How serious are we?
Reviewing the recent session of the African Commission on Human and Peoples' Rights, Curtis Doebbler*
finds progress made but many gaps remaining
Human rights in Africa frequently reach the international agenda in the context of civil wars, natural disasters, or exploitation. Little is heard about the efforts of African human rights institutions that are often slowly but consistently working to promote and sometimes ensure the human rights of Africans.
One of those efforts finds embodiment in the African Commission on Human and Peoples' Rights. This body has been established by the African Charter of Human and Peoples' Rights in 1980. At its twice-yearly ordinary sessions, each which lasts about two weeks, the Commission considers state reports, resolutions, declarations, and individual communications.
Nevertheless, Robert Eno, a senior legal officer at the Commission, lamented that, "the greatest obstacle to the Commissioner's work has been the lack of awareness about the work and even the existence of the Commission. Even those who know its existence do not know what it does and how it can be of assistance to them."
This ignorance of the African Commission may seem surprising as it hold sessions approximately every six months, frequently in a different African country, and last year the African Union spent almost $10 million on the Commission.
Its twice-a-year sessions draw between 15 and 35 governments, a handful of national human rights institutions, and about 100 members of civil society. The latter also participate in a pre-session NGO Forum. All of the participants can then contribute to the first four or five days of the meeting that are open to the public.
Recently, from 13 to 27 May 2009, the African Commission met in Banjul, Gambia, to consider the situation of human rights on the continent. Sixteen of Africa's 53 member states, a half dozen national human rights institutions, and more than 100 NGOs attended the session. Gambian NGOs were noticeably absent from the gathering. Present, however, were more than a dozen NGOs pushing for the rights of gay, lesbian and other groups based on their gender identification. This issue quickly became the most controversial on the agenda of the Commission's meeting and a constant topic of exchanges between NGOs and state representatives.
Uganda and Algeria, in particular, questioned whether the rights of gays and lesbians were human rights with which the Commission should be concerned. In a closed session, the Commission considered whether the rights of persons of diverse gender orientations fall under the African Charter of Human and Peoples' Rights. The results of this deliberation are likely to have wide-ranging consequences for the granting of observer status to NGOs supporting the rights of persons of diverse gender orientations. The decision is only likely to be made available later this year.
Meanwhile, the Commission adopted a lengthy report on indigenous people on the continent. The report reviewed the situation of indigenous people in a select number of countries in relation to the standards of the African Charter and the principles embodied in the International Labour Organisation's Convention No 169, which no African state has yet ratified.
States parties to the African Charter are responsible for presenting reports on the situation of human rights in their country every two years. Many states, however, have never presented reports. At this session, the government of Ethiopia, which was scheduled to present its report, was not able to do so. The Commission did, however, consider the state reports of Uganda and Benin. The Ugandan government appeared to take the process particularly seriously sending its minister of state for justice with a delegation of about a half dozen participants including the secretary of its National Human Rights Commission.
Over a period of two days the Ugandan delegates presented their report, listened to questions and statements by commissioners, and then responded to questions from the Commission. According to the Commission's guidelines on state reports, although NGOs cannot comment on state reports when they are presented before the Commission, these reports should be written with the cooperation of civil society. In Uganda's case, only two national NGOs had participated in drafting the state report and no "shadow report" by NGOs had been submitted.
The Ugandan delegation did give an extended and detailed introduction to its 58-page report and took more than an hour responding to the Commission's questions. The Ugandan minister particularly updated the Commission on the case of Susan Kigula, in which the Ugandan Supreme Court had decided that the death penalty was illegal as a mandatory penalty and where a prisoner had already been on death row for more than three years. The minister indicated that despite finding the death penalty to be a violation of the human right to be free from cruel and inhumane treatment, the Ugandan Supreme Court had given the Ugandan government three years to implement its decision, thus possibly leaving some prisoners on death row for several more years.
The Commission also received about 20 draft resolutions from the NGO Forum, three or four of which it is likely to adopt. Again what resolutions will be adopted may not be known until later this year.
Delays in the publicising of the decisions of the Commission have been a perennial problem for the Commission. While Professor Frans Vijloen of the Centre for Human Rights at the University of Pretoria has recommended to the Commission that it publish some of its decisions on its website as soon as they are adopted, this has neither been the practice of the Commission nor is it required by the new Rules of Procedures that are currently being considered.
Yet despite the often-extraordinary delays in making their decisions known, the Commission does adopt resolutions that encourage a government to implement its decisions or the decisions of other quasi-judicial and judicial bodies. According to the chairperson of the Commission, Justice Sanji Monageng, who will be leaving the Commission after this session having been elected to the International Criminal Court, "it is the responsibility of the African Commission to ensure respect for our judicial bodies."
The Commission has also adopted strong resolutions concerning the responsibility of the government of Sudan for ensuring human rights in Darfur. More recently, the Commission, itself is based in Gambia, adopted a resolution that recommended that Gambia implement a decision of the Economic Community of West African States (ECOWAS) court concerning the Daily Observer journalist Chief Ibrima Manneh who disappeared in 2007 and who his colleagues believe was taken by the Gambian police.
Although the African Charter states that the decisions of the Commission are recommendations, the Commission, in the words of Chairperson Monageng, has taken the view that its "decisions are decisions of the AU [Africa Union] and therefore should be respected." She also noted that the Commission will in the future request the Peace and Security Council of the AU, which she said has "significant powers", take action to ensure implementation of the Commission's decisions.
Such cooperation between African Union bodies and the Commission has not always been assured. Indeed, the Africa Union's Assembly of 53 heads of state and government and its Peace and Security Council have the authority to make binding decisions. Nevertheless, they have usually adopted the Commission's annual activity reports with little discussion and several times clashed with the Commission over the distribution of authority.
It is widely understood that the African Union is considering absorbing the Commission, which is currently an independent treaty body under the African Charter, into the structure of the African Union. This is part of its effort to consolidate African institutions.
Commission legal officer Eno also noted that the African Union is considering giving the recently created African Court of Justice, which will have authority to deal with human rights cases, criminal jurisdiction. NGOs expressed their concern that this move could pre-empt the jurisdiction of the International Criminal Court over African leaders.
In their general representations on the situation of human rights in Africa, most states expressed their support for the work of the Commission, but this stood in stark contrast to the fact that less than a third of state parties to the African Charter attended the session.
States often expressed their support for the Commission by highlighting broad human rights issues. The Algerian delegation, for example, drew attention to the economic and social inequalities that constitute discrimination against Africans. The delegation regretted the slow process made towards accomplishing the goals of the Durban process against racism and other forms of discrimination, including the economic exploitation of Africa. And they called for a special rapporteur on social and economic rights, which the Commission chairperson said might be difficult for financial reasons.
National human rights institutions from Burundi, South Africa, Uganda and Egypt drew attention to their own efforts to contribute to human rights education and training in their respective countries. The Uganda Human Rights Commission, for example, complained about the government's failure to implement its recommendations, especially in relation to the treatment of prisoners -- a statement to which the Ugandan government objected, exercising their right to reply against their own national institution for human rights.
Western based NGOs, often speaking through African affiliates, emphasised the situation in Darfur, urged the implementation of international criminal justice against African leaders, and called upon African states to accept the "duty to protect" that allows for foreign intervention to prevent human rights violations in African states.
Southern NGOs often highlighted local human rights problems and sometimes joined their governments in calling for greater attention to the social and economic inequalities between north and south.
Commissioner and Special Rapporteur on Human Rights Defenders, Reine Alapini-Gansou from Benin, stressed the importance of human rights defenders to the work of the Commission and the protection of human rights in Africa more generally. She admitted that, "the relationship between governments and NGOs is often hard. In some cases the government seems to think NGOs are opposed to states." She added: "Information is priority because state actors often don't know what human rights defenders do and some human rights defenders don't know what it means to be a human rights defender. If you are a human rights defender you don't need to fight the government, you only need to fight when you know that human rights are not protected."
According to Commissioner Alapini-Gansou, much more has to be done in terms of human rights education at the earliest levels so that people grow up knowing what their human rights are.
At a side-event sponsored by the Paris-based International Federation for Human Rights, the deputy prosecutor of the International Criminal Court (ICC), Fatou Bensouda, refuted allegations of bias that had been directed against the ICC. She emphasised that the Court prosecutes individuals because they have allegedly committed international crimes. As an example, she pointed out that the "Sudanese president, who is carrying out attacks in Darfur right now" is being prosecuted for hideous crimes against persons in Darfur. The event, which was intended to examine "International Justice in Africa", focussed on the prosecution of African leaders.
At the end of its meeting, in closed session, the Commission made decisions on an unspecified number of draft resolutions before it, commented on state reports, and decided on individual communications. Unfortunately, the results of these actions are often not available for many weeks, months, or even years. A group of approximately 15,000 Ethiopian refugees, for example, who submitted an urgent communication claiming their rights were endangered in Sudan, has been waiting almost a decade for a response to their allegations of serious human rights abuses.
Some maxims frequently associated with human rights mechanisms seem still not to have become rooted in the work of the African Commission. One of those is "justice delayed is justice denied".
* The writer is an international human rights lawyer and professor of law at An-Najah National University in Nablus, Palestine.