African Human Rights Law

Not published yet

The Constitutive Act establishing the AU, which entered into force in May 2001, features human-rights issues prominently in the preamble in contrast to the OAU Charter, “the inclusion of human rights, the objectives and guiding principles of the Act is an important step toward anchoring human rights in the AU.

This Act provides for the ACJ, with the jurisdiction of implementation and application of the Act, whose competence will obviously extend over human rights controversies as the ACJ can interpret and apply treaties and all subsidiary legal instruments adopted within the framework of the AU, which might be human rights treaties.

As per its Protocol, the ACJ has jurisdiction to resolve disputes and applications referred to it. It can interpret and apply the AU Constitutive Act, AU treaties and all subsidiary legal instruments adopted within the framework of the Union. It also has jurisdiction over any question of international law; all acts, decisions, regulations ad directives of the organs of the Union; all matters specifically provided for in any other agreements that State parties may conclude among themselves or with the Union and which confer jurisdiction of the ACJ. The latter can also rule on the existence of any fact, which, if established, would constitute a breach of an obligation owed to a state party or to the Union, and also on the nature or extent of the reparation to be made for the breach of an obligation.

Because this Court has such broad jurisdiction, it will obviously come across human rights issues. As a result, both the African Human Peoples’ Rights Court and the ACJ of the AU may end up adjudicating human rights issues. At this juncture, it is important to note that the Protocol of the ACJ is still open for ratification and thus is not yet in force.


The Regional Initiatives: NEPAD and Related Initiatives

The New Partnership for Africa’s Development (herein after called NEPAD) is an expression of the collective developmental vision of a new generation of African leaders. It is a reflection of the desire of African leaders to forge out a new partnership with the developed countries of the world to deal away with the malaise of underdevelopment that has still clouded the African continent after four decades of independence.

The NEPAD document was officially endorsed at the Extraordinary OAU Summit in March 2001 in Sirte, Libya which has at the same time declared the establishment of the AU to replace the OAU as has been mentioned in the previous chapter. After its official endorsement, NEPAD was adopted in July 2002 as ‘Africa’s Development Strategy’ by the OAU summit that met in Durban, South African to give birth to the AU and replace the OAU.

One of the ways in which NEPAD seeks to address Africa’s underdevelopment is through promoting and protecting human rights in African countries and sub-regions thus undertaking a human rights-based approach to development. Four broad areas are covered under the initiatives that are built into the NEPAD and defined as prerequisites for the success of the programme. These are the peace and Security Initiative; the Democracy and Political Governance Initiative; the Economic Governance Initiative and the Sub- Regional and Regional Approaches to Development.

Close scrutiny of NEPAD, especially the part dealing with Peace, Security, Democracy and Political Governance Initiatives Reveals NEPAD aims to go about achieving development through human rights based approach.

Also, as issues of governance are the central concern of NEPAD, the programme acknowledges that African leaders will take joint responsibility for ‘promoting and protection democracy and human rights’ and ‘promoting the role of women.’

The proposal goes on to commit NEPAD to engage in capacity building initiatives to help meet these goals by focusing on administrative and civil services, strengthening parliamentary oversight, promoting participatory decision – making, implementing effective measures to fight for corruption and undertaking judicial reform.

In addition to the above, Africa’s political leaders also propose a heads of State Forum which will serve as a mechanism through which the leadership of NEPAD will periodically monitor and assess the progress made by African countries in meeting their commitment towards achieving good governance and social reforms. They add that the forum (which is to be referred to as the African Peer Review Mechanism after the July 2002 Durban Summit) will also provide a platform for countries to share experience with a view to fostering good governance and democratic practices.’ Generally, looking at the above points addressed in NEPAD, we can conclude that while human rights are referred to as core values that have been accepted as essential to good governance and sustainable development, the document in its current form, focuses on the promotion of good governance including transparency, accountability implying that human rights issues will be addressed as a matter of course.

The Role of Non-governmental Organizations (NGOs) and Civic Organizations

Although not a legal part of the institutional framework established by the African Charter, of even the AU, NGOs play a prominent role in enforcing human rights. Their inclusion is thus justified; the involvement of NGOs in the African system is quite unprecedented in international human rights. The African Commission has forged close relations with a number of NGOs, granting Observer Status to many. The Commission has even formalized the criteria NGOs must meet to be granted or to maintain, observer status. The recognized NGOs may be transnational or national, ‘on the ground’ and, unlike elsewhere, NGOs may, and frequently do, bring cases before the Commission.

As the 1993 World Conference on Human Rights marked the watershed of NGO involvement in international human rights, the African system appears once more to be more forward thinking than its sibling systems (it is acknowledged that many of the preexisting United Nations’ instruments had some NGO involvement at the drafting stage). There are many practical reasons for encouraging NGO involvement in the African system, not least the fact that NGOs may have the resources and dedication to bring cases forward. The individual may not be in such a fortunate position (though, as noted, individuals can be called to testify). As Rachel Murray acknowledges, ‘it could be argued that the need for NGOs in the African system is largely due to the weaknesses and ineffectiveness of the African Commission’. She concludes that NGO involvement is a necessary and integral part of the ‘holistic and community responsibility’ advocated by the Commission.

The participation of NGOs in the African system is a two-way process: whilst they enjoy access to the Commission and even some rights of participation in public meetings, NGOs also have responsibilities to promote human rights. They discharge these responsibilities through national training programmes, dissemination of materials, raising of the profile of the Charter at the national level, especially in rural districts, and promoting and facilitating Commission visits to states. On occasions, the Commission will explicitly utilize NGO information when the information cannot be obtained directly from the State.

Not published yet

A Committee of Experts (Art. 32 of the African Charter on the Rights and Welfare of the Child 1990) monitors the Charter on the Rights and Welfare of the Child. The first meeting of the Committee was held in 2002. It has a broad mandate to promote and protect the rights and welfare of the child (Art. 42 of the African Charter on the Rights and Welfare of the Child 1990). Unlike the United Nations Committee, the Committee of Experts has competence to receive individual complaints which are to be dealt with confidentially (Art. 44 Art. 42 of the African Charter on the Rights and Welfare of the Child 1990) though in line with the approach of the United Nations, reports of the Committee are to be widely disseminated.


The African Court of Human and Peoples’ Rights

The date 25 January, 2004 is a memorable date for the Africans and all those other advocates of human rights protection all over the world. This date marked the entry into force of the Protocol which established the African Court on Human and Peoples’ Rights.

Article 66 of the African Charter lays down the special protocols or agreements may, where necessary, supplement the provisions of the Charter. This Article did not remain a dead letter, as it was precisely by virtue of a Protocol that, in June 1998, the States parties to the African Charter created the African Court of Human and Peoples' Rights, a judicial body intended to reinforce the safeguards of safe mechanism instituted by the African Charter in 1981.  Article 1 of the Protocol establishes the Court, emphasizing that it is established within the framework of the African Union (hereinafter AU). We will now go on to consider, in turn, the organization, operation, functions and procedures of this Court.

 

1. Organization of the Court

We will consider the composition of the Court, the question of its seat and the material and human resources at its disposal.

The Judges

Article 11 of the Protocol lays down that the Court shall be composed of eleven judges and that in no case may it include more than one national from the same state. To be eligible, candidates must meet certain condition and, once they are elected, the exercise of their office must comply with certain rules.

Bureau

Under the terms of Article 21 of the Protocol, the Court shall elect its President and one Vice-President for a period of two years, and both may be re-elected once; their functions shall be set out in the Rules of Procedure of the Court, and the president shall perform his functions on a full-time basis and shall reside at the at of the Court.


2. Operation of the Court

The Protocol is relatively discreet on the operation of the Court, and it will therefore be for the court to lay down the precise details of this in its Rules of Procedure. We will here consider some of the rather unusual aspects of the operation of the Court regulated by the Protocol, taking them one by one.

Rules of Procedure

Article 33 of the Protocol provides that the Court shall draw up its Rules and determine its own procedures and shall consult the Commission as appropriate. Here, it should be recalled that the Court is, in fact, designed to "complement" the African Commission (Art. 2 of the Protocol, and Para. 7 of its preamble). As the Court is essentially assigned judicial functions, consultation between these two bodies should focus on specifying the functions of the African Commission. 2401 This point is made by Article 8 (entitled" Consideration of cases"), stipulating as it does that

"the Rules of Procedure of the Court shall lay down the detailed conditions under which the Court shall consider cases brought before it, bearing in mind the complementarity between the Commission and the Court".

3. Functions of the Court

The Protocol lays down at the outset, in Article2, that the Court shall, bearing in mind the provisions of this Protocol, "complement the protective mandate of the African Commission", a reading of Articles 3 and 4 shows that the Court has a twofold function: contentious and advisory.

A. Contentious Functions

We will now consider the contentious function of the African Court, looking in turn at it jurisdiction, the procedure followed during the consideration of the cases brought before it and the decisions it has the power to take.

 

i. Jurisdiction of the Court

As the provisions of the Protocol do not clearly delimit the jurisdiction of the Court, we will endeavor to sketch in its major outlines, including it material, personal, territorial and temporal aspects.

 

1. Material jurisdiction or jurisdiction ratione materiae

Article 3 (1) of the Protocol provides for very broad jurisdiction, stating that:

"The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol, and any other relevant Human rights instrument ratified by the states concerned".

The formula enshrined in Article 3 of the Protocol is most original; it is broad and generous. To begin with, it makes it possible to invoke before the Court the violation of the provisions of the African Charter which, as we have seen, constitute a bold juxtaposition of individual rights and collective rights, civil and political rights and economic, social and cultural rights, as well as rights and duties. The originality of Article 3 of the Protocol resides in the fact that the Court could also consider the interpretation and application not only of the Protocol itself, which seems self-evident, 2419 although the Protocol does not recognize any human right, but also and above all it could consider any other legal human rights instrument "ratified by the States concerned"

Only two limitations are laid down by Article 3; the instrument concerned must be a convention (as suggested by the ratification requirement) and it must have been ratified by 'the States concerned". The principle of the relative effect of treaties means that the expression just referred to must be seen as the requirement that both the Applicant State and the Respondent State must have ratified the convention concerned, in the event of a communication between States.

Theoretically, Article 3 of the Protocol thus authorizes the African Court to gear all cases or disputes concerning, for expel, the interpretation or application of the very protective provisions of the two United Nations Covenants of 1966, to which virtually all African States are parties, or those of the 1990 African Charter on the Rights and Welfare of the Child or the 1969 OAU Refugee Convention.

 

2. Personal jurisdiction or jurisdiction ratione personae

The question of the jurisdiction ratione personae of the African Court certainly raised a number of problems during the process of the elaboration of the Protocol. In its very first version, the protocol laid down, in Article 5, that cases could be brought before the Court by the African Commission, and by the state party against which the complaint has been lodged at the Commission, its Article 6 (entitled "Exceptional Jurisdiction") also laid down that "the Court may, on exceptional grounds, allow individuals, non-governmental organizations and groups of individuals to bring cases before the Court, without first proceeding under Article 55 of the Charter".

We will now consider the jurisdiction ratione personae of the Court as regards the Applicant and the Respondent; we will also briefly consider the possibility open toe certain States to intervene in the proceedings.

 

I. Jurisdiction ratione personae with respect to the Applicant

As defined by the Protocol, access to the African Court is relatively liberal when compared with the American Convention or what it was prior to 1 November 1998 in the European Convention. For under the terms of Article 5 of the Protocol, the following are entitled to submit cases to the Court:

1.   the African Commission,

2.   the State party which has lodged a complaint to the Commission,

3.   the State party against which the complaint has been lodged at the Commission,

4.   the state party whose citizen is a victim of a human rights violation, and

5.   African Intergovernmental Organizations.

A case may also be brought before the Court by a non- governmental organization with observer status before the Commission, or an individual, provided the State concerned has made a declaration accepting the jurisdiction of the Court to receive such cases. The Protocol therefore lays down the compulsory jurisdiction of the African Court for all cases brought before it by the Commission, a State party or an African inter-governmental organization, and the optional jurisdiction of the Court as regards cases brought by an individual or a non-governmental organization.

As defined by the Protocol, the jurisdiction of the Court in contentious matters is not necessarily intended to be exercised in an extension of proceedings before the Commission. The travail repertoires of the protocol show that it was originally planned to include all proceedings before the Court in the immediate extension of those brought before the Commission, but that this idea way subsequently abandoned.

The abandonment of the formula initially chosen by the authors of the Protocol means that it can be concluded without hesitation that they did not intend to limit the jurisdiction of the Court solely to cases brought before the Commission, The first type of case covers those already having been the object of proceedings before the African Commission and subsequently referred to the Court by the Commission itself or by a State party which has lodged the complaint to the Commission a State party against which the complaint has been lodged at the Commission or a State party whose citizen is the victim of the human rights violation brought to the consideration of the Commission. In this first type, the question is at what stage in the proceedings before the Commission the case may be brought before the Court. In the Inter-American context, a case cannot be bought before the Court until a relatively advanced stage in the proceedings before the Commission. Since the Protocol is silent on the matter, and failing any contrary indication in the Rues of Court, as soon as a case is brought before the Commission, both the Applicant State and the respondent State or the State whose national the victim is could bring a case before the Court, on the sole condition that they are parties to the Protocol.

The second type of cases covers those submitted directly to the Court by a state or” African intergovernmental” organization without any proceedings having been instituted before the African Commission. The drafting of Article5 (1 d) is sufficiently vague to permit a case to be brought before the court by a State whose national is the victim of the violation of aright, whether a case regarding this violation has been brought before the commission or not.

The third type of case covers those brought directly before the Court by an individual or non-governmental organization without any proceedings having been instituted before the African Commission. This is indicated by Article 5 (3) of the Protocol, which states that:

“The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission and individuals to institute cases directly before it, in accordance with Aricle34 (6) of this Protocol”.

Article 34 (6) of the Protocol lays down the procedure for the deposit of the optional declaration of acceptance of the compulsory jurisdiction of the Court. However, it is silent on whether this decoration can be made only for specific cases or for a specified period of time: for its part, the Protocol to the African Charter does not require the individual to be the victim of the alleged violation; nor does it lay down this requirement for a non-governmental organization wishing to bring a case before the Court. The court ought therefore to make a liberal interpretation of the relevant provisions of the Protocol when drafting its Rules and not require the author of an application to be the victim of the alleged violation.

Lastly, attention should be drawn to a small ambiguity in article 5 (3). What indeed, is the meaning of the expression “The Court may entitle”? This form of words would suggest that the Court’s jurisdiction is not automatic and that bringing a case before it depends upon its discretionary power. Yet, the reference to Article 34 (6) confirms that the only condition on bringing a case in this way is the deposit of a declaration of acceptance of the jurisdiction of the Court by the state concerned. At this stage, the Court’s only discretionary power would be to ascertain the existence of such a declaration, as well as the observer status of the non-governmental organization concerned. Be this as it may, the Court has the “competence de as competence”. The power to determine its own jurisdiction, as clearly shown by article 3 (2) of the Protocol; in other words, “in the event of a dispute as to whether the Court has jurisdiction, the Court shall decide”. Ultimately, there was no need to stipulate that the “Court may entitle” non-governmental organizations and individuals to institute cases directly before it; such permission falls within the sole domain of States parties to the Protocol.

II. Jurisdiction ratione personae with respect to the Respondent

Every State party to the Protocol may be brought before the Court by the African Commission, a State party or by an African inter-organizational organization, without it needing to give its consent either by the prior deposit of a declaration of acceptance of the compulsory jurisdiction or the Court or in any other way; the jurisdiction of the Court is compulsory for it solely by virtue of its accession to the Protocol. In the Inter-American system, the jurisdiction of the Court is optional; this was also the case in the European system prior to the entry into force of Protocol No.11, which made this jurisdiction compulsory regardless of the status of the complaint.

However, a State party to the Protocol cannot be brought before the Court by an individual or a non-governmental organization unless it has first made the declaration laid down in Article 34 (6), by which it accepts the Court’s jurisdiction to deal with such cases. 2455 The question arises whether a State may nevertheless agree to be brought before the Court by expressing its consent on a case-by-case basis, other than by the prior deposit of its declaration as laid down in Article 34 (6).

III. The opportunity to intervene for states with an interest in a case

Article 5 (2) of the Protocol states that” (w)hen a State party has an interest in a case, it may submit a request to the Court to be permitted to join”. The wording of this provision is not particularly fortunate since it seems to be an amalgam of two quite different legal institutions – the joinder of cases and the intervention of a third State in a case. For a judicial body, the joinder of cases entails the consideration of two or more interrelated cased, the initiative for such joinder lying with the judicial body concerned. The purpose of intervention is quite different. In general, when a State has an interest in a case between two other States, it may submit a request to the Court to be permitted to intervene; moreover this is the language used in the French version of this provision, and also that of Article 62 (1) of the Statute of the International Court of Justice.

 

3. Temporal jurisdiction or jurisdiction ratione temporis

As the Protocol provides no pointers on the question of the Court’s jurisdiction ratione temporis, the organ should as a rule only hear cases and disputes which have arisen after the date of the entry into force of the Protocol with respect to each state party concerned; this is the solution which would be dictated by the strict application of the principle of the non-retroactivity of conventions.

However, the aim and purpose of the Protocol point towards a contrary solution. Indeed, it could be asserted that the intention of the authors of the protocol was to improve the operation of the safeguards system of the African Carter as soon as possible. It will be recalled that, in the preamble of the Protocol, the AU Member States declared themselves

“(f)irmly convinced that the attainment of the objectives of the African Charter on Human and Peoples’ Rights requires the establishment of an African Court on Human and Peoples’ Rights to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights”;

Article 2 of the Protocol also lays down that “the Court shall (---) complement the protective mandate of the African Commission”.

 

4. Territorial jurisdiction or jurisdiction ratione loci

On this point too the protocol is silent. It may therefore be deduced that the extent o the Court’s territorial jurisdiction coincides with that of the Commission. The Court could thus deal with violations of human and peoples’ rights falling within the material scope of Article 3 (1) and occurring in the territory of any State party to the Protocol. The broad wording of Article 3 does not prevent the Court from also dealing with violations which can be imputed to a State party even if they occurred outside the territory falling within its jurisdiction.

 

ii. Procedure before the Court

  1. Consideration of applications as regards their admissibility

The Protocol devotes only three short paragraphs to the question of the admissibility of applications and the least that can be said is that the way it deals with this important matter is not very satisfactory owing to its lack of clarity. Indeed, Article 6 entitled “Admissibility of Cases” reads as follows:

  1. The Court, when deciding on the admissibility of a case instituted under Article 5 (3) of this Protocol, may request the opinion of the Commission which shall give it as soon as possible.
  2. The Court shall rule on the admissibility of cases taking into account the provisions as Article 56 of the Charter.
  3. The Court may consider cases or transfer them to the Commission”.

It is patently clear from a reading of the first paragraph of this article that it relates solely to cases brought before the Court by an “individual” or a “non-governmental organization”. This provision lays down a simple option for the court, not obligation.

Notwithstanding the admissibility of a case on the basis of the strict conditions set forth in Article 6 of the Protocol and 56 of the Charter, the Court may request the opinion of the Commission before ruling on the admissibility of a complaint.

However, the Statute of the Court does not clearly indicate the procedure to be followed or the conditions under which a case begun or referred to the Commission by the Court may be subsequently referred to the Court.

  1. Consideration of the application on the merits

Africa 8 of the Protocol is entitled “Consideration of cases” and states that

“(t)he Rules of Procedure of the Court shall lay down the detailed conditions under which the Court shall consider cases brought before it, bearing in mind the complementarily between the Commission and the Court”.

Like the American and European Conventions, the Protocol thus gives few details regarding the procedure for the consideration of applications on the merits. However, it seeks to regulate certain specifies matters such as the court hearing a case, laying down the exclusion of a judge if he is a national of State party to a case submitted to the court, or the option given to the Court to make no-site visits. It also regulates other equally specific and important matters such as sources of law, hearings and representation, evidence, interim measures, amicable settlement, and findings.

  1. Judgments of the Court

The judgment of the Court decided by majority would be final, and not subject to appeal. However, the Court is empowered to review its decisions in the light of new evidence, under conditions that would be set out in its Rules Of Procedure. At the same time, the Court enjoys the power to interpret its decisions.

Under the terms of article 28 of the Protocol, the Court “shall render its judgment within ninety (90) days of having completed its deliberations”. The immediate question which arises here is how appropriate it is to impose on the Court a time-limit for delivering its judgments. The idea here was certainly to prevent cases from dragging on endlessly before the Court after being considered. However, it might prove difficult for the Court systematically to respect such a 90-day time-limit. Owing to the inadequacy of the human and material resources of it Registry, the Court might find itself unable to produce a judgment within the time-limit allocated.

It is interesting to note that article 29 lays down that the judgment of the Court shall be notified not only to the parties to the case, the member States of the AU and the African Commission, but also to the AU Council of Ministers, which “shall monitor its execution on behalf of the assembly” of Heads of state and Government. This is an important provision, whose purpose is to ensure that the Court’s decision is made public and to guarantee it performance by the political organs of the regional organization.


B. Advisory Function

The Protocol also confers an advisory function on the African Court, like the American and European Human Rights Courts, whose powers in this respect are governed respectively by Article 64 of the American Convention and Articles 47 to 49 to the European Convention, as amended by Protocol No. 11.

Indeed, Article 4 of the Protocol entitled "Advisory Opinions" reads as follows:

"1. At the request of a Member State of the AU, the AU, any of its organs, or any African organization recognized by the AU, the Court may provide an opinion on any legal mater relating to the charter or any relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.

2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate or dissenting decision (sic)”.

We will consider in turn who the potential instigator of a request for an advisory opinion are, the material scope of the jurisdiction of the Court in this domain and also the action the Court can take on receipt of such a request.

i. Initiative for a request for an advisory opinion

The first point to note is that Article 4 of the Protocol is relatively liberal in this respect, since to authorize requests for advisory opinions not only by states parties to the Protocol and other members of the organization of African Unity, but also by that organization and each of its organs, as well as by “any African Organization recognized by the AU”. It will be recalled that article45 (3) of the African Charter also authorizes the African Commission to interpret any provision of the Charter “at the request of a state Party, an institution of the AU or an African Organization recognized by the AU”.

The solution adopted by the Protocol differs somewhat from the one adopted by the African Charter concerning the African Commission’s power of interpretation, since the Protocol does not limit access to the advisory function solely to states “parties”. This solution also differs appreciably from the one adopted in the European system where only the Committee of ministers may request an advisory opinion. On the other hand, it is similar to the solution favored in the Inter-American system in that many of the Member States of the Organization of American States, and also some of its organs, may bring a case before the Court: the only major difference lies in the fact that the Protocol does not specify which these organs are.

 

ii. Material scope of the Court’s advisory jurisdiction

The Court has relatively broad advisory jurisdiction, extending as it does to both to African Charter itself and “any relevant human rights instrument”, which includes not only all regional or universal human rights treaties, the Protocol included, but also the other formally non-binding legal instruments such as the resolutions of relevant bodies (African Commission, United Nations General Assembly, etc). There are only two imitations no the jurisdiction of the court: the opinion may only concern a “legal matter” and it should not be ‘related to a matter being examined by the Commission”.

The purpose of the latter limitation is probably to prevent the Court, in the exercise of its advisor unction, from prejudicing the integrity of the quasi-judicial junction of the African Commission as regards the protection of human and peoples’ rights, and to protect the Commission’s full freedom of decision. It would, moreover, be most regrettable were the Commission and the court to give divergent interpretations of the same legal issue. In this connection, it African Commission is vested with the power to interpret any provision of the Charter outside any consideration of a case pending before it. However, Article 4 of the Protocol did not envisage such a potential conflict between the respective powers of the Court and the Commission in this area.

 

iii. Action following a request for an advisory opinion

Essentially, it should be noted that the language of Article 4 (1) is permissive (“the Court may provide”); in other words, the Court’s power to issue advisory opinions is purely discretionary like that of the other regional courts or the International Court of Justice. Indeed, the Court could decline to issue an opinion on grounds of judicial expediency, even if the conditions for submitting a request to it laid down by Article 4 are met. Yet, this discretionary power is not infinite, for, as the inter-American Court has stated:

“This broad power of appreciation (of the American Court) should not be confused, however, with unfettered discretion to grant or deny a request for an advisory opinion. The Court must have compelling reasons founded in the conviction that the request exceeds the limits of its advisory jurisdiction under the Convention before it nay refrain from complying with a request for an opinion. Moreover, any decision by the Court declining to render an advisory opinion must conform to the provisions of Article 66 of the Convention, which require that reasons be given for the decision”.

The African Court should not, therefore, decline to act on a request for an advisory opinion unless there are compelling reasons for doing so. Be this as it may, it must in the reasoning of its opinion explain why it has declined. Article 4 (2) of the Protocol places and obligation on the court to give reasons for its opinions and this obligation applies regardless of whatever action is actually taken.

Lastly, it should be noted that although the question of the legal force of the Court’s advisory opinions was not dealt with by the Protocol, it is nevertheless clear that, as their name suggests, they are solely advisory. Yet while not binding, the advisory opinions delivered by international judicial bodies are not bereft of all legal force and generally possess great moral authority. The same authority ought therefore also to characterize the advisory opinions of the African Court; yet that authority will largely depend on the nature of the questions they relate to and the quality of the legal reasoning which underpins them.

The African Commission is the only organ specially created in 1981 for the purpose of verifying the implementation of the African Charter. Article 30 of the African Charter established the African Commission as an organ of the Organization of African Unity (OAU). Although very much geared to promoting human and peoples’ rights, the Commission’s activities also entail protection; however, in this area, its role is in theory offset by the role played by the supreme body of the OAU, the Assembly of Heads of State and Government, now the Assembly of the Union. in this section we will examine the organization, operation and function of the Commission as well as the procedural aspects relating to its activity for the protection of human and peoples’ rights.

Composition

The African Commission consists of eleven independent experts. Members serve in their personal capacity and should be known for their high reputation, morality, integrity, impartiality, and competence in relevant matters (Art.31). In contrast to previous compositions, members of the Commission today satisfy most of the criteria as well as representing a broad geographical balance.

Members of the Commission are elected by secret ballot by the Assembly of Heads of State and Government after nomination by the state parties to the African Charter (Art.33). States must nominate candidates four months before the election.

Members of the Commission are elected for a six year period and are eligible for re-election. To ensure that the Commission is gradually renewed, the term of office of four of the members elected in the first election ends after two years and the term of office of three others after four years; immediately after the first election, the chairman of the Assembly of Heads of State draws lots to decide the names of the members concerned (Art.37).

When they have been elected and before taking up office, members of the commission must, at a public sitting, make a solemn declaration to discharge thief duties impartially and faith fully.

Members of the Commission serve in a personal capacity (Art.31 (2), Rule 12(2)). It might have been feared that, as laid down by Article XXI of the OAU Constituent Charter in relation to the Specialized Committees, the Commission would be composed of ministers or plenipotentiaries of Member States; although created "with in the Organization of African Unity" (Art 30), the Commission does not therefore constitute one of these "Specialized Committees." whose status is regulated by Articles 20 to 22 of the OAU Charter.

Function of the Commission

Apart from the duties which may be assigned to the Commission by the Assembly of Heads of State, Articles 30 and 45 of the African Charter assign three main duties to the Commission: promoting human and peoples’ rights in Africa, protecting those rights and interpreting any of the provisions of the African Charter. At no points does the African Charter define what it understands by "promotion" and "protection" of human and peoples' rights; it merely gives examples of promotional activities. The Rules of Procedure are equally discreet on how these two concepts should be understood. According to the rules, promotional activities are essentially those laid down in Article (1) of the African Charter and also include consideration of the periodical report of state parties; however, the Rules confine protection activities to consideration of communication from states parties to others.

As envisaged by the African Charter, the activities to promote human rights aim to publicize human rights and develop and encourage respect for them. So, these can be a whole range of activities, all of which help to raise the awareness of the main parties concerned - those who govern as well as those who are governed - to the human rights issue.

As for the activities of protection, their content is more clearly circumscribed since, under the terms of the Charter and the rules of procedure, they consist solely of the consideration of communications pleading to alleged human rights violation. However, the communication’s protection activities are not in fact confined solely to the consideration of communications.

I. The Promotion of Human and People's Rights

Article 45(1) of the African Charter envisages three main functions: information and research, consultation and cooperation with similar institutions; Article 62 suggests a fourth relatively important function; consideration of the periodical reports from states.

Information and research is the Commission’s promotional activity, par excellence, its purpose being to raise public awareness of the human rights issue in African public opinion. Among other things, the Commission’s task will be to "collect documents, undertake studies and research on African problems in the field of human and peoples rights", to organize seminars, symposia and conferences, to disseminate information and to encourage national and local bodies concerned with human and peoples’ rights.

The Commission has also a consultative  role with African countries, one of its tasks here being to give its views or make recommendations to governments and to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples' rights and fundamental freedoms upon which African governments may base their legislation. In other words, it has a genuine role in providing expert opinion provisions of the African Charter, this role is of particular importance as it concerns are of the essential aspects of the implementation of the Charter.

Another task of the Commission is to co-operate with the other African or international institutions interested in the promotion and protection of human and people’s rights, this is an aspect of the promotional activity which it should not neglect.

Since its creation, the Commission has actually paid particular attention to this type of activities. In this way, it has established contacts with, for example, the United Nations Human Rights Centre, the United Nations High Commissioner for Human Rights, the European Commission and Court of Human Rights, the Inter- American Commission and Court of Human Rights, UNESCO, the United Nations Economic Commission for Africa, the European Community or the European Union.

The other important task of the Commission is the consideration of the periodical reports of states parties. This task is not, strictly speaking, entrusted to the Commission by the African Charter, for Article 62 merely lays down that, every two years, states parties should submit a report on the legislative or other measures taken to give effects to the rights and freedoms which are the objects of their undertaking; it does not state for whom the report is intended or what action will be taken upon it. However, at its 24th ordinary session, the Assembly of Heads of State and Government expressly decided to entrust consideration of the periodical reports to the Commission and to authorize it to draw up general guidelines for states parties on the form and content of these reports. It is therefore to Chapter XV of the Rules, which is entirely devoted to the Commission’s promotional function functions.

According to rule 81 of the Rules of Procedure, these reports should indicate, where possible, the factors and difficulties impeding the implementation of the provisions of the Charter.

Under Rule 83, the report is then considered by the Commission at a session whose venue opening date and duration have been communicating before hand to the state concerned, which may send a representative. The periodical report is examined at a public meting of the Commission, which may therefore also be attended by all NGOs with observer status with the Commission. The Commission generally appoints one of its members as reporter and, after the presentation of the report by the representative of the state concerted. At the end of the meeting to consider the report the Chairman of the Commission informs the representative of the state concerned that a report on the deliberations will subsequently sent to his government; this report generally contains the Commission’s observations and any requests for  clarification of point which remained at the meeting  to consider the report. The state concerned may thus be given a date by which this additional information should be submitted.

in general, the exercise by the Commission of this important aspect of its function to promote human and peoples' rights has not actually been a great success to date, essentially because the state parties have seldom demonstrated the requisite diligence and rigour. The second serous problem affecting the Commission's task of considering the periodical reports is that, even though certain states parties do apparently decide to submit their reports to the Commission, they fail to send a representative to the Commission’s session, even though duly informed that their report will be discussed there.

Under its Rules of Procedure, the only "section" available to the Commission when performing its function of considering the periodical reports, is its power to refer the matter to the supreme organ of the African Union and to the states parties. Under Rule 86, the Commission is transmit to all the states parties its "general observations made following the consideration of the reports and the information submitted by the states concerned; these observations, together with the reports, may also be transmitted by the Commission to the Assembly of Heads of State and Government.


II. The Protection of Human and Peoples’ Rights

The protection of human and people’s rights is also the Commission’s task to "ensure the protection of human and peoples' rights under the conditions laid down by the African Charter" (Art. 45(2)). Accordingly, its powers may be assessed on the basis of the nature of the human and peoples' rights violated, the date and place of their violation and the status of their subjects, active as well as passive.

Material jurisdiction or jurisdiction ration material

The Commission is entrusted with the task of ensuring the protection of human and peoples' rights "under the conditions laid down" by the African Charter, the Commission's task to ensure compliance with will be the duty of the state to implement the rights, freedoms and duties set forth in the African Charter to which the two specific duties placed on the state by Articles 25 and 26 will naturally need to be added. In its activity of protection, the Commission should therefore not deal with the individual’s failure to comply with his duties but only with the violations of the human and peoples’ rights as set for by the African Charter.

it should be emphasized that the African Charter makes no distinction as between individual rights and collective rights on the one hand, and civil and political rights and economic, social and cultural rights, on the other; the inescapable conclusion is there fore that it is the Commission’s task to deal with the failure of a state to respect any right falling with in any of the above-mentioned categories.

Territorial jurisdiction or jurisdiction ratione loci

Neither the African Charter nor the Rules of Procedure of the Commission deals with this matter satisfactorily. The first Article of the Charter lays down in very general terms that:

“The member states of the {African Union} parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this charter and shall undertake to adopt legislative or other matures to give effect to them.”

and its Article 30 lays down in equally terms that an African Commission shall be established to “promote human and replies rights and ensure their protection in Africa.” Yet it is implicit that the Commission may deal with violations of human and peoples’ rights in the territory of any state party to the African Charter.

Nor does the relative lack of precision of the African Charter in this respect precede the Commission from also being able to deal with a violation of human right to which can be imputed to a state party, even that violation took place outside the territory under the jurisdiction of that state.


Temporal jurisdiction or jurisdiction ratione temporis

on this point, the texts are silent; yet in accordance with the well established principle in international law that treaties are not retroactive, only violations of human or peoples’ rights subsistent to the entry in to force of the African Charter with respect to the state concerned should be brought before the Commission, in other words three months after the date of the deposit by this state of its instrument of ratification or adherence (Art.65). The Commission thus declared a communication alleging human rights violations by an African state not yet party to the African Charter inadmissible.

The African Commission had occasion to deal with a case in which it recognized its jurisdiction to consider acts which had taken place before the entry in to force of the African Charter with respect to a state, yet continuing to produce its effects after the entry in to force. In the case concerning John K.Modise V.Botswana, the Commission after noting that Botswana had ratified the African Charter on 17 July 1986, held indeed that:

“Although some of the events described in the communication took place before ratification, their effects continue to the present day. The current circumstances of the complaint is a result of a present policy decision taken by the Botswana government against him”

Personal jurisdiction or jurisdiction ratione personam

1. Jurisdiction ratione personae with respect to the Applicant

A matter may be referred to the Commission by any state party to the African Charter (Arts.47 and 49) whether the individual or people which is the victim of the alleged violation is or is not legally attached to it.

A communication may also be considered by the Commission at the request of a simple majority of its members (Art.55 (2)) under an original procedure in which the individual is closely involved. Although not formally designated as such by the African Charter (Arts-55 et set) the individual is in fact the potential author of the “other communication” it provides for; the Commission’s Rules of Procedure leave one in no doubt about this. Rule 104(10 (“Request for Clarification”) lays down, for example, that the Commission may request the author of a communication to specify his name, address, age and profession.

The revised version of Rule 114 (current Rule 116 ("Admissibility of the Communication") contains far fewer details on this point, merely stating as it does that "(t)he Commission shall determine questions of admissibility pursuant to Article 56 of the Charter". However, this is not important because, as under the former Rules of Procedure, the Commission continues to consider communications addressed to it by non governmental organizations based in the African continent or outside it (Amnesty International, Interights, International Commission of Jurists, International PEN, Lawyers' Committee for Human Rights, etc), or by individuals; in this connection, it should be noted that the commission did not hesitate to deal with communications lodged by an individual on behalf of another individual even though the author of one of these communications was not resident in the territory of a state party to the African Charter.

2. Jurisdiction ratione personae with respect to the Respondent

The Commission may only deal with violations of human and peoples' rights by a state, yet this State must also be a party to the African Charter (Arts.47 and 49); Rule 102 (2) of the Rules of Procedure of the Commission provides that "No communications concerning a state which is not party to the Charter shall be received by the Commission or placed in a list under Rule 103 of the present Rules." The Commission thus declared "inadmissible" a number of communications lodged against African States not then parties to the African Charter, such as Angola, Burundi, Cameroon, Ethiopia, Kenya, Lesotho, Malawi, Morocco, or non African States such as Bahrain, Haiti, Indonesia, the United States, or Yugoslavia. These communications were declared "inadmissible" pursuant to the abovementioned Rule 102 ("seizing of the Commission") which was then Rule 101.

Like the European Convention on Human Rights (Art.24) before the control machinery established by the European Convention was restructured, but unlike the American Convention on Human Rights (Art. 45), the African Charter does not make the seizing of the Commission by a State subject to a prior declaration of acceptance of the jurisdiction of this body by the state challenged. Lastly, it is self-evident that a non-State entity - be it an individual or an organization - can in no circumstances be brought before the Commission: this is shown both by the relevant texts and by the very object and purpose of the African Carter. In this connection, it should be noted that the Commission has received a communication alleging a violation of the African Charter by the Organization of African Unity and which the Commission declared "inadmissible".


Procedure before the Commission

The Commission's activity for the protection of human and peoples' rights chiefly consists in considering violations of any right or freedom guaranteed by the African Charter brought to its attention by "communication" which, as we have seen, may be of State as well as private origin. The procedural aspects surrounding this activity are regulated by Chapter III of part II of the African Charter (Arts.46 to 59) and Chapters XVI and XVII of the Commission's Rules of Procedure (Rules 88 to 120). However, it will be noted that although, regardless of the nature of the communication, the outcome of the procedure before the Commission is identical, namely, the preparation of a report, this is not so as regards how that procedure is set in motion and develops: the conditions governing the admissibility and consideration of communication vary indeed according to the nature of their author. The difference is patent where the admissibility of communications is concerned. And also as regards their consideration; for example, the text of the African Charter makes consideration of the "other communication" subject to a veritable procedural shuttle between the Commission and the Assembly of Heads of State. Yet we will see that, in practice, the procedure followed by the Commission is not always faithful to that laid down by the letter of the African Charter, as the Commission has assumed certain powers that it does not formally posses, regardless of he differences between the procedures for "communication from states parties" and that for "other communications", it is nevertheless clearly geared to the same objective, namely, conciliation.

  1. I. Procedure for'' Communications from states Parties''

It is in relation to this procedure that the desire for conciliation is most clearly apparent. Indeed, Articles 47 to 49 of the African Charter provide an alternative to any State party having found that the provisions of the Charter have been violated by another state party. They offer the requesting State a choice between two procedures which the Commission's Rules of Procedure designate in a highly revealing manner as "procedure for communications-negotiations" and "procedure for communications complaints", the former possibly leading to the latter, which alone of the two truly sets in motion the procedure before the Commission. As indicated above, it is only recently that the Commission was seized for the first time with an inter-state communication worthy of the name, in other words from a State party to the African Charter and lodged against another State party; the Commission therefore has no true practice in this respect, and we will consequently limit our examination solely to the text of the African Charter.


II.        Procedure relating to "communications-complaints"

Under Article 49, it may also be initiated by a state outside any conciliation attempt. This alternative, which did not exist in the draft African Charter, seems a priori to conflict with the intended aim, which I conciliation. In fact, conciliation is always possible at all stages of the procedure before the Commission; indeed, the seizing of the Commission, without prior conciliation, thus enables a requesting state to avoid entering into direct contact with the addressee state in cases where such contact is not desired for diplomatic reasons. However, it should be noted in this connection that there is a certain contradiction between the texts of the African Charter and that of the commission's rules of procedure (both in its original version and in the version as amended in 1995). Indeed, as currently worded (see rule 93 (2) and Rule 97), the rules take no account whatever of the alternative proposed to the requesting state by Article 49 o the African Charter, the essential consequence of this is to prevent any communication from being submitted on the basis of article 49. 1998 The authors of the Rules therefore need to clarify this; meanwhile, we will adhere to the text of the African Charter which, as it is a treaty, remains the only reference instrument in this matter.

  1. 1. Seizing of the Commission

Whether it is the continuation of a fruitless negotiation procedure or without such a first step by the requesting sate, the procedure relating to "communications-complaints" will start with notification of the chairman of the Commission. Among other things, this notification must mention:

a)    Measures taken to try to resolve the issue pursuant to Article 47 of Charter including the text of the text of the initial communications and any future written explanation from the interested States parties to the charter relating to the issue;

b)   Measures taken to exhaust local procedure for appeal;

c) Any other procedure for the international investigation or international settlement to which the interested States parties have resorted".

Although not apparent from the wording of this provision, it is clear that the requirement of its sub-paragraph (a) will not apply in the event of a communication submitted pursuant to Article 49.

Duly informed by its Secretary that it has been seized of a communication, the Commission considers the communications received in closed session. After consulting the States parties concerned, it may issue, through the Secretary, press release on its closed sessions for the attention of the public (Rule 96).

2. Consideration of the Admissibility of the Communication

The conditions for the admissibility of the communication are laid down by Article 50 of the African Charter and rule 97 and are three in number. The exhaustion of all available local remedies is laid down by article 50 of the African Charter and rule 97 (c) , while the other two conditions, the exhaustion of the conciliation procedure and the expiry of the time-limit of three months set by Article 48 of the African Charter, are laid down only by rules (rule 97 (a&b)).

i. Exhaustion of local remedies

According to article 50 of the African Charter, the Commission can only deal with a matter which is submitted to it "after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged".

This is a cardinal principle of international law relating to diplomatic protection and dear to all international systems for the protection of human rights. This rule essentially seeks to protect state sovereignty; it is founded on the principle that the State challenged must first be given an opportunity to rectify the litigious situation within the framework of its own internal legal system. Moreover, the Commission has had occasion to comment many times on this principle in the following terms:

‘’The requirement of exhaustion of local remedies is founded on the principle that a government should have notice of a human rights violation in order to have the opportunity to remedy such violations before being called before and international body".

Again according to the Commission,

"requiring the exhaustion of local remedies also ensures that the Arian commission does not become a tribunal of first instance, a function that is not in its mandate and which it clearly does not have the resources to fulfill."

Under the terms of Article 56 (5) of the African Charter, the exhaustion of local remedies is also a condition of the admissibility of the "other communications" and since the Commission has so far only considered this conditions in the context of these "other communications". Methodologically speaking, it seems more logical not to pursue our examination of this condition at this point and to refer the reader to our analysis of this question in the section devoted to this second type of communications. The examination of the condition laid down by Article 56 (5) of the Charter can therefore be transposed mutatis mutandis on to the condition laid down by Article 50 of the same instrument.

Finally, it should be underlined that it is doubtful how appropriate the rule of the exhaustion of local remedies is in a case entailing the violation of the African Charter apart from any consummate violation of the rights of an individual, such as, for instance, the failure to respect the obligations lid down in Articles 1, 25 or 26 of the African Charter; in that case, indeed, as it is a matter of the infringement of a right of the State and not of the individual, the rule should not normally be applied in such circumstances.

ii. Failure of the conciliation procedure

This condition confirms the preference displayed by the African Charter for negotiated solutions. However, as indicated above, this condition laid down by Rule 97 betrays the letter of the African Charter as it does not take account of the option offered to States by its Article 47 and 48, which assign and important role to conciliation, this condition is not justified in the context of the extraordinary procedure of Article 49, which permits direct seizing of the commission without any prior conciliation. This condition should therefore only be required in the former situation; this is the only way of maintaining the whole integrity of the text of the African Charter.

iii. Expiry of the three-month time -limit laid down in Article 48

The expiry of the three-month time -limit from the date the original communication is received by the addressee state (rule 91 (1)) is also one of the conditions for referring the matter to the Commission in the context of the procedure relating to the "communication-negotiation". It is only meaningful in the context of this procedure alone and, like the previous condition, should not be a condition of the referral of the matter to the Commission on the basis of Article 49.

Ultimately, the exhaustion of local remedies appears to be the only inescapable condition of admissibility, the other two conditions being required only in the contest of admissibility, the other two conditions being required only in the context of the procedure laid down by Articles 47 and 48. This relative flexibility of the African Charter and the rules of procedure as regards the conditions for the admissibility of communications from sates is otherwise only found in the International Covenant on Civil and political Rights.

3. Consideration of the admissible communication

Prominently placed at the beginning of Chapter III on the procedure of the Commission, Article 46 of the Charter authorize the commission to resort to any appropriate method of investigation and, in particle, to hear any person capable of enlightening it. This provision, therefore, authorizes the Commission to hear witnesses such as and why not after all, national liberation movement or a non-governmental organization. Neither the African Charter nor the Rules of procedure envisages the possibility for the Commission to carry out on-the-spot investigations.

The Commission may also ask the States concerned to provide it with any information it may judge necessary or to inform it, orally or in writing, of any observations they may gave (Article 51 (1); Rule 99). In that case, it fixes a time limit for the submission of such information or observations.

The States parties to the dispute have the right to be represented when the case is considered by the Commission and by making oral or written observations (At. 51 (2); rule 100). This, it should be noted, is right of the States parties, not a duty. The Commission could nevertheless oblige the parties concerned to appear by an extensive interpretation of the power it is granted by Article 51 (1) of the African Charter and Rule 99 of the rules of procedure.

Although this in one way prejudges its decision on the merits, the Commission, it would seem, also has the power to inform the state party concerned of "its view on the appropriateness of taking provisions of taking provisional measures to avoid irreparable damage being caused to the victim of the alleged violation". This power is laid down by Rule 111 ('Provisional Measures") and although this provision is found in the chapter on procedure in connection with "other communications", it may, in our view, also apply in the context of the procedure considered her, however, the convoluted wording of rule 111 merely lays down the possibility for the Commission to recommend measures of protection: it does not clearly give the Commission the power to request a State party to respect them.

A further point is that, throughout this stage of the consideration of the communication by the Commission, this body remains at the disposal of the parties for an amicable settlement of the case (Art. 52; Rule 98).  Only when in possession of all the essential information relating to the case under consideration and after seeking an amicable settlement of it, does the commission prepare a report.

  1. 1. Procedure  Relating  to  ''Other communications"

This procedure is regulated by articles 55 to 58 of the African Charter and Articles 102 to 120 of the rules. In many respects similar to the procedure relating to inter-State communications, it is nevertheless appreciably more complex and is governed by much stricter rules. Ultimately, everything in this procedure indicates a desire to control and channel as strictly as possible the flow of these communications which, since they may come from either individuals or organizations, have every chance of exceeding in number those from the states parties to the African Charter.

  1. i. Seizing of the Commission

The rules of procedure-like the African Charter- do not specify what form these "other communications" should take. However, Rule 104, entitled "Request for clarifications", states that the Commission may request the author of a communication to furnish clarifications on the applicability of the African Charter to his /her communication, and to specify, in particular, 1) his name, address, age and profession, providing proof of his/her identity even if requesting anonymity of the Commission, 2) the name of the State party referred to the communication, 3) the purpose of the communication, 4) provision (5) of the Charter allegedly violated, 6) the facts of the claim, 7) the measures taken by the author to exhaust local remedies, or explanation why local remedies will be futile and 8) the extent to which the same issue has been settled by another international investigation or settlement body.

  1. ii. Consideration of the admissibility of the communication

To be admissible, communication must meet certain conditions which, according to Article 56 of the African Charter, are seven in number; namely, they must indicate the identity of their authors, must be compatible with the charter of the Organization of African unity, ust be submitted after the exhaustion of local remedies, must be submitted within a reasonable period and must respect the non bis in idem principle. The current Rules of Procedure do not add any further condition, as was the case before their amendment in 1995. Indeed; Rule 116 merely indicates that "the Commission shall determine questions of admissibility pursuant to Article 56 of the Charter". The conditions of admissibility laid down by Article 56 to the African Charter are more or less the same as those laid down by our other three reference instruments.

iii. Consideration of an admissible communication

It should first be pointed out that, even during this phase, the Commission can reconsider decision of inadmissibility if it is seized of an application to this effect and that the author of a communication can always withdraw it, thus putting an end to the proceedings before the Commission.

When the communication has been declared admissible, it must be brought to the attention of the State concerned before it can be examined on the merits; this is a procedural requirement laid down by article 57 of the Charter and Rule 112. For reasons of convenience and perhaps also streamlining, and as it is permitted to do under Rule 114(2), on a number of occasions the Commission has grouped together communications against one State and delivered one single decision covering all the cases concerned. Communications (regardless of their origin-State or non-State) are considered by the Commission at private session, although the Commission always has the possibility of revealing all or part of the content of it discussions by publishing press releases. We will examine the general aspects of the procedure for considering admissible communications, as well as some of its particular aspects such as the use of certain methods of investigation, the possibility for the commission to indicate provisional measures or to seek amicable settlement of the case.

The concepts of minorities and indigenous peoples are controversial under international law and politics.  The very difficulty arises from identifying with precision those people falling under the two categories and the extent of the rights and level of protection to be claimed. Owing to the difficulties surrounding the two notions, the purpose of this section will be limited to elaborating any existing legal norms relating to the two groups.

Protection of Minorities

There is no legally binding and accepted definition of minority. Even there are conflicting positions regarding the very need of definition. However, for the purpose of this text, the following are provided from the UN minority framework. Francesco Capotorti, the UN Special Rapporteur of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, defines minority as:

“A group numerically inferior to the rest of  the population of a state, in a non-dominant position, whose members-being nationals of the state-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

Another Special Rapporteur of the UN, Jules Deschenes, has defined the concept in more or less similar manner. But what are the basic elements behind the above definition and what problems can we observe?

Certain relevant defining characteristics can be identified from the above definition: objective and subjective criteria.

Those elements which can be categorized under objective criteria are the requirements of: - distinct groups, the numerical factor, non-dominance, nationality of the state and existence in the state. Factors falling under the subjective criteria are the sense of community, goal and self-identification. Do you see any problem with one or more of the above elements?

As to the protective regimes of minorities, there are little and unsatisfactory regimes despite the long period movement (at least formally and vigorously starting from IWW).  The two possible reasons behind repeated reluctance for the recognition of minority rights by the international community were: ideological and the implication of its recognition. In the first case, the individualistic notion of human rights development has not been willing to accept certain groups as holder of rights. The second arises from the ambivalence of the international community that abuse of powers and violation of state sovereignty had occurred in the name and under the guise of minority rights.

This has minimized the scope of protection of minority rights during the extensive standard setting as envisaged by the inclusion of a single individualist version under the ICCPR. Article 27 of ICCPR, though it contains some rights of group/collective dimension, is more of individualist as it begins by ‘persons belonging to…’ the UN Declaration on Minorities has also primarily taken the individualist approach of minority protection.

In the African Context, unlike ICCPR, there is no single provision in the ACHPR or other separate instruments dealing with the protection of minority groups. This was too unfortunate as African states had inherited colonial boundaries under the uti posidetis principle which fragmented a single ethnic group. The ever-increasing conflicts among the diverse ethnic groups and interventions from neighboring states or peoples are creating a devastating effect on the peace, stability and development of the continent. Thus, it is contended that real minority protection regimes can only be emerged from national constitutions by citing the Ethiopian and South African constitutions.

However, it is still possible to argue for the existence of minority rights protection regimes under the ACHPR. In the first place, members of minority groups can invoke the safeguards of equality and non-discrimination. If there is any differential treatment on the basis of their membership in a certain minority group (ethnic, linguistic, religious, etc) which prejudices their rights, it is possible to challenge. Freedom of religion, rights of participation in the government of ones state (political participation), freedom of association, assembly and expression can also essentially serve the rights of minorities.

The more pertinent grounds of minority protection in the ACHPR can be the principle of equality of peoples, the rights of people to existence, the self-determination, and the right to development (Arts.19-22 of ACHPR). The notion of ‘peoples’, though usually taken from colonial aspect or oppression by external(alien) power,  there has been a strong argument to apply it within the set up of sovereign state and its peoples. Thus, Article 19 of the ACPPR on the equality of peoples would be a condemnation of all hegemony-de jure or de facto-exercised by one or more ethnic group over one or more others. Similar approach was taken by the African Commission when it stated that the right of equality peoples to equality had not been violated by the Government of Mauritania. It has been contended that Article 19 of the Charter would thus serve to prevent all discrimination against any particular ethnic group, in other words, all discriminatory practices aimed at its members solely on the basis of their membership of that group.

The rights to existence and self-determination are other closely related rights of paramount importance to certain minority groups. The right to existence relates to the right of certain groups of people (as minority) to physical existence. Thus, like the Genocide Convention, it prohibits the acts directed towards extermination of certain groups of peoples including minorities.

The last to come in this relation is the right of peoples to self-determination. Even if the holders of this broad right have been still debatable, it is possible and legitimate for certain minority groups to claim the right to self-determination.

It is more plausible to invoke the internal dimension of the political, economical, social and cultural self-determination of certain group of peoples whatever meaning is given to the later term. Of course, the practice of African Commission, as revealed in the Katangese secession case, confirms the same position.

Therefore, minority groups can (through the instrumentality of these rights) ensure their right to separate identity. Ensuring ones separate and distinct identity in turn requires an exercise of a series of other rights such as linguistic rights, cultural rights, participatory rights and even including the right to equality. Owing to their numerical inferiority and non-dominant position, minorities should be positively assisted in keeping their distinct identity though this does not prevent any voluntary assimilation.

3.4.2. Indigenous Peoples

The term ‘indigenous’ in ‘indigenous peoples’ rights is a result of significant population movements spearheaded by colonial conquest, mass murder, dispossession, and displacement, particularly in the Americas and Australia. ‘Indigenous’ came to be defined in opposition to those who came later (‘second peoples’), who dislocated ‘first peoples’ through conquest and colonialism. The ‘primitive’ cultural distinctiveness of a particular group also emerged as a further defining feature denoting indignity.

In the international arena, it is the ILO which for the first time adopted a separate Convention in 1957 and lager in 1989 concerning Indigenous and Tribal Peoples in Independent countries. Echoing the ‘first peoples’ and ‘primitiveness’ elements, the later convention applies to people who descended from populations ‘which inhabited the country…at the time of conquest or colonization’, and whose ‘status is regulated… by their own customs or traditions’. The basic obligation of state parties is to guarantee these groups ‘the full measure of human rights and fundamental freedoms’. Since few states ratified this convention (esp African states are reluctant), the UN developed other institutional mechanisms-a Working Group on Indigenous populations and a Special Rapporteur for Indigenous Peoples.

According to such initiatives, the UN came up with the working definition of indigenous populations as follows:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

The indispensable element of the definition of indigenous peoples seems to be the desire or interest in the preservation of certain historical and traditional characteristics of the group. These include a groups desire for maintain the continuity of its distinctive characteristics, preserve its ethnic identity, maintain occupation of its ancestral lands, keep its religious beliefs and use of its language.

After a long process within the UN, the Human Rights Council in June 2006 approved the UN Declaration on the Rights of Indigenous peoples and this was adopted by the GA on Sept. 13, 2007. This declaration discards the notion of ‘tribalism’ and introduces the right to self-determination of indigenous peoples (Arts 3&4). This includes the right to autonomy in their internal and local affairs.

The involvement of African states in the UN initiatives has been very limited: no African state has ratified the ILO Convention 169 and of the 13 African members of the Human Rights Council, only four of voted in favour of the UN Declaration. The resistance to accepting the rights of ‘indigenous peoples’  is due in to the association of the term with colonialism, informing uneasiness about the determination of who ‘first peoples’ are, and fear the recognition of the right to self-determination. Even in January 2007, the AU assembly expressed its concern on the destabilizing effect of the UN Declaration invoking its blind acceptance of the principle ‘uti posidetis’.

It is said that in Africa, most nationals are in varying degrees ‘indigenous’ in the original sense of the term. Attaching the term to only one particular group would, therefore, be an unacceptable privilege of a part of the nation and would undermine nation-building. Therefore, the need to focus the term indigenous to refer to ‘marginality’, and ‘self-identification’ rather than priority of time’ developed in Africa.

However, it is asserted that indigenous group may still be identified, mainly on the basis of their life style and the ethnical imperative of their marginality and vulnerability. It is the confluence of a historical dependence for survival on the land, exemplified, in Africa, by a life of hunter-gatherer and pastoralists, and a present day neglect and exploitation that constitute an ‘indigenous’ group. It is precisely their traditional lifestyles that left indigenous groups unprepared for life in a modernizing state, eroding the basis of their survival, increasing their vulnerability and exposing them to the real risk of extinction.

Like the minority cases, the African Charter does not expressly include indigenous peoples within its ambit. However, it is still possible to argue that indigenous peoples can be beneficiaries of the charter-guarantees both as an individual and collectivity (from peoples rights). Among these, one could be the right to autonomy as clarified in the Katangese secession case. It is also interesting to note that the African Commission has provided an institutional foothold for the concerns of indigenous peoples in 2002 when it established the Working Group on Indigenous Populations or Communities in Africa. The Working Group prepared a report which was adopted by the Commission in 2003. In this very significant report, the Commission takes the view that indigenous peoples are present in many African countries, that the African charter guarantees their rights as individuals and ‘peoples’, and that state parties to the charter routinely violate these rights.

Not published yet

Refugees and internally displaced persons (IDPs) are other vulnerable groups deserving some protective regimes. This is because in the first case being outside the territory of their country, they are unable or unwilling to receive the protection from their national states, while in the second, even if within territorial limit of their states, they are placed in especially difficult situation due to dislocation from their normal or habitual residences.

Africa is the first continent which established regional arrangement for the protection of refugees. The international community had managed to have Refugee Convention in 1951 and its additional Protocol in 1967. However, backgrounds and scope of protection of these UN instruments were not found to be appropriate to refugee problems out of Europe.

Some of the consequences of the solidification of African Colonial borders in line with the principle of uti possidetis were internal strife, large scale dislocation, and the movement of people across these borders. Although the national war of liberation accounted for a substantial number of refugees in the 1960s, many more fled ‘explosive internal, social and political situations’ which predated independence. By 1964, the influx of refugees from Rwanda into Burundi, the DRC, and Uganda had spurred the OAU into action, first to the establishment of a ten member Refugee Commission to investigate the refugee ‘problem’ in Africa, and later setting in motion the drafting of a regional treaty. The reasons for having such regional regime was justified on the ground that the 1951 UN Convention on Refugees was European in focus and not suitable for the African situation, particularly as many refugees were seen at that stage as being the result of the fight for independence. A regional High Commissioner for Refugees was also contemplated although it was resisted by the UNHCR and abandoned later on.

This process culminated in the adoption by the OAU Assembly on 10 September 1969 of the OAU Convention Governing the Specific Aspects of Refugees in Africa (OAU Refugee Convention). It was entered into force on 20 July 1974.

  • Definition of Refugee in the OAU Convention and Major Departures

It has been argued that the concept of refugee as defined in the statute of the UNHCR and UN Convention of 1951 is not universal and creates problems when it comes to its application to new refugees from new areas and notably in the Third World. The following are refugee definitions as provided under the UNHCR statute, UN Convention of 1951 and the 1969 OAU Refugee Convention respectively.

Statute of UNHCR, Article 6, Para, B,: the UNHCR can deal with any:

Person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had a well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of his nationality, or if he has no nationality to return to the country of his former habitual residence.

UN Convention of 1951 (which entered into force in 1954) Article 1(a):

As a result of events occurring before 1st January 1951 and owing to well-found fear of being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return to it.

Article 1 the OAU Convention provides that:

The term ‘refugee’ shall mean every person who, owing to will-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and… (except the beginning clause, all are similar to UN Refugee definition….).

The term ’refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave place outside his country of origin and nationality.

Three of the most important limitations of the UN Refugee Convention may be traced to the Socio-political context of its adoption, which was dominated by the effects of the aftermath of WWII and the beginning of cold war. First, the basis of qualification for refugees was limited to a ‘well-founded fear of being persecuted for reasons of ….’ ‘Fear’ is a subjective requirement, which needs to be assessed individually for its ‘well-foundness’. Apart from the individualistic focus, the list of grounds on which one could earn the status of a ‘refugee’ is very restrictive and also does not take into account other factors (such as natural disasters or internal wars).

Secondly, a time-limit was included in the UN Refugee Convention. The ‘fear’ had to be ‘as a result of events occurring before 1 January 1951’, underling the close link between the Convention and the war that preceded it. A third limitation, geographical in nature, was included as an option to be adopted at ratification (or accession).

In light of the above, it is not surprising that African states saw the convention as a ‘European instrument’ The perception of exclusion was exacerbated in the 1960s, when it became clear that, in Africa, refugee problems continued and, most often started well after 1951. Due in the main to Africa’s criticism and its efforts to adopt a separate convention, the UN in 1966 adopted a brief protocol to the 1951 Convention which entered into force in 1967. The protocol dispensed with the temporal and geographical limitations of the 1951 Convention. From 1967 on, then, the Convention applied equally to all who qualified for refugee status. However, the restrictive definition of ‘refugee’ was left in tact.

Therefore, after the adoption of the 1967 protocol, African efforts to elaborate a separate UN instrument dealing with refugees were channeled into the adoption of a complementary regional instrument (OAU Refugee Convention recognizes the two UN instruments in its preamble). Thus, to understand the added value of OAU Convention, one should differentiate between the global and regional systems of refugee protection.

The OAU Refugee Convention mirrors exactly the wording of the UN Convention, but expands the definition of the term ‘refugee’. The global instrument requires a ‘well-founded fear of being persecuted’ as a fundamental precondition for refugee status. In contrast, the OAU Refugee Convention extends the term to include anyone who is compelled to flee a country of residence ‘owing’ to external aggression, occupation, foreign domination or events seriously disturbing public order….. It is no longer the subjective fear of the individual alone, but also objectively  ascertainable circumstantial compulsion that may give rise to ‘refugee’ status. ‘Fear of persecution’ places the emphasis on person’s beliefs, and not on the socio-political context.

The UN Refugee Convention’s definition presupposes that refugees will be screened individually in order to establish whether they have a ‘well-founded fear of persecution’. Such a system is obviously only manageable when persons flee on their own or in small groups. However, in the case of mass migrations, the application of such an individualized test becomes impossible. Mass migrations necessitate an approach which uses cumulative and objective factors to determine refugee status. Such factors are events ‘seriously disrupting’ public order and ‘foreign domination’ (Art. 1(2)) of OAU Refugee Convention).

The grounds in the OAU Convention on which refugees lose their status (‘cessation of status’) or on which they are barred from qualifying as refugees (‘exclusion from status’) are once more derived from the UN document. What are the three additional categories of exclusion or cessation under the OAU Refugee Convention.(See OAU Refugee Convention Arts. I (4) & I (5)).

The OAU Refugee convention is explicit about the obligation of states to grant asylum (Art. II (2)), in contrast to the UN Convention which is silent on the issue. However, the way this right is framed and the requirement of compliance with internal laws renders asylum provision more of recommendatory to states. Further, the non-refoulement principle (the right not be sent back or expelled) appears to be absolute (Art. II (2)). The OAU Refugee Convention also expressly includes reference to voluntary repatriation in Article 5.

Its adoption being resulted from the inter-state ramifications of refugee moments than from a concern for the ‘rights’ of refugees, the OAU Convention reinforces notions of state security and sovereignty. It determines that a refugee has to conform to the law in the state of refugee, and that he/she has a duty to ‘abstain from any subversive activities against any member state of the OAU (Art. III (1)).

Another innovation is the duty placed by the OAU Refugee Convention on the country of origin in relation to returning refugees: state must grant full rights and privileges to returning nationals, and must refrain from any sanctions or punishment against them (Art. III (3) & III (4)).

Though the OAU Refugee Convention has addressed regional specificities and nature of refugee problems in Africa, it is said to be not adequate document. It is argued that it is ‘entirely silent’ on issues of mass influx and the procedure for determining who is a refugee is largely left to states discretion. In addition there is a suggestion that the principle of non-refoulement can be limited if the individual acts contrary to the principles of the convention.

It is also said that the Convention does not take a strong human rights approach. There is no real mention of rights of refugee beyond those discussed above (asylum and non-refoulment), it does not deal with women and restricts freedom of movement and rights of expression and association. It does not have provisions relating to the quality of life of refugees (food, health, housing, etc). It does not have its own enforcement mechanism and depends on external organs (UNHCR). Therefore, with a view to filling some of the gaps in the convention it is suggested that the convention should be considered together with the guarantees under ACHPR, ACRWC and APRW.

  • Position of Internally Displaced Persons (IDPs)

Internally displaced persons (IDPs) are distinguished from refugees and have a challenge of their own, even more than the former. According to the 1998 UN Guiding Principles on Internal Displacement, IDPs are defined as:

‘Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effect of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized state border’.

IDPs are persons who are forced or compelled to leave their homes or normal residence as a result of one or more of the causes listed above. They are people within the territorial limit of their national state (no border crossed).

The number of IDPs has been increasing tremendously in Africa compared to refugees. However, there is no any international or regional instrument addressing the special situation of IDPs though they are facing no less difficulty (even more) than refugees in their home countries. In this regard, human rights law is particularly important but also suffers often from limitations where states can derogate from certain rights during times of war or other public emergency situations. Yet the responsibility for their protection lies with home state /national government as they are people within the territorial limits of concerned state.

The 1998 UN Guiding Principle on Internal Displacement is the collection and restatement of principles embodied in human rights law, humanitarian law and refugee law. It recommended the prevention of internal displacement, and the protection of those who found themselves internally displaced, noting that states bear the primary responsibility in both regards.

Thus, IDPs are persons in difficult situation due to dislocation from their homes or habitual residence as a result of one or more natural or man-caused factors but within the territory of their country. However, internationally, no legal (binding) instrument and institution/ organ exist to address their needs, except any existing machineries under the national system. In some counties such as Burma they are denied access to international humanitarian relief. So sovereignty of states will continue to pose more sufferings to IDPs.

African Union has been in the process of drafting a regional IDP convention taking the gravity of the problem in the continent. If successfully adopted, it will be the first ever seen document and is hoped to address and minimize the protracted sufferings of Africans displaced from their homes due to natural disasters or other man-made causes principally internal conflict, generalized violence, violations of human rights or developmental activities.

Not published yet

Sexual (gender) inequality is a global reality. Women as part of human being are entitled to benefits and protections under the general human rights instruments (both UN and regional) such as the equality and non-discrimination clauses, and other fundamental guarantees. However, the reality has been otherwise. Women have been subjected for long time to discrimination, denial of access to basic rights (education, health, property, employment etc), and victim of a wide range of discriminatory and harmful practices (domestic violence, early marriage, FGM, etc).

Women in the African context are even more exposed to differential treatment and a lot of disadvantages. It is stated that African public and private life have been and are dominated by men. Women’s participation in most walks of life has been undermined.

These are among the limited reasons which lead to the separated treatment of women’s rights and eventual adoption of separate documents. The two basic documents of paramount importance to women’s rights are the UN Convention on the Elimination of All forms of Discrimination against women (CEDAW) and the recently adopted African Protocol to the African Charter on Human and Peoples Rights on the Rights on the Rights of women in Africa (APRW). Thus, the purpose of this subsection is to highlight the importance and innovations of APRW in light of the global and preexisting African instruments (CEDAW).

Women’s Right under the OAU/AU Framework

There has been a repeated criticism that the OAU Charter and the ACHPR gave inadequate attention to women in Africa. The first does not contain any mention of gender, while the later raised women’s rights specifically under a single provision (Article 18). However, OAU Charter’s silence was later remedied by a series of resolutions and decisions addressing the promotion and protection of women’s rights in Africa. The most underlying factors behind such initiatives were said to be: the participation of the OAU in international conferences, the role and contribution of women in the African liberation struggle and to react to conflicts and economic development of the continent.

The central them of the decisions and resolutions of OAU on women’s matters throughout 1990s were on promotion, enhancement and empowerment of women’s participation at all levels of decision-making (international, regional, national and local). It was believed that it is only through the participation of women in every aspect of national and international affairs (Political, economic, social, etc) that a meaningful change can be brought. Of course, this position of the OAU was reflected in the recently adopted women’s Protocol. Moreover, the OAU Charter’s omission has been now remedied under the AU Constitutive Act by providing ‘promotion of gender equality’ as one of its guiding principles (CA, Art. 4(1)). In addition to this, the AU has adopted a ‘Solemn Declaration on Gender Equality in Africa’ on July 2004 which calls for the expansion of the gender parity principle to all AU organs, NEPAD, the RECs, and national parliaments.

African Protocol on the Rights of Women

The need to adopt women’s treaty law was called upon by NGOs working on women’s right which was based on concern about the pervasive abuse of women’s rights. The work was begun by appointing commissioners to coordinate and prepare women’s protocol. The role of African Commission on Human and Peoples Rights and the Gender Unit within the OAU was significant. The later prepared a draft OAU Convention on Harmful Traditional Practices (HTPs). However, the African Commission’s draft protocol and the HTPs draft conventions were later merged and adopted as the Draft Protocol to the African Charter on the Rights of Women in Africa (the Addis Ababa draft).

On “July” 2003, the AU Assembly adopted the protocol to the African Charter on the Rights of women in Africa which entered into force on 25 November 2005.

Women’s protocol, like that of African Children’s Charter, has introduced innovative norms and addressed the realities and problems of African women. Of course, it has also similarity with that of CEDAW provisions.

To assess the normative expansion brought about by the protocol, the pre-existing normative framework (‘the existing law’) has to be reviewed and contrasted with the protocol.

Though Article 18 of the ACHPR characterizes women as one of the groups deserving of protection, the special measures to be directed in protecting women and ensuring the elimination of discrimination against them are not delineated. Even if CEDAW was passed two years prior to the adoption of the African Charter, the fact is that the later was only minimally influenced by CEDAW’s provisions by incorporating only a single provision dealing with women’s rights.

Dear students, read article 18(3) of African Charter. Does it imply that all state parties to the African Charter have become bound to implement all the provisions of CEDAW?

The African Children’s Charter has also some link to women’s protocol as it provides for important rights of girl child, in particular the prohibition in children marrying under the age of 18.

Given the scope of protection under the above treaties, what then is the ‘added normative value’ of the protocol? Compared to CEDAW, the protocol speaks in a clear voice about issues of particular to African women and locates CEDAW in African reality.

The women’s protocol is the first treaty to place domestic violence, polygamy, HIV/AIDS, and medical abortion, in a binding human rights framework (Articles 4(2), 6(c), 14(1) (e), 14(2) k) respectively). It also provides in detail for the protection of women in armed conflict (Art. 11), and reiterates the need to accord women refugees protection under international law (Art. 4(2) (k)). The women’s protocol incorporates clear and expansive definitions of ‘discrimination against women’ (Art. 1(j), e.g. it includes economic harm), ‘harmful practices’ and ‘violence against women’. ‘Harmful practices’ such as female genital mutilation are specifically prohibited (Art.5).

The protocol provides specificity where vagueness prevailed, for example when it clarifies that ‘Positive African Values’ are those based on the principles of equality, peace, freedom, dignity, justice, solidarity and democracy (preamble). It also spells out the scope of socio-economic rights in greater detail than CEDAW, which limited some socio-economic rights to rural women (EDDAW, Art. 14), and goes beyond the scope of the rights provided for under the African Charter by spelling out the content of rights and by including the right to food security and adequate housing (Arts. 12,13,14,15 & 16).

A necessary implication of targeting violence against women and ‘unwanted or forced sex’ in the private sphere is that the protocol requires domestic violence legislation and the criminalization of ‘rape in marriage’. The precarious position of groups of women that have been rendered particularly vulnerable due to loss of a spouse, overlap with old age, disability, and poverty which also receive the protocol’s attention. (Arts. 20-24). The protocol once again reiterates the general stipulation of 18 years as the minimum age of marriage (Art. 6(b)).

Adopting a distinctly transformative stance, the protocol emphasizes ‘corrective’ and ‘specific positive’ (or ‘affirmative’) action. While CEDAW contains a generic provision allowing for ‘temporary special measures aimed at accelerating de facto equality between men and women’ (CEDAW, Art. 4(1)), the protocol reiterates the need for ‘positive’ measures by locating them in different contexts.

The protocol requires states to adopt measures that may favor women above men ‘such as electoral quotas for women in order to ensure substantive’ (‘in fact’) equality (Art. 9(11)). Positive action is also specifically required with regard to ‘discrimination in low’ (Art. 2(1) (d)), illiteracy, and education (Art. 12(2)).

Although the women’s protocol significantly advances standard-setting, it suffers from inelegant and unfortunate drafting deficiencies. The disproportionate effect of HIV and AIDS on women in Africa is not adequately reflected in the text. In any event, the right to be informed of one’s own and one’s partner’s HIV status is ambiguous and should not form the basis for the erosion of rights. The feminization of poverty, especially in rural Africa, is also not adequately reflected. As for its drafting, there is some inconsistency in the ‘rights-bearers’  in the protocol, with men sometimes specifically included in the scope of rights, and sometimes not. Similar to the instrument that it supplements, the African Charter, the women’s protocol does not have a provision on reservations. At the beginning of 2007, three states (Namibia, South Africa, and the Gambia) entered reservations upon ratification of the protocol. Thus, the benefits of these treaty provisions may be lost if reservations exclude the application of some of its important provisions. However, there are some hopes that even countries that entered reservations to CEDAW (e.g. Libya and Lesotho) did not enter similar reservations when ratifying the protocol. For lack of clarity, this area is expected to be elaborated by the enforcing organs on the basis of Vienna Convention on the Law of Treaties (1969).

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