Recent developments in the African Human Rights System 2004-2006

Human Rights Law Review

Volumn 7, Issue 3, 2007, Pages 582-608

  Beyani, Chaloka ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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[No Author keywords available]

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EID: 34547970839     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngm022     Document Type: Article

References (92)

1. The primary sources of the major developments discussed in this article derive from the 18th Activity Report of the African Commission on Human and Peoples' Rights, 28 June-2 July 2005, EX.CL/199 (VII) ('18th Activity Report');
2. the 20th Activity Report of the African Commission on Human and Peoples' Rights, 25-29 June 2006, EX.CL/279(IX) ('20th Activity Report');
3. and the 21st Activity Report of the African Commission on Human and Peoples' Rights, 25-26 January 2007, EX.CL/322(X) ('21st Activity Report'). The 18th Annual Activity Report covered the 36th and 37th Ordinary Sessions of the African Commission held in Dakar, Senegal from 23 November to 7 December 2004 and in Banjul, The Gambia from 27 April to 11 May 2005. The 20th Annual Activity Report covered the 39th Ordinary Session, held in Banjul, The Gambia, from the 11 to 25 May 2006. The 21st Annual Activity Report covered the 40th Ordinary Session held in Banjul, The Gambia from 15 to 29 November 2006. Previous accounts of developments in the African system include: Odinkalu, 'Human Rights Mechanisms in Africa: Recent Developments in their Norms, Institutions and Jurisprudence, (2003) 3 Human Rights Law Review 1;
4. Baderin, 'Recent Developments in the African Regional Human Rights System', (2005) 5 Human Rights Law Review 117;
5. and Murray, 'Developments in the African Human Rights System 2003-04', (2006) 6 Human Rights Law Review 160.
6. Periodic reporting as such is not discussed in this article. By the 39th Session of the Commission, the following States had fully submitted all their initial and periodic reports to the Commission: South Africa, Burkina Faso, Cameroon, Central African Republic, Egypt, Libya, Mauritania, Niger, Rwanda, Seychelles, Sudan, Uganda and Zambia. The following States have never submitted any initial or periodic report: Botswana, Comoros Islands, Côte d'Ivoire, Djibouti, Eritrea, Ethiopia, Guinea Bissau, Gabon, Equatorial Guinea, Kenya, Liberia, Malawi, Madagascar, Sao Tomé and Principé, Sierra Leone and Somalia. See 20th Activity Report at para. 9; and 21st Activity Report at para. 63.
7. The judges are: Mr Fatsah Ouguergouz (Algeria), Mr Jean Emile Somda (Burkina Faso), Mr Gerard Niyungeko (Burundi), Ms Sophia Akuffo (Ghana), Mrs Kelello Justina Masafo-Guni (Lesotho), Mr Hamdi Faraj Fanoush (Libya), Mr Modibo Tounty Guindo (Mali), Mr Jean Mutsinzi (Rwanda), Mr El Hadji Guisse (Senegal), Mr Bernard Ngoepe (South Africa) and Mr G Kanyiehamba (Uganda). See Assembly Decision on the Election of Judges of the African Court on Human and Peoples' Rights, 24 January 2006, Assembly/AU/Dec.100 (VI).
8. 6 IHRR 891 (1999).
9. An account of the entry into force of this Protocol and its content is given by Baderin, supra n. 1 at 140-8.
10. For a critique, see Mutua, 'The African Human Rights Court: A Two-Legged Stool?', (1999) 21 Human Rights Quarterly 342.
11. Assembly Decision on the Seats of the Organs of the African Union, July 2004, Assembly/AU/Dec.45 (III) Rev.1.
12. Executive Council Decision on the Merger of the African Court and the Court of Justice of the African Union, 28 January 2005, EX. CL/Dec.165 (VI).
13. Assembly Decision on the Merger of the African Court and the Court of Justice of the African Union, 5 July 2005, Assembly/AU/Dec.83 (V).
14. Executive Council Decision on the Merger of the African Court and the Court of Justice of the African Union, 21 January 2006, EX.CL/Dec.237 (VIII).
15. See Summary Report of the Meeting of the Permanent Representatives' Committee and Legal Experts on Legal Matters, 16-19 May 2006, PRC-Exp/ Legal/Rpt.
16. Draft Protocol on the Statute of the African Court of Justice and Human Rights, 19 May 2006, EX. CL/211 (VIII) Rev.1, Annex II ('Draft Protocol'). The Draft Protocol contains three Chapters and the Statute of the merged court is set out in an Annex. The Draft Protocol merges the two courts by replacing the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights 1998 and the Protocol of the Court of Justice of the African Union 2003.
17. Executive Council Decision on the Single Legal Instrument on the Merger of the African Court on Human and Peoples' Rights and the Court of Justice of the African Union, 28 June 2006, EX.CL/Dec.283 (IX).
18. Report of the Brainstorming Meeting on the African Commission, 20th Activity Report at Annex II. Members of the Commission led thematic discussions identifying the constraints and challenges faced by the Commission and appropriate recommendations were made to which participants contributed. Representatives from the African Union Commission were in attendance to examine policy and administrative issues.
19. Article 31 provides: 1. The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples' rights; particular consideration being given to persons having legal experience. 2. The members of the Commission shall serve in their personal capacity.
20. Article 38 provides: After their election, the members of the Commission shall make a solemn declaration to discharge their duties impartially and faithfully.'
21. Assembly Decision on the 19th Activity Report of the African Commission on Human and Peoples' Rights, 24 January 2006, Assembly/AU/Dec.101 (VI), discussed infra.
22. These include: The rights of women; refugee, asylum seekers and internally displaced persons in Africa; freedom of expression; human rights defenders in Africa; and prisons and conditions of detention in Africa.
23. Adopted 30 November 2006, available at: http://www.icglr.org/common/docs/ docs_repository/protocolprotectionidps.pdf.
24. Adopted 30 November 2006, available at: http://www.icglr.org/common/docs/ docs_repository/protocolpropertyrights.pdf.
25. See 20th Activity Report at para. 35.
26. See ibid. at para. 36.
27. Resolution on the appointment of a Commissioner as member of the Working Group on Indigenous Pop ulations/Communities in Africa, see 21st Activity Report at para. 69.
28. Resolution on the composition and operationalisation of the Working Group on the Death Penalty, see 21st Activity Report at para. 69. The members are: Ms Alya Cherif Chammari (Tunisia); Ms Alice Mogwe (Botswana); Professor Philip Francis Iya (Uganda); Professor Carlson E. Anyangwe (Cameroon); and Professor Mohamed S. El-Awa (Egypt).
29. The project was headed by Dr Susan Breau. Professor Iya, a member of the Working Group, was part of this project. Details of the project are available at: www.biici.org/deathpenalty.
30. See Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, 23 October 2002, ACHPR Res. 61 (XXXII) 02.
31. See 21st Activity Report at paras 54-5.
32. Not all the resolutions passed by the Commission are country specific or thematic. For example, see the list of resolutions adopted by the Commission at its 40th Session set out in the 21st Activity Report at para. 69, including: Resolution on the establishment of a fund to be financed by voluntary contributions for the African Human Rights system; Resolution on the importance of the implementation of the recommendations of the African Commission on Human and Peoples' Rights; Resolution on the appointment of a commissioner as a member of the Working Group on Indigenous Populations/Communities in Africa; Resolution on the situation of Freedom of Expression in Africa; Resolution on the adoption of the Lilongwe Declaration on access to legal assistance in the criminal justice system; Resolution on the composition and operationalisation of the Working Group on the Death Penalty; Resolution on the Human Rights Situation in Darfur; and Resolution on the situation of women in the Democratic Republic of Congo.
33. Commission Resolution on the Situation of Human Rights in Ethiopia, 5 December 2005, Annex III, 19th Activity Report of the African Commission on Human and Peoples' Rights ('19th Activity Report') at 31.
34. Commission Resolution on the Situation of Human Rights in the Darfur Region in Sudan, Annex III, 19th Activity Report at 33.
35. Commission Resolution on the Human Rights Situation in Uganda, Annex III, 19th Activity Report at 35.
36. Commission Resolution on the Situation of Human Rights in Zimbabwe, Annex III, 19th Activity Report at 37.
37. Preamble, Resolution on Sudan, supra n. 29.
38. Para. 2(a), Resolution on Sudan, ibid.
39. Preamble, Resolution on Zimbabwe, supra n. 31.
40. Para. 2, Resolution on Zimbabwe, ibid.
41. Submission by the Federal Democratic Republic of Ethiopia in Accordance with Resolution No. EX.CL/DEC.257 (VIII) of the Executive Council of the African Union Concerning the 16th Activities Report of the African Commission on Human and Peoples' Rights, April 2006, Annex III, 20th Activity Report at 86.
42. Comments of the Sudan on the Decision of the African Commission on Human and Peoples' Rights concerning Darfur during its 38th Ordinary Session held in Banjul, the Gambia, from 21 November to 5 December 2005, Annex III, 20th Activity Report at 89.
43. See, ibid. at 89-91.
44. Executive Council Decision on the 19th Activity Report of the African Commission on Human and Peoples' Rights, 21 January 2006, EX.CL/Dec.257 (VIII).
45. Assembly Decision on the 19th Activity Report of the African Commission on Human and Peoples' Rights, 24 January 2006, Assembly/AU/DEC.101(VI).
46. Report of the Brainstorming Meeting, supra n. 13 at 27, para. 16.
47. Article 59, African Charter provides: 1. All measures taken within the provisions of the present Chapter shall remain confidential until the Assembly of Heads of State and Government shall otherwise decide. 2. However the report shall be published by the Chairman of the Commission upon the decision of the Assembly of Heads of State and Government. 3. The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.
48. Report of the Brainstorming Meeting, supra n. 13 at 27, Recommendations (h) and (i).
49. Annex III, 18th Activity Report at 12-22; 13 IHRR 887 (2006).
50. Ibid. at para. 56.
51. Ibid. at para. 63.
52. United Communist Party of Turkey v Turkey 1998-II; (1998) 26 EHRR 121.
53. Refah Partisi v Turkey 2003-II; (2003) 37 EHRR 1.
54. United Communist Party of Turkey, supra n. 47 at para. 25.
55. Ibid. at para. 31 [footnotes omitted].
56. Communication 227/99, Democratic Republic of the Congo v Burundi, Rwanda and Uganda Annex IV, 20th Activity Report at 111; 14 IHRR 867 (2007).
57. ICJ Reports 2005, 168. At the same time as initiating proceedings against Uganda, the DRC had also instigated proceedings against Burundi and Rwanda. However, these proceedings were discontinued at the request of the government of the DRC. See ICJ Press Release 2001/2, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Burundi) and (Democratic Republic of the Congo v Rwanda). The two cases are removed from the List at the request of the Democratic Republic of the Congo, 1 February 2001. Proceedings against Rwanda were recommenced in May 2002 but in February 2006 the Court found that it did not have jurisdiction to hear the case.
58. See Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) ICJ Reports 2006, 6.
59. The 25th Ordinary Session of the Commission was held in Bujumbura, Burundi, where the Commission took the decision to consider the communication and requested the complainant State forward an official copy of its complaint to the Secretary-General of the Organisation of African Unity. At the 26th Ordinary Session held in Kigali, Rwanda, the Commission did not examine the communication because it deemed it necessary to allow the respondent States more time to communicate their responses to the facts alleged by the DRC.
60. A 25 (1978); (1979-80) 2 EHRR 25.
61. DRC v Burundi, Rwanda and Uganda, supra n. 51 at para. 57.
62. Ibid. at para. 64.
63. Communication 74/92, Annex VIII, 9th Annual Activity Report 1995/6, ACHPR/AHG/207 (XXXII);
64. 4 IHRR 94 (1997).
65. See also Communication 159/96, Union Interafricaine des Droits de l'Homme and Others v Angola Annex II, 11th Annual Activity Report 1997/8, DOC/OS/43 (XXIII); 6 IHRR 1139 (1999).
66. Annex, GA Res. 2625 (XXV), 24 October 1970.
67. DRC v Burundi, Rwanda and Uganda, supra n. 51 at paras 68 and 77.
68. DRC v Uganda, supra n. 52 at para. 220.
69. DRC v Burundi, Rwanda and Uganda, supra n. 51 at paras 68 and 77. Article 75(2), Additional Protocol I, prohibits the following acts at any time and in all places whatsoever, whether committed by civilian or by military agents: (a) Violence to life, health, or physical or mental well-being of persons, in particular; (b) Murder; (c) Torture of all kinds, whether physical or mental; (d) Corporal punishment; (e) Mutilations and (f) Outrages upon personal dignity, in particular, humiliating and degrading treatment; enforced prostitution and any form of indecent assault.
70. ICJ Reports 1994, 109 at para. 25.
71. ICJ Reports 2004, 136 at para. 106.
72. DRC v Uganda, supra n. 52 at para. 219.
73. DRC v Burundi, Rwanda and Uganda, supra n. 51 at para. 86.
74. The issue of sexual violence was also raised in Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra Leonean Refugees in Guinea) v Republic of Guinea Annex IV, 20th Activity Report at 132;
75. 14 IHRR 880 (2007). However, the Commission did not specifically address the aspect of the complaint that raised the perpetration of sexual violence against refugee women, but decided that the rights of refugees had been violated contrary to the African Charter and the African Convention Governing the Specific Aspects of Refugee Problems in Africa 1969.
76. Committee on the Elimination of Discrimination Against Women General Recommendation No. 19, Violence Against Women, 29 January 2002, HRI/GEN/ 1/Rev7 at 246;
77. 1-1 IHRR 25 (1994).
78. DRC v Burundi, Rwanda and Uganda, supra n. 51 at para. 87.
79. Communication 245/2002, Annex III, 21st Annual Activity Report at 54. The decision making process was dogged by controversy. When the Commission submitted its decision to the Assembly of the African Union after its 39th Ordinary Session in May 2006, the Executive Council directed, in June 2006, that Zimbabwe be given an opportunity to respond to the decision of the Commission within 60 days. Zimbabwe provided its response on 30 September 2006, which is reproduced in Annex III, 21st Activity Report at 103.
80. According to the Commission, the term 'non-state actors' has been adopted by the international community to refer to individuals, organisations, institutions and other bodies acting outside the State and its organs. They are not limited to individuals since some perpetrators of human rights abuses are organisations, corporations or other structures of business and finance, as the research on the human rights impacts of oil production or the development of power facilities demonstrates. Ibid. at para. 136.
81. See also Communication 155/96, Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria Annex, 15th Annual Activity Report of the African Commission on Human and Peoples' Rights, 8 July 2002, AHG/Dec.171 (XXXVIII);
82. 10 IHRR 282 (2003).
83. Zimbabwe NGO Forum v Zimbabwe, ibid. at para. 138.
84. Velásquez Rodriguez v Honduras IACtHR Series C 4 (1988).
85. On this issue in the context of the European Convention on Human Rights, see Akkoe v Turkey 2000-X 389;
86. (2000) 34 EHRR 1173.
87. See supra n. 31.
88. Zimbabwe NGO Forum v Zimbabwe, supra n. 70 at para. 69.
89. See the Response by the Government of the Republic of Zimbabwe to the Resolution on the Human Rights situation in Zimbabwe adopted by the African Commission on Human and Peoples' Rights during its 38th Ordinary Session held in Banjul, The Gambia from 21 November to 5 December 2005, Annex III, 20th Activity Report at 101. Part of Zimbabwe's response to the resolution was that the resolution clearly pre-empts its future decisions on the admissibility and merits of the 13 Communications currently under its consideration, the Government of Zimbabwe fears that the objectivity of the [Commission] is already compromised and thus stands in serious question, especially taking into account the remarks of the Chairperson of the [Commission] before the Executive Council in January 2006 that 'everyone knows that Zimbabwe is a gross violator of human rights.' In order to allow fair play and undue interference with the process of considering the 13 Communications before it, Zimbabwe submits that all the Commissioners who deliberated on or associated themselves with the Resolution, thereby pre-empting their decision on the Communications should recuse themselves from consideration of any of the 13 Communications pending before it (para. 4.2).
90. See the Commission's previous jurisprudence on amnesties: Communications 54/91, 61/91, 98/93,164/97 and 196/97, Malawi African Association, Amnesty International, Diop et al, Union Interafricaine des Droits de l'Homme and RADDHO, Collectif des Veuves et Ayants Droit, Association Mauritanienne des Droits de l'Homme v Mauritania Annex V, 13th Annual Activity Report of the African Commission on Human and Peoples' Rights, 11 May 2000, AHG/222 (XXXVI) at 138;
91. 8 IHRR 268 (2001).
92. Zimbabwe NGO Forum v Zimbabwe, supra n. 70 at para. 215.