The status of the findings of the african commission: From moral persuasion to legal obligation

Journal of African Law

Volumn 48, Issue 1, 2004, Pages 1-22

  Viljoen, Frans ^a   Louw, Lirette ^a  

^a UNIVERSITY OF PRETORIA   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84900900736     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855304481017     Document Type: Article

References (72)

1. See e.g. W. Benedek, “The African Charter on Human and Peoples' Rights”, in K. Ginther and W. Benedek (eds.),. New Perspectives in International Law, Vienna, 1983, 134–146
2. U.O. Umozurike, The African Charter on Human and Peoples' Rights, The Hague, 1997, especially chs. 2, 5, 8 and 9.
3. See e.g. M. Mutua, “Looking past the Human Rights Committee: an argument for demarginalising enforcement”, (1998) 4 Buffalo Human Rights Law Journal 239
4. M. Hansun-gule, “The African Charter on Human and Peoples' Rights: a critical review”, (2000) 8 African Yearbook of International Law 315–316.
5. See “Account of Internal Legislation of Nigeria and the Dispositions of the Charter of African Human and Peoples' Rights” Second Extraordinary Session, Kampala, 18–19 December, 1995, DOG. II/ES/AGHPR/4 (hereafter Account of Internal Legislation of Nigeria).
6. See also the recent decision of the European Court of Human Rights in Mamatkulov and Another v. Turkey, ECHR, 6 February, 2003.
7. R. Murray, “Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples' Rights”, (1997) 46 International Comparative Law Quarterly 413.
8. See “Account of Internal Legislation of Nigeria”, above, n. 8.
9. The Government specifically stated that the Commission acted in a “judicial role in pronouncing on the validity of domestic laws and interpreting various provisions of the Charter”. See “Account of Internal Legislation of Nigeria and the Disposition of the Charter of African Human and Peoples' Rights”, Second Extraordinary Session, Kampala, 18–19 December, 1995, DOC.II/ES/ACHPR/4.
10. See I. Österdahl, Implementing Human Rights in Africa–The African Commission on Human and Peoples' Rights and Individual Communications, Uppsala, 2002, 154–155.
11. See further N. Enonchong, “The African Charter on Human and Peoples' Rights: effective remedies in domestic law?”, [2002] 46 J.A.L. 197. Enonchong highlights the fact that the only jurisdiction of the Commission is to make recommendations to the OAU Assembly and that the Assembly for its part also has no powers to make binding decisions against state parties. The most the Assembly can do is to publish the violations as recorded by the Commission.
12. See in this regard G.J. Naldi, “Reparations in the practice of the African Commission on Human and Peoples' Rights”, (2001) 14 Leiden Journal of International Law 684
13. R. Murray, The African Commission on Human and Peoples' Rights and International Law, Hart Publishers, Oxford, 2000, 54–55
14. Österdahl (n. 19 above) 154–155.
15. Murray (n. 23 above) 54–55.
16. Account of Internal Legislation of Nigeria and the Dispositions of the Charter of African Human and Peoples' Rights, Second Extraordinary Session, Kampala, 18–19 December, 1995, DOC.II/ES/ACHPR/4.
17. See F. Ouguergouz, La Charte Africaine des Droits de l'Homme et des Peuples, Paris, 1993, 354, and sources cited there.
18. Art. 6 of the Constitutive Act.
19. The AU Constitutive Act allows for the adoption of these Rules, see art. 16.
20. Art. 23 of the Constitutive Act.
21. The Assembly places its decision on the African Commission under the heading “Decisions”, see e.g. AU doc. Assembly/AU/Dec.ll(II).
22. (n. 19 above). See also Naldi, above, n. 23, 682. Naldi states that “[t]he lack of an effective remedy has been identified as a particular deficiency of the Charter based system”.
23. N.S. Rembe, The System of Protection of Human Rights under the African Charter on Human and Peoples' Rights: Problems and Prospects, Lesotho, 1991, 45.
24. This response was made by Nigeria in reference to paragraph 17 of communication 105/93. See “Account of Internal Legislation of Nigeria”, above, n. 8.
25. The government of Nigeria has argued, in reference to communication 105/93, that it sees the Commission's decision “as an assault on the sovereignty of Nigeria that certain decrees should be annulled”. See “Account of Internal Legislation of Nigeria”, above, n. 8.
26. The African Commission's action is in contrast to the stance taken by other human rights organs, even the judicial bodies, and in this respect it seems that those bodies with less formal powers have been willing to take more forceful decisions. In this regard a move to a more “judicial” organ may well not have the desired effect to increase protection for rights. Murray (n. 23 above) 56.
27. Naldi, above, n. 23 at 169.
28. This was done in response to allegations by the government of Nigeria alleging that the remedies issued by the Commission amounted to “an assault on the sovereignty of Nigeria”. See “Account of Internal Legislation of Nigeria”, above, n. 8.
29. Österdahl states that as “[t]he Commission is the sole level of control in the enforcement system under the Charter in the absence of a Court this could be an argument in favour of the Commission's competence to prescribe reparations to be paid by the state. If the Commission does not prescribe sanctions no one else will”. Österdahl above, n. 19, 153–154.
30. In Communication 64/92, 68/92 and 78/92 Krisckna Achutan (on behalf of Banda)
31. Paragraph 83 of joint communications 48/90 Amnesty International v. Sudan
32. 50/91 Comite Loosli Bachelard v. Sudan
33. 52/91 Lawyers Committee for Human Rights v. Sudan
34. 89/93 Association of Members of the Episcopal Conference of East Africa v. Sudan.
35. Naldi wrote in this regard, “an analysis of the Commission's decisions in individual communications in recent times does suggest that the Commission is generally becoming more robust in carrying out its protective mandate. In addition, an expectation of compliance with its decisions in individual communications does appear to have been engendered. This approach would appear to be required under article 1 of the Charter”. Naldi above, n. 23 at 684.
36. An argument could however be made that art. 2(3) of the Covenant sets forth stronger obligations for state parties than art. 1 of the African Charter. This was also highlighted by Murray who stated: “States' obligations under the Charter derive from article 1, although, controversially, it was questioned whether article 1 provided as forceful an obligation as is found in other international instruments”. Murray (n. 23 above) 51.
37. See OAUDOC/OS/50b(XXIV) Non-Compliance of State Parties to Adopted Recommendations of the African Commission: A Legal Approach; n. 8 above.
38. Rembe (n. 42 above) 26. This sentiment has been echoed by the Chairman of the African Commission, MK Rezag Bara, in the preface to the second edition of the Institute for Human Rights and Development's Compilation of Decisions of the Commission. The Chairman stated that “There can be no doubt that the quasi-judicial role of the Commission, as evidenced in the procedures followed in examination of communications, contributed to the creation of favourable conditions leading to the adoption by the OAU summit in June 1998 of the Additional Protocol on the Creation of an African Court of Human and Peoples' Rights.”
39. IHRD Compilation of Decisions on Communications of the African Commission on Human and Peoples' Rights (2002) 1. According to Umozurike, “the Commission in most cases acts quasi-judicially using the rules of natural justice such as audi alteram partem if the state is cooperative”. The recommendations, he states, “may not have the judicial flavour of the Court of Human Rights but they approximate to those of the European and Inter-American Commissions”.
40. Umozurike (n. 6 above) 82.
41. C. Tomuschat, “Evolving procedural rule: the United Nations Human Rights Committee's first two years of dealing with individual communications”, (1980) 1 Human Rights Law Journal 255 distinguishes the early decisions of the Human Rights Committee, drafted on the pattern of judicial decisions, from “diplomatic communiques”.
42. In terms of art. 5(4) of the Optional Protocol to the ICCPR.
43. There is no explicit mention in either the Covenant or Optional Protocol granting the Committee the power to order remedies but the Committee seems to rely on art. 2(3) of the Covenant in forwarding remedial measures to state parties. See J.S. Davidson, “Intention and effect: the legal status of the final views of the Human Rights Committee”, (2001) 125. New Zealand Law Review 3 fn. 11. Article 2(3) of the Covenant reads as follow: “Each State Party to the present Covenant undertakes: a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; c) to ensure that the competent authorities shall enforce such remedies when granted”.
44. See also M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 710–711.
45. Ando as a member of the Committee stated, “Everyone is aware that the HRG is not a court of law. It can only adopt “views” which are not binding on states parties concerned and they have the discretion to implement the views or not”. N. Ando, “The future of monitoring bodies-limitations and possibilities of the Human Rights Committee”, (1991–1992) Canadian Human Rights Yearbook 169, 171–172.
46. See Davidson (n. 67 above) 3.
47. H.J. Steiner, “Individual claims in a world of massive violations: what role for the Human Rights Committee?”, in P. Alston and J. Crawford (eds.), The Future of United. Nations Treaty Monitoring, Cambridge, 2000, 30.
48. The Third Committee of the United Nations General Assembly in debating the Optional Protocol chose the term “views” rather than recommendations or suggestions to refer to the concluding remarks of the Committee and according to the Third Committee's drafting work it did not consider these “views” to be legally binding. See Davidson (n. 67 above) 3.
49. The term “views”, the attitude of some states ignoring these views and the lack of any enforcement mechanism may lead to a conclusion that these views are mere recommendations deprived of any legally binding force. Such conclusion is not, from my point of view, correct. R. Mullerson, “The efficiency of the individual complaint procedures: the experience of CCPR, CERD, CAT and ECHR” in A. Bloed et al. (eds.), Monitoring Human Rights in Europe–Comparing International Procedures and Mechanisms, Dordrecht, 1993, 36.
50. Davidson (n. 67 above) 13.
51. Case nos. 489/1992 and 504/1992; G.A.O.R., 48th Session, Supplement No. 40 (A/49/40)
52. Report of the Human Rights Committee, vol. II, pp. 305 and 322.
53. Cited in P.R. Ghandi, The Human Rights Committee and the Rights of Individual Communication: Law and Practice, Ashgate, 1998, 333.
54. Case nos. 241/1987 and 242/1987, GAOR, 45th Sess., Suppl. No. 40 (A/45/40)
55. Report of the Human Rights Committee, Vol. II, p. 77.
56. Cited by P.R. Ghandi, “The Human Rights Committee in 1990” in R.S. Pathak and R.P. Dhokalia (eds.), International Law in Transition–Essays in Memory of Judge Magendra Singh, Dordrecht, 1992, 132.
57. See for instance Rodger Chongwe v. Zambia Communication No. 821/1998 (7 November, 1997), U.N. Doc CCPR/C/70/D/821/1998.
58. F. Pocar, “Legal value of the Human Rights Committee's views”, 1991–1992, Canadian Human Rights Yearbook 119.
59. Pocar (n. 78 above) 120.
60. See Davidson (n. 67 above) 8.
61. Tomuschat, above, n. 64 at 255.
62. Steiner (n. 71 above) 30.
63. Generally see D. Gassel, “Inter-American human rights law, soft and hard”, in D. Shelton (ed.), Commitment and Compliance–The Role of Non-binding. Norms in the International Legal System, Oxford, 2000, 394.
64. Gassel (n. 84 above) 416.
65. Gassel (n. 84 above) 416.
66. Gassel (n. 84 above) 417.
67. The “judicial” nature of these proceedings (before the Commission) is underscored by the fact that the parties “presented before the Commission are afforded an opportunity to address the Commission verbally and by presenting memorials, and the Commission issues a reasoned ‘judgement’ motivating its finding” (F. Viljoen, “Review of the African Commission on Human and Peoples' Rights: 21 October 1986 to 1 January 1997”, in C. Heyns (ed.), Human Rights Law in Africa 1997, The Hague, 1999, 81).
68. We specifically resist the temptation to invoke the concept of “soft law” here, for many of the reasons stated in J. Klabbers, “The redundancy of soft law”, (1996) 65 Nordic Journal of International Law 167–182. We opt for the term “non-binding rule”.
69. M.E. Tardu, “Protocol to the UN Covenant on Civil and Political Rights and the Inter-American system: a study of coexisting procedures”, (1976) 70(4) American Journal of International Law 778 at 784.
70. Tomuschat, above, n. 64 at 255, refers to the “orderly proceedings” and “inner qualities of impartiality, objectiveness and soberness” as factors that enhanced the Human Rights Committee's authority.
71. Tomuschat (n. 64 above) 256.
72. Tomuschat's call for reform to look into “situations” was not heeded, see “Argentoratum? The success of the European Convention on Human Rights–and a few dark stains”, (1992) 13 Human Rights Law Journal 401 at 406.