51 Ordinary Session of the African Commission on Human and Peoples’ Rights, April 18-May 2 2012, Banjul, The Gambia

IHRDA Statement on the Protective Mandate of the African Commission

The Institute for Human Rights and Development in Africa (IHRDA) welcomes the creation of the Working Group on Communications mandate to address specific issues related to the protective mandate of the Commission.

In April 2011, at the 49 Ordinary Session, attention to protective mandate was admittedly, at its lowest as the Commission concluded its first ever ordinary session without considering matters related to its protection mandate. This situation has however changed significantly as the Commission has reinvigorated its attention to this mandate. Since November 2011, the Commission has also hastened its consideration of communications. In the last 3 sessions (50th OS, 10th EOS, 11th EOS) a total of 18 communications have been finalised[1].

This renewed attention to protection activities could not come at a more apt time. 2011 saw unprecedented popular upheavals not only in the north but also in parts of west, central, east and south of Africa. In Tunisia, Algeria, Libya, Egypt, Mauritania, Burkina Faso, Sudan, Uganda, Gabon, Cameroon, Malawi amongst others, citizens took to the streets to demand their rights, rights which are enshrined in the African Charter that is legally binding on these states. More so, more human rights litigation is being registered in continental and economic community courts with the SADC Tribunal facing continued suspension for its firm assertion of human rights in Zimbabwe.

In addition, over the last 25 years of litigation before the African Commission, in 194 decisions covering over 400 communications, Article 7 which guarantees the right to fair trial remains the most complained of violation (94 of 194 decisions = 49%) and most violated right (50 of 73 decisions = 69%). 54% of communications filed before the African Commission fail to reach the merits stage. Moreover, all cases decided by the African Court have thus far featured applicants filing cases where the Court manifestly has no jurisdiction seems to indicate a great thirst, if not desperation for justice on the continent and regrettably, lack of sufficient knowledge of how to assert one’s rights through African human rights mechanisms.

As IHRDA and our partners in our joint “Statement on undue delays in the consideration of communications”[2] in May 2009 stated, “The [Commission’s] complaints procedure remains its strongest tool in the protection of the rights guaranteed in the African Charter. The Commission remains the most accessible and active mechanism in the African human rights system. As such it represents the primary recourse available to those subjected to human rights violations.”

The Commission’s role in remedying human rights abuses in Africa cannot be gainsaid. This is true not only for substantive law but also for the administration of the mechanisms. Any steps taken to ensure effective human rights protection are therefore welcome.

In particular, IHRDA would like to urge the Commission and in more so the Working Group on Communications to consider addressing the following concerns:

• notification of status of communications remains irregular and unreliable, and even when notification letters are received, we note a lack of detail necessary to facilitate our work/appropriate reaction.
• We continue to experience great difficulties in accessing information that should be public like approved texts of decisions in all official AU languages, resolutions and even the Terms of Reference of the WGC;
• Still difficult to know which cases will be handled next session (there is no publicly available causelist);
• the new reporting format as seen in 31AR (11 pages) where decisions, resolutions are neither annexed nor even mentioned in full number and title in the text of the report not only impedes access to information, an Article 9 (1) guarantee, but creates potential loopholes for decision enforcement;
• There are also an increasing number of instances where the Commission seemingly ‘decides’ but without ‘a written decision’, as in withdrawals, non seizures, etc, contrary to established practice;
• The Commission is yet to acknowledge receipt or respond to the joint letters sent by litigants on the question of the protective mandate.

In addition to the administrative concerns, active follow-up by the Commission on implementation of its decisions would go a long way in delivering remedies to victims, which is the reason they seek the Commission’s intervention.

The Institute for Human Rights and Development in Africa (IHRDA) welcomes the creation of the Working Group on Communications mandated to address specific issues related to the protective mandate of the Commission.

IHRDA notes with appreciation that the Commission has significantlyreinvigorated its attention to this mandate and has hastened its considerations of communications.

IHRDA would, however, like to urge the Commission and the WorkingGroup on Communications to consider the following concerns:

• Failure by the Commission to notify litigants of the status of communications. This remains irregular and unreliable, and even when notification letters are received, we note a lack of detail necessary to facilitate our work/appropriate reaction.
• The delay in the consideration of communications: this still remains a matter of serious concern with some communications pending for several months and even years without decision. Part of the reason for the delayis the lack of response from Respondent states while Rule 105 (2) and Rule 108 (1) of the African Commission’s Rules of Procedure  provide for specific timeframes within which observations have to be submitted by Respondent states;
• Lack of access to information: Litigants before the Commission continue to experience great difficulties in accessing information that should be public. These include approved texts of decisions in all official AU languages, resolutions and even the Terms of Reference of the WGC;
• Lack of a cause list: It is difficult for litigants before the Commission to know if their cases will be considered during an upcoming session of the Commission. They therefore attend sessions of the Commission not knowing if a pending communication will be considered. Potential loopholes in enforcing decisions: The new reporting format as seen in 31AR (11 pages) where decisions, resolutions are neither annexed nor even mentioned in full number and title in the text of the report not only impedes access to information, an Article 9 (1) guarantee. This could create potential loopholes for decision enforcement;
  • Lack of written decisions: There are also an increasing number of instances where the Commission seemingly ‘decides’ but without ‘a written decision’, as in withdrawals, non seizures, etc, contrary to established practice;

IHRDA working with litigants sent joint a letter to the Commission outlining the above issues but the Commission has not yet acknowledged receipt or respond to the letter.

IHRDA respectfully urges the Commission, particularly the Working Group on Communications to address the concerns highlighted above. In addition to the said administrative concerns, active follow-up by the Commission on implementation of its decisions would go a long way in delivering remedies to victims, which is the reason they seek the Commission’s intervention.

The Commission’s role in remedying human rights abuses in Africa cannot be gainsaid. This is true not only for substantive law but also for the administration of the mechanisms. Any steps taken to ensure effective human rights protection are therefore welcome.

Thank you

[1] Seizure: nine (9) Communications; “Dismissed for lack of diligent prosecution”: three (3) Communications; Provisional measures: Two (2) Communications on Provisional Measures, none of which was granted; Admissibility: thirteen (13) Communications; Merits: Four (4) Communications; Withdrawal: (1) communication for withdrawal; Court referral: A second communication is being referred ; Oral hearing: I believe the Commission will hear some of us in oral audience at the 51^st OS; Implementation: One (1) Communication on implementation.

[2] Zimbabwe Lawyers for Human Rights (ZLHR), International Centre on Legal Protection of Human Rights (INTERIGHTS) & IHRDA, “Joint Statement On The Undue Delay In The Consideration Of Communications By The African Commission On Human And Peoples’ Rights” 45th Ordinary Session Of The African Commission On Human And Peoples’ Rights, May 2009.