Transcript African Commission on Human and Peoples` Rights

The African Commission on
Human and Peoples’ Rights
The African Charter
• Entered into force on 21 October 1986
• Aims to reflect the “historical tradition and values
of African civilization” (Preamble)
• Unique features:
– Recognises rights of peoples, such as rights of all
peoples to self-determination and right of peoples to
freely dispose of natural wealth
– Emphasises the duties of individuals towards the
community and state
– Gives people fleeing persecution the right to obtain
asylum (and not just to seek it)
Civil and Political Rights
• The majority of universally accepted civil and political
rights are contained in the Charter:
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freedom from discrimination (Articles 2 and 18(3))
equality (Article 3)
life and personal integrity (Article 4)
freedom from slavery (Article 5)
freedom from cruel, inhuman or degrading treatment
or punishment (Article 5)
– rights to due process concerning arrest and detention
(Article 6)
– right to a fair trial (Articles 7 and 25)
Civil and Political Rights
– freedom of religion (Article 8)
– freedom of information and expression (Article 9)
– freedom of association (Article 10)
– freedom of assembly (Article 11)
– freedom of movement (Article 12)
– freedom of political participation (Article 13)
– the right to property (Article 14)
Protocols that Expand
the Charter Rights
• Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in
Africa (2005)
• African Union Convention on Prevention and
Combating Corruption (2003)
• African Charter on the Rights and Welfare of
the Child (1999)
Statements that Expand
the Charter Rights
• Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa (2003)
• Declaration of Principles on Freedom of
Expression in Africa (2002)
• Guidelines and Measures for the Prohibition and
Prevention of Torture, Cruel, Inhuman or
Degrading Treatment or Punishment in Africa
(Robben Island Guidelines) (2002)
• Principles and Guidelines on Economic, Social and
Cultural Rights (2010)
Other International Law and Principles
• The Commission “shall draw inspiration from
international law and peoples’ rights” (Article
60)
• The Commission shall take into consideration
“other general or special international
conventions” (Article 61)
Claw-back clauses
• Sir Dawda K. Jawara v. the Gambia Communication
No. 147/95-149/96
• Article 6 : Every individual shall have the right to
liberty and to the security of his person. No one
may be deprived of his freedom except for reasons
and conditions previously laid down by law. In
particular, no one may be arbitrarily arrested or
detained.
• See also Media Rights Agenda and Others v.
Nigeria Communication No. 224/98
Who can bring a Complaint?
• Individuals and NGOs (Article 55)
Ordinarily, the author should have the consent of
the victim. However, when it is impossible to get
consent, the Commission might waive this
requirement (See e.g., Article 19 v State of Eritrea,
Communication No. 275/03); and Interights &
Ditschwanelo v Botswana, Communication No.
319/06)
• It is possible to bring a class or representative
action
• No need for observer status – anyone can
simply write in a communication
Admissibility: Article 56
Cases must:
• Indicate their authors even if authors request
anonymity
• Be compatible with the Constitutive Act of the AU or
with the present Charter
• Not be written in disparaging or insulting language
directed against the State concerned and its
institutions or to the AU
• Not be based exclusively on news disseminated
through the mass media
• Be sent after exhausting local remedies, if any, unless it
is obvious that this procedure is unduly prolonged
Admissibility: Article 56(5)
• Any local remedies must be “available,
effective and sufficient”
• See Majuru v. Zimbabwe and Jawara v. the
Gambia
– A remedy = “available” if the petitioner can pursue
it without impediment
– A remedy = “effective” if it offers a reasonable
prospect of success
– A remedy = “sufficient” if it is capable of
redressing the complaint
Available?
“One purpose of the exhaustion of local remedies
requirement is to give the domestic courts an
opportunity to decide upon cases before they are
brought to an international forum, thus avoiding
contradictory judgements of law at the national and
international levels. Where a right is not well
provided for in domestic law such that no case is
likely to be heard, potential conflict does not arise.”
(Social and Economic Rights Action Center (SERAC) and Center
for Economic and Social Rights (CESR) v. Nigeria
Communication No. 155/96)
Effective?
• Local remedies must be actually attempted: the
complainant cannot rely on past or other
experiences for not attempting
• In Article 19 v. Eritrea, the Commission held that
“it is incumbent on the Complainant to take all
necessary steps to exhaust, or at least attempt
the exhaustion of local remedies. It is not enough
for the Complainant to cast aspersion on the
ability of the domestic remedies of the State due
to isolated incidences”.
“It is not enough for a Complainant to simply conclude that
because the State failed to comply with a court decision in one
instance, it will fail to do comply in their own case. Each case
must be treated on its own merits. Generally, this Commission
requires Complainants to set out in their submissions the steps
taken to exhaust domestic remedies. They must provide some
prima facie evidence of an attempt to exhaust local remedies.”
Chinhamo v. Zimbabwe
Sufficient?
Civil v Criminal Remedies
• Are civil remedies sufficient where violations
constitute serious criminal offences? See Gok and
Guler v. Turkey; Assenov and Others v. Bulgaria
• No obligation to engage in private prosecution –
Zimbabwe NGO Forum v. Zimbabwe
• Civil remedies insufficient – Al Kheir v. Egypt
Admissibility: Article 56(5)
• Exceptions to Exhaustion of Local Remedies
Rule:
– Unduly prolonged remedies (e.g. appeal pending for
12 years or election petition pending for four years)
– Element of fear – fleeing one’s country – Jawara v. the
Gambia, but see later Majuru v. Zimbabwe, Chinhamo
v. Zimbabwe – burden of proof stricter
– Situation of serious or massive violations
(complainant must demonstrate nature and scope of
the violation – for example, that there are so many
victims and the violations are so serious that it is
impractical to try the claims before domestic courts)
Admissibility: Article 56(6)
Cases must:
• Be submitted within a reasonable period from
the time local remedies are exhausted, or
from the date the Commission is seized with
the matter
- No clear interpretation of “reasonable period”
- Advisable to submit as soon as possible
Admissibility: Article 56(6)
• Communications inadmissible after:
– 22 months (Michael Majuru v. Zimbabwe Communication
No. 308/05)
“Even if the Commission accepts that he fled the country and
needed time to settle, or that he was concerned for the safety of his
relatives, twenty two (22) months after fleeing the country is clearly
beyond a reasonable man’s understanding of reasonable period of
time.”
– 31 months (violations in Darfur) (Darfur Relief and
Documentation Centre v. Sudan Communication No.
310/05)
– 11 years (legality of death by hanging ) (Southern Africa
Human Rights NGO Network and Others v. Tanzania
Communication no. 333/06)
• Commission treats every case on its own merit
depending on the reasons given for the delay
• Try to file within six months
Admissibility: Article 56(7)
• Communications will be considered if they:
“Do not deal with cases which have been
settled by those States involved in accordance
with the principles of the Charter of the
United Nations, or the Constitutive Act of the
AU or the provisions of the present Charter.”
Merits
• Once a communication is declared admissible, the
Commission proceeds to consider the substantive
issues of the case
• According to Rule 108 of the Commission’s Rules of
Procedure:
– The complainant should respond with the arguments on
the merits within 60 days
– The respondent State party has a right of reply for 3
months after receiving the complainant’s arguments on
the merits
– The complainant then has 30 days to respond to the
State’s arguments
Remedies
• Remedies are determined by what the
complainants request in their
communication
• In order to encourage the Commission to
specify a remedy, complainants must
clearly request a remedy and justify why it
is appropriate
Types of Remedies
• Civil Liberties Union v Nigeria: repeal of
decrees/laws
• Amnesty International v. Zambia: permit
deportees to return to the country
• Modise v. Botswana: granting citizenship
• Other remedies:
– Reforming electoral laws
– Moral satisfaction
– Compensation
Recommendations (or Decisions)
of the Commission
• Commission’s final decisions are called
recommendations
• Recommendations are made after
consideration of the facts submitted by the
author, the State party’s observations (if
any) and the proceedings before
Commission
Recommendations (or Decisions)
of the Commission
• The recommendations remain confidential
until they are adopted by the Assembly of
the Heads of State of the AU at its annual
meeting (Article 59)
• The complainant then receives a letter from
the Secretariat of the Commission with the
decision
Enforcement
• Commission is quasi-judicial body – final
recommendations are therefore not legally
binding
• The enforcement of the Commission’s
decisions depends entirely on the good will of
the offending State
• The commission usually requires the State to
inform it, within 180 days, of the measures
taken to implement the recommendations
Enforcement
• It is left to the complainant to come up with a
strategy to ensure enforcement
• Institutions best placed to undertake
enforcement:
– Executive – proposing, changing laws
– Courts – for freeing detainees, determining quantum
of awards
– National human rights institutions – for
recommendations on compliance
- Cases can be brought by the Commission to the
African Court for non-enforcement if the State
has ratified the Protocol
Important cases
• Social and Economic Rights Action Center (SERAC) and Center for Economic
and Social Rights (CESR) v. Nigeria, Communication No. 155/96 (2001)
• Centre for Minority Rights Development (Kenya) and Minority Rights
Group International on behalf of Endorois Welfare Council v. Kenya,
Communication No. 276/03 (2009)
• Egyptian Initiative for Personal Rights and Interights v. Arab Republic of
Egypt (Taba Case), Communication No. 334/06 (2011)
• Zimbabwe NGO Forum v. Zimbabwe, Communication No. 245/02 (2006)
• Egyptian Initiative for Personal Rights and Interights v. Egypt (Al Kheir
Case), Communication No. 323/06 (2011)
• Katangese Peoples' Congress v. Zaire, Communication. No. 75/92 (1995)
• Givemore Chari (represented by Gabriel Shumba) v. Zimbabwe,
Communication No. 351/07 (2012)