Participants following proceedings of the 63rd Ordinary Session in the Gambia.
According to the Amnesty International report dubbed the State of the African Regional Human Rights System and Mechanisms 2019 -2020, the African Commission became the first human rights treaty body across the globe to issue a statement on COVID-19 and human rights on 28 February 2020. The African Commission has continued to issue guidelines on how COVID-19 intersects with different rights or issues, how it impacts on specific groups, and what states need to do from a human rights perspective. In spite of this important premier global action, little is known about this very important institution by a majority of Africans outside of individuals or organisations that work directly or indirectly with it. Yet, it is one of the key institution that all Africans should be aware of and care about in spite of whom they are or where they are in Africa.
The Making of the African Charter2 – A Short Story
The granting of independence to many countries in Africa during the 1950s and 1960s led to a greater need to safeguard the gains of decolonization through technical, economic and political cooperation. Hence, a series of events led to the adoption of the Charter of the Organization of African Unity (OAU) on 25th May 1963 during the Summit of Heads of State and Government in Addis Ababa, Ethiopia. The OAU is presently referred to as African Union since 2001. In the 1960s, it was also apprehended that it would be sensible to draft a document establishing a human rights protection mechanism in Africa. In 1961, at the first Congress of African Jurists that was held in Lagos, Nigeria a declaration dubbed the ‘Law of Lagos’ was adopted. The Law of Lagos called for African governments to embrace an African treaty of human rights that would establish a court and a commission. However, this did not materialise. During this time, the OAU was more keen on socio-economic development, territorial integrity and state sovereignty over human rights protection. In 1967, the first francophone conference of African Jurist, the Law of Lagos was revisited. The Dakar Declaration adopted after the meeting called to the International Commission of Jurists to collaborate with other relevant African institutions for the possibility to create a regional human rights protection mechanism in Africa. About this time, the United Nations (UN) also tried some initiatives both at the regional and international political arena, to get African government to ascend to the idea of a regional human rights protection system which failed. Although, in one of the UN conferences, the delegates from Africa set up a follow-up committee mandated to carry out visits to African heads of state to lobby for the regional human rights protection system. The committee was able to win over, the then president of Senegal, Léopold Sédar Senghor, who promised to table the proposition before the OAU Assembly at its next session.
In 1979, the Assembly of Heads of States and Government of the OAU instructed the Secretary- General of the OAU to convene a committee of experts to draft a regional human rights instrument for Africa, similar to the European and Inter-American human rights conventions. An initial draft of the Charter was prepared by twenty African experts presided over by Judge Kéba M’baye. The draft Charter faced threats and resistance from African governments that were opposed to a regional human rights protections system. It took the intervention of the then President of the Gambia, Dawda Jawara at the request of the OAU Secretary General that the draft Charter was completed. Dawda Jawara convened two Ministerial Conferences in Banjul, The Gambia, where the draft Charter was completed and subsequently submitted to the OAU Assembly. It is because of this that the African Charter3 is also referred to as the ‘Banjul Charter’. The African Charter was then adopted on 27 June 1981 by the OAU Assembly in Nairobi, Kenya. It entered into force on 21 October 1986 (21st October is marked annually as Africa Human Rights Day). It is the most ratified treaty on the African continent with all AU members having ratified it.
Establishment of the African Commission
Article 30 of the African Charter establishes the African Commission on Human and Peoples’ Rights (The African Commission)4. The Secretariat of the African Commission is located in Banjul, the Gambia since 1989. The African Commission is one of the institutions under the Judicial, Human Rights and Legal Organs of the African Union. In addition to performing any other tasks which may be entrusted to it by the Assembly of Heads of State and Government, the Commission is officially charged with three major functions:
a) To promote human and peoples’ rights
b) Ensure the protection of human and peoples’
rights as enshrined by the African Charter
c) Interpret all the provisions of the African Charter at the request of a state party, an institution of the AU or an African Organization recognized by the AU
The Commission consists of 11 members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality, and competence in matters of human and people’s rights, with particular consideration given to people with legal experience. These members are elected by secret ballot by the Assembly of Heads of State and Government from a list of persons nominated by state parties to the Charter for a period of six years. They are eligible for re-election.
The Commission has constituted working groups, special mechanisms, and committees to advance specific thematic areas of work and optimize its functioning. Each special mechanism, working group and committee is overseen by one of the 11 Commissioners. Simultaneously, the Commissioners also serve as members of working groups and committees, alongside non-Commissioner expert members.
The African Commission held its first Ordinary Session on 2nd November 1987. This was also the date of the establishment of the African Commission in Addis Ababa, Ethiopia. Ordinary Sessions are statutory public meetings hosted by the African Commission to enable it to satisfactorily carry out its functions in conformity with the African Charter. The Ordinary Sessions have traditionally been hosted in the Gambia where the African Commission Secretariat is located or any other AU member state can volunteer to provide the venue for the Ordinary Session. Due to the COVID-19 pandemic, for the first time, the African Commission has held the 66th Session virtually from 22 April to 12 May 2020. Any individual with access to technology could join the zoom sessions. This has broken down the barrier of physical meetings brought about by relatively high logistical costs, that make sessions inaccessible to a wider audience. The 67th Ordinary Session was also hosted online from November 13th to December 03, 2020, hence, it is anticipated that there was increased public participation from citizenry in Africa, even though, it is non-governmental organizations with observer status who were allowed to take the floor. The proceedings could be followed in all AU languages (English, Kiswahili, French, Arabic and Portuguese) or on the African Commission’ YouTube channel. The zoom registration links for Ordinary Session are announced on the African Commission’s website. There is a deprivation of internet access and technological tools that foster modern communication in some parts of the region to enable all citizens in Africa to follow the proceedings, this calls for local and grassroots media to stand in the gap. At the end of every ordinary session, the African Commission adopts a communique for the public that provides key highlights and resolutions made during the specific session. This communique ought to be communicated in local dialect to reach every African through national, community-based and grassroots media to ensure that more Africans have been made aware of its content. The communique of the just concluded 67th Ordinary Session can be found here. The 2020 Rules of Procedure of the African Commission5 stipulate that four (4) Ordinary Sessions per year will be held, the venue and duration of which shall be determined by the Commission. Two (2) of the sessions shall include both public and private proceedings. It is further provided that whenever possible, session proceedings may be made available to the public through live transmission.
The live transmission, given the current context, is the most plausible means that many Africans can get plugged into the public proceedings of the African Commission. In opening the 67th Ordinary Session that concluded on December 03, 2020, the Chairperson of the African Commission, Honorable Commissioner Solomon Ayele Dersso intimated, “We have come to recognize in the context of this pandemic that access to the internet is central to the enjoyment of various rights, including access to information, the right to education, freedom of expression, the right to work, participation in public life, among others. Lack of access to the internet or its deprivation, the phenomenon of the digital divide, leads to complete exclusion from the enjoyment of these and other fundamental rights, leading to the deepening of inequalities.”
Agenda of the Ordinary Sessions
During the ordinary sessions, the members of the African Commission, the public, state and non-state actors get to collectively deliberate on the human rights situation in Africa in order to hold states more accountable to their obligations. Additionally, State Party reports on how African governments are fulfilling their obligations as outlined in the African Charter are considered. Further, the African Commission also considers communications(complaints) on human and peoples’ violations of rights. Non-governmental organisations (NGOs) that have applied to have observer status with the African Commission are also announced during the ordinary session.
To have observer status means that an NGO has formalised its relationship to support the African Commission to fulfill its mandate within stipulated rights and duties. Various panels of experts in human rights are hosted during the ordinary sessions. These panel discussions are informative in highlighting trends, emerging human rights issues on the continents and providing innovative ways in which the collective responsibility of protecting human rights can be attained in Africa. Activity Reports of the members of the African Commission & special mechanisms are also presented.
All People in Africa Should Care
Firstly, the ordinary sessions of the African Commission provide a safe space where human rights violations that have gone ignored, unaddressed, silenced or made invisible at the national or domestic level can be articulated. The recommendations made by the African Commission are not binding to states hence, there is a greater need for lobbying and collaboration between NGOs, national human rights institutions (and other relevant state actors) and all citizenry to ensure implementation. Secondly, where victims of human rights violations have failed to get redress at the national courts, the Africa Commission’s complaints mechanism provides an important avenue to seek recourse. Lastly, the threats and opposition to a regional human rights protection system that emanated from some African governments during the drafting of the African Charter still exists.
In as much as the African Charter has attained a universal ratification, there is still a lack of political will from some AU member states to cooperate with the African Commission. This has manifested as failure to meet the reporting obligations, failure to respond to urgent appeals made by the African Commission, failure to comply with recommendations made by the African Commission and failure to support the functions of the special mechanisms holders. Some African states have been overtly hostile to the extent that they have threatened the very existence and autonomy of the African Commission. These governments that are opposing and resting the mandate of the African Commission are utilizing other regional structures to undermine the independence of the African Commission to fulfill its mandate. Without putting in deliberate multi-stakeholder and multi-level efforts on the need to safeguard the mandate of the African Commission, we the people of Africa, will be left orphaned of the primary advocate of our dignity.
Marie Ramtu is the Coordinator for the Coalition for the Independence of the African Commission (CIAC)