The smallest country in mainland Africa – The Gambia – hosts a very important institution. Headquartered in Banjul, The Gambia, the African Commission on Human and Peoples’ Rights is the continent’s premier institution responsible for promoting and protecting human rights. This week, the city is hosting individuals from across the global human rights community to the 30th anniversary of the Commission.
Established under the African Charter on Human and Peoples’ Rights, the Commission has three overarching mandates – protective, promotional and interpretative. The protective mandate entails receiving and processing cases (referred to as communications) from individuals, NGOs and states involving violation of rights under the Charter; issuing urgent appeals; receiving and considering states and NGO reports; settlement of disputes; and working through its special mechanisms – committees, special rapporteurs and working groups – to advance human rights. Its promotional mandate involves public education and mobilization through workshops, seminars and conferences. The interpretative mandate is similar to the protective to the extent that it requires the Commission to interpret the Charter on application by individuals, NGOs, African Union organs and states.
The Commission organizes its work around bi-annual ordinary sessions and extraordinary sessions designed to deal with emergencies. In its thirty years of existence, the Commission has hosted 61 ordinary sessions. It has also entertained 663 cases – out of which 400 (60%) were concluded. As the case processing mechanism is in two stages – admissibility (designed to ascertain that the complaint meets the admissibility requirements under the Charter) and merit (designed to review the substantive case), it is important to point out that 100 cases (15%) were concluded on the merit. This is not necessarily a reflection of the industry of the commission as the Charter has strict admissibility requirements.
Under its protective mandate, the Commission has undertaken 90 fact-finding and promotional missions; received 79 state reports reviewing the condition of human rights; and granted observer and affiliate status to 511 NGOs and 37 national human rights institutions respectively. This status confers the right of audience and participation in the Commission’s activities. The Commission has also submitted 42 activity reports to African Union organs as required under the Charter.
Beyond the numbers, the Commission has made giant strides in terms of its evolution over 30 years. In 1987, the Commission had an all-male cast of 11 inaugural commissioners. Today, most commissioners are women. Indeed, the Commission has been led by women since 2007. In addition, the Commission has moved from a college of serving ministers, often at the highest levels to a conclave of experts in different fields of endeavor. Apparently, the shift from mostly authoritarian regimes in 1987 to majority democratic regimes in 2017 may have been responsible for this.
The Commission has produced some path-breaking model laws, guidelines and decisions. The Model Law on Access to Information in Africa adopted by the Commission at its extraordinary session in February 2013 has been instrumental in shaping freedom of information legislation across the continent. For its part, the Guidelines on the Conditions of Arrest, Police Custody and Pretrial Detention adopted at the 55th ordinary session in Luanda, Angola in May 2014 provides much needed guidance to policy makers and criminal justice practitioners on strengthening safeguards for arrest, police custody and pretrial detention.
The jurisprudence of the Commission is rich and robust. To take two examples, the SERAC decision against Nigeria is the leading precedent on economic, social and cultural rights while the John K Modise v Botswana decision established an important standard for the right to property, family life and equal access to the public service of a member state. However, these decisions –like many directed at states – do not easily lend themselves to prompt or full compliance.
Beside the challenge of compliance with decisions, the Commission has had to grapple with other problems, including poor funding; reluctance by some state parties to allow the Commission access to conduct fact-finding and other missions; inadequate specialized staff; slow response to emerging human rights challenges such as cyber security, the rise of violent extremism and trans-boundary crimes; and dependence on African Union political organs, which is both a challenge and an asset in that the Commission relies on these organs to pressure states to abide by their decisions.
Given the debate over the binding-ness of the Commission’s decisions and its implication on compliance, African states established a Court on Human and Peoples’ Rights in Arusha, Tanzania in 2004 to complement the protective mandate of the commission by issuing binding decisions. Regrettably, they included Article 34(6) in the instrument establishing the Court with a view to limiting access for NGOs and individuals until states make a specific declaration allowing access. Till date, only seven states have made the declaration.
The first 30 years of the Commission may have been a period of learning and adaptation, the next 30 ought to be devoted to stabilizing the Commission and guaranteeing its place as the preeminent institution for the protection and promotion of rights in Africa. This is only possible if stakeholders play their roles well.
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