Institutions with responsibility for human rights protection under the African Union

Journal of African Law

Volumn 48, Issue 2, 2004, Pages 165-186

  Lloyd, Amanda ^a   Murray, Rachel ^b  

^a UNIVERSITY OF THE WEST OF ENGLAND   (United Kingdom)

^b UNIVERSITY OF BRISTOL   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 71949087440     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855304482035     Document Type: Article

References (117)

1. For example, D. Magliveras and G. Naldi, “The African Union–a new dawn for Africa?”, (2002) 51 ICLQ 415–425
2. C.A.A. Packer and D. Rukare, “The new African Union and its Constitutive Act”, 96 AJIL (2002) 365–378.
3. See P. Chabal, “The quest for good government and development in Africa:is NEPAD the answer?”, 78(3) International Affairs (2002) 447–462.
4. See Rights and Democracy, Human Rights and Democratic Development in Africa. Policy Considerations for Africa's Development in the New Millennium, Rights and Democracy, 21 May, 2002, http://www.ichrdd.ca
5. Z. Randriamaro, “The NEPAD, Gender and the Poverty Trap. The NEPAD and the Challenges of Financing for Development in Africa from a Gender Perspective”, Gender and Economic Reforms in Africa, http://twnafrica.org/GERA/gera_detail.asp?twnID=201
6. Charter of the Organization of African Unity, adopted 25 May, 1963.
7. Art. 4, Protocol.
8. Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, July 2003.
9. Art. 5 of the Protocol.
10. Art. 6 of the Protocol.
11. Art. 9 of the Protocol.
12. Art. 11 of the Protocol.
13. Arts. 12, 13 and 14 of the Protocol.
14. Arts. 15–19 of the Protocol.
15. Art. 62 of the ACHPR
16. see art. 26(1) of the Protocol.
17. Arts. 27 and 32 of the Protocol.
18. E.g. Declaration on Political and Socio-Economic Situation in Africa and the Fundamental Changes taking Place in the World, 11 July, 1990, 26th session of AHSG; The Algiers Declaration, AHG/Decl.1 (XXXV).
19. Resolution on the Ministerial Conference on Human Rights in Africa, CM/Res.1673 (LXIV)
20. Grand Bay Mauritius Declaration and Plan of Action, adopted by the Ministerial Conference on Human Rights in April 1999, CONF/HRA/DECL (I).
21. In relation to the right to work, see, for example, Report of the Secretary-General on the Twenty-Second Ordinary Session of the OAU Labour and Social Affairs Commission, CM/2112 (LXX)
22. in relation to refugees see, for example, Report of Commission of Twenty on Situation of Refugees, CM/ Dec.362 (LXVI).
23. Art. 2.
24. Art. 4.
25. Art. 5.
26. Art. 6.
27. The success of the Conference on Security and Cooperation in Europe (CSCE), subsequently known as the Organisation for Security and Cooperation in Europe (OSCE) motivated other regions to enter negotiations about adapting the OSCE to their own conditions, W.I. Zartman, “Security, Stability, Development and Cooperation in Africa:A Regional Expression of a Global Policy Network in Formation”. www.globalpublicpolicy.net
28. A. Aderinwale, “The Conference on Security, Stability, Development and Cooperation in Africa. Framework and Role of the Regional Institutions”. www.iss.co.za/Pubs/Books/Unesco/Unesco/Aderinwale.html
29. Following the establishment of the Steering Group, the CSSDCA was the product of a meeting in Kampala on 19–20 May, 1991, at the instigation of President Yoweri Museveni in his capacity as Chairperson of the OAU. Although not initially adopted by the OAU Summit in June 1991, the “Kampala Document” was presented to the OAU Summit in Abuja, Nigeria in June 1991 for adoption, but was only duly noted by the Council of Ministers. The Kampala Document was further presented for adoption at the OAU Summits in Dakar, Senegal and Egypt; adoption was not possible in the absence of Member States' inputs, Conference on Security, Stability, Development and Cooperation in Africa. Report of the Secretary General and the Draft Memorandum of Understanding. Department of Foreign Affairs, www.dfa.za/for-relations/multilateral/cssdca.htm. Without the input of Member States, the inauguration of this initiative was slowed down. NGOs remained active and in 1999 President Obasanjo called for the refocusing of the Kampala Document and also responsibility for the relaunching of the CSSDCA Process.
30. To ensure ratification of the 1969 OAU Convention on Refugees and to give effect to its provisions through national legislation and administrative measures. (by 2003) To review the legal scope of the 1969 OAU Convention.(by 2005) Draft Memorandum of Understanding, OAU/CIVIL SOCIETY.3 (II), Annex, para. 11.
31. To fully implement the obligations under the OAU Convention on the Prevention and Combating of Terrorism 1999, by the end of 2004, OAU/CIVIL SOCIETY, para. 13.
32. To adopt a Constitution, a Bill of Rights and provisions for free and fair elections, an independent judiciary, freedom of expression and subordination of the military to legitimate civilian authority, OAU/CIVIL SOCIETY, paras. 14–28.
33. To fully implement the obligations entered into therein (by 2005). All Member States should sign and ratify the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict (by 2003) and implement the Protocol by 2005, including effective plans of action for the demobilization of child soldiers, OAU/CIVIL SOCIETY, para. 24.
34. To ensure the submission by all African countries of their annual reports, on the status of human and peoples' rights within their countries, to the African Commission on Human and Peoples' Rights (by 2005). The African Commission should also be provided with adequate resources to enable it to produce comprehensive, independent and publicly available annual surveys by 2006, OAU/CIVIL SOCIETY., para. 26.
35. To take measures to promote equality of women, and ensure the representation of women in all national institutions, as well as abrogate discriminatory laws in African countries against women. (By 2005), All Member States are to sign, ratify and accede to the UN Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women. (By 2005) OAU/CIVIL SOCIETY., para. 27.
36. Such as securing complete ratification of the Convention on the Prevention and Combating of Terrorism of 1999 (by 2002) and the ACRWC and the ACHPR by 2003, Draft Memorandum of Understanding, OAU/CIVIL SOCIETY.3 (II), Annex, paras 13, 24 and 26.
37. Draft Memorandum of Understanding, OAU/CIVIL SOCIETY.3 (II), Annex, paras. IV. 1–4.
38. The Commission of the AU.
39. Decision on CSSDCA, AHG/Dec.175 (XXXVIII), at para. 7.
40. Draft Memorandum of Understanding, OAU/CIVIL SOCIETY.3 (II), Annex, para. IV.1.
41. OAU/CIVIL SOCIETY, paras. IV.2–6.
42. OAU/CIVIL SOCIETY, paras. IV.6–7.
43. The Social Affairs Director stressed, at the Third Meeting of the Committee of Experts on the Rights and Welfare of the Child, 10–14 November, 2003, Addis Ababa, Ethiopia, the AU is still undergoing reform and review and not all the mechanisms are fully in place. There is not yet a complete staff within the Social Affairs Directorate and this is reflected across the board.
44. Art. 4.
45. Art. 3(g).
46. Art. 3(h).
47. Art. 4(c).
48. Art. 4(d).
49. Art. 4(k).
50. Art. 4(1).
51. Art. 4(m).
52. Art. 4(n).
53. Art. 4(p).
54. Art. 4(h).
55. Art. 4(i).
56. Art. 4(j).
57. Art. 17, Constitutive Act. The Protocol establishing the African Economic Community relating to the Pan African Parliament is now in force.
58. Art. 18, Constitutive Act.
59. Art. 22, Constitutive Act.
60. Protocol Relating to the Establishment of the Peace and Security Council of the African Union, 9 July, 2002.
61. Art. 19, Constitutive Act.
62. Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament, CM/2198 (LXXIII), Annex I, arts. 3(2) and (3).
63. Protocol Relating to the Establishment of a Peace and Security Council of the African Union, 9 July, 2002, art. 3(f).
64. Protocol Relating to the Establishment of a Peace and Security Council of the African Union, 9 July, 2002, art. 4.
65. Statutes of the Commission, ASS/AU/2(I), art. 12(1)(b).
66. Conference on Refugee Protection in Africa:How to Ensure Security and Development for Refugees and Local Hosts, 10–14 November, 2002
67. Seminar between the African Commission on Human and Peoples' Rights and United Nations High Commissioner for Refugees, 20–21 March 2003, Ethiopia.
68. Concerns have also been expressed about many other aspects of the Union, for example, the prospects of economic integration proposed by the Act, see P.S. Mistry, “Africa's record of regional co-operation and integration”, (2000) 99 African Affairs 553–573.
69. See also O. Quist-Arcton, “From OAU to AU–Whither Africa?”, 13 July, 2001, http://www.allafrica.com
70. “High cost of change”, The Sowetan, Johannesburg, 19 July, 2001, http://www.allafrica.com
71. J. Gbardy, “What to make of the new African Union?”, The Perspective, Smyrna, Georgia, 18 July, 2001, http://www.allafrica.com.
72. Decision on the Implementation of the Sirte Summit Decision on the African Union, AHG/ Dec. 1 (XXXVII).
73. The Millennium Partnership for African Recovery Programme (MAP), 3 January, 2001, see www.nepad.org
74. The Omega Plan, as proposed by President Wade of Senegal, presented to the Franco-African Summit in Cameroon, January 2001, see www.nepad.org.
75. A. Sen, Development as Freedom, Oxford University Press, 1999.
76. Declaration on Democracy, Political, Economic and Corporate Governance, AHG/235(XXXVIII), Annex 1, adopted by the HSIC at its Third Meeting in June 2002
77. Communiqué Issued at the End of the Third Meeting of the Heads of State and Government Implementation Committee of the New Partnership for Africa's Development (HSIC), Rome, Italy on 11 June, 2002, www.nepad.org, para. 8.
78. Communiqué Issued at the End of the Third Meeting of the Heads of State and Government Implementation Committee of the New Partnership for Africa's Development (HSIC), at para. 13.
79. To “facilitate the development of vibrant civil society organizations, including strengthening human rights institutions at the national, sub-regional and regional levels; support the Charter, African Commission and Court on Human and People's Rights as important instruments for ensuring the promotion, protection and observance of Human Rights; strengthen co-operation with the UN High Commission for Human Rights; and ensure responsible free expression, inclusive of the freedom of the press”, Declaration on Democracy, Political, Economic and Corporate Governance, AHG/235(XXXVIII), Annex 1, para. 15.
80. African Peer Review Mechanism, AHG/235(XXXVIIII), Annex II.
81. African Peer Review Mechanism at para. 1.
82. African Peer Review Mechanism at para. 13.
83. African Peer Review Mechanism at paras. 5 and 6.
84. African Peer Review Mechanism at para. 24.
85. African Peer Review Mechanism at para. 9.
86. L. Schlemmer, Getting Real about Democracy in Africa: NEPAD and the Challenge of Good Governance, Paper presented at Session on Democracy and Development at International Colloquium on Cultures, Religions and Conflicts, Mzaar, Lebanon, 18–21 September 2002, at 10.
87. See, for example, speech by Prime Minister of Namibia, 7 April, 2003, The Namibian.
88. J. Cilliers, NEPAD's Peer Review Mechanism. ISS Paper 64, November 2002, at 5.
89. Communiqué Issued at the End of the Third Meeting of the Heads of State and Government Implementation Committee of the New Partnership for Africa's Development (HSIC), Rome, Italy on 11 June, 2002, www.nepad.org, para. 17.
90. Communiqué Issued at the End of the Fifth Summit of the Heads of State and Government Implementation Committee of the New Partnership for Africa's Development (HSIC), Abuja, Sunday, 03 November, 2002, www.nepad.org.
91. Namely, MAP, see J. Cilliers, above, n. 108 at 4.
92. Cilliers, above, n. 108 at 3–4.
93. Thus, at the second meeting of the HSIC on 26 March, 2002, the Committee sought to ensure political issues fell within the AU Secretariat, the Commission, and therefore “strongly supported the establishment of a portfolio in the African Union of a commissioner to be responsible for Democracy, Human Rights and Good Governance”, Communiqué Issued at the End of the Second Meeting of the Heads of State and Government Implementation Committee of the New Partnership for Africa's Development (HSIC), Abuja, 26 March, 2002, www.nepad.org, para. 12. This was consolidated, as we have seen, in the adoption of the Statutes of the Commission of the AU at the Summit in July 2002, where among the eight commissioners there is to be one with a portfolio for Political Affairs who has the responsibility for human rights issues among others.
94. In June 2002 at the 3rd meeting of HSIC the Committee approved the African Peer Review Mechanism (APRM) and the establishment of a Panel of Eminent Persons, recommending that the Secretariat of the APRM be located in the UN ECA, and not therefore in the OAU/AU as originally thought, Communiqué Issued at the End of the Third Meeting of the Heads of State and Government Implementation Committee of the New Partnership for Africa's Development (HSIC), Rome, Italy on 11 June, 2002, www.nepad.org, para. 9. Meetings over the summer considered the Declaration on Democracy, Political, Economic and Corporate Governance in more detail, at the July 2002 inaugural AU Summit the Summit adopted the Declaration on the Implementation of NEPAD, Assembly/AU/Decl.1(I). This Declaration called on states to implement the programmes, adopt the Declaration on Democracy, Political, Economic and Corporate Governance, accede to the APRM and popularize NEPAD, among others. NEPAD organs were also called on to continue their work until the Maputo Summit in July 2003. Other requirements such as gender and benchmarks were also considered. In August 2002 a NEPAD Implementation Workshop was held in Addis Ababa and issues such as gender were debated.
95. It was suggested that the AU Commission Gender Division co-ordinate with the NEPAD Secretariat, NEPAD: Report to the Heads of State Implementation Committee, July-October 2002, www.nepad.org, para.1.1. A follow-up workshop on the APRM was then held in October 2002 in South Africa to consider indicators and benchmarks.
96. Cilliers, above, n. 108 at 4–5.
97. Thus, as de Waal notes, “even though NEPAD is now formally described as a ‘mandated initiative’ of the AU, the institutional interface between the two has yet to be established. Formalizing and managing this relationship will be a challenge for both. “, A. de Waal, ”What's new in the ‘New Partnership for Africa's Development’?”, (2002) 78(3) International Affairs 463–475, 468–469.
98. International Affairs, at paras. 14–16.
99. International Affairs, at para. 11(e).
100. International Affairs, at para. 17.
101. Schlemmer, above, n. 106, at 10.
102. International Affairs, at 11.
103. For an excellent summary and discussion of the implications of this meeting see J. Cilliers, “From Government to Civil Society Review? An Update on the NEPAD African Peer Review Process and Structures”, www.iss.co.za/Seminars/aprm193.htm.
104. Ten states subsequently signed up to the Memorandum of Understanding:Algeria, Republic of Congo, Ethiopia, Ghana, Kenya, Mozambique, Nigeria, Rwanda, South Africa and Uganda, see Communiqué Issued at the End of the Sixth Summit of the Heads of State and Government Implementation Committee (HSGIC) of the New Partnership for Africa's Development, Abuja, Sunday 9 March 2003, see www.nepad.org.
105. J. Cillers, “Peace and Security through Good Governance. A Guide to NEPAD African Peer Review Mechanism”, ISS Paper No.70, April 2003, www.iss.co.za, at p. 7.
106. African Peer Review Mechanism, Organisation and Processes, NEPAD/HSGIC-3–2003/APRM/Guideline/O&P, 9 March, 2003.
107. Cilliers, above, n. 108, at 1. She notes further, “A closer reading of the results of various earlier NEPAD meetings and documents would indicate that the issue of democracy, human rights and good governance had long been discussed as more deeply integrated into the African Union rather than as part of the NEPAD APRM secretariat and its activities and that resistance from a number of African governments to remove political review from NEPAD was not new”.
108. Schlemmer, above, n. 106, at 12.
109. As Pagani notes, when talking of the OECE Peer Review, one of the important requirements for such mechanisms is that “there is a strong linkage between the credibility of the process and its capacity to influence…. Credibility can be undermined if the process is flawed by such factors as unqualified examiners, bias stemming from national interests, or inadequate standards or criteria against which to undertake the review”, F. Pagani, Peer Review: A Tool for Cooperation and Change. An Analysis of an OECD Working Method, OECD, 1 September, 2002, SG/LEG(2002)1, at p. 13.
110. Cilliers, above n. 108, at 3.
111. This is the second ministerial conference held at this level, the first being held under the OAU in 1999, see Mauritius Declaration and Plan of Action, above, n. 18.
112. In Niger, May 2003.
113. See for general discussion on the work of this Commission, M. Evans and R. Murray, The African Charter on Human and Peoples'Rights. The System in Practice, 1986–2000, Cambridge University Press, 2002.
114. See also J. Cilliers, “From Government to Civil Society Review? An Update on the NEPAD African Peer Review Process and Structures”, www.iss.co.za/Seminars/aprm193.htm.
115. Examples include the working group on torture, with the Association of Prevention of Torture which has developed the “Robben Island Guidelines” on torture and which has now put back into the hands of the Working Group the task of consideration of the best way to implement such standards, see African Commission on Human and Peoples' Rights, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), 32nd Session of the Commission, October 2002.
116. Decision on the Seats of the African Union, Assembly/AU/Dec.45 (III).
117. See “Open Letter to the Chairman of the African Union (AU) seeking clarifications and assurances that the Establishment of an effective African Court on Human and Peoples' Rights will not be delayed or undermined”, Amnesty International, IOR 63/008/2004, 5 August, 2004.