African Commission

The African Commission was established in 1987 and held its first session in Addis Ababa on 2 November 1987.⁵⁵ The Commission consists of eleven members appointed for a renewable term of

50 Chidi Anselm Odinkalu, 'Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights under the African Charter on Human and Peoples' Rights' (2001) 23 Human Rights Quarterly 327, 337; EI-Obaid Ahmed EI-Obaid & Kwadwo Appiagyei-Atua ‘Human Rights in Africa: A New Perspective on Linking the Past to the Present’

(1996) 41 McGill Law Journal 819, 846.

51 Manisuli Ssenyonjo, ‘The Development of Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights by the African Commission on Human and Peoples’ Rights’ (2015) 4 International Human Rights Law Review 147-193, 149.

52 cf ICCPR, Art 1; ICESCR, Art 1.

53 Cf Protocol of San Salvador, Art 11.

54 cf ICCPR, Arts 11, 16 & 17.

55 First Activity Report of the African Commission on Human and Peoples' Rights Covering the period from November 1987 through April 1988, adopted on 28 April 1988, reproduced in Rachel Murray & Malcolm Evans (eds) Documents of the African Commission on Human and Peoples' Rights (Hart Publishing 2001) 129; Rachel Murray, The African Commission on Human and Peoples’ Rights and International Law (Hart Publishing 2000)11.

six years.⁵⁶ Members of the Commission elect a chairperson and a vice-chairperson from among themselves for a term of two years, renewable only once.⁵⁷ The Commission is not a permanent body—members of the Commission discharge their responsibilities on a part-time basis. The African Charter requires that the commissioners meet at least once a year.⁵⁸ The Commission’s Rules of Procedure increase the number of meetings per year. The Rules require a minimum of two meetings in ordinary sessions, which last for about two weeks.⁵⁹ The Commission also meets in extraordinary sessions. Since 2008, the Commission usually holds two ordinary sessions and two extraordinary sessions; in total, four sessions in a year.⁶⁰

The seat of the Commission is separate from the AU headquarters in Addis Ababa, Ethiopia. The Secretariat of the Commission is based in Banjul, The Gambia, where the Commission holds most of its sessions. The Commission also holds its sessions in other member states of the AU. The Secretary of the Commission is appointed by the Chairperson of the AU Commission without consulting the African Commission.⁶¹

The African Commission establishes subsidiary mechanisms such as special rapporteurs, committees, and working groups.⁶² The Commission has established five special rapporteurs, four committees and seven working groups, in total 16 subsidiary mechanisms (also called special mechanisms).⁶³ The composition of special mechanisms is different from the special procedure of the UN Human Rights Council where mandate holders are different from members of treaty bodies. In the African Union system, all special rapporteurs are members of the African Commission. The chairpersons of all committees and working groups are also members of the Commission. Some subsidiary mechanisms (committees and working groups) exclusively comprise of members of the Commission, particularly when they relate to matters such as resolutions, communications, budget and staff. Other subsidiary mechanisms involve external experts.

In the area of economic, social and cultural rights, the African Commission established a subsidiary mechanism called the Working Group on Economic, Social and Cultural Rights by a resolution adopted in 2004.⁶⁴ The Resolution mandates the Working Group to prepare two draft documents:

Principles and Guidelines on Economic, Social and Cultural Rights, and revised reporting guidelines pertaining to economic, social and cultural rights. The Working Group completed these tasks in 2011.

In 2015, the Commission tasked the Working Group ‘to prepare principles and guidelines on the right to water to assist states in the implementation of their obligations.’⁶⁵ In February 2016, the Commission assigned the task of drafting a protocol to the African Charter on the Rights of Citizens to Social Protection and Social Security jointly to the Working Group on Economic, Social and Cultural

56 African Charter, Arts 30, 31 & 36.

57 African Charter, Art 42(1); Rules of Procedure of the African Commission on Human and Peoples’ Rights, adopted in May 2010 in Banjul, rule 12.

58 African Charter, Art 64(2).

59 African Commission’s Rules (2010), rule 26(1).

60 African Commission, Sessions at <http://www.achpr.org/sessions/> (accessed 10 May 2019).

61 Viljoen (n 41) 293.

62 African Commission’s Rules (2010), rule 23(1).

63 African Commission, Special Mechanisms, at <http://www.achpr.org/mechanisms/> (accessed 10 May 2019).

64 African Commission, Resolution on Economic, Social and Cultural Rights in Africa, ACHPR/Res.73(XXXVI)04, adopted during 36^th Ordinary Session held from 23 November to 7 December 2004 in Dakar, Senegal.

65 African Commission, Resolution on the Right to Water Obligations, ACHPR/Res.300 (EXT.OS/XVII)2015, adopted during 17th Extraordinary Session held from 19 to 28 February 2015 in Banjul, The Gambia.

Rights and the Working Group on the Rights of Older Persons and People with Disabilities in Africa.⁶⁶ As reconstituted in 2017, the Working Group on Economic, Social and Cultural Rights consists of four commissioners and ten external experts.⁶⁷

Article 45 of the African Charter empowers the African Commission to promote, protect, and interpret the African Charter. Article 45(1) of the Charter lists the promotional mandate of the Commission. Article 45(1)(a) of the Charter empowers the Commission to collect documents, undertake research, organize seminars, symposia and conferences, and disseminate information. In the area of economic, social and cultural rights, the Commission exercised this mandate and conducted a seminar in 2004 in Pretoria, South Africa.⁶⁸ The Seminar led to the adoption of the Pretoria Declaration on Economic, Social and Cultural Rights in Africa (Pretoria Declaration).⁶⁹

The promotional mandate of the African Commission includes its power to ‘formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples' rights’ according to Article 45(1)(b) of the Charter. Under this mandate, the Commission has adopted several documents. Of these documents, some are directly related to economic, social and cultural rights. As already noted, the Commission adopted the Pretoria Declaration in 2004. In 2011, it adopted the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (usually referred to as ‘Nairobi Principles and Guidelines’ or simply ‘Nairobi Principles’ in the Commission’s documents).⁷⁰ In the same year, the Commission adopted the State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (usually referred to as ‘Tunis Reporting Guidelines’

or simply ‘Tunis Guidelines’ in the Commission’s documents).⁷¹ In 2012 and 2014, the Commission adopted two general comments on the right to (reproductive) health of women under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol).⁷²

The African Commission cooperates with African and international institutions to discharge its promotional mandate according to Article 45(1)(c) of the African Charter. The institutions include

66 African Commission, Resolution on the Reconstitution and Renewal of the Mandate of the Working Group on Economic, Social and Cultural Rights in Africa and Renewal of the Appointment of its Chairperson and Members - ACHPR/Res.

391(LXI) 2017, adopted during 61st Ordinary Session held from 1 to 15 November 2017 in Banjul, The Gambia.

67 African Commission, Resolution on the Reconstitution and Renewal of the Mandate of the Working Group on Economic, Social and Cultural Rights in Africa and Renewal of the Appointment of its Chairperson and Members - ACHPR/Res.

391(LXI) 2017, adopted during 61st Ordinary Session held from 1 to 15 November 2017 in Banjul, The Gambia.

68 Sibonile Khoza ‘Promoting economic, social and cultural rights in Africa: The African Commission holds a seminar in Pretoria’ (2004) 4 African Human Rights Law Journal 334.

69 African Commission, Resolution on Economic, Social and Cultural Rights in Africa, ACHPR/Res.73(XXXVI)04, adopted during 36^th Ordinary Session held from 24 November to 7 December 2004 in Dakar, Senegal.

70 31st Activity Report of the African Commission on Human and Peoples’ Rights, EX.CL/717(XX), para xi. The Nairobi Principles are available at

http://www.achpr.org/files/instruments/economic-social-cultural/achpr_instr_guide_draft_esc_rights_eng.pdf (accessed 28 January 2019). See Resolutions of the African Commission ACHPR/Res. 391(LXI) 2017, ACHPR/Res. 316 (LVII) 15; ACHPR/Res.296 (EXT.OS/XVI) 14; ACHPR/Res.252 (LIV) 13; ACHPR/Res.193 (L) 11.

71 African Commission, 31st Activity Report, EX.CL/717(XX), para xi. See Activity reports of the African Commission, eg, 40th Activity Report (para xxi) & 39th Activity Report (para xviii); Resolutions of the African Commission, eg, ACHPR/Res. 346 (LVIII) 2016, ACHPR/Res.193 (L) 11.

72 African Commission, General Comments on Article 14 (1) (d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted at 52^nd Ordinary Session held from 9 to 22 October 2012 in Yamoussoukro, Côte d’Ivoire; General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted at its 55th Ordinary Session held from 28 April to 12 May 2014 in Luanda, Angola.

National Human Rights Institutions (NHRIs) and Non-Governmental Organisations (NGOs). The Commission grants affiliate status to NHRIs.⁷³ By 2018, it had given affiliate status to 29 NHRIs.⁷⁴ The Commission grants observer status to NGOs.⁷⁵ By 2018, the Commission had granted observer status to 518 NGOs.⁷⁶ In its resolutions, the Commission expressly states that it suspends or withdraws an NGO that fails to fulfil the criteria stipulated by the Commission. The Commission hardly ever suspends or withdraws the observer status of NGOs. In 2018, however, the Executive Council of the AU forced the Commission to withdraw observer status of one NGO called Coalition of African Lesbians (CAL).⁷⁷ NGOs with observer status play important roles in the work of the African Commission. They provide administrative, financial and technical support to the Commission and its subsidiary mechanisms.⁷⁸ They participate in developing principles and rules. They submit communications to the Commission on behalf of victims. They influence the work and priorities of the Commission.⁷⁹

State reporting is the core of the Commission’s promotional mandate.⁸⁰ Yet the African Charter does not expressly mandate the Commission to examine state reports. Article 62 of the African Charter requires states to submit a report every two years. The report is about the legislative and other measures taken to give effect to the rights guaranteed in the African Charter. Upon the Commission’s recommendation, the Assembly of Heads of State and Government of the OAU authorised the Commission to examine state reports in 1988.⁸¹ Now protocols to the African Charter expressly require states to submit periodic reports to the African Commission.⁸² Apart from few exceptions, states submit their reports to the African Commission.⁸³ In terms of regularity of submission, states differ. Some are up-to-date with their reporting obligations while others are late.⁸⁴ After the submission, state representatives present the report during public session of the Commission.

Members of the Commission ask questions—usually relating to their mandate. For example, the Chairperson of the Working Group on Economic, Social and Cultural Rights asks questions relating to economic, social and cultural rights.⁸⁵ The outcome of the consideration of state reports is called

73 African Commission, Resolution on the granting of Observer Status to National Human Rights Institutions in Africa, ACHPR/Res.31 (XXIV)98, adopted in Banjul on 31 October 1998; Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa, ACHPR/Res. 370 (LX) 2017, adopted on 22 May 2017 in Niamey, Niger.

74 African Commission, 45^th Activity Report, para 34.

75 African Commission, Resolution on the Criteria for Granting and Maintaining Observer Status to Non-Governmental Organizations working on Human and Peoples’ Rights in Africa, adopted at 59th Ordinary Session held from 21 October to 4 November 2016 in Banjul, The Gambia; Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organizations Working in the field of Human and Peoples’ Rights, adopted at 25th Ordinary Session held from 26 April to 5 May 1999 in Bujumbura, Burundi.

76 African Commission, 45^th Activity Reports, para 35.

77 African Commission, 45^th Activity Report, para 60.

78 Nobuntu Mbelle, ‘The Role of Non-governmental Organisations and National Human Rights Institutions at the African Commission’ in Rachel Murray & Malcolm D Evans (eds), The African Charter on Human and Peoples' Rights: the system in practice 1986-2008 (CUP 2008).

79 Mbelle (n 78) 306.

80 Viljoen (n 41) 349.

81 Resolution on the African Commission on Human and Peoples’ Rights, AHG/Res. 176 (XXIV), 24^th Ordinary Session held from 25 to 28 May 1988. Second Activity Report of the African Commission on Human and Peoples' Rights, para 31, reproduced in Rachel Murray & Malcolm Evans (eds) Documents of the African Commission on Human and Peoples' Rights (Hart Publishing 2001) 172.

82 Protocol on the Rights of Persons with Disabilities, Art 34(1); Protocol on the Rights of Older Persons, Art 22(1).

83 Five states, namely, Comoros, Equatorial Guinea, Guinea Bissau, Sao Tome and Principe and Somalia have never submitted their report by 2018. See African Commission, 45^th Activity Report, para 27.

84 See African Commission, 45^th Activity Report, para 27.

85 My personal observation at the 61^st session of the Commission held in Banjul, The Gambia, from 1 to 15 November 2017.

‘concluding observations’, a document that highlights positive developments as well as areas of concern and makes recommendations. The concerns raised and the recommendations made usually relate to mandates of the members of the Commission.

The Commission examines and determines allegations of human rights violations pursuant to its protection mandate stipulated under Article 45(2) of the African Charter. The Charter provides for both individual and inter-state complaints. The Commission received only one case from states.⁸⁶ All other cases were submitted to the Commission by individuals and NGOs. The Commission has a very liberal view on standing and receives communications from any person or organisation. By the end of 2018, the Commission had received 460 cases. Of the total number of cases received, 231 cases (around 50%) were pending before the Commission by the end of 2018.⁸⁷ It disposed of 229 communications over the last three decades.⁸⁸ It decided 96 cases on merits. Merit decisions constitute around 42% of decided cases. The Commission ruled 100 cases inadmissible. The remaining cases were stricken out or closed for lack of diligent prosecution or other reasons or disposed of on other procedural grounds. Some cases were withdrawn by the parties.

The African Charter does not expressly empower the Commission to order provisional measures.

According to its 2010 Rules, the Commission may order provisional measures to prevent irreparable harm to victims at any time after the receipt of the communication but before the determination on the merits.⁸⁹ Accordingly, the Commission has issued several provisional measures.⁹⁰ After examining a case on the merits, the Commission usually makes a declaration of violations by identifying specific violated provisions of the African Charter. In some cases, it makes reparation orders including the payment of compensation.⁹¹ It usually requires the determination of the amount of monetary compensation according to domestic laws. In some cases, it takes it upon itself to determine the exact amount of compensation—or at least part of the amount.⁹²

The Commission’s protective mandate was expanded by the Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights (African Court Protocol), which empowered the Commission to submit cases to the African Court.⁹³ The Commission can make referrals at any stage of its proceeding.⁹⁴ The Commission does not transfer all cases submitted to it, but makes referrals only in cases that fulfil three requirements. ⁹⁵ The first requirement relates to cases decided on the merits. The Commission refers such cases to the African Court when the respondent state is unwilling or fails to comply with the Commission’s recommendations.⁹⁶ Until March 2020, for more than a decade, the Commission did not refer any

86 Manisuli Ssenyonjo, ‘Responding to Human Rights Violations in Africa: Assessing the Role of the African Commission and Court on Human and Peoples’ Rights (1987–2018)’ (2018) 7 International Human Rights Law Review 1-42, 10. Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2004).

87 African Commission, 45^th Activity Report, para 32.

88 African Commission, Decision on Communications, at <http://www.achpr.org/communications/decisions/?sort=_date>

(accessed 12 May 2019).

89 African Commission’s Rules of Procedure (2010), rule 98(1).

90 Ssenyonjo, Responding to Human Rights Violations in Africa, (n 86) 21.

91 Ssenyonjo, Responding to Human Rights Violations in Africa, (n 86) 21.

92 See Equality Now and Ethiopian Women Lawyers Association (EWLA) v Federal Republic of Ethiopia Communication 341/2007, 57th Ordinary Session held from 4 to 18 November 2015 in Banjul; Mbiankeu Geneviève v Cameroon Communication No 389/10, adopted 6 May 2015 at 56th Ordinary Session held from 21 April to 7 May 2015 in Banjul.

93 Adopted by the OAU Assembly on 10 June 1998, entered into force on 25 January 2004, Art 5.

94 African Commission’s Rules (2010), rule 118(4).

95 African Commission’s Rules (2010), rule 118.

96 African Commission’s Rules (2010), rule 118(1).

case decided on the merits to the African Court.⁹⁷ The Commission is trying perhaps to avoid the possibility of conflicting findings on the merits.⁹⁸ The second requirement relates to provisional measures: the Commission refers such cases to the African Court when the respondent state fails to comply with provisional measures ordered by the Commission.⁹⁹ The last requirement of referral relates to serious or massive violation of human rights. The African Charter requires the Commission to draw the attention of the AU Assembly to ‘cases which reveal the existence of a series of serious or massive violations of human and peoples' rights.’¹⁰⁰ In addition, the Commission refers such cases to the African Court.¹⁰¹ By March 2019, the Commission referred only three cases to the African Court.¹⁰² The Commission made its first referral on 16 March 2011, which involves situations of serious and massive violations of human rights in Libya.¹⁰³ On 12 July 2012, the Commission made its second referral against Kenya in a case involving both the failure of the respondent state to comply with provisional measures and situations of serious and massive violations of human rights.¹⁰⁴ The third referral was made on 31 January 2013 against Libya, involving the failure of the respondent State to comply with provisional orders of the Commission.¹⁰⁵

Finally, the Commission has the power to interpret the Charter upon request by states, AU institutions or organisations recognised by the AU in accordance with Article 45(3) of the African Charter. However, the Commission’s documents do not show instances where the Commission has interpreted the Charter upon request. As a result, the Commission usually interprets the Charter under its promotional and protective mandates, for example, through its decision on individual communications (protective mandate) and principles and rules (promotional mandate).