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The African Union, the Banjul Commission and the failing of the

protection system instituted by the African Charter on Human

and Peoples’ Rights By

Prof. Alain Didier OLINGAIRIC/University of Yaunde 11

Cameroon

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October 2011Introduction, issues to be explored.

Thirty years after the adoption of the African Charter on Human and Peoples’ Rights (ACHPR),

and after more than two decades of institutional practice by the Banjul Commission, it is now

possible to undertake an assessment of the African rights protection system based on

experience and not merely on textual analysis. Indeed, the African system, having been

designed in the wake of the two other major regional protection systems (the European system

and the inter-American system), has mostly suffered from a legal theory marked by the

qualitative advantage of the first two systems. Somehow, the brilliant pronouncements and

performances of the other two systems have only seemed to point up the flaws, failings,

aporias and gaps of the African version. As early as 1984, one of the authors of the Charter,

Prof. Glélé, noted that ‘we have settled on an intermediary solution between the systems of the

Council of Europe, namely the Human Rights Commission and the Committee of Ministers, with

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the mandates of the latter body entrusted to the Assembly of Heads of State and Government ’.1

A few years after the Commission took up its duties, in 1992, Prof. Dégni-Ségui pointed out that

‘the African human rights system lags behind the other regional systems: Europe has a

European Court of Human Rights and Latin America [sic] has the Inter-American Court of Human

Rights’.2 Few authors have done justice to the African system in the form of an independent

analysis of its internal consistency and autonomy. Setting aside the analyses bordering on

caricature that went so far as to suggest that the Charter was a cumbersome legal instrument,3

it should be noted that African legal theory itself, drawing on the same fascination with the

European system in particular, has spouted the same rhetoric about its weaknesses, failings,

etc. Before the Commission even took up its functions, during the Dakar conference on the

institution held on 17, 18 and 19 June 1987, the architect of the Charter, Kéba Mbaye, already

pointed out certain ‘grey areas’ in the system.4 Studying the Charter through the prism of

effectiveness, even we have pointed out that its ineffectiveness was ‘planned’ and ‘organized’,

and also that the Commission was not at all a mechanism for the protection of human rights. 5

However, such reviews from the early days, first steps or initial developments of the system,

need to be put (back) into perspective in the light of its years of practice, as time and practice

have tested the system, brought out its potential and its weaknesses, and these have been

more or less addressed by the pan-African organization or by the watchdog body itself.

The object of the present communication is, precisely, to see how the Banjul Commission and

the OAU/AU have addressed the issue of the failings of the ‘protection’ component of the 1981

Charter. The preamble to the Charter affirms that the African States are ‘firmly convinced of

their duty to promote and protect human and peoples' rights’. The Commission established by

the Charter is responsible for protecting human and peoples' rights in Africa. Although 11 Glélé Ahanhanzo, M., ‘Introduction à la Charte africaine des droits de l’homme et des peuples (organisation de l’unité africaine)’, in Droit et libertés à la fin du XXe siècle. Influence des données économiques et technologiques. Etudes offertes à Claude-Albert Colliard. Paris, Pedone, 1984, p. 529. (Our translation)2 Degni-Segui, R., ‘L’apport de la Charte africaine des droits de l’homme et des peuples au droit international de l’homme’, Revue Africaine des droits de l’homme, 1992, p. 37. (Our translation)3 Sinkondo, M. H., ‘La Charte africaine des droits de l’homme et des peuples ou les apories juridiques d’une convention encombrante’, Penant, octobre-décembre 1994, pp. 288-309.4 Youssoufa Ndiaye, ‘Rapport général Colloque sur la Commission africaine des droits de l’homme et des peuples, Dakar, 17-18-19 juin 1987’, Unpublished manuscript, p. 1.5 Olinga, A. D., ‘L’effectivité de la Charte africaine des droits de l’homme et des peuples’. Afrique 2000, avril-octobre 1997, pp. 171-185, particularly p. 178.

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promotion and protection can be distinguished in theory, it is not certain that, in the actual

work of the Commission, there is always a clear dividing line between these two aspects of its

mandate, since, in actual practice, activities focusing on ‘promotion’, such as normative

resolutions,6 have a direct impact on protection, as benchmark standards; inversely, the formal

protection framework may lead to actions that smack of promotion, as can be seen in the

exhortative style of reasons or the claims or pronouncements mechanism.7 The lack of a

watertight division spills over onto the confusion observed between promotion missions and

protection missions.8 In reality, the syncretic view of the ideas of promotion and protection

dates back to the time when the Charter was being drafted. The report presenting the draft

Charter in Dakar in 1979 described the idea of protection as follows: ‘So far as the protection of

these rights is concerned, it (the Commission) gathers information, establishes facts, concludes

and makes recommendations to the Heads of State. It belongs to the latter or, in case of

emergency, to the Chairman of the Assembly, to take appropriate measures to ensure the

protection of human rights’.9 And, further on: ‘the Commission does not take decisions. It simply

reports to the Assembly of Heads of State and Government which decides what should be done

with the conclusions and recommendations’.10 During the OAU inter-ministerial meeting on the

draft Charter, held in Banjul from 7 to 19 January 1981, the Chairman of the Group of Experts

which prepared the preliminary draft, Kéba Mbaye, responding to general comments made by

the delegations, pointed out that the terms of reference of the Commission were ‘essentially

technical (the Assembly of Heads of State and Government being the final decision-maker)’. 11

The initial conception of protection in the African system was therefore quite close to the more

general idea of promotion, which is in any case marked by the primacy of the political and inter-

governmental sphere over the technical one.

6 Olinga, A. D., ‘Les résolutions de la Commission africaine des droits de l’homme et des peuples. Essai de systématisation’, Afrique Juridique et Politique, Vol. 1, No. 2, 2002, pp. 126-160.7 Olinga, A. D., ‘La contribution de la Commission africaine des droits de l’homme et des peuples à l’amélioration des conditions carcérales en Afrique’, in Otis Ghislain and Ciomos, Virgil (Eds), Démocratie, droits fondamentaux et vulnérabilité. Actes des troisièmes journées scientifiques du Réseau Droits fondamentaux. PUC, Cluj Napoca, 2006, pp. 207-231. 8 Viljoen, F. and Yonaba, S., ‘Réflexion sur la Commission Africaine. Rapport d’évaluation de la Commission africaine des droits de l’homme et des peuples’, Document, ACHPR/BS/01/008, 9 May 2006, p. 41.9 Doc. CAB/LEG/67/3/Rev.1, 1979, p. 3.10 Idem, p. 4. 11 See Document CAB/LEG/67/1/Rapt.Rpt.(II)Rev.3, p. 4.

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At the outset, the gap between the protection mandate conferred on the Commission and the

means of protection it was granted was so flagrant that there was reason to wonder whether

the word ‘protection’ was nothing more than a figure of style, and whether those who used it

spoke the language of legal experts. So that, where protection is concerned, the very word

‘failings’ may prompt images of an analytical vortex criticizing in a vacuum. It should be noted

that, originally, the Commission was not really designed to act as a ‘protection’ mechanism, and

especially not one to be used essentially by individuals and NGOs. If the States had perceived it

as such, they would certainly have added a consent clause regarding the Commission’s

jurisdiction in the area of protection, as they have done since the pan-African guarantee system

has evolved towards a court. At most, it was designed to provide a minimum level of

protection, essentially within the framework of traditional inter-State relations, if not to say a

disguised form of diplomatic protection12 to regulate inter-State differences relating to human

rights. The system was not designed to set up an ‘autonomous’ structure, but merely a

technical mechanism within the supreme pan-African inter-governmental body, intended to

support it in guaranteeing human rights in Africa. The protection currently provided by the

Commission is the fruit of a subtle process whereby the institution, in its enthusiasm for the

mission with which it was invested and which took quite literally, has progressively developed

the means to fulfil that mission or initiated institutional innovations for the purpose. More

concretely, the pan-African system has ensured that the technical organ–or, nowadays, the

technical organs–in charge of human rights protection have recuperated the means to provide

such protection, to wit the decision-making power (and not just the power to issue

recommendations) that the circumstances at the time of the drafting of the Charter had placed

in the hands of the political organ of the pan-African organization: the Assembly. The story of

the ‘protection’ dimension within the pan-African human rights system as defined by the

Charter of 1981 is therefore that of the progressive melding of an idea and the means to

materialize it, or that of how the means for protection were brought back to the protective

jurisdiction from which they should never have been separated in terms of technical logic.

12 For an argument (in French) equating the right of recourse between States with a ‘disguised’ or ‘watered-down’ form of diplomatic protection, see Elong Fils, F.X. ‘La protection diplomatique des étrangers. Essai sur ses interactions avec la souveraineté des Etats et les droits de l’homme’, Thesis, Lyon III, September 2011, p. 289.

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The idea of ‘failings’ is easy to comprehend in light of the goal of protection set forth in the

preamble to the 1981 Charter. Indeed, protection is at least twofold in nature: it is a form of

teleology, and even an axiology, to the extent that its aim is the effectiveness and concrete

emergence of the proclaimed rights; and it is also a matter of technical engineering and

methodology, in the sense that the activity of protection, as the Commission itself has pointed

out to the States notably in the case of SERAC v/ Nigeria, implies that some very concrete things

must be done or not be done, and it would be strange if the Commission itself were to

circumvent the protection regime. This paper, quite evidently, focuses on the relationship

between means and mission. Given that the protection mission was vested in the Assembly and

the Commission in 1981, how has this mission been implemented and what institutional or

operational dynamics have been created since that time with a view to effectively ensuring

human and peoples’ rights? What of the sinister prognosis issued by Marcel Sinkondo, who said

‘when they are pinned to State security requirements and lack any profound cultural or

ideological cohesion with their civil societies, as is the case in Africa, human rights, even when

they have been proclaimed, take on a fantastical, fairy-tale appearance in the eyes of the

waiting peoples’?13 Failings should be addressed as a function of the insufficiencies and

weaknesses that come to light, whether they are linked to the instruments or arise from

institutional practice. Four aspects of the protective mandate should be examined: the organic

aspect, the methodological aspect, the substantiveness of the pronouncements issued by the

organ and the operational aspect of the implementation of those pronouncements. The first

two aspects will be treated in one section and the other two in a second part.

I. Institutional dynamics and working methods within the protection system.

The discourse on the failings of the protective component of the African human rights system

established by the Charter in 1981 has focused first and foremost on the consistency and

comprehensibility of the institutional pairing set up for the purpose. The structure is purported

to be ill-suited to its protective mission, and therefore lack credibility in the eyes of Africans.

Even when it took action, the mechanism was deemed to operate sub-optimally, to the point

where even we wrote, a decade past, that ‘it is not advantageous for individuals or peoples 13 Sinkondo, op.cit., p. 309. (Our translation)

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whose rights have been violated and who wish to seek redress to have recourse to the

mechanism established by the pan-African instrument. The way this mechanism and its powers

are organized, there is no reasonable hope for a victim of a human rights violation, even a

massive one, to obtain redress’.14 A double-barrelled criticism was initially levelled at the

system: a criticism of its structural consistency and a criticism of the relevance of its processes.

It is important to note in this respect that, although not everything has been fixed since then,

considerable improvements have been made. This, however, should be double checked.

A. The dynamics of the team of protective organs.

All of the analyses that initially focused on the institutional system established by the 1981

Charter have pointed to this aspect. Frederic Sure blamed the ‘rudimentary nature of the

protective mechanism’;15 Michele Hansungule saw the Commission as ‘a weak institution

without any teeth of its own to bite violators of basic rights’.16 In order to gain a lucid idea of the

present situation, it is important to hark back to the initial construction of the organ, and

observe that it has undergone internal change, and that a stronger system has been

superimposed on the original construction, although some tweaking is still required to enhance

the consistency of the architecture of the pan-African human rights organ.

1. The original structure: the combination of the Assembly and the Commission.

The African Commission on Human and Peoples’ Rights17 established by the Charter is a group

of theoretically independent experts acting as a technical committee to assist the Assembly of

Heads of State and Government in rights protection in Africa. Any changes within the system

depended on the relational dynamics within the initial team, according to whether the expert

side predominated or the political and inter-governmental side came to the fore. The protective

mission has evolved along with the tactics of the Commission’s conquest of margins of

14 Olinga, A. D., ‘L’effectivité de la Charte africaine des droits de l’homme et des peoples’, op. cit., p. 177. (Our translation)15 Sudre, F., ‘Droit international et européen des droits de l’homme’, Paris, Puf, 5th edition, 2001, p. 143. (Our translation)16 Hansungule, M., ‘The African Charter on human and peoples’ rights: a critical review’, AADI, vol. 8, 2000, p. 315.17 Atangana Amougou, J. L., ‘La Commission africaine des droits de l’homme et des peuples’, in Droits Fondamentaux, no. 1, juillet-décembre 2001.

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legitimacy and autonomy from the Assembly, through subtle use of support from African and

international civil society, according to the circumstantial benevolence or tension of the

government body. The dialectic tension between the expert pole and the political pole

permeated the protective actions of the Commission, including in the area of interpreting the

Charter, in which regard it oscillated between boldness and self-restraint. The Commission was

created ‘within the OAU’, and some authors have drawn some rather excessive conclusions on

the basis of that phrase, particularly in terms of the Commission’s independence from the

Organization. It has even been described as ‘an independent technical organ’.18 Perhaps. But its

‘independence’ should not be exaggerated. The eleven-member Commission is indeed a part of

the pan-African organization’s institutional system.19 It should be noted that the Commission

took care to mention its autonomy in the process of its institutional self-promotion, as can be

seen from the emphatic formula in Rule 3 of the Rules of Procedure which entered into force

on 18 August 2010: ‘The African Commission is an autonomous treaty body working within the

framework of the African Union to promote human and peoples’ rights and ensure their

protection in Africa’. This solemn declaration is a message to all African Union bodies that may

tempted to challenge it; it remains to be seen whether the admonition, indirect as it may be, is

backed by any actual power, and whether it will be understood as such by those to whom it is

apparently addressed. The Commission, like the Assembly, was not a permanent body, which

meant that the original paired bodies formed a discontinuous mechanism.20 The members were

not assigned to their tasks full time, so that their duties as commissioners were quite possibly

secondary on their professional agendas. While the competence of the commissioners was

generally above reproach, it remains that for some time they combined their duties with

political, governmental or administrative duties within their respective States, a situation that

18 Sudre, F., ‘Droit international et européen des droits de l’homme’, Paris, PUF, p. 114. (Our translation) The African Commission on Human and Peoples’ Rights also has used this description of itself in a report on the implementation of the Charter, which so far exists only in French: ‘Rapport relatif à la mise en œuvre de la Charte africaine des droits de l’homme et des peuples. 30 ans après’, September 2011, p. 8.19 It is true that full integration remains to be finalized, according to ‘Decision EX.CL/446(XIII) which calls upon the African Commission, in collaboration with the AUC, to take the necessary steps to have the status of the African Commission as an Organ of the AU regularized.’ 30th Activity Report of the African Commission on Human and Peoples’ Rights, doc.EX.CL/678(XIX), 2011, p. 5.20 The consequence, for the Commission, is that the rate of deferral of cases to be examined was quite high, as the saying went, ‘due to a variety of reasons including shortness of time…’. The way this issue was handled in relation to the time needed by the Commission to carry out its protective task needed to be addressed in a serious way.

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was hardly designed to guarantee their independence and objectivity, even with the greatest of

good will. Fortunately, this situation has changed considerably with the latest revision of the

Rules, as conflict of interest strictures have been substantially reinforced.21 Emphasis should be

laid on the need to ensure the qualifications of commissioners, since one of the elements of the

credibility of a human rights protection mechanism, or more generally any mechanism for the

administration of justice22 lies in the quality of the people assigned to the task. With the advent

of the African Union, the relationship between the pan-African organization and the

Commission was organized, and the work of the latter was monitored within the Union

Commission by the Commissioner for Political Affairs. Furthermore, it would be helpful to more

clearly define the nature of the relationship between the two organizations. Where the Banjul

Commission is concerned, its protective task has led it to build itself up institutionally by

creating subsidiary mechanisms, including most notably Special Rapporteurs. The contribution

of that mechanism to the protection activity should not be overestimated, nor should it be

underestimated. It contributes to the dynamics of institutional self-promotion we referred to

earlier.

Since the adoption of the Charter, the initial structure of the organ has not been revolutionized

in institutional terms. However, with a view to heightening the credibility of the protective

mandate, the pan-African organization, with a decisive contribution by the Commission in part,

undertook to set up new structures.

2. A change in the protective mechanism: Court, single Court, regional courts.

The old idea of an African human rights court, to which references have been made since the

early 1960s, but which was set aside for pragmatic reasons by Kéba Mbaye and his group of

experts during the drafting of the Charter, to avoid being perceived as ‘provocative’ in the eyes

21 Article 7, paragraph 1, of the Rules of Procedure currently in effect clearly states that: ‘The position of member of the Commission is incompatible with any activity that might interfere with the independence or impartiality of such a member or demands of the office such as a member of government, a Minister or under-secretary of State, a diplomatic representative, a director of a ministry, or one of his subordinates, or the legal adviser to a foreign office or any other political binding function or participate in any activity of any nature that will compromise the independence and impartiality.’.22 Sauvé, J. M., ‘Les critères de la qualité de la justice’, Paper presented on the occasion of the twentieth anniversary of the Court of First Instance of the European Communities. Luxembourg, 25 September 2009.

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of the States,23 made a serious come-back at the end of the 1990s, in a political and ideological

environment that was hostile to dictatorships and authoritarian rule, and more demanding in

terms of rights and freedoms.24 The Ouagadougou Protocol, adopted in 1998, which is an

integral part of the 1981 Charter, establishes an African Court on Human and Peoples' Rights,

with a mandate to ‘complement the protective mandate of the African Commission on Human

and Peoples` Rights’ (Article 2) and ‘reinforce the functions of the African Commission’ in that

area (Preamble). In these formulations, the OAU member States recognized that the system as

it stood at the time was insufficient to ensure that the protective mandate entrusted to the

Commission was fulfilled in an optimal manner. However, rather than relieving the Commission

of its protective mandate and entrusting it fully to the new court, as could have been logically

and boldly imagined, leaving the Commission with the sole–and colossal–task of human rights

promotion, the States decided instead to divide protection between the old institutional set-up

and the new Court, following a complementary schema whose complexities, which were not

easy to decipher in terms of their future deployment for African human rights litigants, could

have been done without.25 The idea of complementariness implies, firstly, the recognition of

the institutional identity of the organs, and secondly the recognition of jurisdictional

concurrence in a specific area. This requires a mechanism to regulate the exercise of shared

jurisdiction, especially where the actors in the complementary relationship are not in a formal

hierarchic relationship.

When the Ouagadougou Protocol entered into force, prior to the entry into force of the

Protocol on the single Court which combined the existing Court of Arusha and the abortive

Court of Justice of the African Union, the system could have been described as follows: the

Banjul Commission remained in its original tête à tête with the Assembly and the Commission

was complementary to the Court in terms of protection in keeping with Articles 2,6-3, 8 and 33

23 See: Doc. CAB/LEG/67/1, Draft African Charter on Human and Peoples’ Rights, 1979, p. 2: ‘The establishment of a Human Rights Court to redress cases of violation of human rights is not included in the Draft Charter. It is thought premature to do so at this stage. The idea is, no doubt, a good and useful one which could be introduced in future by means of an additional protocol to the Charter.’24 Olinga, A. D., ‘L’impératif démocratique dans l’ordre régional africain’, Revue de la Commission africaine des droits de l’homme, 1999, 1, pp. 55-76. 25 See: Nouazi Kemkeng, Carole Valérie, ‘Les rapports entre la Commission et la Cour Africaine des droits de l’homme et des peuples’, Ph.D. thesis, FSJP, University of Yaoundé II, 2009, 217 p.

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of the Ouagadougou Protocol and with Articles 114 to 123 of its new Rules of Procedure. In

fact, it could be said that the Commission, which was responsible for the creation of the Court,

did not intend to undermine its position, but at the same time did not establish an intelligible

and easily-run institutional system. There was an imperative need to examine the functional

consistency between the provisions of Article 29 of the Interim Rules of Procedure of the Court

and the abovementioned articles of the new Rules of the Commission. It appeared that the

Commission intended to position itself as the jurisdiction responsible for passing on petitions,

either according to the traditional procedure, through a report addressed to the political body:

the Assembly, or by sending the matter to the Court, with a judgement whose application could

not be decided, but merely monitored, by the Executive Council acting on behalf of the

Assembly. This configuration was quite similar to the one that existed in Europe prior to

Protocol 11 to the European Convention on Human Rights. In Article 118 of its new Rules of

Procedure, the Commission effectively redefined the relationships within the African

institutional system guaranteeing human rights by using the Court as an enforcement

mechanism for its decisions when they are not implemented by the parties concerned and by

creating a whole new form of legal remedy against massive rights violations (Article 118-3). The

validity of such a normative approach can be legitimately questioned.

The final whereas clause in the preamble to the Protocol on the African Court of Justice and

Human Rights26 states that ‘the present Protocol shall supplement the mandate and efforts of

other continental treaty bodies as well as national institutions in protecting human rights’. This

relationship to the regional or sub-regional courts is very important, since the courts are very

active in promoting human rights through legal channels, and it is imperative to reflect on the

linkages between the pan-African court of human rights and the sub-regional courts, with a

view to avoiding discrepancies in the interpretation of the same norms and dilemmas in the

States’ implementation of their undertakings, which, although they focus on the same

instrument, may not be of the same nature: traditional conventional undertakings in some

cases, and community undertakings in others. The examples of the ECOWAS Court of Justice27

and the SADC Tribunal are illustrative of their importance in terms of protection.26 See: Banzeu Dongue, R. F., ‘La Cour africaine de justice et des droits de l’homme’, Master’s Thesis, IRIC, Yaoundé, April 2011, 181 p.

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B. The concrete dynamics of protective action.

In terms of actual protective action, the Commission has been targeted with numerous

criticisms since it began its activities. The Commission has been spared no criticism, often

justifiably, sometimes not, regarding its policies on accepting litigants and reviewing

admissibility, its examinations of the merits of cases, its technical reasoning, and its normative

borrowings.28 The Commission was originally designed as a mechanism to help States resolve

disputes arising between them on human and peoples’ rights. In a nutshell, the original intent

was that human rights disputes brought before the Commission would mostly be disputes

between States, with disputes between individuals and States in a very distant second place.

That is why the Charter is expansive on the subject of State communications, and more

elliptical, and also very restrictive, in terms of ‘other communications’, which the Commission

was only intended to (should only?) handle upon a decision made by a certain number of its

members. The system has evolved to deal increasingly with individual and NGO claims as

opposed to inter-States claims, the only decision on the merits of such a case being that of the

Democratic Republic of Congo versus Burundi, Rwanda and Uganda.29 The system has had to

adapt to this unexpected yet inevitable reality, inherent in any truly credible human rights

system. Adaptation has focused on access to the body and admissibility of communications on

the one hand, and examinations of the merits of communications deemed admissible on the

other hand.

1. Accessing the protective mechanism and admissibility of communications.

Contrary to most other international mechanisms, litigants’ access to the Commission was and

is largely open. According to the well-established case-law of the Commission, there are

virtually no conditions as to the nature of the author of a petition, in keeping with the principle

of actio popularis.30 Although access to the Commission is open, it is more restricted compared

27 Olinga, A. D., ‘Les droits de l’homme peuvent-il soustraire un ex-dictateur à la justice ? L’affaire Hissène Habré contre Sénégal devant la Cour de justice de la CEDEAO’, RTDH, 2011, No., pp. 735-746.28 Olinga, A. D., ‘Les emprunts normatifs de la Commission africaine des droits de l’homme et des peuples aux systèmes européen et interaméricain de garantie des droits de l’homme’, RTDH, No. 62, 2005, pp. 499-537.29 Case 227/99, 20th Activity Report of the Commission, pp. 90 et seq.30 See Olinga, A. D., ‘Vers un contentieux objectif à Banjul ? L’affaire Lawyers for Human Rights contre Royaume du Swaziland devant la commission africaine des droits de l’homme et des peuples’, Revue juridique et politique des

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to the Court of Arusha, pursuant to Article 34-6 of the Ouagadougou Protocol, which calls for

recognition of the competence of the Court to receive any petition introduced by private

individuals, including NGOs. Some have viewed this as a step backwards for the African

system.31 In its work, the Commission has distinguished between acceptability and admissibility

per se. Viljoen and Yonaba felt that the distinction was artificial and should be abandoned.32 The

comment is indeed apposite, except that it is established by the instruments, specifically Article

55 of the Charter, and it could contribute to economies of procedure by acting as a preliminary

examination of admissibility ensuring that the Commission is not encumbered with patently

groundless communications. Furthermore, it should be noted that this step of ‘acceptability’ is

probably why the words ‘clearly groundless’ are absent, or virtually absent, from the case law

of the Commission.

Admissibility is an important step and, in this regard, the Commission alternates between

flexibility and rigour in examining the conditions of admissibility set forth in Article 56 of the

Charter. Two problems should be raised regarding the approach taken by the Commission,

beyond the issue of the system’s failings. On the one hand, there is a need to stabilize the case

law in relation to the cumulative nature of conditions of admissibility, and to draw the radical

conclusion that examinations of admissibility should not be continued once any condition,

whether or not it is raised by the author of the communication, is seen to be unmet. In our

view, there is no procedural justification, saving possibly an educational purpose, for

conducting systematic reviews of admissibility conditions33 and continuing to verify whether the

other conditions of admissibility have been met once it has been made clear that one of them is

Etats francophones, 1, 2007, pp. 28-52.31 Atangana Amougou, J. L., ‘Avancées et limites du système africain de protection des droits de l’homme : la naissance de la Cour africaine des droits de l’homme et des peuples’, Droits Fondamentaux, No. 3, janvier- décembre 2003, p. 178: ‘by introducing the procedure of additional declaration of jurisdiction regarding individual petitions, the Protocol seems (therefore) to take a step backwards in terms of practice in the African system’ (Our translation).32 Op. cit., p. 19.33 Without going very far back in the case law of the Commission, there are recent examples illustrating the discomfort that such an approach may cause. For instance, in case 306/05, Samuel Muzerengwa and 110 Others v./ Zimbabwe, 9th Extraordinary Session, 2011, paragraph 52, the Commission stated that: ‘even if the defendant State contests the admissibility of the communication on the basis of only three provisions of the Charter…, the Commission shall conduct a review of all seven conditions of admissibility, as stipulated by Article 56 of the Charter’. (Our translation)

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not! In fact, the Commission should focus first on the conditions of admissibility on whose

satisfaction the parties disagree, and only address the others if those conditions are deemed to

be satisfied in the eyes of the Commission, stopping as soon as any condition is found to be

unmet. On the other hand, the content and application of the conditions should be foreseeable,

and not vary in ways that are difficult to explain. This is the case, for instance, with the set of

exceptions to the condition of exhaustion of domestic remedies.34 More fundamentally, the

very procedural status of admissibility should be questioned, as one may ask why admissibility

is absolutely indispensable before merits, as suggested by the drafting of Article 105 of the new

Rules of Procedure. Before the Commission, the body on admissibility is independent and forms

an obstacle to examination of the merits. The procedure could be simplified, since the purpose

of a petition is to be examined on its merits. A passage before the body on admissibility should

hinge on whether an objection is raised by the defendant, and not be organized–as is currently

the case–as a mandatory independent step giving rise to a separate hearing, and ending in any

case with a ‘decision’, according to the terms of Article 107 of the Rules of Procedure.

34 On page 86 of its report on the implementation of the Charter (‘Rapport relatif à la mise en œuvre de la Charte…’, op. cit.) of September 2011, the Commission evoked on the one hand ‘the need to reduce the scope of the rule on the exhaustion of domestic remedies’ then states outright that ‘it would be desirable, over the long term, to eliminate this obstacle to accessing the Commission’. (Our translation) Obviously, considerable attention should be devoted to this condition, although it seems that the required tweaking of the conventional instrument would be difficult, and even inappropriate. The rule is an instrument of discipline for the applicants and the States, and it is key to the willingness of the States to submit, in fine, to the jurisdiction of the international bodies. Anything that could affect that should be treated with compunction. The idea of its outright elimination is neither realistic nor appropriate. On the other hand, it is up to the Commission and the other mechanisms to reduce its scope, as in the case law of the Commission, while avoiding cases of abuse by the States.

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2. Examination of the merits of communications deemed admissible.

Regarding merits, the Commission has progressively refined its working methods, particularly

since it has the latitude of using ‘any appropriate method of investigation’ (Article 46 of the

Charter). On the subject of amicable settlement, methodological rigour has progressively

replaced the body’s former attitude, which bordered on the cavalier, or even denial of justice.

After an equivocal approach based on the so-called ideology of ‘constructive dialogue’, a

system of amicable settlement that is more refined and hopefully more respectful of human

rights (Articles 108 and 109 of the Rules of Procedure) has been introduced. The Commission

has designed mechanisms for protection missions (Article 81 of the Rules of Procedure),

including on communications that are under examination.35 It can carry out investigations. The

procedure, marked by the seal of confidentiality, is theoretically carried out in the presence of

both parties, and the logic of actio popularis seems to have led to the introduction, in Article

99-16 of the Rules of Procedure, of the possibility of receiving ‘amicus curiae briefs on

communications’. It should be hoped that this innovation will not open the way to an artificial

legal star system that would unduly prolong procedures and transform the terms of trial; in our

opinion, the Commission should show greater caution in the implementation of this new

provision. For instance, it would be unfortunate if an amicus curiae brief formed grounds for

the inadmissibility of a communication, based on an argumentation that not even the

defendant put forward. The friends of the Commission must first of all be friends of the Charter,

friends of human rights, and friends of the victims of human rights violations.36

35 The Commission reviewed its protective missions in its ‘Rapport relatif à la mise en œuvre de la Charte africaine…’, p. 23.36 In case 306/05, Samuel Muzerengwa and 110 Others v./ Zimbabwe, the Commission received an amicus curiae brief from the Centre on Housing Rights and Evictions supporting the complaint. In paragraph 78, the Commission ruled as follows: ‘obitec dictum, in keeping with its well-established case law, the African Commission deems that the amicus curiae brief presented by the Centre on Housing Rights and Evictions supports the observations of the complainant. However, the Commission points out that the amicus curiae brief presented by the Centre on Housing Rights and Evictions does not focus on admissibility’. (Our translation from the French provided by the author)

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While the Commission was initially renowned for the poor quality of its reasoning,37 it is clear

today that it offers an expansive and high-quality body of case law; it can even be said that the

focus on quality has led to some discursive excesses, with long and detailed decisions that are

sometimes hard to follow, such as the decision on the case of the Endorois community versus

Kenya.38 Sometimes, a focus on bold action may lead to potentially embarrassing conclusions,

such as in the case of victims of post-election violence in north-western Cameroon, where the

Commission decided that the obligations arising from Article 1 of the Charter were obligations

of results. In any case, the Commission has developed a body of case law that is interesting to

analyse and a certain number of principles for the interpretation of the Charter that can only

help further the credibility of the protection system, provided that the pronouncements made

by the Commission are applied to the real experiences of African citizens.

II. Scope and implementation of pronouncements handed down in the area of

protection.

If any human rights action worthy of the name must aim to ensure that such rights are concrete

and effective, not just abstract and illusory, it is important to focus closely on the

pronouncements handed down in the area of protection by the competent jurisdictions, as well

as the implementation of said pronouncements.

A. Scope of the pronouncements produced in the area of protection.

In order to examine the scope of the pronouncements, their nature and content must first be

determined and their application must be described.

1. Diversity of the nature and content of the pronouncements.

According to the Charter of 1981, as repeatedly pointed out by all variations of legal theory, the

Commission must conclude its examinations of communications with a ‘report stating the facts

37 Hansungule, M., op. cit., pp. 312-313: ‘their decisions, especially in the initial stages, did not inspire any confidence especially among the members of the legal community. The Commission has largely been a fact finder rather a lawmaker. There are very few cases where it could be said that the Commission made a ground-breaking jurisprudence clarifying the standard for future cases’.38 Case 276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 27th Annual Report on the Activities of the Commission, pp. 104-172.

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and its findings. This report shall be sent to the States concerned and communicated to the

Assembly of Heads of State and Government’ (Article 52 of the Charter). Article 53 of the

Charter adds that ‘While transmitting its report, the Commission may make to the Assembly of

Heads of State and Government such recommendations as it deems useful’. This seems to apply

to State communications. Where ‘communications other than those by the States parties’ are

concerned, the original schema of the Charter is actually rather vague. It seems, based on a

reading of Article 58, that the Commission only had to ‘draw the attention of the Assembly’,

through totally undefined means, to cases whose consideration revealed serious or massive

human rights violations. In this case, the Assembly could ask the Commission to conduct an ‘in-

depth study’ and then to submit a ‘factual report, accompanied by its findings and

recommendations’. Communications other than State communications theoretically were to be

considered by the Commission only if they apparently revealed the existence of a series of

serious or massive violations.39 Whether they applied to State communications or ‘other’

communications, the activities of the Commission were concluded by a ‘report’, which could be

a report on consideration or an in-depth study report according to the case.

One of the major changes in the protection system in this regard was the semantic change

regarding what was issued by the Commission after considering a communication: the term

‘report’ was replaced by the term ‘decision’, expressing the will of the Commission for its

pronouncements to be considered decision-making acts. Article 110 of the Rules of Procedure

adopted in 2010 is unequivocal on this subject: ‘The Commission, after deliberation on the

submissions of both parties, shall adopt a decision on the merits of the Communication’. There is

a world of difference between the mere reports issued in 1981 and the decisions issued today.

A means of protection, the decision, has finally been attached, at least semantically,40 to the

protection mission and mandate, due to steps taken by the Banjul Commission itself, without

39 According to the Commission, this normative construction should be understood to mean that ‘the Heads of State and Government have a right to information such that the Commission must draw the attention of the Conference of Heads of State and Government to these situations’. See the ‘Rapport relatif à la mise en œuvre de la Charte africaine des droits de l’homme et des peuples. 30 ans après’, p. 38. This way of seeing things is a clever interpretation of the division of institutional roles between the Commission and the Assembly. The Assembly’s right to be informed is therefore not a condition for the Commission’s jurisdiction to review the communications submitted to it. 40 As one must certainly hope that the reality of decision-making effectively accompanies the term ‘decision’.

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any modification of the Charter in this respect. Legal purists may take exception to this means

of modifying the rule of law; however, the fact remains that it exists. That being the case, it is

important to avoid semantic confusion between resolutions, recommendations, etc. It seems

apparent that ‘Recommendations’, whose follow-up is referred to in Article 112 of the Rules of

Procedure of the Commission, were initially inserted in reports. But, if the normative

framework of the recommendation is no longer a report, but a decision, does the application of

a recommendation stop being a recommendation and enter the realm of decisions? It remains

that, unlike orders by the Court of Arusha, which are jurisdictional acts whose contents are

clearly defined in Article 62 of the Interim Rules of Procedure, the formal contents of the

‘decisions’ handed down by the Commission have not been defined. In any case, the

Commission, through tools such as Provisional Measures, Urgent Appeals41 and ‘reports’ which

define the terms of amicable settlement, styles itself as a genuine protection mechanism, a

‘quasi-jurisdiction’.42 On the subject of emergency situations and serious and massive human

rights violations, the Commission has virtually reshaped the logic of Article 58 of the Charter in

its Rules of Procedure, as can be seen in Articles 80 and 84 of the Rules. In Article 80, although

the Rule maintains the procedure of ‘drawing the attention of the Assembly’ to emergency

situations, it also adds actions towards other organs of the Union, such as the Peace and

Security Council, the Executive Council and the Chairperson of the African Union Commission,

and it grants the Banjul Commission power to take independent steps, namely ‘any appropriate

action’, including ‘urgent appeals’, whose normative status is not specified in terms of

protection, particularly since urgent appeals for protection must be distinguished from

resolutions which take the same interpellative approach. Article 84 also broadens the circle of

bodies to be addressed in the event of massive violations to include the Peace and Security

Council, but it further grants the Commission the possibility of referring to the African Court, a 41 It is true that the status of urgent appeals in the protection system is rather ambiguous, particularly since it is presented as a preventive measure addressed to the State, including where no legal proceedings are underway. It is a sort of provisional measure decided proprio motu by the Commission on the basis of ‘reliable information’ provided through various sources. On the other hand, we wonder whether urgent appeals are made individually by members of the Commission or by the Commission as an institution. It would be best if launching such appeals were not left up to the commissioners, however prestigious they may be, but instead were made a prerogative of the Commission as an institution addressing the States through its representative institution: the office of the Chairperson.42 See on this subject Illa Maikassoua, R., ‘Les effets des décisions de la Commission africaine des droits de l’homme et des peuples’. Ph.D. thesis in Law, Paris, 2011, 660 p.

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totally new possibility that ensues neither from an amendment to the Charter, nor from the

Protocol establishing the Court.

Because the contents of the decisions of the Commission have not been formally standardized,

the style of pronouncements in the area of protection is particularly varied; there is something

of a hodgepodge of exhortations, wishes, proposals for constitutional or legislative reform,

proposals to turn movements into political parties, compensation, offers of assistance for the

implementation of decisions, etc. The varied content of the pronouncements is not without an

impact on their application.

2. Application of pronouncements.

Other than current and future court orders, which necessarily have the force of res judicata, the

effects of the pronouncements of the Commission, be they reports or decisions, remain to be

clarified. Traditionally, such pronouncements, no matter what they are called, are not binding

on the parties to which they apply, particularly States parties, a fact that formed the basis for

the disillusioned analysis of the Banjul Commission. However, observation of relations between

the Commission, the Assembly and the States parties to the Charter reveals that, although the

pronouncements are not officially binding and compulsory, the parties to which they apply

behave as if they were. This circumstance is probably what spurred the Commission to lay

down in its case law the principle that, along with other regional mechanisms, its

pronouncements are an obligation on the States parties, which must comply in good faith. 43 By

making this pronouncement, the Commission settled the matter of the application of its

pronouncements in the area of protection through jurisprudence alone, without having to

amend any of the instruments. Hopefully the States will accept the Commission’s claim to

deciding itself on the application of its pronouncements, and they will be duly implemented

through suitable mechanisms.

B. Implementation and follow-up on pronouncements in the area of protection.

43 Case 211/98, Legal Resource Foundation v/ Zambia, May 2003, paragraph 68.

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For protection of human rights to be concrete and effective, it is important for pronouncements

to be reflected in actual facts. More broadly, the effectiveness of the decisions of control

mechanisms contributes to the quality and legitimacy of the justice rendered in the area of

human rights. In this regard, the Commission has been severely criticized, first and foremost by

its own former members. According to Barney Pityana, ‘the Commission… lacks the

enforcement mechanisms necessary for monitoring and executing its decisions of the

magnitude provided for in the Protocol for the African Court. This has been a major limitation

on the effectiveness of the African Commission’.44 It is important to return to the original

schema before reviewing the changes that have taken place in terms of the implementation of

pronouncements in the area of protection.

1. The initial schema of implementation.

Originally, there was no system of follow-up as such, since the Commission was to produce

reports and not hand down decisions to be executed or implemented. Rather, the Assembly

was, in the words of Prof. Sudre, a ‘necessary intermediary and protector of State

sovereignty’.45 The final dialogue was to take place between the Assembly and the State or

States instead of being a dialogue (even a ‘constructive’ one) between the Commission and the

States, even though, under the State communications procedure, the report submitted to the

Assembly was also ‘sent’ by the Commission directly to the States concerned. It remains that, as

if spurred by its protective mandate, the Commission has behaved de facto as if it had to ensure

that its ‘decisions’ were upheld by the States concerned. Country commissioners have been

placed in charge of monitoring implementation, as well as special rapporteurs according to

their specialized mandates. Such gentle nudging has not been without its usefulness; it has

contributed to putting the States in an uncomfortable position and prompted them to recognize

the existence of the Commission and the legitimacy of its concern over their attitude towards

human rights on the continent. Naturally, there have been major failures, ranging from States’

ignoring decisions on merits to their rejecting provisional measures, the paradigmatic example

44 Pityana, N. Barney, ‘Reflections on the African Court on human and peoples’ rights’, African Human Rights Law Journal, 2004, pp. 121-129.45 Op. cit., p. 116.

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of which was the request for a stay of the execution of Ken Saro Wiwa, which was superbly

ignored by the Nigerian authorities.46 However, examples of compliance with the Commission’s

decisions are probably more numerous, thereby laying the foundation for a new

implementation environment.47

2. Changes in implementation.

Setting aside the terms for the implementation of orders by the current African Court as

stipulated in Articles 29-2 of the Ouagadougou Protocol and 64-2 of the Interim Rules of

Procedure of the Court, and those of the future single Court, as set forth under the terms of

Article 46-4,5 of the Protocol establishing it, which essentially refer to intervention by the

Executive Council of the African Union ‘on behalf of the Assembly’ or direct action by the

Assembly itself, two major changes should be noted.

The first took place within the Commission itself and proceeds from the terms of Articles 112

and 118 of its Rules of Procedure. The first of those provisions deals very specifically with how

the recommendations issued by the Commission are followed up on. Beyond the deadlines set

for States Parties to inform the Commission of the measures taken to comply with its

recommendations and the monitoring role of the Rapporteur for the Communication,48 it

should also be noted that the Sub-Committee of the Permanent Representatives Committee

and the Executive Council on the Implementation of the Decisions of the African Union, are to

be called in on ‘any situations of non-compliance with the Commission’s decisions’. Regarding

46 The terms in which the Commission expressed its bitterness regarding the attitude of the Nigerian Government can be found in the decision on cases 137/94, 139/94, 154/96, 161/97, International PEN, Constitutional Rights, Interights on behalf of Ken Saro Wiwa Jr. and Civil Liberties Organisation v./ Nigeria, 31 October 1998, paragraphs 114 and 115: ‘114: … The Commission had hoped that the Government of Nigeria would respond positively to its request for a stay of execution pending the former’s determination of the communication before it. 115: This is a blot on the legal system of Nigeria which will not be easy to erase. To have carried out the execution in the face of pleas to the contrary by the Commission and world opinion is something which we pray will never happen again. That it is a violation of the Charter is an understatement’. 47 On these aspects, see the thesis by Illa Maikassoua referred to above, particularly the rich and detailed explanations in pages 500 to 577.48 On page 73 of its ‘Rapport relatif à la mise en œuvre…’ of 2011, the Commission refers to the ‘strong involvement of the Rapporteur of the Communication who has a fundamental role to play in the application’ of the recommendations of the Commission. We think that, as for urgent appeals, follow-up on the decisions of the Commission cannot be left up to commissioners/rapporteurs, but that it should be undertaken by the Commission as a whole and preferably by the instance that represents it in its institutional relations with the States. Any notion of individualization or personalization of follow-up should be discouraged.

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the implementation of its decisions, the Commission certainly seems to have taken advantage

of the revision of its Rules of Procedure to place itself on the same level as that granted by the

States to orders of the Court; perhaps even higher, if we take account of the number of

instances involved. Furthermore, the prospect of making information on follow-up activities

public, and possibly pointing up recalcitrant States, packs considerable pressure in terms of

stigmatization in the eyes of the public.

As for Article 118 of the Rules of Procedure, in the first three paragraphs, the Commission uses

the prospect of referring a case to a Court jurisdiction as a sort of sword of Damocles over the

heads of States Parties that fail to cooperate by implementing its pronouncements. Paragraph 1

is a mechanism rendering the States Parties liable for failure to comply with the

recommendations of the Commission, within the period stated, through a legal procedure

heretofore unheard of in the annals of international human rights justice, since the Commission

will send the State before the Court for non-compliance with its decision. Paragraph 2 opens up

the possibility of sanctions for failure to comply with provisional measures set forth by the

Commission, by referring the matter to the Court. In both cases, the Commission grounds its

arguments on an interpretation of Article 5 paragraph 1 a) of the Ouagadougou Protocol, which

reads: ‘The following are entitled to submit cases to the Court: a) The Commission’. One may be

surprised that such an elliptical clause could authorize the Commission to quietly go about

setting up new institutional balances and even new legal channels within the protection system.

The cause of human rights may justify its actions, but we must hope that the Commission will

not overuse that justification. Even if it has, in the case of the International Court of Justice,

served as a locus for the consecration of a mode of establishing a jurisdiction, the forum

prorogatum, which is not at all suggested by the Statute of the Court, it remains that the rules

of a judicial or quasi-judicial body are intended, or so it seems to me, essentially for organizing

the exercise of the jurisdictions attributed thereto, and not for inventing new ones at will, and

that by so doing it has changed the structure of the powers and functions intended by the

States.

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The second change concerns the relationships established, in a relatively decentralized

approach that should be made more intelligible, between the organs of the African Union with

specific powers whose exercise has links with human rights and the Banjul Commission. For

instance, Article 19 of the Protocol establishing the African Union Peace and Security Council

establishes relationships between the Council and the Banjul Commission which can have an

impact on the effective protection of rights.49 More generally, these interactions between

technical mechanisms and political bodies should be monitored and streamlined to better

control their impact in the interest of guaranteeing human and peoples’ rights.

Conclusion.

From its beginnings based on skeletal instruments and political pussyfooting, the African system

for the protection of rights has progressively grown stronger–albeit unevenly and in fits and

starts–through dynamics that should undoubtedly be put into perspective and made consistent

in the framework of an African architecture for the protection of human rights. The roles of the

various protagonists ought to be better defined, looking beyond parochial institutional concerns

with the single-minded intent of seeking the best possible formula to ensure effective human

and peoples’ rights.50 Obviously, there will be no avoiding phases of tinkering, Band-Aid

solutions and groping on the road to patiently and determinedly seeking a solution in the face

of often changing and never definitively settled political circumstances. We may only hope that,

based on the Charter, as declared by then OAU Secretary General Idé Oumarou at the opening

of the first meeting of the African Commission on Human and Peoples’ Rights on 2 November

1987, we can achieve ‘on behalf of Africa, of our peoples, of our governments, a stewardship of

49 In its ‘Rapport relatif à la mise en œuvre de la Charte…’ of September 2011, the Commission noted on page 40 that it drew the attention of the Peace and Security Council to the confrontations that took place in the Jos region of Nigeria in 2010.50 In this respect, we can only approve of the Commission’s statement on page 86 of its ‘Rapport relatif à la mise en œuvre de la Charte…’: ‘as is done in other regions of the world, the political organ should lend its support to the ‘technical’ or ‘jurisdictional’ organ whose mandate, it must be allowed, is completed as soon as it has said what is the law in relation to the cases referred to it. The connection between the judicial–or related–sphere and the political sphere is still insufficient in Africa’.

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human and peoples’ rights commensurate with the ambitions of our governments, our citizens

and our different peoples’.51

51 Document AFR/COM/HPR.SP.2 (), 2 November 1987, p. 10. (Our translation)