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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 OLINGA

IRIC/University of Yaunde 11 Cameroon

October 2011

Introduction, issues to be explored.

Thirtyyears after the adoption of the African Charteron Human and Peoples’ Rights (ACHPR), and after more than two decades of institutionalpractice by the Banjul Commission, itis now possible to undertake an assessment of the African rights protectionsystem 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 alegal theorymarked 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 Africanversion. 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 ofMinisters, with 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 andLatin America [sic]has the Inter-American Courtof Human Rights’.[2]Few authors have done justice to the Africansystem in the form of anindependent analysis of its internal consistency and autonomy. Setting aside the analyses bordering on caricature that wentso 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 Europeansystem 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 June1987, the architect of the Charter, KébaMbaye, already pointed out certain‘grey areas’ in the system.[4] Studying the Charterthrough 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 reviewsfrom 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 havetestedthe 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 thepresent communication is, precisely, to see how the Banjul Commission and the OAU/AUhave addressed the issue of the failings of the ‘protection’component of the 1981Charter. The preamble to the Charteraffirms that the African States are‘firmly convinced of their duty to promote and protect human and peoples' rights’.The Commission established by the Charteris responsible for protectinghuman and peoples' rights in Africa. Although promotion and protection can be distinguished in theory, itis 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, thesyncretic view of the ideas of promotion and protection dates back to the time when the Charter was being drafted. The report presenting the draft Charterin Dakar in 1979 described the ideaof 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 takeappropriatemeasures toensure the protection of human rights’.[9] And, further on: ‘the Commission does not takedecisions. It simply reports to the Assembly of Heads of State and Government whichdecides what should be done with the conclusions andrecommendations’.[10] During the OAUinter-ministerial meeting on the draft Charter, held in Banjul from 7 to 19 January1981, the Chairman of the Group ofExperts which prepared the preliminary draft, KébaMbaye, 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 Africansystem 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-governmentalsphere over the technical one.

At the outset, the gap between the protection mandateconferred 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 usedessentially by individuals and NGOs. If the States had perceived it as such, they would certainly have added a consent clause regarding the Commission’sjurisdiction 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 protection[12]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 initiatedinstitutional 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 Charterhad placed in the hands of the political organof the pan-African organization:the Assembly. The story of the ‘protection’ dimension withinthe pan-African human rightssystem asdefined by the Charterof 1981 istherefore 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.

The idea of ‘failings’ is easy to comprehend in light of the goal of protection set forth in the preamble to the 1981Charter. 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 veryconcrete things must be done or not be done, and it would be strange if the Commission itself were to circumvent theprotection regime. This paper, quite evidently, focuses on the relationship between meansand mission. Given that the protection mission wasvested in the Assemblyand the Commission in 1981, how has this mission beenimplemented 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 insufficienciesand 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 organicaspect, the methodological aspect, the substantivenessof the pronouncements issued by the organ and the operational aspect of the implementation of thosepronouncements. The first two aspects will be treated in one section and the other two in a second part.

  1. Institutional dynamics and working methods within the protectionsystem.

The discourseon the failings of the protectivecomponent 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 whoserights have been violated and who wish to seek redress to have recourse to themechanism established by the pan-African instrument. The way thismechanism and its powers are organized, there is no reasonable hope for a victim of a human rights violation, even a massive one, to obtainredress’.[14]A double-barrelledcriticism was initially levelled at thesystem: a criticism of itsstructural consistency and acriticism 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.

  1. The dynamics of the team of protective organs.

All of the analyses that initially focused on the institutional system established by the 1981Charterhavepointed to this aspect. FredericSureblamed the‘rudimentary nature of theprotective mechanism’;[15]MicheleHansungulesaw 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 thatit 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.

TheAfrican Commission on Human and Peoples’ Rights[17]established by the Charteris a group of theoretically independent experts acting as a technical committee to assist the Assembly of Heads of State and Government inrights 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 hasevolved along with the tactics of theCommission’sconquest of margins oflegitimacy and autonomy from the Assembly, through subtle use of support from African and internationalcivilsociety, according to the circumstantial benevolence ortensionof the government body. The dialectic tension betweenthe expert pole and the politicalpole permeated the protective actions of the Commission, including in the area of interpreting the Charter, in which regard it oscillatedbetween boldness and self-restraint. The Commission wascreated ‘within the OAU’, and some authors have drawn some rather excessiveconclusions 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 beexaggerated. Theeleven-member Commission is indeeda part of the pan-African organization’s institutional system.[19]It should be noted that the Commission took care to mention its autonomyin the process ofits institutional self-promotion, ascan be seen from the emphaticformula inRule3 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 remainsto be seenwhether 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 theAssembly, 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 remainsthat for some time they combined their duties with political, governmental or administrative duties within their respective States, a situation that 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 substantiallyreinforced.[21]Emphasis should be laid on the need to ensure the qualifications of commissioners, since one of the elements of thecredibility of a human rights protection mechanism, or moregenerally any mechanism for the administration of justice[22]lies in the quality of the peopleassigned 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 PoliticalAffairs. Furthermore, it would be helpful to more clearly define the nature of the relationship between the two organizations. Where the Banjul Commission is concerned, itsprotective task has led it to build itself up institutionally by creating subsidiary mechanisms, including mostnotablySpecialRapporteurs. 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-Africanorganization, with a decisive contribution by the Commission in part, undertook to set up new structures.

  1. A change in the protectivemechanism: 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 pragmaticreasons byKébaMbayeand his groupof experts during the drafting of the Charter, to avoid being perceived as ‘provocative’in the eyes of the States,[23]made a serious come-back at the end of the 1990s, in apoliticaland 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 1981Charter, 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, theOAUmember States recognized that the system as it stood at the time was insufficient to ensure that the protective mandate entrusted to the Commissionwas fulfilled in an optimal manner. However, rather thanrelieving 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 betweenthe 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 rightslitigants, could have been done without.[25]The ideaofcomplementariness 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 thecomplementary relationship are not in a formal hierarchic relationship.

When the Ouagadougou Protocol entered into force, prior to the entry into force of the Protocolon the single Courtwhich combined the existing Courtof Arushaand the abortive Court ofJustice of the African Union, the system could have been described as follows: theBanjul Commission remained in its originaltête à têtewith theAssembly andthe Commission wascomplementary to the Court in terms of protection in keeping withArticles 2,6-3, 8 and 33 of the Ouagadougou Protocol and with Articles 114 to 123 of its newRules of Procedure. In fact, it could be said that the Commission, which was responsible for thecreation 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 InterimRules of Procedureof the Courtand 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 traditionalprocedure,through a report addressed to the political body: theAssembly, 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 theAssembly. This configuration was quite similar to the one that existed in Europe prior to Protocol 11 to the European Convention on Human Rights. InArticle 118 of its new Rules of Procedure, the Commission effectively redefined the relationships within the African institutional system guaranteeing human rightsby using the Courtas an enforcementmechanism for itsdecisions when they are not implemented by the parties concernedand by creating a whole newform of legal remedy againstmassiverights violations (Article 118-3). The validity of such a normative approach can be legitimately questioned.