of the rights enshrined in the Charter.

As part of the monitoring activities, there is a reporting procedure that requires states to submit a report to the Committee every three years.

Similar to the African Commission, the Committee can receive communications from persons, groups or NGOs regarding violations of the Charter. In addition, the Committee has been granted broad powers of investigation. It may resort to any appropriate method of investigating any matter falling within the jurisdiction of the Charter, including measures a state party has taken to implement the Charter. It may also request from the states parties any information relevant to the implementation of the Charter. However, in formal terms of enforcement, the Committee’s principle means is publicity, the AU bearing the ultimate responsibility for enforcement.

Summary

The African Union Constitutive Act confirms the importance of human rights by the adoption of guiding principles such as gender equality, participation of the African peoples in the activities of the Union, social justice, peaceful co-existence of the member states, and respect for democratic principles, human rights, the rule of law, and good governance.

The editors are indebted to the authors of the Human Rights Reference Handbook (5th edition, Reykjavik, 2010) for permission to use their work as a basis for various modules of this paper. The updating of information and final presentation is, however, our responsibility alone. (The publishers are the Icelandic Human Rights Centre, Reykjavik, Iceland and the University for Peace, Ciudad Colon, Costa Rica. The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.)

Reference

• Human Rights Reference Handbook (5th edition, Reykjavik, 2010)
• The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.