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.
- 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. 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. 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.
- 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.
- 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.
