African Human Rights System

AFRICAN HUMAN RIGHTS SYSTEM
The African Commission on Human and Peoples’ Rights
The African Commission on Human and Peoples’ Rights (the “African Commission”) was
established in 1987 under the Banjul Charter to protect and promote human and peoples’ rights in
Africa. Prior to the adoption of the Constitutive Act of the African Union (the “Constitutive Act”),
the African commission was the only body with protective mandate in respect of human and
peoples’ rights in Africa.
History of the African Commission
In early days of its creation in May 1963, the Organization of African Unity (OAU) – the
predecessor of the African Union (AU) – mainly focused on the decolonization of Africa and the
eradication of apartheid. The promotion and protection of human rights was not a major priority
of the OAU.1 Therefore, political and economic independence, and liberation of Africa outweighed
individual liberty. During this period several heads of states perpetrated gross human rights
violations in defiance of rule of law.2
The Charter establishing the OAU was based on the principles of state sovereignty and non-
interference. The OAU and its members adopted a conservative interpretation of these concepts.
Therefore, it remained inactive when massive violations of human rights were committed. It
considered human rights to be in the realm of domestic matters, internal to the country. This is
different from the approach adopted by its successor, the AU which allows interference when gross
violations of human rights are committed in a Member State.3
Meanwhile, different groups including the Church, the Media, inter-governmental and non-
governmental organizations (NGOs) put pressure on the OAU by exposing serious violations of
human rights in Africa. The OAU was accused of abandoning its core goal of restoring dignity to
the victims of human rights abuses in Africa. in particular, it was accused of double standards for
1
However, the Preamble of the OAU Charter endorsed the principles of the Universal Declaration on Human Rights
of 1948.
2
Examples of such leaders include Jean Bedel Bokasa of Central African Republic, Mobutu Sese Seko of Zaire
(now DRC), Idi Amin Dada of Uganda, and Macias Nguema of Equatorial Guinea.
3
See Article 4 of the Constitutive Act of the African Union.
Overview of the African Human Rights System Raphael Kamuli
strongly condemning apartheid in South Africa while failing to condemn gross human rights
abuses committed by its own members. At the same time, the pressure groups were encouraging
the establishment of an African human rights protection mechanism.4 The pressure and
encouragement aimed at ensuring that OAU and its members prioritize the protection and
promotion of human rights in Africa.
In 1979, the OAU decided to place its members under international obligation through a positivist
approach. The decision was taken by the OAU Assembly of Heads of State and Government. At
this summit which was held in Monrovia, Liberia, a resolution was adopted calling on the OAU
Secretary General to form a Committee of experts which would draft an African Charter on Human
and People’s Rights, providing among other things, for mechanisms to promote and protect the
rights enshrined in the Charter.
Consequently, a group of experts began to work on the draft Charter in 1979. The first draft
reflected the history, values, traditions and economic needs of Africa. 5 The second draft of the
Charter was prepared in Banjul, the Gambia. This is the reason why this document is also referred
to as the “Banjul Charter”. The second draft was submitted to the OAU Assembly of Heads of
States and Government in Nairobi Kenya in 1981. The OAU Assembly of Heads of States and
Government unanimously adopted the Charter. The Charter came into force on 21 October 1986.
This date has been declared, and is being celebrated as an African Human Rights Day. Article 30
of the Charter provides for the African Commission to protect and promote human and peoples’
rights enshrined therein.
Functions of the African Commission
Article 30 of the Banjul Charter entrusts the African Commission with principal functions of
promoting and protecting human and peoples’ rights in Africa. The specific functions of the
African Commission have been spelt of in Article 45 of the Banjul Charter. These are:
4
There were different platforms and fora for such encouragement including the Lagos Conference in 1961 which
was organized by the International Commission of Jurists (ICJ) and the 1979 Monrovia Seminar on the
Establishment of Regional Commissions on Human Rights with Special Reference to Africa which was sponsored by
the UN.
5
President Leopold Seder Senghor of Senegal had called upon the experts to be inspired by the positive African
traditions and values and the real needs of Africa.
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(a) To promote human and peoples’ rights;
(b) To ensure the protection of human and peoples’ rights ;
(c) To interpret the provisions of the Banjul Charter; and
(d) To perform any other tasks which may be entrusted to it by the Assembly of Heads of State
and Government.
As regards the promotion of human and peoples’ rights, the African Commission is mandated to
collect documents, undertake studies and researches on African problems in the field of human
and peoples’ rights, organize seminars, symposia and conferences, disseminate information,
encourage domestic human rights institutions, and give its views or make recommendations to
Governments.
Moreover, in fulfilling its promotional mandate, the African Commission may formulate and lay
down principles and rules aimed at solving legal problems relating to human and peoples’ rights
and fundamental freedoms. The African Commission may also cooperate with other African and
international institutions concerned with the promotion and protection of human and peoples’
rights.
In a bid to strengthen cooperation with other human rights institutions, the African Commission
has been granting observer status to NGOs. The African Commission is also considering granting
a special status to National Human Rights Institutions (NHRIs) which the African Commission
sees as invaluable partners in the promotion of human and peoples’ rights in Africa. The African
Commission also undertakes promotional visits to Member States of the Banjul Charter.
The protective mandate requires the African Commission to take measures to ensure that the
citizens enjoy human and peoples’ rights enshrined in the Banjul Charter. This entails that the
African Commission should ensure that Member States of the Banjul Charter do not violate these
rights and that effective remedies should be awarded to victims of these violations. To achieve
this, the Banjul Charter provides for the “communication procedure” through which an individual,
NGO or a group of individual may submit a complaint against a state for violation of human rights.
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A complaint can also be submitted by a State Party against another State Party for violation of
human and peoples’ rights contained in the Banjul Charter.
The African Commission may undertake a provisional measure in emergency situation where the
life of the victim is in imminent danger.6 In this respect, the African Commission may request the
State Party to delay any action pending final determination of the matter concerned.
The African Commission may also send protective missions to the territory of any State Party to
investigate allegations of gross violations of human and peoples’ rights contained in the Banjul
Charter. At the conclusion of the mission, the African Commission makes recommendations to the
State Party concerned on how to improve the human rights situation.
As part of its protective mandate, the African Commission also receives and considers periodic
reports submitted by State Parties. The latter are required to submit reports to the African
Commission after every two years, on the legislative or other measures they have taken to give
effect to the rights and freedoms recognized in the Banjul Charter. The African Commission may
give recommendations after studying these reports. Individuals and NGOs are also permitted to
request copies of state reports from the Secretariat of the African Commission and study them.
Individuals and NGOs can prepare counter-reports to the African Commission.
The African Commission is also mandated to interpret the provisions of the Banjul Charter.7 A
State Party to the Banjul Charter or an Institution of the AU, or an African Organization recognized
by the AU is entitled to request the African Commission to interpret the Banjul Charter. However,
at the writing of this book, neither the OAU (or its successor, the AU) nor A State Party to the
Banjul Charter has requested the African Commission to interpret the any of the provisions of the
Banjul Charter.
However, some NGOs have approached the African Commission, through draft resolutions, for
the interpretation of some provisions in the Banjul Charter. Through this method, the African
Commission has adopted various resolutions which give clarity and broader interpretation to some
of the ambiguous provisions in the Banjul Charter.
6
Rule 111 of the Rules of Procedure of the African Commission.
7
See Article 45(3) of the Banjul Charter
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The African Commission can perform any other task which may be entrusted to it by the Assembly
of Heads of State and Government. At the writing of this book, the African Commission has not
been entrusted with any other task apart from those specifically conferred to it in the Banjul
Charter.
The African Commission is not among the organs of the African Union which are provided in the
Constitutive Act.8 The African Commission was incorporated into the African Union framework
at the Durban Summit held in July 2002. However, the African Commission has no proper status
in the structure and institutions of the African Union.
Membership
Members of the African Commission are called Commissioners. The African Commission is
composed of eleven commissioners chosen from amongst African personalities of the highest
reputation, known for their high morality, integrity and impartiality. 9 A Commissioner must be
competent in matters of human and peoples’ rights. Commissioners are elected for a renewable
term of six years by secret ballot by the Assembly of the African Union from a list of persons
nominated by State Parties to the Banjul Charter. No more than one national of the same state can
serve in the African Commission. Each State is entitled to nominate more than two candidates. In
electing Commissioners, the Assembly of the African Union particularly takes into account
candidate’s legal experience. In discharging their duties, the Commissioners enjoy diplomatic
privileges and immunities provided for in the General Convention on Privileges and Immunities
of the Organization of African Unity.
The Commissioners serve in their personal capacity and not as representatives of their respective
countries. Previously, some members of the African Commission held high political positions at
the domestic level. This affected the African Commission’s independence. In April 2005, the AU
issued a note verbale to member states prescribing guidelines for nomination of members of the
African Commission which excluded senior civil servants and diplomatic representatives.
8
According to Article 5 of the Constitutive Act of the African Union, the organs of the African Union include: The
Assembly of the Union, the Executive Council, the Pan-African Parliament, the Court of Justice, the Commission
(which acts as a Secretariat of the Union), the Permanent Representatives Committee, the Specialized Technical
Committees, the Economic, Social and Cultural Council, and the Financial Institutions.
9
Article 31 of the Banjul Charter
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A seat of a Commissioner will be declared vacant when the Commissioner dies or resigns or when
a Commissioners stops discharging his or her duties for any reason other than temporary absence.
In the latter scenario, other Commissioners must consent unanimously. Where a seat of the
Commissioner is declared vacant, the Assembly of the African Union is obligated to replace the
member whose seat has been declared vacant for the remaining period of his or her term, unless
the period is less than six months.10 The tenure of every Commissioner ends when his or her
successor assumes office.
Bureau and Secretariat of the African Commission
The African Commission elects its Chairman and Vice-Chairman as the Bureau of the Commission
for a two-year period. The Chairman and the Vice-Chairman are eligible for re-election. The
Bureau coordinates the activities of the African Commission and supervises and assesses the work
of the Secretariat of the African Commission. The Bureau is also entitled to take decisions on
matters of emergency between the sessions of the African Commission. However, the Bureau has
the obligation to present a report on the situation to members at the next session of the African
Commission.
The Secretary of the Commission is appointed by the Chairperson of the African Union
Commission. The function of the Secretary of the African Commission is to provide the staff
and services necessary for the effective discharge of the duties of the Commission. Cost of the
staff and services is borne by the AU.
In the proceedings of the African Commission, seven Commissioners form the quorum. In case of
equality of votes, the Chairman shall have the casting vote.
Functions of the African Commission
The African Commission is charged with the mandate to: (a) receive and consider State Reports;
(b) receive and consider inter-state communications; (b) receive and consider individual
10
See Article 39(3) of the Banjul Charter
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complaints; (c) facilitate amicable settlement of disputes; (d) request for interim measures; and (e)
issue general comments.
Communications
A communication refers to a ‘complaint’ (‘individual complaint’) brought before a treaty body
alleging the violation of a right contained in the treaty. Communications are important because
through adjudication process, tangible meaning is given to the provisions of the treaty, which may
otherwise remain theoretical and abstract.
The African Commission may receive: (i) inter-state communications;11 and (ii) communications
from individuals and organizations.12
Procedure for inter-state communications

There are two procedures governing the submission of inter-state communications:
First, the State party alleging that another State party has violated the provisions of the Banjul
Charter may send the communication to the African Commission after the State has attempted to
settle the dispute with the other State and failed. If after three months the dispute is not settled,
either State can submit the communication to the African Commission through the Chairman, and
notify the other State. In this scenario, the African Commission is mandated to receive and
consider the matter after the failure of amicable settlement.
Second, the State party alleging that another State party has violated the provisions of the Banjul
Charter may refer the matter directly to the African Commission without first entering into bilateral
negotiation with the accused State. The complaining State is required to address the
communication to the Chairman of the African Commission, the AU Secretary General and the
other State concerned.
Unlike the procedure with regard to individual complaints, inter-state communications must be
addressed specifically to the Chairman of the Commission. Moreover, the complaining State is
obligated to notify the other State itself, instead of the African Commission doing so.
11
See Article 47 of the Banjul Charter
12
See Article 55 of the Banjul Charter
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The Commission can proceed to consider an inter-State communication only after it has
ascertained that all local remedies have been exhausted, unless these are unduly prolonged.
In considering the dispute on merits the Commission may, if necessary, ask States to provide it
with all relevant information; and may invite States to make oral or written presentations. In
considering an inter-state communication, the primary goal of the Commission is to secure a
friendly settlement based on the respect for human and people’s rights. Where friendly settlement
fails the Commission prepares a report within a reasonable period of time and sends it to the States
concerned and communicates the report to the OAU Assembly. In its report to the Assembly, the
Commission can indicate such recommendation as it deems useful.
The Banjul Charter and the Rules of Procedure do not provide any procedure to convert individual
communications into inter-state communications. Implicit in that, the African Commission cannot
convert an individual complaint it is seized with into an inter-state communication. The initiation
of an inter-state complaint is dependent on the voluntary exercise of the sovereign will of a
particular State.13 As such, in a scenario where an individual complaint is submitted to the African
Commission against two or more State parties to the Banjul Charter on a matter that is capable of
being dealt with through an inter-state mechanism, the African Commission will refrain to consider
the matter as an inter-state communication.14
Individual communications
Who can submit a communication?
According to Article 55 of the Banjul Charter anyone, including individuals or NGOs can submit
a communication to the African Commission. The communication must allege a violation of one
or more rights included in the Banjul Charter. The communication should be submitted within a
reasonable period from the time local remedies are exhausted. A communication may be brought
against any State party to the Banjul Charter.
Registration of Communications
13
The African Commission, Interights (on behalf of Pan African Movement and Others) v. Eritrea and Ethiopia,
Communications 233/99 & 234/99, para. 44.
14
Ibid
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Communications meant for the African Commission are usually directed to the Secretariat of the
Commission which is based in Banjul. A communication must be addressed to the African
Commission. A communication which is not addressed to the African Commission will be
rendered inadmissible. The African Commission considers that it was not properly moved. This
applies even where the African Commission becomes aware of the communication through other
sources. In Korvah v. Liberia,15 for example, the communication was declared inadmissible, inter
alia, because it was not addressed to the African Commission but to the Liberian Government.
However, the African Commission seems not to be consistent on the practice. In Njoku v. Egypt,
it considered the communication which was originally sent to the Secretary General of the then
OAU.16 There is no provision either in the Banjul Charter or the Rules of Procedure of the
Commission relating to the prescribed form for individual communications. Therefore, the
prescribed form for submission of communications is not a prerequisite for the admissibility of
communication. An author may bring a complaint to the African Commission in any practicable
and reliable means, such as a letter.17
Once a communication is received, it is registered. The Secretariat acknowledges receipt of the

communication by sending the author a standard letter and text of the Banjul Charter. If more
information is required, the author of the communication will be informed accordingly. No
correspondence is sent to the State party concerned at this stage. However, registration of a
communication is no guarantee that it is going to be seized by the African Commission.
Where facts of the communication disclose that the latter is not against a State Party to the Banjul
Charter, the communication will not be registered and the author will be informed accordingly.
Seizure of communications
The Commission is seized with a communication once it is registered. It is the duty of the Secretary
of the Commission to prepare a list of all communications received by the Secretariat, other than
those of State Parties. The list is prepared before each session of the African Commission. The list
15
Communication 1/88.
16
Communication 40/90, para. 13.
17
The African Commission Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue officials) v.
Ethiopia, Communication 301/2005, para. 120.
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includes only communications concerning State Parties to the Banjul Charter.18 The Secretary then
submits the communications to the members of the African Commission. The commissioners will
indicate which communications shall be considered by the African Commission. Where at least
seven of the eleven commissioners indicate that they have received the communication and
approved seizure, the Secretariat will send a correspondence to the parties – the author and the
State party concerned. The communication between the Secretariat and the State party concerned
is normally done through note verbale. If the Secretariat does not receive minimum number of
seven responses, it will present the communication to all the commissioners at the Commission’s
next session.
Therefore, in its technical meaning “seizure” means a decision of the Commission to consider a
communication. The African Commission is seized with the communication if the latter meets the
following tests: (i) it alleges a prima facie violation of the Banjul Charter; and (ii) it complies with
Article 55 of the Banjul Charter. The decision to consider a communication is taken by simple
majority.19 Once the African Commission is seized with the communication, the Secretariat will
inform the parties that the communication shall be considered on admissibility at the
Commission’s next session. The parties will be required to submit evidence and comments on
admissibility within a time limit of two months from the date the correspondence was written. 20
Even where the complainant fails to submit evidence and submissions on admissibility of the
communication, the Commission (through the Secretariat) may opt to forward the submissions of
the Respondent State and request the complainant to respond to the submissions within a specified
time. If the complainant further fails to make any such submissions or correspondence, the African
Commission will strike out the communication for lack of due diligence in prosecuting the case.21
Similarly, where the author fails or neglects to respond to the African Commission’s inquiries or
where the author shows no interest in pursuing the case, the African Commission will close the
18
Rule 102(2) of the African Commission’s Rules of Procedure.
19
Article 55(2) of the Banjul Charter.
20
Rule 105(1) of the Commission’s Rules of Procedure
21
The African Commission Artur Margaryan and Artur Sargsyan v. Kenya, Communication 407/11, paras. 25-33.
Also see, Mr. Brahima Koné and Mr Tiéoulé Diarra v. Côte d’Ivoire, Communication 289/2004.
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case.22 In case where the complainant dies and his legal successor cannot be contacted the
communication will be declared inadmissible.23
Where a communication is brought against more than one State and the African Commission gives
ample opportunity for them to make submissions on admissibility of the matter, and some fail to
make such submissions, the Commission will proceed to consider the admissibility of the matter
based on the information of the information from other Respondent State(s) (if any). The decision
of the African Commission on the admissibility of such communication will bind all Respondent
States regardless whether or not they made submissions on admissibility of the communication.24
This rule is founded on the idea that by ratifying the Banjul Charter, these States signified their
commitment to cooperate with the African Commission and to abide by all decisions taken by it.25
The respondent State is required to consider the allegations leveled against it in good faith and to
furnish the African Commission with all information at its disposal to enable the Commission to
come to an equitable decision. If the respondent State refuses or fails to bring its submissions on
admissibility to the African Commission, the latter will proceed to deal with the matter on
admissibility based on the facts presented by the author.26 But where both parties fail or refuse,
upon the Commission’s request, to give additional information on an important issue of
admissibility, say exhaustion of local remedies, the communication will be declared
inadmissible.27 Where the African Commission fails to form a precise opinion regarding the facts
22
The African Commission, Maria Baes v. Zaire, Communication 31/89, para. 2; Committee for the Defence of
Human Rights (on behalf of Madike) v. Nigeria, Communication 62/91, para. 2; Interights and Another v. Nigeria,
Communication 248/2002, para.16; and Sana Dumbuya v. The Gambia, Communication 127/94, para.2.
23
The African Commission, Monja Joana v. Madagascar, Communication 108/93, para.11
24
The African Commission, Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe)
v. Angola and Thirteen Others, Communication 409/2012.
25
Democratic Republic of Congo v. Burundi, Rwanda and Uganda, Communication 227/1999, paras 51-53.
26
See for example, The African Commission, Social and Economic Rights Action Centre (SERAC) and Another v.
Nigeria, Communication 155/1996; Lawyers for Human Rights v. Swaziland, Communication 251/2002; Union
Interafricaine des Droits de I’Homme and Others v. Angola, Communication 159/96, para. 10; Institute for Human
Rights and Development in Africa v. Angola, Communication 292/2004, para. 34; Centre for Minority Rights
Development and Others v. Kenya, Communication 276/2003, para. 57.
27
See for example, The African Commission, Motale Zacharia Sakwe v. Cameroon, Communication 230/99, para.
19; Nziwa Buyingo v. Uganda, Communication 8/88, para. 3.; Union des Scolaires Nigériens and Another v.
Nigeria, Communication 43/90, paras. 6 & 9; Samwel WoodS II and Another v. Liberia, Communication 256/2002,
paras.15-15, and Egyptian Organization for Human Rights v. Egypt, Communication 201/97, para. 15, where both
parties did not respondent to the Commission’s request for additional information on the issue of exhaustion of local
remedies, despite repeated reminders.
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of which it was seized due to the failure of the complainant to give additional information upon
request, the Commission will consider that as an indication of non-exhaustion of local remedies.28
When a communication has been declared admissible, the African Commission shall set a period
of sixty (60) days for the complainant to submit his or her observations on the merits. 29 When a
deadline is fixed for a particular submission, either party may apply to the African Commission
for extension of the period stipulated.30 The African Commission may grant an extension of time
for a period not longer than one (1) month. If the complainant fails to make such submissions
within sixty (60) days or the extended period, the African Commission will strike out the
communication for lack of diligent prosecution.31 For example, in AFTRADEMOP and Global
Welfare Association (on behalf of the Moko-oh Indigenous Peoples of Cameroon v. Cameroon,32
upon declaring the communication admissible, the African Commission requested the complainant
to make its submissions on the Merits of the Communication within sixty (60) days. Having not
received any submissions or correspondence at the expiry of the period, the African Commission
gave the complainant the later one month deadline to make its submissions on the Merits. The
African Commission did not receive any submission(s) or correspondence from the complainant
during the extended period. After the additional efforts to contact the complainant proved futile,
the African Commission proceeded to strike out the communication for lack of diligent
prosecution.
The complainant may request the African Commission to consider his or her initial Complaint as
submissions on the merits. If the complainant opts to use his or her initial Complaint as
submissions on the merits, the African Commission will give notice of that to the Respondent
State.
Withdrawal and re-opening of a communication
28
The African Commission, SOS-Esclaves v. Mauritania, Communication 198/97, para.16
29
Rule 108(1) of the Commission’s Rule of Procedure.
30
Rule 113 of the Commission’s Rule of Procedure.
31
The African Commission, Mr. Kizila Watumbulwa v. Democratic Republic of Congo, Communication 285/2004,
paras. 22-23.
32
Communication 336/2007
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The complainant may withdraw the communication. The complainant who wishes to withdraw his
or her communication should inform the African Commission. Where the Commission receives a
notice of withdrawal it will take note of it and close the file.33 The notice may be oral or written.
The complainant need not give reasons for withdrawal. Where the complainant gives the notice
orally or through email, it is normally expected that he or she will subsequently give a written
confirmation of the withdrawal. However, even if the complainant fails to give a written
confirmation, the file will still be closed. In Centre for Advancement of Democracy, Social Justice,
Conflict Resolution and Human Welfare v. Nigeria34, the complainant requested the withdrawal of
the communication via email but failed to give a written confirmation despite various reminders.
The African Commission decided to close the file for lack of further interest in the communication
by the complainant.
A complainant whose communication has been declared inadmissible may request the
Commission to review its decision on admissibility.35 Upon consideration of the request for
review, the Commission may decide to reopen the communication. If the Commission reaches a
decision to reopen the communication, it will request both parties to re-submit on admissibility. In
Tsatsu Tsikata v. Ghana,36The complainant requested the Commission to review its decision which
had declared a communication inadmissible on the grounds that the complainant had not exhausted
local remedies. Upon consideration of the re-submissions of parties on admissibility, the
Commission reversed its previous decision and declared the communication admissible.
Locus standi
Locus standi is a basic principle in both municipal and international law that qualifies a party with
legal capacity to approach any judicial or quasi-judicial body and establishes a nexus between a
33
The African Commission, Institute for Human Rights and Development (on behalf of Mboyo) v. Democratic
Republic of the Congo, Communication 238/2001; Arab Organization for Human Rights v. Egypt, Communication
244/2001; Interights and Another v. Egypt, Communication 312/2005; Interights v. Egypt, Communication
261/2002.
34
Communication 273/2003.
35
Rule 118(2) of the Commission’s Rules of Procedure.
36
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party and a case. It is generally accepted to mean the “right to appear” before any judicial or quasi-
judicial body.37
Neither the Banjul Charter nor the Rules of Procedure of the Commission makes provisions on the
locus standi of parties before it. The African Commission has, however, through its practice and
jurisprudence adopted the actio popularis principle allowing everyone the legal interest and
capacity to file a communication, for its consideration.38 Hence, the African Commission may be
seized with the matter authored not only by victims but also from other individuals, pressure groups
or organizations.
To bring the matter before the African Commission, the existence of direct interest (e.g. by being
a victim) is not a requirement. All that the Banjul Charter requires is the disclosure of the identity
of the author of the communication, regardless of him or her or it being the actual victim of the
alleged violation.
The victim may be represented by any other individual regardless of nationality, ethnicity, sex,
social status, language, race, religion etc. The victim may also be represented by an organization.
The victim may be represented through express consent or by self-initiative of author representing
the victim.39 Representation may be done irrespective of the fact that the victim is capable of
representing himself or herself.
There is no requirement of “citizenship” for the authorship of a communication. Therefore, the

person or organization submitting the communication need not be a national or be registered in the
territory of the Respondent State. Any interested person or organization can bring a
communication on behalf of a victim and such individual or organization need not be a citizen or
be registered within a State party to the Banjul Charter.40 The African Commission will entertain
a communication brought by such person or organization as long as it meets the admissibility
criteria.
37
Encyclopedia of Public International Law, (EPIL), Vol. IV, p. 594.
38
The African Commission, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue officials) v.
Ethiopia, Communication 301/2005, para. 61
39
The African Commission, Bakweri Land Claims Committee v. Cameroon, Communication, 206/02, para. 46.
40
Ethiopia, Communication 301/2005, para. 64
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The rationale for the broadened concept of locus standi is the practical understanding, in Africa,
that victims may face various difficulties in accessing national and international channels of
remedy or the channels may be dangerous to pursue.
Joinder of parties
Joinder of parties refers to the act of uniting as parties to a case all persons who have the same
rights or against whom rights are claimed, as either co-complainants or co-respondents. Therefore,
joinder of parties allows multiple complainants or respondents to join in a case if each of their
claims arises from the same transaction or occurrence, or are of a similar nature or if there is a
common question of law or fact relating all their claims.41 Hence the essential elements of the rule
of joinder of parties are as follows:
(a) Each of the complainants must be bringing or entitled to bring an action against the same
respondent;
(b) The claims should arise out of the same acts or transactions; and
(c) There should be a common question of law or fact.
Neither the Banjul Charter nor the Rules of Procedure of the Commission makes provisions on the
joinder of parties before the African Commission. However, the Commission may jointly consider
two or more communications, if it deems it good.42 The power of the African Commission to
make joinder of parties is discretionary. In reaching the decision to make joinder of parties or to
join communications, the African Commission takes into account the facts presented.
In Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue officials) v. Ethiopia,43
IHRDA had applied to be joined in the communication as co-authors. The African Commission
granted the application on two reasons: (i) there is no jurisprudential or legal bar that precludes
such an applicant to be joined as co-authors; and (ii) owing to the withdrawal of the first author,
there was a possibility of continued suffering of the victims if the application were to be denied.
The African Commission held that a denial of IHRDA to be joined as co-author would be contrary
41
Ibid, para. 67.
42
Rule 114(2) of the Commission’s Rules of Procedure.
43
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to the spirit of the Banjul Charter which mandates the African Commission to ensure the protection
of human and peoples’ rights in Africa. The African Commission also held that even where the
original complainant formally withdraws from the communication, the African Commission may
still proceed to examine the communication if it deems it appropriate. Although neither the Banjul
Charter nor the Rules of Procedure of the Commission makes provisions to this effect, there is no
legal bar precluding the African Commission from adopting such a progressive approach to the
protection of human rights. This approach has been taken by other international human rights
bodies such as the Inter-American Commission of Human Rights.
Admissibility of a communication
Once seizure of a communication is approved, the African Commission makes a decision

regarding its admissibility. The Banjul Charter sets out seven criteria for a communication to be
considered. Therefore, admissibility of a communication is the determination by the African
Commission to see whether these criteria have been met. In principle, all the criteria must be met.
Otherwise the communication will be declared inadmissible and the case closed.
The decision on admissibility can only be made subsequently to transmitting the communication
or a summary thereof to the State party concerned and after the latter is afforded the opportunity
to make its observations. This emanates from the right to be heard. The parties will be given the
time limit of three months, within which to submit their comments.
The African Commission analyzes parties’ submissions and makes a decision on admissibility. In
so doing, it takes into account the principles of international human rights law, which is basically
aimed at protecting individuals from violations of their human rights and fundamental freedoms.
The Commission must give reasons for its decision on admissibility.
After making a decision on admissibility, this is transmitted to the parties. The decision on
admissibility is final. Hence where the communication is declared inadmissible the consideration
of the communication will automatically end. However, a communication declared inadmissible
may be reviewed at a later date if there are compelling grounds. The African Commission may
only reconsider its decision upon a request for reconsideration.44 A party seeking the
44
Rule 118(2) of the African Commission’s Rules of Procedure.
16 | P a g e
reconsideration or review of decision must show that the African Commission failed to take into
account the admissibility criteria, or it erred in reaching its decision. 45 The review must be based
on the same facts as was initially before the African Commission.46 This means that a party cannot
introduce new facts or information at the review stage.
In the event where the communication is declared admissible, the parties will be informed and
requested to send their observations on the merits. Declaring a communication admissible does
not mean the State party concerned has violated the provisions of the Banjul Charter. It simply
means that that the communication meets the criteria necessary for it to be considered on the
merits.
Admissibility criteria
Article 56 of the Banjul Charter sets out the admissibility criteria for individual and similar
communication as follows:
(a) The communication should indicate the author(s) even if the latter request anonymity;
(b) The communication should be compatible with the Constitutive Act of the African Union
or the Banjul Charter;
(c) The communication should not be written in disparaging or insulting language directed
against the State concerned and its institutions or to the African Union;
(d) The communication should not be based exclusively on news disseminated through the
mass media;
(e) The communication should be sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged.
(f) The communication should be submitted within a reasonable period from the time local
remedies are exhausted; and
45
The African Commission, Curtis Doebbler v. Sudan, Communication 235/2000, para. 82.
46
Ibid
17 | P a g e
(g) The communication should not deal with cases which have been settled in accordance with
the principles of the UN Charter or the Constitutive Act of the African Union or the
provisions of the Banjul Charter.
These seven criteria are conjunctive (cumulative). This means that they must all be met before the
African Commission can declare a communication admissible. If any of the criteria is not met, the
African Commission will declare the communication inadmissible, unless the author provides
sufficient justifications why any of the criteria could not be met. The justification for these criteria
is to ensure that every communication is properly brought before the African Commission.
Moreover the criteria prevent frivolous and vexatious communications from reaching the merits
stage.
(a) The communication should indicate the author(s)
As a matter of principle, the author of a communication must indicate his or her name and address.
These make correspondence between the author and the Commission easier. If the author is an
NGO, at least one of the NGO’s representatives should be indicated. If the communication bears
no name or address, it will not be considered.47 This criterion requires a communication to indicate
its author(s) and not the victim(s) of the violations.48 Besides it is not necessary for the author(s)
or victim(s) to be present even where some link between the author and the victim exists.49
The author may, however, request to remain anonymous. Where the African Commission grants
the request, the communication will be assigned a letter of alphabet (e.g. X) and it will addressed
by the State party concerned as such. In Communication 258/2002, the complainant was assigned
the name Miss “A”.50 The author need not give reasons for wishing to be anonymous.
The right to remain anonymous is, however, rarely exercised. At the writing of this book, out of
all communications submitted to the African Commission, only one author has requested for
anonymity.
47
The African Commission, Ibrahima Dioumessi and Others v. Guinea, Communication70/92, paras 11-12
48
The African Commission, Malawi African Association and Others v. Mauritania, Consolidated Communications
54/91, 61/91, 98/93, 164/97-196/97, 210/98
49
The African Commission, FIDH and Others v. Senegal, Communication 304/2005. para.40
50
Miss A v. Cameroon, Communication 258/2002.
18 | P a g e
(b) Compatibility with the Constitutive Act of the African Union or the Banjul Charter
Neither the Banjul Charter nor the Rules of Procedure of the Commission define the term
“compatibility”. However, the African Commission has adopted the understanding that
“compatibility” generally denotes ‘in compliance with ‘and ‘conformity with’ or ‘not contrary to
or against’.51
With respect to the Constitutive Act of the African Union, the African Commission will not admit
any communication submitted before it, which seeks a remedy or redress which if granted, will
contravene any of the provisions of the said Constitutive Act. In Katangese’s Peoples’ Congress
v. Zaire,52 for instance, the African Commission rejected a redress which infringed a doctrine of
Uti Possidetis Juris enshrined in Article 3 of the then OAU Charter and consequently declared the
communication inadmissible.
The principle of compatibility with the Banjul Charter presupposes that four elements must be
satisfied to make a communication compatible with the Banjul Charter:
i. The communication may show evidence of prima facie violation (ratione materiae);
ii. The communication must be brought against a State party to the Banjul Charter and
must be brought by someone who is competent to do so (ratione personae);
iii. The communication must be based on events which occurred within the period of the
Banjul Charter’s application to the State concerned (ratione temporis), except where
there is evidence of continuing violation;
iv. The alleged violation(s) must have occurred within the territorial sphere within which
the Banjul Charter applies (ratione loci).
i. Prima facie violation (ratione materiae);
In order to be admissible, the communication should invoke the provisions of the Banjul Charter
alleged to have been violated and/or the principles enshrined in the Constitutive Act of the African
51
The African Commission, Mohammed Abdullah Saleh Al-Asad v. Djibouti, Communication 383/2010, para. 128.
52
19 | P a g e
Union. This is the jurisdiction ratione materiae (jurisdiction as to subject matter) of the African
Commission. As regards the Banjul Charter the standard is prima facie violation, while some of
the basic principles of the Constitutive Act of the African Union include freedom, equality, justice
and dignity.
The term prima facie in this context simply requires that at face value or upon mere sighting,
without requiring either party to adduce evidence, it should be possible to come to a conclusion
that the communication can be accommodated within the competence of the African Commission
on the grounds it alleges that rights recognized by the Banjul Charter have been violated.53
Therefore the test applied by the African Commission is whether there is preliminary proof that a
violation occurred. Hence, the complainant is not obligated to show with sufficient clarity the
alleged violations that form the basis of the communication.
In Korvah v. Liberia (supra), the communication contained matters which did not amount to
violations of human rights under the provisions of the Banjul Charter. Hence, the Commission
declared the communication inadmissible.
In principle, a communication must contain a certain degree of specificity to enable the African
Commission to take meaningful action. A communication must deal with specific breaches of the
Banjul Charter or the procedures created by such breaches. General information, say on domestic
political situation or judicial process, does not suffice.54 Similarly, incoherent and uncoordinated
complaint will be declared inadmissible.55
However, the author need not specify which articles of the Banjul Charter have been violated, or
even which right is being invoked, so long as he or she has raised the substance of the issue in
question.56 Similarly, the author need not disclose any municipal law within the respondent State
or the breach of any international treaties or conventions to which the respondent State is a party.
This position is different from that in the European system of human rights. In the latter, the
53
The African Commission, Mendukazi Patricia Monakali and Others vs. Republic of South Africa, Communication
377/2009, para. 72.
54
The African Commission, Centre for Independence of Judges and Lawyers v. Algeria, Communication 104/93,
para. 2.; Hadjali Mohamad v. Algeria, Communication 13/88, para. 1.
55
The African Commission, Tanko Bariga v. Nigeria, Communication 57/91; Also see, Seyoum Ayele v. Togo,
56
The African Commission, Michael Majuru v. Zimbabwe, Communication 308/2005, para. 73.
20 | P a g e
complainant is required to invoke a particular right at stake either by name or as part of an argument
to the same or like effect.
The violation need not be serious or massive. Thus, the African Commission will consider a
communication even if it does not reveal a series of serious or massive violation.
ii. . The communication must be brought against a State party to the Banjul Charter
The communication must be brought against a State party to the Banjul Charter and must be
brought by someone who is competent to do so (jurisdiction ratione personae). Hence the
jurisdiction ratione personae of the African Commission concerns the author (individual or
organization) and the State party to the Banjul Charter. The African Commission will declare
inadmissible any communication brought against a State which is not a party to the Banjul Charter
or which is brought by an individual or organization which is competent to do so.
A rule that a communication must be brought against a State party to the Banjul Charter is firmly
entrenched in international law on human rights. The rule prescribes that international State
responsibility derives from a conduct attributable or imputable to a State under international law
and the breach by that conduct of an international obligation of the State.57 The conduct attributed
to the State is that of its organs of the government, or of others who have acted under the direction,
instigation or control of those organs (agents of the State) irrespective of the level of administration
or government at which the conduct occurs.58
A communication may be brought against more than one State, provided they are parties to the
Banjul Charter. In Luke Munyandu Tembani and Benjamin John Freeth (represented by Norman
Tjombe) v. Angola and Thirteen Others59, for instance, a communication was brought against
fourteen (14) States namely Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi,
Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and
Zimbabwe.
57
See ICJ, United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, para. 3.
58
I. Brownlie, System of the Law of Nations: State Responsibility, (Part I) (Oxford,Clarendon Press, 1983), pp. 132-
166;
59
21 | P a g e
iii. The communication must be based on events which occurred within the period of the
Banjul Charter’s application to the State concerned (jurisdiction ratione temporis),
A communication is considered to be compatible with the Banjul Charter if, inter alia, it is based
on the events which occurred after the Respondent State became a party to the Banjul Charter.
This is founded upon a general principle of international law that treaties do not bind a State for
any event that occurred before the entry into force of the treaty in respect to that State.60 However,
this principle does not apply in the following circumstances:
(a) Where the treaty itself provides otherwise by expressly allowing retroactive effect; or
(b) Where there are continuous violations.
Therefore, a State cannot, in principle, be held liable for events which occurred before the
applicability of the Banjul Charter to it. In Muthuthirin Njoka v. Kenya61, the African Commission
declared the communication inadmissible because Kenya was not a Party to the Banjul Charter at
the time it was submitted. However, where the State concerned subsequently ratifies the Banjul
Charter and there is a continuing damage in breach of the Charter, the author may resubmit the
communication. However, the author must prove the continued violation.
Hence, the African Commission’s jurisdiction ratione temporis is limited in limine, and such the
African Commission cannot address violations before the entry into force of the Banjul Charter.
However, the African Commission can consider a violation that took place prior to the entry into
force of the Banjul Charter if such a violation continues or has the effects which themselves
constitute violations after entry into force of the Banjul Charter.62
In principle, therefore, violations that occurred prior to the entry into force of the Banjul Charter,
in respect of a State party, shall be deemed to be within the jurisdiction ratione temporis of the
African Commission, if they continue, after entry into force of the Banjul Charter. The effects of
such violation may themselves constitute violations under the Banjul Charter because failure of
the state to redress violations and their effects entails failure to respect and guarantee rights under
60
Article 28 of the Vienna Convention on the Law of Treaties
61
62
The African Commission, Malawi African Assocuation and Others v. Mauritania, Consolidated Communications
54/91, 61/91, 98/93, 164/97-196/97, 210/98, para. 91
22 | P a g e
the Banjul Charter.63 In Dabalorivhuwa Patriotic Front v. South Africa,64 the complainants were
alleging that they were paid less than what they were entitled under a pension fund scheme prior
to the Banjul Charter’s application to South Africa. The status quo remained the same after South
Africa became party to the Banjul Charter. The African Commission held this as evidence of
continuing violation.
The African Commission may decide to consolidate communications brought against more than
one State party to the Banjul Charter if the communications contain same substantive matters.65
iv. The alleged violation(s) must have occurred within the territorial sphere within which
the Banjul Charter applies (jurisdiction ratione loci)
According to international customary law, a treaty is binding upon each party in respect of its
entire territory unless a different intention appears from the treaty or is otherwise established.66
The application of the Banjul Charter is not expressly limited within the territory and jurisdiction
of Member States.67 However, the African Commission has held that the Banjul Charter applies
primarily within the territorial jurisdiction of Member States.68 This is because States undertake
international obligations through sovereignty and discharge those obligations by exercising
jurisdiction. Both sovereignty and jurisdiction of States are primarily territorial. However, there
are circumstances under which a state may assume obligations beyond its territorial jurisdiction.
Such circumstances include: (a) when a state assumes effective control of part of a territory of
another state (spatial model of jurisdiction); or (b) where the state exercises control or authority
over an individual (personal model of jurisdiction)
The duty lies upon the complainant to establish a sufficient connection between the alleged
violation and the Respondent State before the Commission can proceed to invoke the obligations
of that State under the Banjul Charter with a view to assessing whether such obligations were
63
The African Commission, Kevin Mgwanga Gunme et al v. Cameroon, Communication 266/03, para. 96.
64
65
For example, the Commission consolidated Communications 233/99 and Communication 234/99, submitted
against Eritrea and Ethiopia.
66
See Article 29 of the Vienna Convention on the Law of Treaties, 1969.
67
See Article 1 of the Banjul Charter. This is different from Article 1 of the International Covenant on Civil and
Political Rights, 1966 (ICCPR) which expressly limits the application of the ICCPR to within the territory and
jurisdiction of a Member State.
68
The African Commission, Mohammed Abdullah Saleh Al-Asad v. Djibouti, Communication 383/2010, para. 134.
23 | P a g e
breached. However, it suffices if the complainant proves that he or she was under the territorial
jurisdiction or effective control or authority of the Respondent State when the alleged violation
occurred. An example of the latter scenario is where one state occupies part of the territory of
another State. At the admissibility stage it suffices to prove that the alleged violation occurred
within the territorial jurisdiction of the Respondent State without looking into who committed the
alleged violations. Whether the alleged violations were committed by state actors or private
individuals will be looked into at the merits stage.
In determining compatibility ratione loci it is important to establish that complainant was within
the territorial jurisdiction or under the effective control or authority of the Respondent State at the
time when the alleged violation occurred. Failure to establish that will render the communication
inadmissible. In Mohammed Abdullah Saleh Al-Asad v. Djibouti,69 the African Commission
declared the communication inadmissible for incompatibility with ratione loci because the
complainant failed to conclusively establish his presence in the Respondent State’s territory or that
he was otherwise under its effective control or authority at the time when the alleged violation
occurred.
Applicable standard of proof for ‘compatibility’
The term “standard of proof” is used to mark a point somewhere along the line between a mere
assumption at one end, and the absolute certainty at the other that an alleged fact is valid. For a
factual allegation to be proved, evidence submitted in its support must meet or surpass this point.
Examples of different standards of proof include balance of probabilities, reasonable belief,
reasonable suspicion, probable cause, beyond reasonable doubt etc.
With regard to “compatibility “, different standards of proof are applicable. Compatibility ratione
materiae is made out by raising a prima facie case. This standard only requires preliminary
evidence indicative of a violation. This is a lower standard of proof compared to that which applies
at the merit stage in assessing whether a violation actually occurred.
However, both compatibility ratione temporis and compatibility ratione personae must be made
out conclusively at admissibility stage. This is because these matters cannot be subject of
69
24 | P a g e
reconsideration at the merit stage. The same applies for compatibility ratione loci. However,
compatibility ratione loci may be a subject of consideration at the merits stage in determining
whether state actors or private individuals committed alleged violations.
(c) The communication should not be written in disparaging or insulting language
State institutions are indispensable for the protection of human rights. The prohibition of
disparaging and insulting language is founded upon the need to uphold the integrity of such
institutions. Hence, exchanges between parties appearing before the African Commission must be
diplomatic, courteous and respectful. The obligation lies particularly on the author to make his or
her factual allegations without insulting anyone. Although violations of human rights normally
allure strong language from the victims, complainants should choose respectful remarks when
presenting their communications. Disparaging or insulting language will render a communication
inadmissible, regardless of the seriousness of the complaint. Statements such as “criminal neo-
colonial regime”, “regime of tortures”, “government barbarisms” have been held to be insulting.70
A language will be held insulting if it aims at undermining the status and integrity of the institution
or officer and bring the latter into disrepute. In determining whether a remark is insulting and
whether it lowers the reputation of an institution or officer, the African Commission has to satisfy
itself whether the remark is aimed at unlawfully and intentionally violating the dignity, reputation,
or integrity of such officer or institution and whether it destroys the confidence of right-minded
persons over the officer or the processes of the institution.71 In Uhuru Kenyatta and William Ruto
(represented by Innocence Project Africa) v. Kenya72 the Commission held disparaging and
insulting expressions such as “sickening”; “charade”; “the Respondent is part of the ploy”;
“trample under”; “fishing expedition”; “demonization”
In order to amount to insulting and disparaging language, the remarks must be unlawful and
intentional. Mere ‘improper’ remark does not suffice. Remarks such as “absolute misuse of
government authority and executive powers”, “absence of accountability of public officials”, and
70
The African Commission, Ligue Camerounaise des Droits de l’Homme v. Cameroon, Communication 65/92,
para. 13.
71
The African Commission, Zimbabwe Lawyers for Human Rights and Associate Newspapers of Zimbabwe v.
Zimbabwe, Communication 284/2003, para. 96
72
25 | P a g e
“lack of proper administration of justice and the rule of law” were held not to be insulting or
disparaging.73
Where the complainant gives remarks which constitute facts of the alleged violation and
expressions of his or her fear thereof, such remarks cannot be considered to be disparaging or
insulting.74 This similarly applies where it is difficult for the complainant to describe a condemned
situation differently. For example, the African Commission considered words like ‘xenophobia’,
‘exclusionist’, ‘discriminatory’ used to refer to Côte d’Ivoire as neither disparaging nor insulting
because they were not used in that context but rather to describe the situation in the country at the
material time, and that there was no other way to describe the situation.75 Also the African
Commission has held words such as “ulterior purpose”, “violator” and “irrational and that it has
been made in bad faith” to be mere allegations depicting the complainant’s perception of the facts
which form the basis of the allegations and fears upon which the African Communication is
founded.76
The Commission interprets the prohibition of insulting language in light of the right to freedom of
expression. A balance must thus be struck between the right to speak freely and the duty to protect
state officials and institutions. As such, the African Commission ensures that while it discourages
insulting language it does not infringe the right to freedom of expression.77
(d) The communication should not be based solely on media reports
A communication which is based exclusively on news disseminated through the mass media will
be declared inadmissible. Where factual allegations are based on media reports the author must
investigate and ascertain their truth and be able to prove the facts thereof through other sources
independently of mass media.
73
The African Commission, Darfur Relief and Documentation Centre v. Sudan, Communication 310/2005, paras.
65&68.
74
The African Commission, Tsatsu Tsikata v. Ghana, Communication 322/2006, para. 32; and Eyob B. Asemie v.
the Kingdom of Lesotho, Communication 435/12, para. 60
75
The African Commission, Ivorian Human Rights Movement (MIDH) v. Côte d’Ivoire, Communication 262/2002,
para. 47
76
v. Angola and Thirteen Others, Communication 409/2012, para. 93.
77
Ibid, para. 66.
26 | P a g e
The communication will be declared inadmissible only if it is exclusively based on mass media.
Thus, a communication would be admissible if it is partly based on media and partly on other
sources. Thus, while the African Commission would be reluctant to rely exclusively on news
disseminated from the mass media, it would equally not reject a communication containing some
aspects that are based on news disseminated through the mass media. This is justified by the
importance of the media. According to the African Commission, the media remains the most
important, if not the only source of information and most serious human rights abuses in Africa
were revealed by the media.78
In determining this criterion, the African Commission would not examine the source of the
information but whether the information is correct and whether the complainant attempted to verify
its truth. It follows, therefore, that the African Commission will determine the means and
possibilities available to the complainant to conduct the verification. This is done on a case-to-case
basis. In a scenario where a particular crisis has attracted wide international media attention, it
would be impracticable to separate allegations contained in the communication from the media
reports on the conflict and the alleged violations. Therefore, the African Commission would not
consider the source of the information but its correctness.
(e) The communication should be submitted after exhaustion of local remedies
A local remedy has been defined as ‘any domestic legal action that may lead to the resolution of
the complaint at the local or national level’.79 In other words, these are the ordinary remedies of
common law that exist in jurisdictions and normally accessible to people seeking justice. 80 The
rule of the exhaustion of local remedies is a rule of international customary law. It entails that
before international proceedings are instituted, the author must have taken the matter to all the
available domestic legal remedies. This means that he or she must have taken the case to the
highest court of the land. The African Commission has repeatedly held that domestic remedies
have not been exhausted if a case is still pending before the national courts.81 However, this is not
78
The African Commission, Sir Dawda K. Jawara v. The Gambia, Communication 147/95 and 149/96, para. 25.
79
The African Commission, Anuak Justice Council v. Ethiopia, Communication 299/05, para. 50.
80
The African Commission, Lawyers for Human Rights (Swaziland) v. Swaziland, Communication 414/2012, para.
38.
81
The African Commission, Civil Liberties Organization v. Nigeria, Communication 45/90; Anuak Justice Council
v. Ethiopia, Communication 299/05, para. 62.
27 | P a g e
a strict requirement that must always be met. Thus, if such remedies are not available, or if they
are available but the procedure is unduly prolonged, the African Commission may declare the
communication admissible.
However, the fora for exhausting local remedies do not include the Tribunal which is a supra-
national court and sub-regional treaty body. Nevertheless, where a communication is brought
against more than one State, the requirement for exhaustion of local remedies cannot be interpreted
to mean that the complainant would be required to pursue local remedies in all the Respondent
States before approaching the African Commission. In this case, the complainant will be dispensed
from the requirement of exhaustion of local remedies because it would be impracticable and
undesirable for occasioning undue delay and costs to the complainant.82
The initial burden to demonstrate that the local remedies have been exhausted is on the
complainant. Once a complainant shows that there are no local remedies available in the
Respondent State, the burden then shifts to the Respondent State to prove that an effective remedy
is available and has not been exhausted.83 Moreover, when a Respondent State argues that the
communication must be declared inadmissible because the local remedies have not been
exhausted, it then has the burden of demonstrating the existence of such remedies, otherwise its
submission would be considered a mere statement.84
The exhaustion of local remedies rule is interpreted in light with the right to fair trial. In
interpreting the rule, the African Commission appears to take into account the circumstances of
each case, including the general context in which the legal remedies operate and the personal
circumstances of the complainant.
The generally accepted meaning of local remedies are ordinary remedies of common law that exist
in jurisdictions and normally accessible to people seeking justice.85 They exclude extraordinary
remedies that exist only upon meeting prescribed legal conditions (e.g. revision). Moreover, the
82
v. Angola and Thirteen Others, Communication 409/2012, paras 103-105.
83
The African Commission, Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, Communication
323/2006, para. 63
84
The African Commission, Rencontre Africaine pour la Défense des Droits de l’Homme v. Zambia,
85
The African Commission, Interights and Others v. Mauritania, Communication 242/2001, para. 27
28 | P a g e
remedies must be legal as opposed to administrative remedies. Administrative remedies are those
remedies granted pursuant to policy implementation or consideration.
Therefore, remedies must be of a judicial nature and must not be subordinated to the discretionary
power of public authorities. The African Commission has, for example, considered that a plea for
pardon is not a judicial remedy but serves to affect the execution of a sentence. 86 The remedy
granted by a Ghanaian Human Rights Commission was also considered not to be a judicial
remedy.87
If the domestic procedures are unduly prolonged, the complainant will not be strictly required to
exhaust local remedies. The assessment whether or not domestic procedures are unduly prolonged
is done on case-to-case basis. The African Commission has considered domestic procedures which
lasted for five years without any feedback for the complainant to be unduly prolonged. 88 The
African Commission held the same view where an ad hoc Commission had not published a report
11 years after hearing the victims.89
The African Commission has interpreted this exception to the requirement of exhaustion of local
remedies to be in line with the States’ obligations to administer clear and diligent justice in order
to give satisfaction to the complainants in the shortest possible time.90 Therefore, the exception to
the rule on the exhaustion of local remedies would apply where domestic situation of the State
does not afford due process of law for the protection of human right(s) that have allegedly been
violated.
The law on exhaustion of local remedies presupposes: (i) the existence of domestic procedures for
dealing with the claim; (ii) the justiciability or otherwise, domestically, of the subject-matter of
the complaint; (iii) the existence under the municipal legal order of provisions for redress of the
type of wrong being complained of; and (iv) available effective remedies.91
86
The African Commission, Avocats Sans Frontières (on behalf of Bwampamye) v. Burundi, Communication
231/99, para. 23.
87
The African Commission, Alfred Cudjoe v. Ghana, Communication 221/98, para. 13
88
The African Commission, Association of Victims of Post Electoral Violence and Another v. Cameroon,
Communication 272/2003, para.63.
89
Ibid, para. 64.
90
Ibid, para. 67.
91
The African Commission, Article 19 v. Eritrea, Communication 275/2003, para. 47.
29 | P a g e
The rationale for the requirement of exhaustion of domestic remedies is that the government should
be aware of a human rights violation and remedy it before being called to answer the case before
an international body. Such an opportunity will enable the respondent state to save its reputation,
which would be inevitably tarnished if it were brought before an international jurisdiction. Where
it is shown that the State had ample notice and time within which to remedy the situation, the State
may be said to have been properly informed and expected to have taken appropriate steps to
remedy the violations alleged. Failure of the State to effectively deal with the alleged human rights
violations would mean that domestic remedies are either not available, or if they are, not effective
or sufficient to redress the violations alleged.
The requirement for exhaustion of local remedies also precludes the African Commission from
becoming a tribunal of first instance, a function which it cannot fulfil practically or legally. The
African Commission should act as a body of last resort. The rule is founded on the premise that
the full and effective implementation of international obligations in the field of human rights is
designed to enhance the enjoyment of human rights and fundamental freedoms at the national
level.92
This rule also reinforces the subsidiary and complementary relationship of the international
systems to systems of domestic protection. International or regional human rights procedures are
not substitutes for domestic implementation of human rights, but should be seen as tools to assist
the national authorities to develop a sufficient domestic protection of human rights. Before an
author brings a complaint before an international or regional body, he or she must first have tried
to obtain a remedy from the national authorities. It must be shown that the state was given an
opportunity to remedy the case itself before resorting to an international or regional body. This
reflects the fact that states are not considered to have violated their human rights obligations if
they provide genuine and effective remedies for the victims of human rights violations.93
Moreover, local remedies are normally quicker, cheaper, and more effective than international
ones. They can be more effective in the sense that an appellate court can reverse the decision of a
92
93
Zimbabwe, Communication 284/2003, para. 100.
30 | P a g e
lower court, whereas the decision of the African Commission does not have that effect, although
it will engage the international responsibility of the state concerned.94
A complainant is required to exhaust local remedies only if they are available, effective and
sufficient. Hence, in determining compliance with the requirement of exhaustion of local remedies
the criteria is that the remedy must be available, effective and sufficient. If the domestic remedies
do not meet these criteria, a complainant may not have to exhaust them before complaining to the
African Commission. However, he or she needs to be able to show that the remedies do not fulfil
these criteria in practice, not merely is his or her opinion. Therefore, instead of casting doubts or
merely anticipating the outcomes of court proceedings, the complainant should have attempted to
exhaust local remedies.95
The remedy is considered available if the petitioner can pursue it without impediment; it is deemed
to be effective if it offers a prospect of success; and it is found sufficient if it is capable of
redressing the complaint.96 The fact that the complainant has not sufficiently demonstrated why
they could not exhaust local remedies does not mean such remedies are available, efficient and
sufficient. The African Commission can infer from the circumstances surrounding the case and
determine whether such remedies are in fact available, and if they are, whether they are effective
and sufficient.97
Remedies which are evidently unavailable cannot be invoked by the state to the detriment of the
complainant. Therefore, in a situation where the jurisdiction of the courts has been ousted by
decrees whose validity cannot be challenged or questioned, local remedies are deemed to be
unavailable, ineffective and non-existent. Moreover, where the military junta controls all the arms
of the government and pays little regard to for the judiciary, the remedies cannot be considered to
be sufficient as they are incapable of redressing the complainant.
94
95
The African Commission, Nixon Nyikadzino (represented by Zimbabwe Human Rights NGO Forum) v.
Zimbabwe, Communication 340/2007, paras. 96-97.
96
The African Commission, Sir Dawda K. Jawara v. The Gambia, Communication 147/95 and 149/96, para. 31.
97
31 | P a g e
Where the jurisdiction of the courts is ousted by a domestic law, the African Commission has
consistently considered local remedies to be unavailable or ineffective or illegal.98 Ouster clauses
deprive victims of the recourse within the domestic legal system for challenging the legality of
unjust laws.99 They create a legal situation in which the judiciary can provide no check on the
executive branch of government. As such, where a domestic law ousts the jurisdiction of courts it
is reasonable to presume that domestic remedies will not only be prolonged but are certain not to
yield any results.100
Other scenarios where local remedies may be deemed to be unavailable or ineffective include the
following:
(a) Where a domestic law suspends the jurisdiction of regular courts in favour of special
tribunals;101
(b) Where remedies provided for under the domestic law do not conform to the demands of
protection of the right to a good administration of justice;102
(c) Where a domestic law limits or ousts the right to appeal;103
(d) Where a domestic law ousts the jurisdiction of courts from issuing a writ of habeas corpus,
or any other prerogative order;104
(e) Where a domestic law applies retrospectively;105
98
The African Commission, Centre for Free Speech v. Nigeria, Communication 206/97, para. 10; Civil Liberties
Organization v. Nigeria, Communication 151/96, paras.12-16; Constitutional Rights Project v. Nigeria,
Communication 148/96, para.10; Media Rights Agenda and Others v. Nigeria, Communications 105/93, 128/94,
130/94, and 152/96, para. 50.
99
The African Commission, Civil Liberties Organization and Others v. Nigeria, Communication 218/98, para.23.
100
The African Commission, Civil Liberties Organization v. Nigeria, Communication 129/94, para. 8;
Constitutional Rights Project and Others v. Nigeria, Communications 140/94, 141/94 & 145/95, para.31.
101
The African Commission, Amnesty International and Others v. Sudan, Communications 48/90, 50/91, 52/91,
89/93, para. 34
102
Ibid
103
89/93, para. 34; Law Office of Ghazi Suleiman v. Sudan (II), Communication, 228/99, paras 34-35; and Marcel
Wetsh’okonda Koso and Others v. Democratic Republic of Congo, Communication 281/2003, para.53; Law Society
of Zimbabwe et al v. Zimbabwe, Communication 321/2006, para. 73.
104
The African Commission, Constitutional Rights Project v. Nigeria (II), Communication 153/96, para. 10.
105
89/93, para. 35
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(f) Where the King is prepared to utilize judicial power vested in him to overturn court
decisions;106
(g) Where it appears that the complainant does not have the qualification or possibility to use
the available local remedies;107
(h) Where the judiciary is under the control of the executive organ responsible for the illegal
act;108
(i) Where the wrong is due to an executive act of the government as such, which is clearly not
subject to the jurisdiction of the municipal courts;109
(j) Where an amnesty law nullifies suits or other actions seeking redress that may be filed by
the victims or their beneficiaries;110
(k) Where the complainant can only benefit from a discretionary extraordinary remedy of a
non-judicial nature (e.g. a domestic remedy at the discretion of the Minister of Justice);111
(l) Where a complaint is filed on behalf of people who had already been executed;112
(m) Where refugees fear deportation and lack adequate means to seek legal representations due
to extreme vulnerability and state of deprivation;113
(n) Where victims had no legal representation;114
106
The African Commission, Lawyers for Human Rights v. Swaziland, Communication 251/2002, para. 27.
107
The African Commission, Ivorian Human Rights Movement (MIDH) v. Côte d’Ivoire, Communication 262/2002,
para. 56.
108
The African Commission, Article 19 v. Eritrea, Communication 275/2003, para. 48.
109
Ibid
110
The African Commission, Malawi African Association and Others v. Mauritania, Consolidated Communications
54/91, 61/91, 98/93, 164/97-196/97, 210/98, para. 82
111
The African Commission, Avocats Sans Frontières (on behalf of Bwampamye) v. Burundi, Communication
231/99, para. 23; Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v. Sudan,
Communication 379/2009, para. 68; Constitutional Rights Project (in respect of Zamani Lakwot and 6 Others) v.
Nigeria, Communication; 87/1993, para. 8; and Monim Elgak, Osman Hummeida and Amir Suliman (represented by
FIDH and OMCT) v. Sudan, Communication 379/2009, para.67.
112
The African Commission, Forum of Conscience v. Sierra Leone, Communication 223/98, para. 14
113
114
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(o) Where the complainant escaped to another country from prison in the respondent State;115
(p) Where the Minister hinders or delays the execution of a final judgment without legitimate
reason;116
(q) Where the right of a victim to have recourse to justice is foreclosed by the law which
pardons ‘every person liable for any politically motivated crime’;117
(r) Where there are no legal aid services for persons from poor background;118
(s) Where the national legal system does not afford due process of law for protection of human
rights and fundamental freedoms;119
(t) Where a political situation makes the application of laws difficult due to the state of
emergency;120
(u) Where the state fails to investigate serious allegations about torture.121 In this case, the
question is whether the Respondent State was aware of the allegations and not whether the
victim followed the proper procedure. This is because allegations of torture against public
officials impose an immediate duty on the State to initiate a prompt, impartial and effective
investigation and bring the perpetrators to justice if the allegations are founded;122
(v) Where inquiry of violation has been stopped temporarily pending the availability of new
information and evidences;123
115
The African Commission, Alhassan Abubakar v. Ghana, Communication 103/93, para. 6.
116
The African Commission, Antoine Bissangou v. Republic of Congo, Communication 253/2002, paras. 59-60
117
The African Commission, Zimbabe Human Rights NGO Forum v. Zimbabwe, Communication 245/2002, para.64.
118
The African Commission, Purohit and Another v. The Gambia, Communication 241/2001, para. 37
119
The African Commission, Liesbeth Zegveld and Another v. Eritrea, Communication 250/2002, para. 40; and
Article 19 v. Eritrea, Communication 275/2003, para. 78.
120
The African Commission, The Law Office of Ghazi Suleiman v. Sudan, Communication 228/1999, para. 36
121
The African Commission, Abdel Hadi, Ali Radi & Others v. Sudan, Communication, 368/09, para 48
122
Articles 17,18 & 19 of the Resolution and Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa.
123
The African Commission, Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, Communication
323/2006, para. 66.
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(w) Where the complainant fails to avail to national procedures for fear of persecution;124
(x) Where the victims cannot have access the courts to claim protection of their rights because
they are displaced, harassed, intimidated or persecuted;125
(y) Where persons detained on suspicion of committing a capital offence are excluded from
the statutory timelines for arraignment for trial.126
The existence of a remedy must be sufficiently certain, both in theory and practice. To be deemed
available a remedy must be accessible. Thus local remedies will be considered to be unavailable
if, for example, the complainant cannot turn to the judiciary of his country because of fear for his
life. In Jawara v. The Gambia,127 the African Commission considered local remedies unavailable
to the complainant who had been overthrown by the military and could not return to his country
due to real life threatening circumstances. However, the fear preventing the complainant to return
to his or her country to pursue local remedies must be real. It must be a kind of fear that would be
created by any right-thinking person in the similar situation.
Therefore, the complainant must sufficiently demonstrate that he or she is prevented from
returning to his country to pursue local remedies by life threatening circumstances created by the
State. The complainant must provide evidence that will not only enable the African Commission
to assess the level of threats but also show a link between his or her fear and the respondent state.128
As such there must be clear establishment of the element of fear perpetrated by identified state
institutions which ‘it would be reversing the clock of justice to request the complainant to attempt
local remedies.’129
124
The African Commission, Front for the Liberation of the State of Cabinda v. Angola, Communication 328/2006,
paras. 46-48
125
126
The African Commission, Legal Defence and Assistance Project (on behalf of Mr. Abiodun Subaru) v. Nigeria,
127
Communication 147/95 and 149/96; Also see The African Commission, Kazeem Aminu v. Nigeria,
Communication 205/97, para. 13; Rights International v. Nigeria, Communication 215/98, para. 24
128
The African Commission, Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria,
129
Ibid, para. 40
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The African Commission has held that the victim does not need to be physically in the country to
avail himself or herself of available domestic remedies.130 Such could be done through his or her
counsel. Thus, if it is established that the counsel or NGO representing the victim could exhaust
local remedies without impediment but chose not to do so, and instead directly approaches the
African Commission, the communication will be declared inadmissible.
The African Commission has been reluctant to require the victim of violation to pursue local
remedies through private prosecution even where that avenue is available. The African
Commission has held this position because the primary responsibility for domestic protection of
human rights lies with the respective Government, not individuals. To expect victims of violations
to undertake private prosecutions where the State has not instituted criminal action against
perpetrators of crimes would be tantamount to the State relinquishing its duty to citizens.131
Therefore, if the matter is criminal in nature and which attaches public investigation and
persecution, the obligation lies upon the State to move the criminal process forward to its ultimate
conclusion. In such cases, the complainant is excused to exhaust local remedies because it is upon
the State to investigate the facts and prosecute the perpetrators in accordance with both domestic
and international standards.132
In determining availability, effectiveness and sufficiency of local remedies, the scale and nature
of the abuses as well as the number of victims are important factors. Where the alleged violation
constitutes systematic, serious and massive abuses, the African Commission tends to consider local
remedies unavailable, ineffective and insufficient.133 This is because such conditions make the
pursuance of local remedies impracticable and undesirable for the complainants or victims. This
is particularly, true where there is a large number of victims in which case local remedies may
theoretically exist but victims cannot practically avail themselves of them.134
130
The African Commission, Legal Defence Centre v. The Gambia, Communication 219/98, para. 17
131
The African Commission, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Communication 245/2002, para.
70.
132
The African Commission, Article 19 v. Eritrea, Communication 275/2003, para. 72
133
The African Commission, Free Legal Assistance Group and Others v. Zaire, Communications 25/89, 47/90,
56/91, 100/93, para.34
134
The African Commission, Sudan Human Rights Organsiation and Another v. Sudan, Communication 279/03,
paras. 99-102.
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The African Commission has also held local remedies to be unavailable to victims who could not
practically contact attorneys or challenge illegality of State actions due to massive arrests,
detentions and expulsion.135
The mere fact that a domestic remedy is inconvenient or unattractive or unfavourable or costly
does not, in itself, exempt a complainant from exhausting local remedies. The complainant must
take all necessary steps to exhaust or at least attempt the exhaustion of local remedies. Hence, at
the minimum, the complainant should attempt to exhaust local remedies. The attempt must be
demonstrated by prima facie evidence. It is not enough for the complainant to cast doubt on the
effectiveness of local remedies. The complainant is expected to indicate, for example, the courts
where he or she sought domestic remedies. If the complainant was unable to use local remedies he
or she must explain why. He or she could do so by submitting evidence derived from analogous
situations or testifying to a state policy of denying such recourse.
The requirement for exhaustion of local remedies does not apply with respect to the right which is
a matter of international forum as opposed to a domestic one. A right to self-determination, for
example, is purely a matter of international law; hence it is a matter that cannot be determined by
a domestic court. Thus, a complainant who submits a communication to the African Commission
alleging a violation of the right to self-determination is not expected to exhaust local remedies.
The African Commission has prescribed a procedure to be followed where a complainant wishes
to argue that a particular remedy does not have to be exhausted because it is unavailable,
ineffective or insufficient. The procedure is as follows:
(a) The complainant states that the remedy did not have to be exhausted because it is
unavailable, ineffective or insufficient — at this point this need not be proved;
(b) The respondent state must then show that the remedy is available, effective and sufficient;
and
135
The African Commission, Interights (on behalf of Pan African Movement and Others) v. Eritrea and Ethiopia,
Communications 233/99 & 234/99, para. 37; Union Interafricaine des Droits de I’Homme and Others v. Angola,
Communication 159/96, para. 12; Institute for Human Rights and Development in Africa v. Angola, Communication
292/2004, para. 39.
37 | P a g e
(c) If the respondent state is able to establish this, then the complainant must either
demonstrate that he or she did exhaust the remedy, or that it could not have been effective
in the specific case, even if it may be effective in general.136
(d) The communication should be submitted within a reasonable period from the time local
remedies are exhausted.
After the exhaustion of local remedies, or where he or she realizes that such remedies are not
available or they are unduly prolonged, the complainant can submit the communication to the
African Commission. The submission of the matter must be done within a reasonable period from
the time local remedies are exhausted, or from the date the African Commission is seized with the
matter. The ‘time-limit’ commences from the time local remedies are supposed to have been
exhausted or when a complainant realizes that local remedies are unavailable or they are unduly
prolonged. Therefore, reasonable time does not pertain to the period when the allegations were
committed. Rather, it is computed from the time when the communication was submitted to the
African Commission after the exhaustion of local remedies, or when the complainant immediately
realizes that local remedies are not available, sufficient or effective. The phrase ‘or from the date
the African Commission is seized with the matter’ does not apply to the case before the African
Commission because the Commission is only seized with the matter (the communication) after the
complainant has submitted the same.137
The Banjul Charter does not provide for what constitutes ‘a reasonable period of time’, and neither
has it defined reasonable time. However, going by the practice of other regional human rights
instruments, the African Commission has held that six months is a standard procedure. This
notwithstanding, the practice of the African Commission has been to treat each case on its own
138
merits. The African Commission has, for example, held that, in the absence of compelling
grounds to justify the delay, a period of twenty nine (29) months is beyond a time which could be
considered reasonable.139
136
Zimbabwe, Communication 284/2003, para. 102.
137
The African Commission, Socio-economic Rights and Accountability Project v. Nigeria, Communication
300/2005, para. 42
138
The African Commission, Michael Majuru v. Zimbabwe, Communication 308/05.
139
The African Commission, Darfur Relief and Documentation Centre v. Sudan (supra), para. 77.
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For the sake of justice and fairness, however, a communication which is submitted lately may be
considered by the African Commission if the author furnishes good and compelling reasons for
the delay. In Chinhamo v. Zimbabwe,140 the author submitted the communication ten (10) months
after he allegedly fled from his country. The African Commission admitted the communication on
the basis that the author needed time to settle. As such, a ten months period was considered a
reasonable time.
However, in Majuru v. Zimbabwe141, in giving reasons for the delay, the author who had submitted
the communication to the African Commission twenty two (22) months after he allegedly fled the
respondent state without approaching the national courts, said he had been undergoing
psychotherapy while in South Africa, that he had no financial means to bring the case to the African
Commission, and that he was afraid for the safety of his family members. The African Commission
held that the communication was not submitted within a reasonable time because the reasons given
for the delay were not convincing.
In Article 19 and Others v. Zimbabwe,142 the complainants submitted the communication almost
two years after exhausting local remedies on the ground that they wanted to see the implementation
of the judgment of the highest court in the country. This reason was held to be neither good nor
compelling. With the judgment of the highest court in the land, the complainants had reached a
‘dead end’ at the national level. Thus since they could have within a reasonable time seized the
African Commission with the matter, waiting for two years with no compelling reasons was
considered not to be justifiable. However, the African Commission declared admissible a
communication which was submitted three (3) years since the cause of action had arisen.143 The
Commission ruled in favour of the complainant because it (the author) had continuously,
throughout the three-year period, explored other domestic avenues for seeking redress for the
victim. To this end the African Commission found that the author had not been tardy in filing the
communication.
140
141
142
143
The African Commission, Legal Defence and Assistance Project (on behalf of Mr. Abiodun Subaru) v. Nigeria,
Communication 425/2012, paras. 56-57.
39 | P a g e
In Sangonet v. Tanzania,144 the complainants submitted the communication eleven years after the
Court of Appeal of Tanzania issued a judgment in question. The African Commission requested
the complainants to provide additional information to explain the delay, but the complainants did
not respond. The African Commission held that there was unreasonable delay. Hence the
communication was not submitted within a reasonable period of time.
In Dr. Farouk Mohamed Ibrahim (represented by REDRESS) v. Sudan,145 the African Commission
held that fifteen (15) months of delay in the communication cannot be considered as reasonable
time in the absence of a compelling reason.
In another case, the African Commission declared inadmissible a communication which was
submitted thirty four (34) months after the exhaustion of local remedies without any reason to
explain such a long interval.146
(e) The communication should not be pending or been settled in another international
body
The communication must not be one which has already been, or is being settled through another
international investigation or settlement mechanism. In Mpaka-Nsusu Andre Alphonse v. Zaire,147
for example, the African Commission declared the communication which had been submitted and
determined by the UN Human Rights Committee inadmissible. However, this rule does not apply
to a communication already being examined under Human Rights Council Complaint Procedure
(previously known as 1503 procedure).148The latter is not considered an “international procedure
of investigation or settlement.”
The matter is considered being settled if the other international body dealing with the matter has
taken a decision which addresses the concerns, including the relief being sought by the
complainant. This means that the matter must have been finally determined by that other
international investigation or settlement mechanism. It is not enough for the matter to simply be
144
145
Communication 386/2010, para 77
146
The African Commission, Lawyers for Human Rights (Swaziland) v. Swaziland, Communication 414/2012, para.
45.
147
148
The African Commission, Amnesty International v. Tunisia, Communication 69/92.
40 | P a g e
discussed by such body. Therefore, discussion of general human rights situation by such bodies
like UN Security Council following reports from different organizations does not constitute
“settlement” of the matter.149
The rationale behind this requirement is to avoid double faulting of respondent States for the same
alleged violation of human rights. The prohibition of double jeopardy – ne bis in idem – derivers
from criminal law. In the human rights enforcement context, it ensures that no state may be sued
or condemned for the same alleged violation of human rights. In effect, this principle coincides
with the recognition of the fundamental res judicata status of judgments issued by international
and regional tribunals and/or institutions.150
Moreover, the requirement prevents usurpation of the jurisdiction of the bodies that may provide
a solution or relevant information.
However, mediation by a political institution is irrelevant in this regard. Thus, the submission of a
complaint to an NGO or an Inter-Governmental Organization such as the European Union (EU)
does not render a communication inadmissible.151 In determining whether certain international
proceedings preclude admissibility of a communication, the Commission looks at the nature of the
particular process or mechanism. If the process or mechanism is discretionary, extraordinary, non-
judicial, or which is not obligated to decide according to legal principles, the communication
concerned will be rendered inadmissible. For the mechanism to preclude admissibility of a
communication before the African Commission, it must be bound to apply rules of international
law and should not make decisions ex aequo et bono.
The other international mechanism must have a human rights mandate. Moreover, its nature of
remedies or relief should make the African Commission’s intervention unnecessary. The other
mechanism must be capable of granting declaratory or compensatory relief to victims, not mere
political resolutions and declarations. As such, the role played by the UN Security Council, the
149
150
The African Commission, Bakweri Land Claims Committee v. Cameroon, Communication, 206/02, para. 52.
151
The African Commission, Embga Mekongo Louis v. Cameroon, Communication 59/91.
41 | P a g e
Human Rights Council and other UN organs and agencies on a human rights crisis cannot be
considered as ‘settlement’ of the matter.152
However, a distinction must be made between matters pending before another international
settlement or investigation mechanism from those where that other mechanism was seized with
the matter but declined to take action. The African Commission may only be precluded to consider
the matter if another international settlement or investigation mechanism is, at least, seized with
the matter enough to make a decision on merits.153 Thus, this does not include, for example, where
the matter is rejected by the international settlement or investigation mechanism.
For the African Commission to be barred from entertaining a matter that has been settled by
another international settlement mechanism, the matter in the other mechanism must be related to
the issues before the African Commission. The matter should also involve same parties. In Kevin
Mgwanga Gunme et al v. Cameroon,154 the respondent State sought to preclude the consideration
of the matter on the ground that the matter had been settled by the International Court of Justice
(ICJ).155 In rejecting the argument, the African Commission held that the case before the ICJ was
between the Republic of Cameroon and the United Kingdom, and involved the interpretation and
application of the Trusteeship treaty, and therefore differed from the complaint which was before
the African Commission. The complaint before the African Commission was between Mr. Kevin
M. Gunme and others vis-à-vis the State of Cameroon, and the subject-matter was the right to self-
determination.
Evidence and burden of proof
For the purposes of seizure and admissibility the author is required to show a prima facie violation
of the Banjul Charter and to satisfy the admissibility criteria. The author’s factual allegations must
also be precise and, if practicable, supported by relevant documents. Similarly, general or evasive
denial by the State party does not suffice. The State party must submit specific responses and
evidence rebutting the allegations.
152
The African Commission, Sudan Human Rights Organsiation and Another v. Sudan, Communication 279/03,
para. 104-105.
153
The African Commission, Bob Ngozi Njoku v. Egypt, Communication 40/90, para. 56.
154
155
Cameroon v. United Kingdom, Judgment of 2 December 1963.
42 | P a g e
Amicable resolution
Amicable resolution of disputes forms an important feature under the Banjul Charter framework.
The drafters of the Banjul Charter intended to provide a friendlier mechanism to settle dispute as
opposed to the rigid dispute settlement procedure by means of adjudication. Before protection took
over, amicable resolution was the main measure of safeguard of human rights under the Banjul
Charter framework.
Once a communication is declared admissible, the African Commission will try to secure a friendly
settlement of the dispute. The African Commission offers its Good Offices for friendly settlement
at any stage of the proceedings. If both parties are willing to settle the dispute amicably, the African
Commission will appoint a rapporteur to handle the settlement. The rapporteur may be the
commissioner handling the case, or a commissioner responsible for promotional activities in the
State concerned or a group of commissioners.
If an amicable settlement is reached, a report containing the terms of the settlement will be
presented to the African Commission at its session. An amicable settlement automatically brings
the consideration of the case to an end. In case where no amicable settlement is reached, the
commissioner(s) concerned will accordingly send a report to the African Commission which will
determine the case and make a decision on merits.
In the view of the submissions made by parties in a particular matter, the African Commission
may, without prejudice to its findings on the matter, invite parties to an amicable settlement. 156 For
example, in Mendukazi Patricia Monakali and Others vs. South Africa,157the African Commission
invited the parties to consider an amicable settlement on the following grounds: (a) that the
communication alleged widespread violations; (b) that the matter allegedly involved a number of
children; (c) that the alleged victim faced the risk of violation; (d) that the Respondent State had
demonstrated the political will to engage with the Commission.
A party may request the African Commission to discontinue the consideration of a communication
and prefer an amicable settlement instead. In Open Society Justice Initiative (on behalf of Pius
156
Rule 109 of the Rules of Procedure of the African Commission on Human and People’s Rights.
157
43 | P a g e
Njawè Noumeni v. Cameroon,158the complainant requested the African Commission to discontinue

the consideration of the communication against the Respondent State and that the amicable
settlement be registered in its lieu. Consequently, the African Commission took note of the request
and decided to close the file. The African Commission also requested the parties to forward to the
Secretariat the written copy of the said amicable settlement for inclusion in the file.
Interim measures
Where a communication indicates that victim’s life, personal integrity or health is in imminent
danger, the African Commission may adopt provisional measures. The African Commission will
urge the State concerned not to take any action that will cause irreparable or irreversible damage
to the victim until the case has been substantively determined by the African Commission.159 The
African Commission can also adopt other urgent measures as it deems necessary.
One of the greatest challenges of this procedure is its implementations. Experience has shown that
some Member States to the Banjul Charter have mocked or ignored the provisional measure
invoked by the African Commission. For instance, in International Pen, Constitutional Rights
Project, Interights and Civil Liberties Organisation (On behalf of Ken Saro Wiwa Jnr) v.
Nigeria,160 the Respondent State ignored the call by the African Commission to suspend the
execution of Ken Saro Wiwa pending the determination of the communication.
Suspension of a communication
Owing to the nature of its reliefs, the African Commission is constrained in awarding monetary
compensation. Also in some circumstances the African Commission may have to refer a matter to
another settlement mechanism. To remedy these deficiencies, the African Commission may decide
to suspend the consideration of a particular communication sine die, to enable another mechanism
to determine the matter and potentially grand more effective remedies that are acceptable within
international practice.
158
159
The African Commission, Interights (on behalf of Sikunda) v. Namibia, Communication 239/2001, para.32
160
Communication Nos. 137/94, 139/94, 154/96 and 161/97
44 | P a g e
This is particularly the case where the African Commission would have opted to proceed to deal
with the concerned communication but the respondent assures the African Commission that all
issues will be determined by that other mechanism. In that scenario, the practice of the African
Commission has been to direct the respondent(s) to inform it regularly of the process before that
other mechanism with particular reference to the matters contained in the communication in
question.161 If that other mechanism makes a decision, the copy of the decision should be submitted
to the African Commission. If that other mechanism fails to fully address the human rights
violations which were a subject of the communication, the African Commission will reopen the
matter for consideration.
Referral of communication to the African Court of Human and People’s Rights
Rule 118 of the Rules of Procedure of the Commission confers upon the African Commission the
discretion whether or not to submit a communication to the African Court of Human and People’s
Rights (the “African Court”). The African Commission may refer a communication to the African
Court in the following situations: (a) where the a State fails to comply with the recommendation
of the African Commission; (b) where a State fails to comply with a request for provisional
measures; and (c) where in the view of the African Commission, the situation constitutes one of
serious or massive violations of human rights. After submitting the communication to the African
Court, the African Commission must inform the parties.
Consideration on the merits
Once a communication has been declared admissible, the African Commission will proceed to
consider the case on merits. The African Commission will examine the author’s allegations and
the State party’s response. In doing so, the African Commission will take into account the
provisions of the Banjul Charter and other international human rights norms. Thus in deciding the
case on merits, the African Commission applies international human rights law in general and the
161
In Interights (on behalf of Pan African Movement and Others) v. Eritrea and Ethiopia, Communications 233/99
& Communication 234/99, for example, the African Commission suspended consideration of the communication
sine die, to enable the Claims Commission (a body jointly formed by Eritrea and Ethiopia pursuant to a peace
agreement to deal with human rights violations that occurred during the conflict between the two countries) to
determine and decide on matters contained in the communication.
45 | P a g e
interpretation of the Banjul Charter in particular vis-à-vis the author’s allegations and the State
party’s response.
During the session, the parties may make written or oral presentations to the African Commission.
The State party concerned is at liberty to send representatives to the African Commission’s session
to argue the case. NGOs and individuals are also granted audience to make oral presentations
before the African Commission. The African Commission treats the parties equally throughout the
proceedings.
In case where the State party fails or refuses to respond to the allegations, thus refusing to cooperate
with the African Commission, the latter will rely on the available facts for its final decision.
However, the fact that the author’s allegations were not contested, or were partially contested does
not mean that they are proved. The African Commission can resort to appropriate method of
investigation to examine the allegations ex officio. In doing so, the African Commission can get
information from alternative sources and from third parties.
If, after analysis of the parties’ submissions or ex-parte proof of the allegations, the African
Commission finds a violation, it will make a decision whether there has been a violation of the
Banjul Charter or not. In an event where it finds a violation, it makes recommendations to the State
party concerned.
Recommendations of the Commission
The African Commission’s final decisions are called recommendations. The recommendations
usually contain the following:
(a) The decision on admissibility;
(b) An interpretation of the provisions of the Banjul Charter invoked by the author;
(c) An answer to the question whether the facts as presented disclose a violation of the Banjul
Charter; and
(d) Where a violation is found, the required action to be taken by the State party to remedy
the violation.
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The mandate of the African Commission is quasi-judicial. Owing to that characteristic of the
African Commission, its final recommendations are not in themselves legally binding. These
recommendations are included in the African Commission’s Annual Activity Reports which are
submitted to the AU Assembly of Heads of State and Government. If they are adopted, they
become binding on the States parties and are published.
Follow-up on the Commission’s recommendations
The aspiration of the African Commission to protect individuals from human and peoples’ rights
violation and to remedy violations is mainly hampered by the lack of mechanisms to implement
and enforce its recommendations. The African Commission has not laid down procedure to
supervise the implementation of its recommendations. Moreover, there is no mechanism that can
compel States to comply with the recommendations.
Immediately after the adoption of the African Commission’s Annual Activity Report by the OAU
Assembly of Heads of State and Government, the African Commission would normally send a
letter of reminder to the State that has been found in violation of the right(s) contained in the Banjul
Charter to honour its obligation under the Banjul Charter. Since there is no enforcement
mechanism, the compliance with a particular recommendation remains on the good will of the
State party concerned.
Applicable principles
In its procedures, the African Commission applies various principles. These are categorized into
primary and subsidiary principles.
Primary Principles
In the first place, the African Commission applies international law on human and peoples’ rights.
In particular primary principles are drawn from the provisions of the following instruments:
(a) Various African instruments on human and peoples’ rights;
(b) The UN Charter;
(c) The Constituent Act of the African Union;
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(d) The Universal Declaration of Human Rights;
(e) Other instruments adopted by the UN and by African countries in the field of human and
peoples’ rights; and
(f) Instruments adopted within the Specialized Agencies of the UN of which the Parties to the
Banjul Charter are members.
Subsidiary principles
As subsidiary measures to determine principles of law the African Commission may consider the
following:
(a) General or special international convections (other than those under “primary principles”
above) which lay down rules expressly recognized Member States of the African Union ;
(b) African general principles of law recognized by African States;
(c) African practices consistent with international norms on human and peoples’ rights;
(d) Customs generally accepted as law; and
(e) Legal precedents and doctrine
Special Mechanisms
Article 46 of the Banjul Charter empowers the African Commission to resort to any appropriate
method of investigation. Pursuant to such powers the African Commission may create subsidiary
mechanisms such as Special Rapporteurs, Committees and Working Groups. The creation and
membership of such subsidiary mechanisms may be determined by consensus, failing which, the
decision may be determined by voting. The mandate and the terms of reference of each subsidiary
mechanism are determined by the African Commission. Each subsidiary mechanism is required to
present a report on its work to the African Commission at each ordinary session of the
Commission.
Special Rapporteurs
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The African Commission may appoint Special Rapporteurs with specific mandates to investigate
and promote human rights. Upon making an investigation on a specific human rights issue, a
Special Rapporteur is supposed to deliver a report to the African Commission. The report may
prompt action to be taken after diligent consideration of the report findings. Only Commissioners
can be Rapporteurs. The African Commission has established a number of Special Rapporteurs:
Special Rapporteur on Freedom of Expression and Access to Information in Africa
This Special Rapporteur was established by the African Commission in 2004 and was titled The
Special Rapporteur on Freedom of Expression. In 2007, the mandate of the Special Rapporteur
was renewed with the amended title: Special Rapporteur on Freedom of Expression and Access to
Information in Africa. The Special Rapporteur is entrusted with the mandate to:
(a) Analyze national media legislation, policies and practice within Member States, monitor
their compliance with freedom of expression and access to information standards in general
and the Declaration of Principles on Freedom of Expression in Africa in particular, and
advise Member States accordingly;
(b) Undertake fact-finding missions to Member States from where reports of systemic
violations of the right to freedom of expression and denial of access to information have
reached the attention of the Special Rapporteur and make appropriate recommendations to
the African Commission;
(c) Undertake promotional country missions and any other activities that would strengthen the
full enjoyment of the right to freedom of expression and the promotion of access to
information in Africa;
(d) Make public interventions where violations of the right to freedom of expression and access
to information have been brought to her attention, including by issuing public statements,
press releases, and sending appeals to Member States asking for clarifications;
(e) Keep a proper record of violations of the right to freedom of expression and denial of access
to information and publish this in her reports submitted to the African Commission; and
(f) Submit reports at each Ordinary Session of the African Commission on the status of the
enjoyment of the right to freedom of expression and access to information in Africa.
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Special Rapporteur on Prisons and Conditions of Detention
The Special Rapporteur on Prisons and Conditions of Detention is one of the oldest special
mechanisms. This Special Rapporteur was established in 1996. This Special Rapporteur is
entrusted with the mandate to examine the situation of detainees within territories of States Parties
to the Banjul Charter. The mandate of the Special Rapporteur has been twice renewed, in 1999
and 2009.
Special Rapporteur on Human Rights Defenders
The Special Rapporteur on Human Rights Defenders was created in 2004. The Special Rapporteur
is entrusted with the mandate to:
(a) Seek, receive, examine and act upon information on the situation of human rights defenders
in Africa;
(b) Submit reports at every ordinary session of the African Commission;
(c) Co-operate and engage in dialogue with Member States, National Human Rights
Institutions, relevant intergovernmental bodies, international and regional mechanisms of
protection of human rights defenders and other stake holders;
(d) Develop and recommend effective strategies to better protect human rights defenders and
follow up on his/her recommendations; and
(e) Raise awareness and promote the implementation of the UN Declaration on Human Rights
Defenders in Africa.
The mandate has been twice renewed, in 2007 and in 2011.
The Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced
Persons
The Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons
was created in 2004. This Special Rapporteur is entrusted with the mandate to:
(a) Seek , receive, examine, and act upon the situation of refugees, asylum seekers and
internally displaced persons in Africa;
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(b) Undertake studies, research and other related activities to examine appropriate ways
to enhance the protection of refugees, asylum seekers, and internally displaced
persons;
(c) Undertake fact-finding missions, investigations, and visits to refugee camps and
camps for internally displaced persons;
(d) Assist Member States of the African Union to develop appropriate policies,
regulations and laws for the effective protection of refugees, asylum seekers, and
internally displaced persons;
(e) Co-operate and engage in dialogue with Member States, National Human Rights
Institutions, relevant intergovernmental and non-governmental bodies,
international and regional mechanisms;
(f) Develop and recommend effective strategies to better protect rights;
(g) Raise awareness and promote the implementation of the UN Convention on
Refugees of 1951 as well as the OAU Convention Governing the Specific Aspects
of Refugees Problems in Africa; and
(h) Submit reports as every ordinary session of the African Commission on the
situation of refugees, asylum seekers and internally displaced persons in Africa.
In 2006, the mandate of the Special Rapporteur was extended to include migrant issues.
Special Rapporteur on Rights of Women in Africa
The Special Rapporteur on Rights of Women in Africa is also among the oldest special
mechanisms. This Special Rapporteur was created in 1998 in recognition of the need to place
particular emphasis on the problems and rights specific to women in Africa. The mandate of the
Special Rapporteur has been renewed four (4) times since its inception.
Committees
The Committee for the Prevention of Torture in Africa
The Committee for the Prevention of Torture in Africa was established in 2002. It was originally
called The Robben Island Guidelines Monitoring Committee. The Committee was given its current
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title in 2009. However, the change of title did not affect the mandate of the Committee. The
Committee is entrusted with the mandate to:
(a) Organize, with the support of other interested partners, seminars to disseminate the Robben
Island Guidelines to national and international actors.
(b) Develop and propose to the African Commission strategies to promote and implement the
Robben Island Guidelines at national and regional level.
(c) Promote and facilitate the implementation of the Robben Island Guidelines within the
Member States.
(d) Report to the African Commission at each regular session on the status of implementation
of the Robben Island Guidelines.
The Committee on the Protection of the Rights of People Living with HIV (PLHIV) and
Those at Risk, Vulnerable to and Affected by HIV
This Committee was established in May 2010. The Committee is entrusted with the mandate to:
(a) Seek, request, receive, analyze and respond to reliable information from credible sources
including individuals, community-based organizations, non-governmental organizations,
specialized agencies, inter-governmental organizations, and State Parties, on the situation
and rights of PLHIV and those at risk;
(b) Undertake fact-finding missions, where necessary, to investigate, verify and make
conclusions and recommendations regarding allegations of human rights violations;
(c) Engage State Parties and non-state actors on their responsibilities to respect the rights of
people living with HIV and those proven to be vulnerable to these infections;
(d) Engage State Parties on their responsibilities to respect, protect and fulfil the rights of
people living with HIV and those at risk;
(e) Recommend concrete and effective strategies to better protect the rights of people living
with HIV and those at risk;
(f) Integrate a gender perspective and give special attention to persons belonging to vulnerable
groups, including women, children, sex workers, migrants, intravenous drugs users and
prisoners; and
(g) Report regularly to the African Commission on Human and Peoples’ Rights.
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Advisory Committee on Budgetary and Staff Matters
This Committee was established in May 2009. It is entrusted with the mandate to:
(a) Work with the Secretariat to identify activities from the 2008-2012 Strategic Plan of the
Banjul Charter that would feature in the Commission budget proposals;
(b) Prepare the programs budget of the African Commission for presentation to the relevant
Organs of the African Union;
(c) Ensure proper execution of the programs; and
(d) Implement the new structure of the Secretariat of the African Commission.
The mandate of the Committee was renewed and extended in May 2011.
Working Groups
Working Groups is one of the mechanisms used by the African Commission to implement its
mandate. Over the years, the African Commission has established a number of Working Groups.
These include:
Working Group on Economic, Social and Cultural Rights
This Working Group was established in 2014. This Working Group is entrusted with the mandate
to:
(a) Develop and propose to the African Commission on Human and Peoples’ Rights a
draft Principles and Guidelines on Economic, Social and Cultural Rights;
(b) Elaborate a draft revised guidelines for State reporting;
(c) Undertake studies and research on specific economic, social and cultural rights; and
(d) Make a progress report to the African Commission at each Ordinary Session.
In 2008, the Working Group on Economic, Social and Cultural Rights was mandated to further
define State obligations related to access to medicines and to develop model monitoring and
assessment guidelines.
Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary Killings in

Africa
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The mandate of the Working Group was operationalized in 2005, following the elaboration of the
concept paper on the Questions of Death Penalty in Africa. This elaboration was done by two
Commissioners appointed by the African Commission who worked with the Special Rapporteur
on Prisons and Conditions of Detention in Africa. The mandate of the Working Group is to:
(a) Further elaborate a Concept Paper on the Death Penalty in Africa;

(b) Develop a strategic plan(s) including a practical and legal framework on the abolition of
the Death Penalty;
(c) Collect information and continue to monitor the situation of the application of the Death
Penalty in African States;
(d) Develop a funding proposal; and
(e) Submit a progress report at each Ordinary Session of the African Commission.
To elaborate with other partners, including International, National, Governmental and Non-
Governmental Institutions for the successful fulfilment of its mandate.
Working Group on Indigenous Populations/Communities in Africa
This working Group was established in 2000. It is mandated to:
(a) Examine the concept of indigenous people and communities in Africa;

(b) Study the implication of the Banjul Charter and well-being of indigenous communities,
especially with regard to:
(i) the right to equality (Articles 2 and 3);

(ii) the right to dignity (Article 5);
(iii) protection against domination (Article 19);
(iv) on self-determination (Article 20); and
(v) The promotion of cultural development and identity (Article 22).
(c) Consider appropriate recommendation for the monitoring and protection of the rights of
indigenous communities.
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The mandate of this Working Group has been renewed four (4) times. As at 31 December 2016
the Working Group has adopted twelve (12) resolutions. Moreover, since 2005 the Working Group
has held more than thirteen (13) research and information visits to State Parties to the Banjul
Charter, with the general purpose to inquire into the status of individual peoples.
Working Group on Specific Issues Related to the Work of the African Commission
This Working Group was established in 2005. The Working Group was established with the
mandate to:
(a) Review the Rules of Procedure of the African Commission on Human and Peoples’ Rights;
(b) Deal with the mechanism and procedure on follow-up decisions and recommendation of
the African Commission;
(c) Deal with the structure of different reports of the African Commission;
(d) Deal with the modalities for the establishment of a Voluntary Fund for Human Rights in
Africa; and
(e) Deal with the follow-up on the implementation of the recommendation of the Retreat of
the African Commission in Addis Ababa of September 2003, the evaluation report on the
work of the African Commission and the UPPSALA consultation of June 2004.
The mandate of this Working Group has been renewed three (3) times.
Working Group on Rights of Older Persons and People with Disabilities
This Working Group was established in November 2007. It originated as a Focal Point. In May
2009, the African Commission extended the mandate of the group by establishing a Working
Group on the Rights of Older Persons and People with Disabilities, with the mandate to:
(a) Hold comprehensive brainstorming sessions to articulate the rights of older persons and
people with disabilities;
(b) Draft a Concept Paper for consideration by the African Commission that will serve as a
basis for the adoption of the Draft Protocol on Ageing and People with Disabilities;
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(c) Facilitate and expedite comparative research on the various aspects of human rights of
older persons and people with disabilities on the continent, including their socio-economic
rights;
(d) Collect data on older persons and people with disabilities to ensure proper mainstreaming
of their rights in the policies and development programmes of Member States;
(e) Identify good practices to be replicated in Member States; and
(f) Submit a detailed Report to the African Commission at each Ordinary Session.
The Working Group on Extractive Industries, Environment and Human Rights Violations
This Working Group was established in November 2009. The Working Group is mandated to:
(a) Examine the impact of extractive industries in Africa within the context on the African
Charter on Human and Peoples’ Rights;
(b) Research specific issues pertaining to the right of all peoples to freely dispose of their
wealth and natural resources and to a general satisfactory environment favourable to their
development;
(c) Undertake research on the violations of human and peoples’ rights by non-state actors in
Africa;
(d) Request, gather, receive and exchange information and materials from all relevant sources;
(e) Inform the African Commission on the possible liability of non-state actors;
(f) Formulate recommendations and proposals on appropriate measures and activities for the
prevention and reparation of violations of human and peoples’ rights by extractive
industries;
(g) Collaborate with interested donors institutions and NGOs; and
(h) Prepare a comprehensive report to be presented to the African Commission.
Since its inception, the Working Group has adopted more than six (6) resolutions.
Working Group on Communications
This Working Group was established in 2011 on the basis of Rule 97(2) of the Rules of Procedure
of the African Commission which provides that:
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“The African Commission may establish one or more working

groups to consider questions of seizure, admissibility and the merits
of any communication(s) and to make recommendation to the
Commission.”
Resolutions
Pursuant to Article 45 of the Banjul Charter, the African Commission has powers to adopt
resolutions to address diverse human rights issues. These resolutions could generally be classified
into three: thematic, administrative and country-specific resolutions.
1. Thematic Resolution
A thematic resolution gives a detailed elaboration of specific human right themes or a particular
substantive right covered in the Banjul Charter. In doing so, a thematic resolution describes the
standard set by the Banjul Charter. Moreover, it defines the obligations of the State Parties to the
Banjul Charter in respect of such substantive right.
The African Commission has adopted a number of thematic resolutions on various human right
themes including death penalty, HIV/AIDS, indigenous peoples, electoral processes, situation of
women and children, good governance, fair trial, freedom of association and prisons.
2. Administrative Resolutions
Administrative resolutions deal with the African Commission’s procedures, internal mechanisms,
and relationships between the African Commission and organs of the AU, intergovernmental
organizations, national human rights institutions and NGOs. Examples of the African
Commission’s administrative resolutions include: resolutions on the appointment and mandate of
special rapporteurs and working groups, the resolution on the protection of the name, acronyms
and logo of the African Commission, and resolutions on the criteria for grant of observer status to
NGOs and affiliate status to national human rights institutions.
3. Country-specific resolutions
Country-specific resolutions address pertinent human rights concerns occurring in State Parties to
the Banjul Charter particularly when there are widespread violations. This genre of resolution
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ordinarily supplements the lack of individual complaints in respect of those particular violations.
The African Commission has passed specific resolutions to address the human rights situation in
Kenya, Sudan, Rwanda, Uganda, Ethiopia, Eritrea, Somalia, DRC, Côte d’ Ivore, Libya, Tunisia,
Guinea Bissau, Burundi etc.
State reports
Each State party to the Banjul Charter is required to submit reports on measures taken, with a view
to giving effect to human and people’s rights enshrined in the Banjul Charter.162 Each State is
required to submit two types of report: (a) initial report; and (b) periodic report. A state is required
to submit an initial report two years after ratification or accession of the Banjul Charter, and a
periodic report every two years after the initial report. This procedure serves as a forum for
constructive dialogue. It enables the African Commission to monitor implementation of the Banjul
Charter and identify challenges impeding the realization of the objects of the Banjul Charter
This obligation has not been seriously taken by State parties. Many states are in arrears, with
several reports due. Apart from high defaulting record, other states submit reports without due
regard to quality. Many states disregard the guidelines on the preparation of state reports. The
reporting procedure is further affected by the lack of follow-up mechanisms, comments or
observations thereof. The existence of such mechanisms, as they are in the UN human rights
system, highly assists states to improve their reports.
Missions
African Commission undertakes missions as a method of investigation. The main purpose of

undertaking such missions is to enhance the promotion and protection of human rights in Africa
and to ensure that Member States comply with their obligations undertaken under the Banjul
Charter. The African Commission undertakes two categories of missions:
(a) Protective missions
(b) Promotional missions
162
Article 62 of the Banjul Charter
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Special Rapporteurs also undertake missions focusing on human rights violations within their
mandates.
Protective missions
Protective missions are of two types: (a) on-site mission; and (b) fact-finding mission. The
African Commission usually undertakes on-site mission to a state against which a number of
communications have been submitted with a view to investigate specific facts relating to the
communications or to explore possibilities for amicable settlement of the matter.
The African Commission usually undertakes fact-finding missions where there is a general
allegation or widespread reports of human rights abuses against a State Party to the Banjul Charter.
A prior communication need not necessarily be pending before the African Commission for the
Commission to undertake a fact-finding mission.
Promotional missions
The African Commission undertakes promotional missions or visits to sensitize states about the
role of the Banjul Charter, encourage non-States Parties to ratify the Banjul Charter or any other
human rights instrument or to promote the state-reporting procedure. For the purpose of
promotional visits, all fifty four (54) States Parties to the Banjul Charter are distributed among the
Commissioners.
Obligations of States and Role of Civil Society during a mission
When the African Commission undertakes a mission within the territory of the State Party to the
Banjul Charter, the State must:
(a) Guarantee free movement of members of the mission;
(b) Provide the mission with any necessary information or document;
(c) Take steps to protect members of the mission;
(d) Refrain from taking reprisal action against persons or organizations that furnished the
mission with information, testimony or evidence.
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Civil society plays a major role in missions undertaken by the African Commission. A civil society
may facilitate the African Commission’s decision to undertake missions by raising concerns on
gross human rights violations. Civil society may also play the role of interlocutors.
The African Court on Human and Peoples’ Rights
The African Court on Human and Peoples’ Rights (the African Court) is a continental court
established to ensure protection of human and peoples’ rights in Africa. It complements and
reinforces the functions of the African Commission in promoting and protecting human and
peoples’ rights, freedom and duties in AU Member States. The African Court was established by
virtue of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment
of an African Court on Human and Peoples’ Rights (the “African Court Protocol”) which was
adopted by Member States of the then OAU in Ouagadougou, Burkina Faso, in June 1998. The
African Court Protocol came into force on 25 January 2004 after it was ratified by more than
fifteen (15) countries. At the writing of this book thirty (30) States have ratified the African Court
Protocol.163 Unlike the African Commission, the African Court makes binding decisions.
History of the African Court
The origin of the African Court dates back in 1961 when the Law of Lagos Conference on the Rule
of Law was held. At this conference the court was considered as part of the then proposed African
Convention for Human Rights. The Convention never came into existence, and the idea of the
Court was later dismissed as not being an African way of resolving disputes. Many African leaders
and scholars preferred arbitration mechanism to adversarial process of litigation.
Extensive negotiations on the mechanisms to promote and protect human and peoples’ rights in
Africa took place throughout the 1960’s and 1970’s. These negotiations resulted in the adoption
of the Banjul Charter in 1981. However, the Banjul Charter omitted the establishment of a court.
The omission was strategically made to achieve consensus regarding the Banjul Charter. Instead,
an African Commission was established. Hence, the protection of rights provided for in the Banjul
These include Algeria, Benin, Burkina Faso, Burundi, Cameroon, Chad, Côte d’ Ivore, Comoros, Congo, Gabon,
163
Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger,
Rwanda, Sahrawi Arab Democratic Republic, South Africa, Senegal, Tanzania, Togo, Tunisia and Uganda.
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Charter rested solely with the African Commission. However, the decisions of the African
Commission are not binding and have been routinely ignored by State Parties to the Banjul Charter.
This weakened protective powers and the inability to make binding decision heightened the need
for a court.
In the second half of the 1990’s, advancements of democracy in several African states and the
weak record of the African Commission mounted the need for stronger measure of safeguards for
the protection of human rights, making the establishment of the African Court possible.
In June 1994, the Assembly of Heads of State and Government adopted resolution AHGeRes.230
(XXX) requesting the Secretary General of the then OAU to convene a Government experts’
meeting to ponder, in conjunction with the African Commission, over the means to enhance the
efficiency of the African Commission and to particularly consider the establishment of an African
Court on Human and Peoples’ Rights.164 These Government legal experts’ meetings were held in
September 1995 (Cape Town, South Africa), in April 1997 (Nouakchott, Mauritania) and in
December 1997 (Addis Ababa, Ethiopia). The latest meeting was enlarged to include diplomats.
Finally, after complex negotiations, the African Court Protocol was adopted in 1998. The African
Court Protocol was made pursuant to Article 66 of the Banjul Charter which provides for the
making of necessary special protocols to supplement the provisions of the Charter towards the
protection of human rights. The African Court Protocol entered into force in 2004, paving the way
for the operationalization of the African Court. Being a protocol to the Banjul Charter, the African
Court Protocol is subservient to the Banjul Charter. In other words, the Banjul Charter ranks higher
than the African Court Protocol.
Composition of the African Court
The African Court is composed of eleven (11) judges, who are elected by a secret ballot by the
Assembly of Heads of State and Government of the AU from a list of nationals of Member States
of the AU. The judges are elected for a term of six (6) years and may be re-elected only once. The
judges are elected in their personal capacity and not as representatives of their respective countries.
164
The sixth paragraph of the Preamble of the African Court Protocol.
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All judges except the President perform their functions on a part-time basis. The African Court
meets four times a year in Ordinary Sessions lasting two (2) weeks each and in Extra-Ordinary
Sessions as necessary.
Jurisdiction of the African Court
Jurisdiction is a court’s power to decide a case with final and binding force.165 Every court must
be satisfied that it has jurisdiction before proceeding to examine any case before it on merits The
African Court has jurisdiction over all cases and disputes submitted to it regarding the
interpretation and application of the Banjul Charter, the African Court Protocol and any other
relevant human rights instrument ratified by the concerned States. In the event of a dispute as to
whether the African Court has jurisdiction, the African Court shall decide.166 The African Court
can exercise three types of jurisdiction: advisory jurisdiction, contentious jurisdiction and amicable
settlement.
Advisory jurisdiction
The African Court may provide an opinion on any legal matter relating to the Banjul Charter or
any other human rights instrument. This power is purely discretional. However, there are no
guidelines in the African Court Protocol for determining when to exercise or decline to exercise
advisory power. The following entities may request the African Court to provide an advisory
opinion:
(a) A Member State of the AU; or
(b) Any organ of the AU; or
(c) Any African organization recognized by the AU.
However, the African Court shall not make an advisory opinion on a matter being examined by
the African Commission.
165
Shabtai Rosennes, “The Law and Practice of the International Court”, 1920-2005 Vol.II p. 524.
166
Article 3(2) of the African Court Protocol
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The advisory power of the African Court is broader than that of the other regional human rights
courts in terms of who may submit requests for an advisory opinion. Under the Inter-American
system, only the members of the Organization of American States (OAS) and OAS organs are
entitled to request an advisory opinion and in the European system, only the Committee of
Ministers has the right to seek such opinion.
Contentious jurisdiction
The African Court can deal with all cases and disputes submitted to it concerning interpretation
and application of the Banjul Charter, the African Court Protocol, and any other relevant human
rights instrument ratified by the States concerned.
Components of contentious jurisdiction

Contentious jurisdiction of the African Court may be broken down into four components:
(a) Jurisdiction ratione personae (jurisdiction over the person);
(b) Jurisdiction ratione materiae (jurisdiction over the subject matter);
(c) Jurisdiction ratione temporis (temporal jurisdiction); and
(d) Jurisdiction ratione loci (geographical jurisdiction).
Jurisdiction ratione personae

This is a personal jurisdiction of a court. Where jurisdiction of a court is not compulsory, the court
needs to determine its personal jurisdiction before proceeding to determine other types of
jurisdiction. Hence, it is only after establishing its personal jurisdiction that a court can look at its
material jurisdiction and/or, if the case arises, its temporal and geographical jurisdiction.
The jurisdiction of the African Court is not compulsory. This is because the States concerned must
be parties to the African Court Protocol, and where necessary, must have deposited a declaration
signifying their willingness to be sued by individuals or NGOs. Since its jurisdiction is not
compulsory, the African Court must first of all ascertain that it has personal jurisdiction to consider
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any application before it.167 The personal jurisdiction of the African Court may be ascertained from
two different levels: (a) at the level of the applicant; and (b) at the level of the respondent.
The following are entitled to make an application to the African Court:
(a) The African Commission;
(b) A State Party to the African Court Protocol against which the complaint has been submitted
at the African Commission;
(c) A State Party to the African Court Protocol whose citizen is a victim of a human rights
violation;
(d) African Intergovernmental Organizations;
(e) On leave of the Court, A State Party to the African Court Protocol with an interest in a case
before the African Court; and
(f) Relevant non-governmental organizations (NGOs) with Observer Status before the African
Commission and individuals provided A State Party from which they come from has made
a declaration permitting such direct applications.
For the African Court to entertain an application submitted directly by an individual or NGO
against a State Party, the application must comply with Article 5(3) and Article 34(6) of the African
Court Protocol read together. Article 5(3) provides that:
The Court may entitle relevant Non-Governmental Organizations (NGOs)

with observer status before the Commission and individuals to institute
cases directly before it, in accordance with Article 34(6) of this Protocol
For its part, Article 34(6) provides that:
At the time of the ratification of this Protocol or any time thereafter, the
State shall make a declaration accepting the competence of the Court to
African Court, Efoua Mbozo’o Samuel v. the Pan African Parliament, Application No. 010/2011, Separate
167
Opinion of Justice Fatsah Ouguergouz, para. 6.

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receive cases under Article 5(3) of this Protocol. The Court shall not
receive any petition under Article 5(3) involving a State Party which has
not made such a declaration.
The effect of the two provisions is that direct access to the African Court by an individual or NGO
is subject to the deposit by the Respondent State of a declaration accepting the competence of the
African Court to entertain such direct applications. An application does comply with the provisions
of Article 5(3) and 34(6) will be struck out from the general list of the African Court for want of
jurisdiction.168
The word “shall” in the first sentence of Article 34(6) suggests that filing of the declaration by the
State Party is an imperative obligation and not discretionary obligation. However, this prescription
does not have any real legal effect because it does not set any time limit. It would also not make
sense if it is read in the context of the second sentence of the same provision which provides that
the African Court shall not receive an application “involving a State which has not made such a
declaration.” In light of this, therefore, the filing of the special declaration seems to be optional.
The deposit of the special declaration need not necessarily be done “before” the filing of the
application. Article 34(6) simply provides that the declaration may be made at the time of the
ratification of the African Court Protocol “or any time thereafter”. Therefore, nothing prevents a
State Party from making the declaration “after” an application has been submitted against it. The
provision allows an elastic margin of discretion within which States Parties may deposit their
declarations. It does not provide for any constraining time frame beyond which a State Party which
has not yet deposited its declaration can be said to have violated the African Court Protocol.169
The second sentence of Article 34(6) of the African Court Protocol provides that “it shall not
receive any petition […] involving a State Party which has not made such a declaration.” However,
the word “receive” should not be understood in its literal meaning as referring to “physically
receiving” nor in its technical sense as referring to “admissibility.” Instead, it should be interpreted
168
African Court, Amir Adam Timam v. Sudan, Application 005/2012, para.9; Baghdad Ali Mahmoudi v. Tunisia,
Application 007/2012, para. 13(i); Emmanuel Joseph Uko and Others v. South Africa, Application 004/2012, para.
13; and Delta International Investiments SA, Mr. Agl De Lange and Mrs. M. De Lange v. South Africa v. South
Africa, Application 002/2012, para.10.
169
Democratic Party v. Secretary General of the EAC et al, Appeal No. 1 of 2014 (Appellate Division), para. 74
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as prescribing the conditions under which the African Court could hear cases from individuals or
NGOs and the consequence of the absence of the deposit by the Respondent State of a declaration
accepting the competence of the African Court to entertain direct applications from individuals or
NGOs.170
The requirement of such special declaration stems from the fundamental principle regarding the
acceptance of the jurisdiction of an international Court, consent. The principle of jurisdiction by
consent is derived from that of the sovereignty of State. A State’s consent is a core condition for
the jurisdiction of any international Court.171 Under the African Court Protocol, consent of a State
may be expressed in two ways: By becoming a party to the African Court Protocol and, optionally,
by depositing a special declaration authorizing the African Court to hear cases brought by
individuals or NGOs against such State.
An NGO submitting a case to the African Court must have an observer status before the African
Commission. If an NGO which has submitted an application before the African Court does not
have such observer status, the African Court shall strike out the application for want of
jurisdiction.172
An application may be filed only against a State Party to the African Court Protocol. This is
founded upon the terms of Article 3(1) of the African Court Protocol which states that:
The jurisdiction of the Court shall extend to all cases and disputes
submitted to it concerning the interpretation and application of the
Charter, this Protocol and any other relevant Human Rights
instrument ratified by the States concerned.
Therefore, the African Court has no jurisdiction to hear the case instituted against a State which is
not a Member State to the African Court Protocol. In Youssef Ababou v. Morocco,173 the African
Court held that it had no jurisdiction to entertain an application brought against Morocco because
170
Michelot Yogogombaye v. Senegal, Application No. 001/2008, para. 39.
171
See Permanent Court of International Justice, Statute of Eastern Carelia, Advisory Opinion of 23 July 1923,
Series B,p.27.
172
See, for example, in CONASYSED v. Gabon, Communication 012/2011 where the African Court struck out the
application for want of jurisdiction because, inter alia, the applicant (CONASYSED) did not have observer status
with the African Commission.
173
Application No. 007/2011.
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the latter was not a member of the AU, and had neither signed nor ratified the African Court
Protocol. Consequently, the African Court struck out the application for want of jurisdiction.
Moreover, according to Article 34(6) of the African Court Protocol, an application filed by an
individual or NGO may only be filed against A State Party to the African Court Protocol which
has made a declaration accepting competence of the African Court to entertain such direct
applications. The African Court is barred from entertaining any application filed by an individual
or NGO involving a State Party to the African Court Protocol which has not made such
declaration.174 However, the African Court may invite such State to intervene in the case if it so
wishes, for example, where the applicant in the case against a State that has made a declaration is
its national or the allegations partly relate to it.175
Where the allegations are partly directed against the State which has made a declaration and partly
against a State which has not made a declaration, the lack of competence on the latter does not
prevent the African Court to examine the matter as it relates to the former. In Kennedy Owino
Onyachi and Another v. Tanzania176, for example, the African Court proceeded to examine
allegations against Tanzania, which had made the declaration although the Court had declined its
competence against Kenya which had not made the declaration. Both States were implicated in the
allegations. The applicants in the case alleged, inter alia, that the Kenyan and Tanzanian Police
transported them to Tanzania before the expiry of the time allowed to appeal against the extradition
order issued by the Kenyan court, and that at the time of such extradition the two states did not
have an extradition treaty between them.
In determining locus standi of applicants before the African Court a distinction need to be made
between the “capacity to act” and the “interest to act”. The capacity to act relates to its authority
to appear before the African Court and therefore comes within jurisdiction ratione personae of the
Court in relation to the applicant.177 For its part, the interest to act refers to the notion of legitimate
interest. The latter is the legally recognized or protected interest. Therefore, the capacity to act
174
Association Juristes d’Afrique pour la Borne Gouvernance v. Côte d’Ivoire, Application 006/2011
175
See Rule 35(2) (b) and 4 (b) of the Rules of the African Court.
176
177
African Court, The Consolidated matter of Tanganyika Law Society, Legal and Human Rights Centre, Rev.
Christopher R. Mtikila, Applications No. 009/2011 and No. 011/2011, Separate Opinion of Vice-President Fatsah
Ouguergouz, para.25.
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deals with the applicant whereas the interest to act relates to the action that the applicant
undertakes. The African Court has to independently determine the existence of interest to act in
each case.178
It is the duty of the applicant to justify his or her interest in moving the African Court to entertain
his or her application. To show proof of such interest, the applicant must accordingly demonstrate
that the act or omission of the Respondent State applies to a right which the applicant has or the
right of an individual on behalf of which it wishes to seize the African Court.
Only states can be members of the African Court Protocol. Therefore, no case can be filed in the
African Court against an international organization. This is stems from the principle that an
organization which is not a party to a treaty cannot be subject to legal obligations arising from that
treaty.179 Moreover, although an international organization is an international person, that is not
the same as equating it to a state or that its legal personality and rights and duties are the same as
those of a State.180 In line with this premise, the African Court ruled, in Femi Falana v. The African
Union,181 that the African Union cannot be sued before the African Court on behalf of its members.
In the view of the African Court, the mere fact that the AU has a separate legal personality does
not imply that it can be considered as a representative of its Member States with regard to
obligations that they undertake under the African Court Protocol.182 In that case, the applicant filed
a case against the AU as a representative of its Member States asking the African Court to find the
requirement for a State to make a declaration to allow access to the African Court by individuals
and NGOs in inconsistent with the Banjul Charter.
However, there has been no unanimity in the African Court on the validity of Article 34 (6) of the
African Court Protocol and the liability of the AU in respect to the provision. The majority of
judges have strictly interpreted the provision as validly barring the African Court to entertain
178
Ibid.
179
See Article 34 of the Vienna Convention on the Law of Treaties between States and International Organizations
or between Organizations of 1986
180
For similar approach see African Court, Atabong Denis Atemnkeng v. The African Union, Application 014/2011.
181
Application No. 001/2011
182
However, in their Dissenting Opinion, Judges Sophia A.B. Akuffo, Bernard M. Ngoepe and Elsie N. Thompson
disagreed with the majority judgment that the AU could not be cited in the case before the African Court. In their
view, the right to bring international claims carries with it, as a natural legal consequence, the capacity to be sued.
The AU is obligated to protect human and peoples’ rights enshrined in the Banjul Charter, such an obligation would
mean nothing if it could not be enforced against the AU.
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applications submitted against a State which has not made the declaration accepting the
competence of the African Court to entertain individuals and NGOs applications. They also have
taken the view that the AU cannot be vicariously liable. In contrast, some judges have taken the
view that Article 34 (6) of the African Court Protocol is null and void and the AU should be
vicariously liable. In the Dissenting Opinion in Atabong Denis Atemnkeng v. The African Union,183
Justices Sophia A.B. Akuffo, Bernard M. Ngoepe and Elsie N. Thomson declared Article 34(6) of
the African Court Protocol null and void for being incompatible with the African Court Protocol
itself and inconsistent with the Banjul Charter as it denies the peoples of Africa access to the
African Court. In their view, the provision allows Member States of the African Court Protocol to
abandon their responsibility to comply with the protective mandate of the African Court. By
international standards, when States have purported to abandon their responsibility, the body they
have established to facilitate (in this case the AU) their collective will and action should be liable
for such abandonment.
In practice, it is the Legal Counsel of the AU Commission who informs the Registry of the African
Court on the Respondent’s membership status in the AU,184 status of ratification of relevant
treaty,185 and status of State’s declaration accepting competence of the African Court to entertain
direct applications from individuals and NGOs.186The Legal Counsel of the AU Commission does
this at the request of the Registrar of the African Court.
Jurisdiction ratione materiae

This is a material jurisdiction of a court. It is the jurisdiction over the nature of the case and the
type of the relief sought; the extent to which a court can rule on the conduct of persons or status
of things. Jurisdiction ratione materiae of the African Court covers the interpretation and
application of the Banjul Charter as well as that of the African Court Protocol and of any other
relevant human rights instrument ratified by States concerned.187 Hence, as long as the rights
183
184
See African Court, Youssef Ababou v. Morocco, Application No. 007/2011, para. 9.
185
See African Court, Ekollo Moundi Alexandre v. Cameroon and Nigeria, Application No. 008/2011, para. 5.
186
See African Court, CONASYSED v. Gabon, Application 012/2011, para. 4; Michelot Yogogombaye v. Senegal,
Application No. 001/2008, para. 36; Emmanuel Joseph Uko and Others v. South Africa, Application 004/2012, para.
10; Soufiane Ababou v. Algeria, Application No. 002/2011, para. 10; and Delta International Investiments SA, Mr.
Agl De Lange and Mrs. M. De Lange v. South Africa v. South Africa, Application 002/2012, para.7.
187
Article 3(1) of the African Court Protocol.
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allegedly violated are protected by the Banjul Charter or any other human rights instrument ratified
by the State concerned, the African Court will have jurisdiction over the matter.188 This jurisdiction
is broader than that of the other regional human rights courts. The jurisdiction ratione materiae of
the European Court of Human Rights and the Inter-American Court of Human Rights is limited to
the conventions under which they were created.
However this broadened jurisdiction creates a risk of indirect interference with other international
treaty bodies. It may also create a risk of fragmentation of international jurisprudence on human
rights. These risks may in turn lower the integrity and reputation of the proceedings and decisions
of these bodies. The risks would occur, for instance, where the African Court interprets and applies
the International Covenant on Civil and Political Rights, 1966 (ICCPR), the treaty which
establishes a body with protective mandate – the Human Rights Committee. Therefore, the African
Court’s interpretation and the application of the ICCPR are likely to fragment the international
jurisprudence over the particular matter especially where the African Court’s view differs from
that of the Human Rights Committee on the particular matter.
The expression “any other relevant human rights instrument ratified by the State concerned”189
suggests three requirements: (a) the instrument in question must be an international treaty; (b) the
international treaty must relate to human rights; and (c) it must have been ratified by the State
concerned. These requirements must all be met. After satisfying that all the requirements are met,
the African Court must again ensure that the international treaty is relevant for determination of
the matter in question.
In determining whether a particular treaty is a “human rights instrument”, the African Court should
make a distinction between treaties which deal mainly with the protection of human rights and
those which address other issues but which contain provisions related to human rights.190 Treaties
which deal mainly with the protection of human rights are specially designed to give subjective
rights to individuals. These treaties can undoubtedly be considered as human rights instruments.
188
The African Court, Peter Joseph Chacha v. The United Republic of Tanzania, Application No. 003/2012, para.
114.
189
See Articles 3(1) and 7 of the African Court Protocol
190
Christopher R. Mtikila, Applications No. 009/2011 and No. 011/2011, Separate Opinion of Vice-President Fatsah
Ouguergouz, para.15.
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Even an international treaty that does not give subjective rights to individuals but essentially
provides for undertakings by State Parties could also be considered as a human rights instrument.
These should be distinguished from those treaties which address other issues but which contain
provisions related to human rights especially where those provisions do not grant subjective rights
to individuals within the jurisdiction of the State Parties.
Although every application must specify the alleged violation,191 it need not formally indicate the
instrument from which the provision of the alleged violation is based. Therefore, reference by an
applicant to the Universal Declaration of Human Rights (UDHR) to allege a violation has no effect
on the jurisdiction of the African Court as long as the alleged violation is also provided for by a
treaty ratified by the State concerned.192 Moreover, although the UDHR is not a treaty that is
ratified by States, it has attained the status of customary international law and a grund-norm from
which African Court can draw inspiration.193 Some national constitutions have domesticated the
application and spirit of the UDHR.194
When an application cites and relies upon only national law or constitution, the African Court will
look for corresponding articles in the Banjul Charter or any other human rights instrument, and
base its decision thereon. For the African Court to admit an application the substance of the
application must relate to rights guaranteed in the Banjul Charter or any other human rights
instrument ratified by the State concerned, without necessarily requiring that specific rights alleged
to have been violated be specified in the Application. Hence, failure to cite any specific articles of
the Banjul Charter or any other human rights instrument ratified by the State concerned is no reason
to oust the jurisdiction of the African Court. The Application would be admissible if: (a) it
discloses a prima facie violation of rights; and (b) it relates to human and peoples’ rights protected
under the Banjul Charter or any other human rights instrument ratified by the State concerned.
The African Court is not an appellate court. It does not have any appellate jurisdiction to receive
and consider appeals in respect of cases already decided upon by domestic and/or regional and
191
See Rule 34(4) of the Rules of the African Court
192
African Court, Frank David Omary and Others v. Tanzania, Communication 001/2012, para. 74.
193
Ibid, para. 73.
194
For instance, Article 9(f) of the Constitution of the United Republic of Tanzania of 1977 provides that “… the
State authority and all agencies are obliged to direct their policies and programmes towards ensuring that human
dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights.”
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195
similar Courts. In Ernest Francis Mtingwi v. Malawi, the African Court ruled that it had no
jurisdiction to entertain an appeal by the Applicant against the decision of the Malawi Supreme
Court of Appeal. Consequently, it struck out the application for want of jurisdiction.
Moreover, the African Court cannot entertain an application that raises issues involving evaluation
of evidence in accordance with the domestic law. However, the African Court may examine
evidence laid before it so as to ascertain in general, whether consideration of such evidence by the
domestic court was in conformity with the requirements of the Banjul Charter or other international
instruments ratified by the Respondent State.196 In Kennedy Owino Onyachi and Another v.
Tanzania197, for example, the African Court examined whether the evaluation of facts or evidence
by the domestic court was manifestly arbitrary or resulted in a miscarriage of justice. The African
Court also held that it has jurisdiction to investigate the manner in which the particular evidence
that resulted in the alleged violation of human rights was collected and whether such process was
carried out with adequate safeguards against arbitrariness.198
The African Court does not have the jurisdiction to examine the constitutionality of domestic
legislation. However, it can examine the extent to which such legislation violates the provisions
of the Banjul Charter or other international human rights instruments ratified by the State
concerned.199 In determining whether the African Court has the power to touch on the
constitutionality of a domestic legislation, the test applied is whether or not it would apply the
same law as the domestic courts. If the in its determination the African Court would apply domestic
law, it will have no jurisdiction to examine the constitutionality of a domestic legislation, because
doing so would require it to sit as a “Supreme Court of Appeal”. However, the African Court will
have jurisdiction to examine the constitutionality of a domestic legislation if it applies exclusively
the provisions of the Banjul Charter or other international human rights instruments ratified by the
State concerned.200
Jurisdiction ratione temporis
195
196
Mohamed Abubakari v. Tanzania, Application No. 007/2013.
197
198
Kennedy Owino Onyachi and Another v. Tanzania, Application No. 003/2015, para. 38.
199
Ibid.
200
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This is a temporal jurisdiction of a court. It refers to the jurisdiction of a court over the matter in
relation to time. A court will only have jurisdiction ratione temporis if litigation is launched within
the prescribed time limitations. In respect of jurisdiction ratione temporis of the African Court, a
case must be based on the events which occurred after the Respondent State became a party to the
Banjul Charter or any other relevant human rights instrument as well as the African Court Protocol.
This is founded on the principle that treaties do not bind states retrospectively.
Where the alleged violation of human and people’s rights occurred after the Respondent State
became a Party to the relevant treaty under which they are protected but before the African Court
Protocol came into operation, the African Court will still have temporal jurisdiction.201 This is
because at the time of such violation the Respondent State was bound by the treaty and therefore
had the duty to protect those rights.202
Therefore, the African Court may exercise its temporal jurisdiction over events which occurred
before the Protocol establishing it came into operation, or before the Respondent ratified it or
before the Respondent State made a special declaration pursuant to Article 34(6) of the African
Court Protocol. This is particularly relevant where the alleged violation is continuing. 203
Jurisdiction ratione loci

This is a geographical jurisdiction of a court. The subject-matter for determination before the
African Court must have occurred within the territorial sphere within which the Banjul Charter or
any other relevant human rights instrument ratified by the State concerned applies.
Individuals and NGOs Applications

Individuals and NGOs may submit applications to the African Court. An application submitted by
an individual or NGO must meet all the jurisdictional requirements explained above, and the
particular admissibility conditions.
Admissibility conditions for individuals and NGOs applications
201
Christopher R. Mtikila, Applications No. 009/2011 and No. 011/2011, paras. 84-85.
202
African Court, Urban Mkandawire v. Malawi, Application 003/2011, para. 32.
203
Christopher R. Mtikila, Applications No. 009/2011 and No. 011/2011, para. 84
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Jurisdiction and admissibility are two different issues. Whereas jurisdiction concerns the Court,
admissibility concerns the Application. The Court has to first determine whether or not it has
jurisdiction before considering the admissibility of the application. It has to do so on its own
motion even if the Respondent State has not raised a preliminary objection in that regard. With
regard to applications from individuals and NGOs, the African Court can only exercise its
jurisdiction against State Parties to the African Court Protocol in accordance with the conditions
set out in the Protocol. Therefore, chronologically, the African Court deals with the issue of
jurisdiction and then admissibility.
An application submitted by an individual or NGO must meet the following conditions:
(a) It must disclose the identity of the author, even where the author has requested anonymity;
(b) It must comply with the Constitutive Act of the African AU and the Banjul Charter;
(c) It must not contain any disparaging or insulting language;
(d) It must not be exclusively on news disseminated through the mass media;
(e) It must be filed after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged;
(f) It must be filed within a reasonable time from the date local were exhausted or from the
date set by the African Court as being the commencement of the time limit within which it
shall be seized with the matter; and
(g) It must not raise any matter or issues previously settled by the parties in accordance with
the principles of the UN Charter, the Constitutive Act of the AU, the provisions of the
Banjul Charter or of any legal instrument of the AU.204
These seven conditions are cumulative. This means that they must all be met before the African
Court can declare a communication admissible. If any of the criteria is not met, the African Court
204
However, this rule does apply where the Applicant has formally withdrawn the case in that other settlement
mechanism (See African Court, Urban Mkandawire v. Malawi, Application 003/2011, para. 33)
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will declare the application inadmissible, unless the author provides sufficient justifications why
any of the conditions could not be met.
It is the duty of the African Court to ensure that an application meets the admissibility conditions.
This duty remains even if the Respondent State does not raise any objection based on the
Applicant’s non-compliance with admissibility condition(s). This is because the law does not have
to be pleaded. Therefore, failure by the Respondent State to raise the issue of non-compliance with
the admissibility condition(s) cannot render admissible an application which is otherwise
inadmissible.205
All applications submitted to the African Court (including those submitted by entities other than
individuals and NGOs) must contain:
(a) The names and addresses of the persons designated as the author’s representative;
(b) A summary of the facts of the case and of the evidence that will be adduced;
(c) Clear particulars of the author and of the respondent(s);
(d) Specification of the alleged violation;
(e) Evidence of exhaustion of local remedies or of the inordinate delay of such local remedies;
(f) The orders or injunction sought;
(g) A request for reparation, if relevant.
Exhaustion of local remedies

Exhaustion of local remedies by an Applicant is not a matter of choice. It is a legal requirement in
international law. Therefore, the Applicant must take all necessary steps to exhaust or at least
attempt the exhaustion of local remedies. Casting doubts about the effectiveness of the domestic
remedies does not suffice. The Applicant must provide concrete evidence on circumstances that
acted as a barrier for attempting local remedies. Three major criteria could be deduced in
205
African Court, Urban Mkandawire v. Malawi, Application 003/2011, para. 37
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determining the exhaustion of local remedies rule, namely: the remedy must be available, effective
and sufficient.
In human rights jurisprudence, the term local remedies refers primarily to judicial remedies as
these are the most effective means of redressing human rights violations. An applicant is not
required to pursue a remedy that is not common, that is not granted as of a right and that it can be
exercised only exceptionally and is available as extraordinary remedy.206
Judicial remedies are the ones that meet the criteria of availability, effectiveness and sufficiency.
As such a parliamentary process is a political process that is not an available, effective and
sufficient remedy because it is not freely accessible to each and every individual; it is discretionary
and may be abandoned anytime; and the outcome thereof depends on the will of the majority. 207
In the view of the African Court, a parliamentary process cannot be equated to an independent
judicial process for redressing human and peoples’ rights.208
Where the Applicant fails to use available local avenues he or she will be considered not have
exhausted local remedies. In Urban Mkandawire v. Malawi,209 the African Court declared the
application inadmissible because, inter alia, the applicant failed to argue before the High Court of
Malawi against the judgment of the Industrial Relations Court, and a possible further appeal to the
Supreme Court of Appeal. As a result of his failure to do so, the two courts had not had the
opportunity to deal with the merits of the claim for wrongful dismissal, as determined by the
Industrial Relations Court.
Similarly, in Peter Chacha v. Tanzania,210 the African Court declared the application inadmissible
because the applicant, in the instances where he could do so, failed to appeal or re-institute
applications which were struck out or withdrawn. According to the law and practice in the
Respondent State, an applicant who is dissatisfied with a dismissal or striking out of an application
has the liberty to appeal, and an application which is withdrawn can be reinstituted. The African
206
207
Christopher R. Mtikila, Applications No. 009/2011 and No. 011/2011, para. 82.3.
208
Ibid.
209
210
Application No 003/2012
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Court rejected the applicant’s justification that though he was aware of the avenues, he did not use
them because he was frustrated.
One exception to the requirement to exhaust local remedies is where the local remedies are unduly
prolonged. In assessing the prolongation of local remedies, the African Court monitors the progress
of the particular proceedings in national courts. The African Court has held that the duration of
two (2) years and two (2) months for conclusion of a case in a national court is not unreasonable
prolongation of local remedies.211
Submission of an application within a reasonable time

The applicant must submit his or her application to the African Court within a reasonable period
from the time local remedies are exhausted or when the applicant realizes that local remedies are
unavailable or they are unduly prolonged. The African human rights system does not provide for
what constitutes ‘a reasonable period of time’. It is therefore within the discretion of the African
Court to determine the reasonableness of the time in which the case is filed. However, each case
has been treated on its own merits. For example, the African Court has held the period of about
three hundred and sixty (360) days from the judgment of the highest local court until the
submission of the application before the African Court as not unreasonably long. 212 Similarly,
filing an application to the African Court three years and two months since the date the applicant
was issued with the judgement of the highest domestic court was held to be not unreasonable,
particularly because the applicant was lay, incarcerated and indigent person without the benefit of
legal education and legal assistance.213
When domestic remedies were exhausted before a State made its declaration accepting the
competence of the African Court to receive and examine direct applications from individuals and
NGOs, reasonable time shall be reckoned from the date the Respondent State deposited the
instrument of its declaration.214
211
African Court, Peter Chacha v. Tanzania, Application No. 003/2012, para. 148.
212
Christopher R. Mtikila, Applications No. 009/2011 and No. 011/2011, para. 83.
213
214
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Amicable settlement
The African Court also has jurisdiction to promote amicable settlement in cases pending before it
in accordance with the provisions of the Banjul Charter.
The Applicable law for the African Court
Article 7 of the African Court Protocol sets out two main sources of law of the African Court:
(a) The provision of the Banjul Charter; and
(b) Any other relevant human rights instruments ratified by the States concerned.
The Banjul Charter provides that the sources of law that apply for the monitoring of the
implementation of the Banjul Charter are international law on human and peoples’ rights,
particularly from various African instruments on human and peoples’ rights, the UN Charter; the
Constituent Act of the AU, the Universal Declaration of Human Rights, other instruments adopted
by the UN and by African countries in the field of human and peoples’ rights, and instruments
adopted within the Specialized Agencies of the UN of which the Parties to the Banjul Charter are
members.
Decisions of the African Court
The African Court gives its judgment within ninety (90) days of having completed its deliberations.
The African Court must notify the parties to the case of its judgment. The African Court must also
transmit its judgment to the Member States of the AU, the African Commission and the Council
of Ministers. The Council of Ministers monitors the execution of the judgement on behalf of the
Assembly of Heads of State and Government. The judgment of the African Court is final and not
subject to appeal. However, in light of new evidence, which was not within the knowledge of a
party at the time the judgment was delivered, a party may apply for review of the judgment. The
application for review must be made within six (6) months after the applicant acquired knowledge
of the evidence discovered. The court may also interpret its own decision.
When the court finds that there has been a violation of human and peoples’ rights, it will issue
appropriate orders to remedy violation, including the payment of fair compensation or
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reparation.215 In light of this competence, the African Court has performed some functions similar
to judicial review in national jurisdictions. For instance, the African Court has ordered the
Respondent State to take constitutional, legislative and all other necessary measures within
reasonable time to remedy violations and to inform the African Court of the measures taken;216the
African Court has also ordered the Respondent State its legislation on defamation by repealing
custodial sentences for acts of defamation, and by adapting its legislation to ensure that other
sanctions for defamation meet the test of necessity and proportionality.217
In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons,
the African Court can adopt provisional measures as necessary. 218 It can do so at the request of a
party or on its own accord.219 However, the African Court cannot grant a request for provisional
measures over the matter which it manifestly lack jurisdiction to entertain.220 In case of extreme
urgency, the President of the African Court may convene an extraordinary session to decide on
measures to be taken. In this regard, he or she may, by all reliable means, enlist the views of the
judges not present.221 An example of a situation which necessitates adoption of provisional
measures is when a death sentence is to be executed and the appeals process has not been
exhausted.
The African Court may invite the parties to provide it with information on any issue relating to
implementation of the adopted interim measures. However, the African Court may order
provisional measures without having to hear the parties.222 Where the Respondent State fails to
comply with the interim measures adopted, the African Court shall make all such
recommendations as it deems appropriate.
The African Court has no power to declare null and void and/or to set aside any provision of the
African Court Protocol even where it finds that the provision(s) of the African Court Protocol
215
216
African Court, Tanganyika Law Society and the Legal and Human Rights Centre v. The United Republic of
Tanzania, Application 009/2011; and Reverend Christopher Mtikila v. The United Republic of Tanzania,
Application No. 011/2011 (Consolidated Applications), para. 126.
217
African Court, Lohé Issa Konaté v. Burkina Faso, Application No. 004/2013.
218
219
Rule 51(1) of the Rules of the African Court.
220
Baghdad Ali Mahmoudi v. Tunisia, Application 007/2012, para. 13(ii)
221
Rule 51(2) of the Rules of the African Court.
222
African Commission on Human and Peoples’ Rights v. Libya, Application No. 004/2011, para. 5.
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contravene the Banjul Charter. This is different in national jurisdictions where the constitution is
the supreme law, therefore any law which contravenes the constitution would be liable to be struck
down by the court, the latter deriving such power from the constitution itself.223
The decisions of the African Court are binding. The State Parties to the African Court Protocol are
obligated to comply with the decisions of the African Court and to guarantee their executions. In
fulfilling its obligation to submit a report on its work to each regular session of the Assembly of
Heads of State and Government, the African Court must specify the cases in which a State has not
complied with its decision.
Relationship between the African Court and the African Commission
The African Court was established in order to complement and reinforce the protective mandate
of the African Commission. The African Court Protocol makes provisions which give effect to this
specially designed relationship between the African Court and the African Commission. The
African Commission can bring cases to the African Court for the latter’s consideration.224In certain
circumstances, the African Court may also transfer cases to the African Commission, and may
request the opinion of the latter when dealing with the admissibility of case.225 The African Court
would normally exercise this power where it rules that it has no jurisdiction to entertain the
matter.226 This ensures that the protection of human and peoples’ rights is not affected by the
African Court’s lack of jurisdiction to entertain the matter. In determining whether to transfer a
case to the African Commission, the African Court takes into account the nature of allegations
raised in the application submitted before it. For instance, in Association Juristes d’Afrique pour
223
The African Court, Femi Falana v. the African Union, Communication 001/2011, Dissenting Opinion, para. 17.
224
Article 5(1) of the African Court Protocol. For instance the case of African Commission on Human and Peoples’
Rights v. Libya, Application No. 004/2011 was submitted to the African Court by the African Commission.
225
Article 6(3) of the African Court Protocol.
226
See, the African Court, Daniel Amare & Mulugeta Amare v. Mozambique Airlines and Mozambique, Application
005/2011. However, in the Dissenting Opinion in Ekollo Moundi Alexandre v. Cameroon and Nigeria, Application
No. 008/2011, Judge Fatsah Ouguergouz faulted the practice because by transferring to the African Commission a
case over which it has declared it manifestly had no jurisdiction, the African Court deviates from the initial purpose
of Article 6-(3) of the African Court Protocol: The Court should either consider, on its own, the admissibility of an
application which is within its jurisdiction or entrust consideration of the said admissibility to the African
Commission. Therefore, the provision provides the African Court with a choice between two possible solutions.
Since the power of making a choice is discretionary, it must be exercised judicially. This means that the African
Court should give reasons for its decision to choose one of the two possible solutions.
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la Borne Gouvernance v. Côte d’Ivoire,227 the African Court transferred the case to the African
Commission because the application raised serious violations of the right to life, the right to
freedom from torture and the right to liberty.228
The African Commission and the African Court have met and harmonized their respective rules of
procedure, and institutionalized their relationship. In terms of their Rules, the African Commission
and the African Court are required to meet at least once a year, to discuss questions relating to
their relationship.
The African Court of Justice and Human Rights
History, structure and jurisdiction
The Constitutive Act of the AU provides for the establishment of a Court of Justice of the AU as
a principal judicial organ of the AU to settle disputes over the interpretation of AU treaties. A
protocol to establish this Court was adopted in Maputo, Mozambique in July 2003 and entered into
force in on 11 February 2009. However, the Court was never operationalized because the
Assembly of the AU decided that it should be merged with the African Court of Human and
People’s Rights to form the African Court of Justice and Human Rights. Underlying this decision
was the concern of the growing number of AU institutions, which the AU could not afford to
support.
Therefore, the Protocol of the Court of Justice was merged with the Protocol to the African Charter
on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’
Rights to establish the Statute of the African Court of Justice and Human Rights. The Statute is
appended to the Protocol on the Statute of the African Court of Justice and Human Rights as an
Annex. The Statute was adopted in Sharm El-Sheikh, Egypt during the 11th AU Summit of the
Assembly in July 2008. At the writing of this paper, only three (3) States have ratified the
Statute.229 For the Statute to come into force it requires fifteen (15) ratifications.
227
228
For similar approach see African Court, Ekollo Moundi Alexandre v. Cameroon and Nigeria, Application No.
008/2011, para. 11; and Soufiane Ababou v. Algeria, Application No. 002/2011, para. 12.
229
Burkina Faso, Libya and Mali.
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The African Court of Justice and Human Rights shall be composed of sixteen (16) impartial and
independent judges elected by the AU Executive Council, and appointed by the AU Assembly on
the basis of regional representation. Each geographical region of the continent shall, where
possible, be represented by three (3) judges except the Western Region which shall have four (4)
judges.230 The judges shall be persons of high moral character, who possess the qualification
required in their respective countries for the appointment to the highest judicial offices, or juris-
consults of recognized competence and experience in international law and/or human rights law.
The judges of the Court shall be elected for a period of six (6) years and may be re-elected only
once.
When the African Court of Justice and Human Rights starts to operate, the term of office of the
judges of the African Court on Human and Peoples’ Rights shall end following the appointment
and swearing in of the judges of the new Court. Cases which will not have been concluded at the
time the new starts operating shall be transferred to the new Court. However, such cases shall be
dealt with in accordance with the Protocol establishing the African Court of Human and Peoples’
Rights.
The original Statute of the African Court of Justice and Human Rights establishes two sections: a
General Affairs Section and a Human Rights Section. Each section shall be composed of eight (8)
judges. Besides sitting as a Section, the Court shall have power to empanel as a Full Court, and
any Section may refer a case to the Full Court. Any of the Sections may constitute one or several
Chambers. The Protocol on the Amendments to the Protocol on the Statute of the African Court
of Justice and Human Rights introduced a third Section namely, the international crimes
jurisdiction which may also constitute one or several Chambers.
With regard to human rights, the new Court shall have competence to interpret and determine
application of Banjul Charter, the African Charter on the Rights and the Welfare of the Child, the
Maputo Protocol, or any other legal instrument relating to human rights ratified by State Parties
concerned.
230
Article 3(3) of the Statute of the African Court of Justice and Human Rights.
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Several entities are entitled to submit cases to the new Court on any violation of a right guaranteed
by the Banjul Charter, by the Charter on the Rights and Welfare of the Child, the Protocol to the
African Charter on Human and People’s Rights on the Rights of Women in Africa, or any other
legal instrument relevant to human rights ratified by the States Parties concerned. The entities that
are entitled to submit cases to the new Court include:
(a) State Parties to the Protocol on the Statute of the African Court of Justice and Human
Rights;
(b) The African Commission on Human and Peoples’ Rights;
(c) The African Committee of Experts on the Rights and Welfare of the Child;
(d) African Intergovernmental Organizations accredited to the AU or its organs;
(e) African National Human Rights Institutions;
(f) Individuals or relevant NGOs accredited to the AU or its organs, subject to a member
state’s declaration accepting the competence of the new Court to receive cases from
individuals and NGOs.
Cases brought before the Human Rights Section relating to the alleged violation of a human or
peoples’ right shall be submitted by a written application to the Registrar. The application must
indicate the right or rights alleged to have been violated and, if possible, the provision(s) and the
instrument the allegation seeks to invoke.231
The new court shall have power to invoke provisional measures.232 The new court shall exercise
this power either on its own motion or on application by the parties. Provisional measures shall be
invoked where the Court considers it necessary for the preservation of the respective rights of the
parties. At request, the new Court shall have power to give advisory opinion on any legal question.
A request for advisory opinion may be made by the AU Assembly, the Pan-African Parliament,
the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council
231
Article 34 of the Statute of the African Court of Justice and Human Rights
232
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(ECOSOCC), Financial Institutions or any other organ of the AU.233 A request for an advisory
opinion must be in writing and must contain an exact statement of the question upon which the
opinion is required and must be accompanied by all relevant documents.
Judgments are to be taken by majority of the judges present. In the event of equality of votes, the
Presiding Judge shall have a casting vote. The new Court shall have power to order any appropriate
measures in order to remedy a violation of human or peoples’ right, including granting fair
compensation.234
The decisions of the new Court shall be binding on the parties and shall be final. The parties must
comply with the Court’s judgment within the time stipulated and must guarantee its execution.235
If any party fails to comply with the judgment, the Court shall refer the matter to the AU Assembly
which shall decide upon measures to be taken to give effect to that judgment.236
Revision
A party to a case may apply for a revision of a judgment upon discovery of a new fact which was
unknown to the applicant and to the Court when the judgment was given.237 The new fact must be
of such nature as to be decisive factor. The application can only be accepted of the ignorance was
not due to negligence. The court shall first determine and rule on the admissibility of the
application before determining the merits of the revision.
The application for revision must be made within six (6) months of the discovery of the new fact.
In any case whatsoever, no application for revision may be made after the lapse of ten (10) years
from the date of the judgment.238The Court may require prior compliance with the terms of the
judgment before admitting proceedings in revision.
233
234
235
Article 46(3) of the Statute of the African Court of Justice and Human Rights
236
Article 46(4) of the Statute of the African Court of Justice and Human Rights
237
Article 48(1) of the Statute of the African Court of Justice and Human Rights.
238
Article 48(5) of Statute of the African Court of Justice and Human Rights.
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Criminal Jurisdiction
Human rights cannot be divorced from criminal justice. International crimes have direct
implications on human rights. These implications may be looked at from two different angles: (i)
the angle of the victim of international crimes; and (ii) the angle of the person accused of
committing international crimes. Human rights law envisages that victims of serious violations of
human rights that occurred in the course of commission of international crimes must be remedied.
Moreover, human rights law encourages due process when perpetrators of international crimes are
brought to face criminal justice.
The original Statute of the African Court of Justice and Human Rights did not confer criminal
jurisdiction upon the Court. However, there have been efforts to extend the jurisdiction of the
Court. In February 2009, the Assembly of Heads of State and Government of the AU requested
the AU Commission to assess the implications of the extending the jurisdiction of the Court to try
international crimes such as genocide, crimes against humanity and war crimes.239 In that regard,
a study was done and a draft Protocol to establish an African Court of Justice and Human Rights
with extended jurisdiction was considered by Policy Organs of the AU. The motivation was based
on grave concern of African states on the allegedly abuse of the principle of universal jurisdiction
by some European States and of the jurisdiction of the International Criminal Court (ICC).
European States, notably France and Spain, were accused of initiating criminal prosecutions
against African leaders and citizens for offences that allegedly occurred in Africa.240 The ICC has
also been accused of selective justice by targeting African leaders. 241 This perception was
subsequently proved by the AU’s adoption of the Kenya’s proposal for the AU to develop a road
map for withdrawal of African nations from the ICC on 31 January 2016. The resolution demanded
the ICC to terminate the case against William Ruto and Joshua Arap Sang, two Kenyans tried at
the ICC for crimes against humanity. The AU Ministerial Committee of Ministers of Foreign
Affairs was tasked to meet the UN Security Council to discuss the AU resolution. The outcome of
239
Assembly/AU/Dec.213 (XII), on the Implementation of the Assembly Decision on the Abuse of the Principle of
Universal Jurisdiction, adopted at the Twelfth Ordinary Session of the AU Assembly held in Addis Ababa from 1-3
February 2009
240
The standard, Kenyan team in Addis leads push for African alternative to ICC, 01 February 2015, available at
www.standardmedia.co.ke/m/article/2000154/kenyan-team-in-addis-leads-push-for-african-alternative-to-
ICC/?pageNo=2 last visited on 22 December 2016 1657hrs.
241
Ibid.
85 | P a g e
the meetings between the ministers and the UN Security Council would determine the next course
of action, which might include exercising the mandate for the mass withdrawal road map.
However, 0n 5 April 2016, the Trial Chamber V (A) of the ICC decided, by majority, to terminate
the case against William Ruto and Joshua Arap Sang because the Prosecution did not present
sufficient evidence on which the ICC could convict the accused persons.242 Consequently, the ICC
ruled that the charges are to be vacated and the accused are to be discharged as there was no reason
to call the accused persons to defend their case or to prolong the proceedings any further. However,
this ruling does not preclude new prosecution in the future either at the ICC or in Kenya.
Although there have not been collective withdrawals under the aegis of the AU, individual African
countries have expressed their intentions to withdraw from membership of the ICC. On 18 October
2016 Burundi initiated the process of withdrawing from the Rome Statute of the International
Criminal Court (“Rome Statute”) when President Pierre Nkurunzinza signed a legislation to that
effect. The country’s parliament had voted overwhelmingly to remove the country from the
jurisdiction of the ICC.243 On 27 October 2017 Burundi became the first country to formally
withdraw from the ICC. In April 2016, the ICC opened a preliminary investigation into Burundi,
focusing on killings, imprisonment, torture, rape and other sexual violence as well as enforced
disappearances. The crimes were allegedly committed during the violence triggered by President
Nkurinzinza’s decision to seek a third term allegedly contravening the constitution and the peace
accord signed in 2005 that ended a 12-year civil war. It’s noteworthy that according to Article 127
of the Rome Statute of the ICC a withdrawal of a State from the ICC does not affect the ICC’s
jurisdiction over the crimes that have been committed while the state was a state party.
On 21 October 2016, the Government of the Republic of South Africa deposited its instrument of
withdrawal from the Rome Sate with the Secretary General of the UN, citing incompatibility of
the ICC’s interpretation of the country’s obligations with respect to the peaceful resolution of
conflicts. South Africa had faced criticism for ignoring a court order to arrest Sudanese President
Omar Hassan Al- Bashir when he visited the country in 2015. However, on 22 February 2017
242
ICC, The Prosecutor v. William Ruto and Joshua Arap Sang, Decision on Defence Applications for Judgments of
Acquittal, ICC-01/09-01/11, 5 April 2016.
243
94 members of parliament voted in favour of the withdrawal, while only 2 members voted in favour of staying
under the jurisdiction of the ICC, and 14 members abstained.
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South Africa’s North Gauteng High Court declared the notice of withdrawal unconstitutional and
invalid because it was not passed by the parliament.244 Consequently, the Government of South
Africa officially revoked the withdrawal on 07 March 2017.
On 26 October 2016, the Gambia also announced its withdrawal from the ICC, accusing it of
prosecution and humiliation of people of colour, especially Africans, while ignoring the crimes
committed by the Western leaders and European officials responsible for deaths of refugees trying
to enter Europe.245 However in February 2017, the then newly elected President Adama Barrow
reversed the withdrawal.
Although some of these developments came later, they represent the concern that had raised the
need for a regional mechanism for punishing international crimes. Out of this concern, the
Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and
Human Rights (the Malabo Protocol) was adopted in Malabo, Equatorial Guinea on 27 June 2014.
The Malabo Protocol grants international criminal jurisdiction to the African Court of Justice and
Human Rights. It introduces new features in international criminal law; for instance:
(a) It vests international criminal jurisdiction in a regional court;
(b) It explicitly includes the crime of rape within the statutory definition of genocide;246
(c) It expands the list of international crimes beyond the four traditional crimes (genocide,
crimes against humanity, war crimes and the crime of aggression) to include
unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money
laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, and
illicit exploitation of natural resources;
(d) It refines the definitions of war crimes to include genocidal rape; and
(e) It provides for corporate criminal liability for serious crimes.
244
https://www.hrc.org/news/2017/02/22/south-african-high-court-rejects-icc-withdrawal last visited on 23 February
2017 1224hrs.
245
www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html last
visited on 27 April 2016, 1014hrs
246
Article 28B(f) of the Malabo Protocol.
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However, the Malabo Protocol defeats the efforts to end impunity as it provides immunity from
prosecution for serving African leaders. The principle of immunity for serving heads of state or
government and other senior officials from prosecution has been internally abandoned. 247 In
contrast, according to Article 46A of the Malabo Protocol, any serving Head of State or
Government, or anybody acting or entitled to act in such capacity or other senior state officials
cannot be prosecuted.
This article was inserted in response to a directive by the AU Assembly on the ground that it
coincides with AU’s policy on promoting peace and justice. The concern of the AU is that a sudden
removal of the Head or senior state officer in government may occasion total collapse of law and
order in the State concerned. The provision is also justified as a compromise reached to allow
government officials who commit serious crimes while in office to fully attend to their
responsibilities and face prosecutions when their tenure of office end. However, critics argue that
this provision only encourages serving African leaders who commit serious crimes to stay in office
for eternity, as they know they will face prosecutions when their tenure of office ends.
At the writing of this paper, only four (4) have signed the Malabo Protocol.248However, for the
Protocol to come into force it requires fifteen ratifications and not signatures.
The African Committee of Experts on the Rights and Welfare of the Child
Mandate
The African Committee of Experts on the Rights and Welfare of the Child (the “Committee”)
draws its mandate from Articles 32-46 of the African Charter on the Rights and Welfare of the
Child (ACRWC) which was adopted by the Heads of State and Government of the then OAU on
11th July 1990 and came into force on 29th November 1999.
The Committee consists of eleven (11) members of high moral; standing, integrity, impartiality
and competence in matters of the rights and welfare of the child. The members of the Committee
247
See Article 6(2) of the Statute of the International Criminal Tribunal for Rwanda; Article 7(2) of the Statute of
the International Criminal Tribunal for the former Yugoslavia; and Article 27 of the Statute of the International
Criminal Court.
248
Kenya, Benin, Guinea Bissau and Mauritania.
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are elected by secret ballot by the AU Assembly from a list of persons nominated by the State
Parties to the ACRWC.
The functions of the Committee include the following:
(a) To promote and protect the rights enshrined in the ACRWC particularly:
(i) Collect and document information, commission inter-disciplinary

assessment of situations on African problems in the fields of the rights
and welfare of the child, organize meetings, encourage national and
local institutions concerned with the rights and welfare of the child and
where necessary give its views and make recommendations to
Government;
(ii) Formulate and lay down principles and rules aimed at protecting the
rights and welfare of children in Africa;
(iii) Cooperate with other African, International and Regional Institutions

and organizations concerned with the promotion and protection of the
rights and welfare of the child;
(b) To monitor the implementation and ensure protection of the rights enshrined in the
ACRWC;
(c) To interpret the provisions of the ACRWC at the request of a State Party, an institution of
the AU or any other person or institution recognized by AU;
(d) To perform such other tasks as may be entrusted to it by the AU Assembly.
The applicable law
Article 46 of the ACRWC explicitly mandates the Committee to:
“… draw inspiration from International Law on Human Rights,

particularly from the provisions if the African Charter on Human
and Peoples’ Rights, the Charter of the Organization of African
89 | P a g e
Unity, the Universal Declaration on Human Rights, the International

Convention on the Rights of the Child, and other instruments
adopted by the United Nations and by African countries in the field
of human rights, and from African values and traditions.”
Pursuant to this explicit legislative mandate, the Committee may make reference of law, and
jurisprudence from other countries or treaty bodies in Africa and elsewhere.249
General Comments
Pursuant to its broad mandate to interpret the provisions of the ACRWC, the Committee has the
power to issue authoritative interpretation of the Charter, in order to clarify its meaning and scope.
This is generally done through “General Comments”. Through General Comments, the Committee
provides a substantive elaboration of the meaning of treaty provisions, as well as in-depth analysis
of procedural concerns regarding the ACRWC. The Committee also uses General Comments to
define the legislation, policy and practice necessary to achieve full implementation of specific
provisions of the ACRWC. Examples of General Comments that the Committee has issued
include:
(a) General Comment on Article 30: Children of incarcerated and imprisoned parents and
primary caregivers;
(b) General Comment on Article 6: Name and Nationality.
State reporting
State Parties to the ACRWC are obligated to submit to the Committee reports on the measures
they have adopted which give effect to the provisions of the ACRWC and on the progress made in
the enjoyment of these rights.250Every State Report must contain sufficient information on the
249
African Committee, Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice
Initiative on Behalf of Behalf of Children of Nubia Descent in Kenya v. Kenya, Decision: No. 002/Com/002/2009,
para. 25.
250
Article 43(1) of the African Charter on the Rights and Welfare of the Child.
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implementation of the ACRWC to provide the Committee with comprehensive understanding of

the implementation in the country concerned.
These reports are examined by the Committee. State reports provide a framework for dialogue
between the Committee and State Parties, allowing the Committee to monitor implementation of
the ACRWC and to agree on solutions to difficulties cooperatively with the State concerned. A
State Report offers an important occasion for conducting a comprehensive review of the measures
to harmonize national law and policy with the ACRWC. Additionally, the State reporting
procedure encourages and facilitates popular participation, national introspection and public
scrutiny of government policies and programmes, private sectors of society towards children.
States are supposed to submit an initial report within two years of ratification of the ACRWC and
every three years after that (periodic report). A State report should contain information on:
(a) Necessary steps undertaken to adopt necessary measures to effect to the provisions of the
ACRWC;
(b) Measures taken to realize the rights and welfare of the child in the law of the State Party
or in any other international treaty or agreement in force in that State;
(c) Measures taken to promote positive cultural values and traditions and to discourage those
that are inconsistent with the rights, duties and obligations enshrined in the ACRWC; and
(d) Existing or planned mechanisms at the domestic level for coordinating policies relating to
children and for monitoring the implementation of the ACRWC.
A State Party that has already submitted to the UN Committee on the Rights of the Child a report
based on the provisions of the CRC may use elements of that report for the report that it submits
to the Committee as required by the ACRWC. In particular, the report must highlight the areas of
rights that that are specific to the ACRWC. Every State report must specify the action taken by the
State Party in response to any recommendations made to it by the Committee and/or the UN
Committee on the Rights of the Child.
Concluding Observation
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After the consideration of State Parties Reports, the Committee may issue Concluding
Observations. The latter highlights major issues of concern of the Committee and makes
recommendations to State Parties in the measures that can be implemented to complement the
progress achieved and the challenges faced.
The Committee has issued Concluding Observations in respect to the following countries: Burkina
Faso, Cameroon, Egypt, Ethiopia, Guinea, Kenya, Liberia, Mali, Mozambique, Niger, Nigeria,
Rwanda, Senegal, South Africa, Sudan, Tanzania, Togo, and Uganda.
Investigation missions
According to Article 45(1) of the ACRWC, the Committee may resort to any appropriate method
of investigating any matter falling within the ambit of the ACRWC or request from State Parties
any information relevant to the implementation of the ACRWC, and may also resort to any
appropriate method of investigating the measures adopted by the State concerned to implement the
ACRWC.
In accordance with this provision, the Committee may decide to undertake investigation missions
in a State Party where alleged violations of children’s rights have been reported. In that regard, the
Committee conducted an investigation mission in Tanzania on 11-15 August 2015, following an
application to investigate on alleged violations of the rights of children with albinism. The
application was introduced by Under The Same Sun (UTSS), an NGO, drawing Committee’s
attention on the alarming conditions of children with albinism subjected to violations of their rights
in Tanzania.251
Individual Communications
Pursuant to its protective mandate, the Committee can receive communications regarding
violations of the ACRWC from the following:
(a) Any individual or group of natural or legal person including children;
251
www.acrwc.org/investigation/ last visited on 10th October 2015, 12:45 AM.
92 | P a g e
(b) Any State Party to the ACRWC;
(c) Any intergovernmental organization or NGO recognized in either one or more of the
Member States of the AU, a State Party to the ACRWC or the UN,
(d) Any specialized organ or agency of the AU or UN.
Thus, individual communications can be submitted by a larger number of physical persons and
moral entitles. A complainant may be represented by an attorney or any other person. A
communication may be presented on behalf of the child victim without his or her consent provided
that the complainant is able to show that his or her action is taken in the supreme interest of the
child. If the child is able to express his or her opinion, he or she must be informed of the
communication presented on his or her behalf unless it is practically impossible to do so.
Jurisdiction of the Committee

Jurisdiction of the Committee may be broken down into four components:
(a) Jurisdiction ratione personae
(b) Jurisdiction ratione materiae
(c) Jurisdiction ratione temporis
(d) Jurisdiction ratione loci
Jurisdiction ratione personae

This is a personal jurisdiction of the Committee. Jurisdiction ratione personae of the Committee
may be ascertained from two different levels: (a) who is eligible to submit a communication; and
(b) against whom a communication may be submitted.
According to Article 44 of the ACRWC, the following persons are entitled to submit
communications to the Committee either on their own behalf or on behalf of third parties:
(a) Individuals;
(b) Group of natural or legal person including children;
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(c) Any State Party to the ACRWC;
(d) Any intergovernmental organization or NGO recognized in either one or more of the
Member States of the AU, a State Party to the ACRWC or the UN;
(e) Any Specialized organ or agency of the AU and UN.
An organization submitting a communication may have an observer status before the Committee.
However the observer status is not a mandatory condition. Therefore the organization submitting
a communication before the Committee need not necessarily have the observer status before the
Committee. This position is different from that regarding applications before the African Court.
For an organization to be eligible to submit an application before the African Court must have,
inter alia, observer status before the African Commission.252
A Communication must be brought against a State Party to the ACRWC. However, the Committee
may admit a communication from State non-signatory to the ACRWC in the overall best interest
of the child. In so doing, the Committee must collaborate with other related agencies implementing
conventions and charters to which the non-signatory State is a Party. Therefore, acceptance of a
communication from a State non-signatory to the ACRWC is not automatic. The acceptance must
fulfill the following requirements:
(a) The acceptance must be in the overall best interest of the child; and
(b) In admitting such communication, the Committee must collaborate with the agencies that
implement the rights enshrined in the conventions and charters to which the State
concerned is a Party.
Jurisdiction ratione materiae

This is a material jurisdiction of the Committee. Jurisdiction ratione materiae of the Committee is
determined by two factors: (i) the nature of violation in question; and (ii) the age of the victim
child. The Committee can only consider a communication which alleges violations of the rights
and welfare of the child enshrined in the ACRWC. Moreover, the Committee’s jurisdiction is
252
94 | P a g e
determined by the child’s age at the time of the alleged violation.253 For the Committee to exercise
jurisdiction over the matter the victim must be under the age of eighteen (18) years. When a prior
communication concludes after the child attains the age of 18 years, the Committee shall retain the
jurisdiction to continue to deal with the communication.
Jurisdiction ratione temporis

This is a temporal jurisdiction of the Committee. The Committee can only exercise jurisdiction
over a case alleging violation of the rights and welfare of the child which occurred after the
Respondent State became a party to the ACRWC. This is founded on the principle that treaties do
not bind states retrospectively. Moreover, the jurisdiction of the Committee is determined by the
age of the victim at the time of the alleged violation.
Jurisdiction ratione loci
This is a geographical jurisdiction of the Committee. The alleged violations of the rights and
welfare of the child must have occurred within the territorial sphere within which the ACRWC
applies.
Admissibility of Communications
Conditions of admissibility
A communication shall be declared admissible by the Committee if it fulfills the following
conditions:
(a) That the Communication is compatible with the provisions of the Constitutive Act of the
AU and the ACRWC;
(b) The Communication is not exclusively based on information circulated by the media or is
manifestly groundless;
253
Section I(4)(a) of the Revised Guidelines for Consideration of Communications Provided for in Article 44 of the
African Charter on the Rights and Welfare of the Child.
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(c) The Communication does not raise matters pending settlement or previously settled by
another international body or procedure in accordance with any legal instruments if the AU
and principles of the UN Charter;
(d) The Communication is submitted after having exhausted available and accessible local
remedies, unless it is obvious that this procedure is unduly prolonged or ineffective;
(e) The Communication is presented within a reasonable period after exhaustion of local
remedies at the national level; and
(f) The Communication does not contain any disparaging or insulting language.
These six criteria are conjunctive. This means that they must all be met before the Committee can
declare a communication admissible. If any of the criteria is not met, the Committee will declare
the communication inadmissible, unless the complainant provides sufficient justifications why any
of the criteria could not be met.
Exhaustion of local remedies

A local remedy is any domestic action that may lead to the resolution of the complaint at the local
or national level.254 The requirement of exhaustion of local remedies is linked to the notion of state
sovereignty. The purpose of the requirement is to allow the Respondent State to be the first port
of call to address alleged violations at the domestic level.255 Local remedies are normally quicker,
cheaper and more effective. Therefore, they allow for better fact-finding of alleged violations and
prevent contradictory judgments of law at domestic and international levels.
The local remedies rule is not rigid. Therefore, the rule is not without exceptions, especially in
order to promote and protect children’s best interests.256 The complainant may be exempted from
exhausting local remedies if they are unavailable, ineffective and inadequate. An example of an
ineffective remedy is where the procedures are unduly prolonged. As a general rule, if the matter
254
African Commission, SERAC v. Nigeria, Communication No. 155/1996, para. 37.
255
African Committee, Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice
para. 26.
256
African Committee, Michelo Hunsungule and Others (On behalf of Children in Northern Uganda) v. Uganda,
Communication No. 1/2005, para. 24.
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is pending before domestic procedures, the complainant would not be considered to have
exhausted local remedies. However, in the context of communications involving children unduly
prolonged domestic court process has been held not to be in the best interest rule, and warrants an
exception to the rule on exhaustion of local remedies.257
In line with this, the Committee in Institute for Human Rights and Development in Africa (IHRDA)
and Open Society Justice Initiative on Behalf of Behalf of Children of Nubia Descent in Kenya v.
Kenya,258 exempted the complainant from exhausting local remedies in the Respondent State
because six years had lapsed without a consideration of the merits of the case by the national court.
To put it in context, the Committee held:
“… a year in the life of a child is almost six percent of his or her

childhood. It is in this spirit and purpose of the African Children’s
Charter, the Africa Call for Accelerated Action (Cairo Plus 5), the
Millennium Development Goals and other similar commitments,
that States need to adopt a “children first” approach with some sense
of urgency.”259
In this regard, the Committee further held that the implementation and realization of children’s
rights in Africa is not a matter to be relegated tomorrow, but an issue that is indeed of proactive
immediate attention and action.260
Other situation which may exempt a complainant to exhaust local remedies include: where the
alleged violations can be categorized as massive or large scales of violations of children’s rights
261
involving thousands of children; where domestic laws force a child to beg;262where the state
fails to penalize persons who violate the rights of children;263where the local remedy is not of a
257
Ibid, para. 32.
258
Decision: No. 002/Com/002/2009
259
Para. 33.
260
Ibid.
261
African Committee, Michelo Hunsungule and Others (On behalf of Children in Northern Uganda) v. Uganda,
Communication No. 1/2005, paras. 27-28.
262
The Centre for Human Rights (University of Pretoria) and la Rencontre Africaine pour la defense des droits de
l’homme (Senegal) v. Senegal, Decision: No.003/Com/001/2012, para.22.
263
Ibid.
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judicial nature;264 and where a State puts in place a requirement that only the child victim or
someone directly affected by the alleged violations can bring cases in domestic cases. 265
In general, four exceptions to the rule of prior exhaustion of local remedies are remarkable: First,
domestic remedies must be of judicial nature; Second, domestic remedies must not be unduly
prolonged; third, where there are ouster clauses domestic remedies are rendered unavailable; and
fourth, local remedies cannot be exhausted where there are a large number of potential victims of
violations of human rights.266
Requirements of form and content

The Communication must fulfil the requirements of form and content.
Requirements of Form
A communication submitted before the Committee must fulfill certain requirements for it to be
declared admissible. There requirements include:
(a) It must disclose the identity of the author;
(b) It must be written in one of the official languages of the Committee. Official languages of
the Committee are English and French;267
(c) It must concern a State Party to the ACRWC; and
(d) It must be duly signed by the complainant or his or her representative
Requirements of Content
The communication must contain the following information:
(a) Clear particulars of the complainant(s) and respondent(s);
264
Ibid, para.23.
265
Ibid.
266
Ibid, para. 21.
267
However, a party to the communication may opt to submit documentations in both official languages of the
Committee.
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(b) Where possible name of the victim(s) in case they are not the complainant(s), and of any
public official or authority who has taken cognizance of the fact or situation alleged;
(c) Whether or not the complainant wishes that his or her identity or the identity of the
victim(s) be withheld from the Respondent State;
(d) The Respondent State;
(e) An account of the fact or situation that is the subject matter of the communication,
specifying the place and date of the alleged violation;
(f) Where possible the provision of the ACRWC allegedly violated;
(g) The remedies sought;
(h) Any steps taken to exhaust local remedies, or the impossibility or ineffectiveness of doing
so;
(i) An indication of whether the Communication has been submitted to another international
settlement procedures;
(j) The address for receiving correspondence from the Committee and, if available, a
telephone number, and email address.
The procedure before the Committee

In determining the fulfillment of the admissibility conditions, the Committee will transmit the copy
of the communication to the Respondent State and, where necessary, to the State Party whose
citizen is a victim of the alleged violation or any other State whose interest is considered relevant.
If the Complainant or victim requests anonymity, the Committee must conceal the identity of such
Complainant or victim when transmitting the copy of the communication to the particular State.
Upon receipt of the communication, the Respondent State is required to respond within sixty (60)
days from the date if the request from the Secretariat. The Respondent State may request an
extension. The request for extension may be made any time before the expiry of the 60 days period.
If the Committee finds that the request is reasonably founded, it may grant the State and extension
99 | P a g e
not exceeding thirty (30) days. The extension may only be granted once. The Committee may use
most expeditious means to request a promptest response from the State in cases where there are
reasonable grounds to believe that the life or personal integrity of a child or children is in danger.
Upon receipt of the response of the State, the Secretariat sends a copy to the Complainant within
fourteen (14) days of the receipt. The Complainant may submit observations on the response of
the State Party to the Committee within thirty (30) days of the receipt of the Respondent State’s
submissions. If the Complainant is unable to do so, it may request for an extension before the
expiry of 30 days period. The Committee may grant the Complainant an extension not exceeding
14 days if it finds that the request is reasonably founded. The extension may only be granted once.
The Committee may invite the parties to submit additional information prior to deciding upon the
admissibility of a Communication. The submission of additional information may either be in
writing or orally. Any additional written observations submitted by a party must be transmitted to
the other party.
The Committee makes a decision on the admissibility of the communication within ninety (90)
days of the conclusion of deliberation on admissibility. In making the decision, the Committee
takes into account all the facts, evidence and observations made by parties, and report of
Rapporteurs or Working Groups. The decision on admissibility cannot affect the merits of the
Communication. Where necessary, the Committee may defer its decision on admissibility until the
final determination of the merits of the Communication provided that it gives notice of deferral to
the parties.
Where the Committee decides to conduct a hearing on a communication, it will invite the parties
to make oral submissions before it. The Committee may also conduct hearing of witnesses and
experts. Such hearings may be conducted in open or closed sessions depending on the
circumstances of each communication. If the Committee decides to hold hearings in closed session,
no person will be admitted into the hearing except the parties and their representatives and
advisors, witnesses and experts or any person invited by the Committee.268 In the absence of any
submissions (on admissibility or merits of the communication) from the Respondent State, the
268
Section XI (3) of the Revised Guidelines for Consideration of Communications Provided for in Article 44 of the
100 | P a g e
Committee shall proceed to the examination of the question of admissibility or the merits based
on the submissions of the Complainant.269
The Committee may undertake an investigative mission to the Respondent State in order to assess
the situation on the ground regarding the alleged violations. The mission may be initiated by the
Respondent State itself.270 During the visit, the Committee may meet and discuss with Government
officials, civil society organizations, National Human Rights Commission, UN agencies, and other
stakeholders who would be able to provide information relevant to the Communication.
In consideration of communication on merits, the Committee must take measures to ensure the
effective and meaningful participation of the child or children concerned.271 The Committee should
hear the child if the latter is capable of expressing his or her opinion.
Joinder and disjoinder of communications

Where two or more communications against the same Respondent address similar facts, involve
the same persons or reveal the same pattern of violation, the Committee may decide that the
communications be joined and considered together as a single communication. The Committee
may make joinder of communications on its own motion or at the request of one of the parties.
However, the Committee may decide not to join the communications if it is of the opinion that the
joinder will not serve the interest of justice. The Committee may decide to disjoin the joined
communications.
The Committee may also decide that the claims made may be divided and considered separately
as may be appropriate. The Committee may do so if the communication sets forth distinct facts, or
refers to more than one victim or alleged violations not interconnected in time and place. The
269
For instance in Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice
para. 14, the Committee continued to consider the communication despite the absence of response from the
Respondent State.
270
In Michelo Hunsungule and Others (On behalf of Children in Northern Uganda) v. Uganda, Communication No.
1/2005, the Respondent State invited the Committee to undertake an investigative mission to Northern Uganda and
officially authorized the Committee to undertake the visit.
271
Section XI (6) of the Revised Guidelines for Consideration of Communications Provided for in Article 44 of the
101 | P a g e
Committee may divide and separate claims either on its own motion or at the request of one of the
parties.
The Committee must notify the complainant of its decision to join, divide or disjoin
communications.
Provisional measures
The Committee may request the Respondent State to adopt provisional measures to prevent grave
or irreparable harm to the victim child. The Committee may make such request where a
communication reveals a situation of urgency, serious or massive violations of the ACRWC and
the likelihood of irreparable harm to a child. The Committee may make the request either on its
own motion or at the request of a party to the proceedings. If the Committee is not in session at
the time that the request for provisional measures is received, the Chairperson, in consultation with
the Bureau of the Committee, must make the decision and then inform the members of the
Committee.
After the request for provisional measures has been transmitted to the State Party, the Committee
transmits a copy of the letter requesting provisional measures to the victim, the AU Assembly,
Peace and Security Council of AU and the AU Commission. The Committee must request the
Respondent State to report back on the implementation of the provisional measures adopted. The
Respondent State must submit the report within fifteen (15) days of the receipt of the request from
the Committee. The Committee may also invite the Complainant and any other relevant party to
provide it with information on any issue relating to implementation of the provisional measures
adopted.
Prior to the adoption of provisional measures, the Committee may, where it deems appropriate,
request relevant information from the Respondent State or conduct on-site investigation in order
to verify the pertinent facts. The verification must be conducted as soon as possible unless the
urgency of the situation warrants the immediate granting of the measures.
When determining a request to a State Party to adopt provisional measures, the Committee must
take the following factors into account:
(a) The gravity and urgency of the situation;

102 | P a g e
(b) The irreparability and imminence of the harm in question;
(c) Whether the relevant authorities are aware of the situation or harm;
(d) Where the relevant authorities are unaware of the situation or harm, the reasons why the
situation or harm has not been brought to their attention;
(e) Whether the potential beneficiary or beneficiaries of the measures can be individually or
collectively identified; and
(f) Whether the consent of the potential beneficiary or beneficiaries of the provisional
measures has been obtained, if necessary under the circumstances.
The Committee must make its decision on provisional measures in shortest possible time which
must not exceed a maximum of twenty one (21) days from the time the matter was brought to its
attention. The decision on provisional measures must clearly state the particulars of the potential
beneficiary or beneficiaries of the measures sought to be adopted by the Respondent State. The
adoption of provisional measures shall be without prejudice to determination of the matter on
merits.
The Committee must conduct a periodical evaluation on whether it is necessary to maintain any
provisional measurers undertaken by a Respondent State or to adopt follow up measures. In the
Respondent State fails to comply with the provisional measures, the Committee must take
necessary steps as it deems appropriate.
Withdrawal and discontinuation of proceedings

A complainant may withdraw the communication at any stage of the proceedings. The notification
of withdrawal must be in writing. Upon receipt of the notification, the Committee may either
discontinue the consideration of the communication or continue to consider the communication in
the interest of protecting the rights and welfare of the child or children concerned. The decision of
the Committee to continue to consider the communication may be made on the Committee’s own
motion or at the request of a third party concerned.
103 | P a g e
The Committee may also discontinue the consideration of a communication at any stage of the
proceedings. The Committee may take such a decision on the basis that:
(a) The grounds of the communication cease to exist or subsist; or
(b) The necessary information for the adoption of a decision is unavailable; or
(c) The complainant fails to show diligent prosecution.
Prior to discontinuing the consideration of a communication, the Committee must notify the parties
of its intention to discontinue consideration and request the parties to submit their response. The
response must be filed within thirty (30) days of the receipt of the notice. Upon the expiry of 30
days period, the Committee must make a final decision on discontinuing the consideration of a
communication. In making such a decision, the Committee takes into account the responses
received from the parties.
Amicable Settlement
Parties to a communication are entitled to settle their dispute amicably. The parties may do so at
any time before the Committee decides on the merits of the communication. The terms of
settlement reached must be based on respect for the rights and welfare of the child recognized by
the ACRWC and other applicable instruments. If the parties reach an amicable settlement outside
the auspices of the Committee, they must notify the Committee. The Committee may decide to
proceed with consideration of the communication notwithstanding the notice of such amicable
settlement.
Amicable settlement under the auspices of the Committee may be undertaken on the Committee’s
own initiative or at the request of any of the parties to a communication. When assisting the parties
to reach an amicable settlement, the Committee is guided by the best interest rule and on the basis
of respect of the rights and welfare of the child. Moreover, the Committee must ensure that the
process of amicable settlement is based on mutual consent of the parties to the communication.
With a view to promote amicable settlement of a communication, the Committee may appoint one
or more of its members to facilitate negotiations between the parties and shall render its good
offices at the disposal of the parties. Under the certain circumstances, the Committee may
104 | P a g e
terminate the facilitation of an amicable settlement. The grounds for cessation of facilitation of
amicable settlement include the following:
(a) Where the Committee finds that the matters raised in the communication are not susceptible
to such an amicable solution;
(b) Where any of the parties does not consent to an amicable settlement;
(c) Where any of the parties chooses not to continue with an amicable settlement;
(d) Where any of the parties displays an unwillingness to reach an amicable settlement based
on respect for the rights and welfare of children; and
(e) Where the subject matter of the communication involves serious and massive violation of
children’s rights.
Where the parties reach an amicable settlement, the Committee must adopt a report. The report
must give a brief statement of the facts of the communication, the issues identified for
determination by all the parties and the terms of settlement reached. The Committee must then
send the report to the parties for their endorsement. The parties must return the report to the
Secretariat of the Committee within fourteen (14) days of receipt of the report. The Secretariat
must submit the final report with the endorsement of the parties to the Committee for the latter’s
adoption. However, the Committee must verify whether the victim of the alleged violation or his
representative has consented to the terms of settlement.
In IHRDA v. Malawi,272 the parties submitted for an amicable settlement before the communication
was heard on merit. The complainant had submitted that the constitution of the respondent state
excludes children between the age of 16 and 18 years from the protected accorded to them under
the ACRWC. The Committee adopted the amicable settlement as it was convinced that the
respondent shall take all possible measures to ensure its constitution comply with the ACRWC.273
272
Communication No. 004/Com/001/2014.
273
www.acerwc.org/amicable-settlement-on-communication-no-004 last visited on 30 October 2016 at 2205hrs.
105 | P a g e
The Decision of the Committee

The decisions of the Committee are binding upon the parties to a communication. The Committee
takes a decision on a Communication within ninety (90) days from the date of completion of
deliberations undertaken upon the conclusion of the consideration. After the Committee takes a
decision, the Secretariat of the Committee shall notify the parties of the decision within thirty (30)
days from the date of the decision. The parties are required to implement the recommendation of
the Committee in the decision.
The Respondent State found in violation of the rights and welfare of the child must report to the
Committee all measures taken to implement the decision of the Committee within 180 days from
the date of receipt of the Committee’s decision. If the State fails to do so, the Committee shall
formally notify the State of this breach and request it to submit the report within 90 days from the
date of the Committee’s notification. If the State defaults the reminder, the Committee shall refer
the matter to the Assembly of the AU for appropriate intervention of the matter.
The implementation of the Committee’s decision by the Respondent State is monitored by a

Rapporteur appointed by the Committee for that purpose. The Rapporteur shall monitor the
measures taken by the Respondent State to give effect to the Committee’s recommendations made
in its decision on the Communication. In doing so, the Rapporteur may make any contacts with
the relevant persons and institutions in the Respondent State and take an appropriate action to
ascertain the measures adopted by the State.
Review
The Committee may review its decision, on the admissibility or merits of a communication. The
Committee may do so on its own motion or at the written request of a party to a communication.
The Committee may review its decision upon the discovery of some decisive facts or evidence,
which was unknown to the Committee and the party requesting the review, provided such
ignorance was not due to negligence. The application for review must be made within six (6)
months of the discovery of the new fact. However, the Committee may admit an application for
review outside the six-month period of the discovery of the new fact if it is in the best interest of
the child or children concerned. Notwithstanding that, no application for review may be made after
three years from the date of notification of the decision.
106 | P a g e
The Committee may also review its decision if it erred in its application and interpretation of the
ACRWC or any other relevant instrument in a manner that undermines fairness, justice and
protection of the rights and protection of the rights and welfare of the child. In determining whether
to review its decision the Committee also considers the existence of any other compelling reason
which justify the review.
For more on this and other topics read the book

Human Rights in the World: Standards and Protection
(ISBN 978-9987-727-70-4)
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AFRICAN HUMAN RIGHTS SYSTEM

The African Commission on Human and Peoples’ Rights

History of the African Commission

Functions of the African Commission

(a) To promote human and peoples’ rights;

(b) To ensure the protection of human and peoples’ rights ;

(c) To interpret the provisions of the Banjul Charter; and

Bureau and Secretariat of the African Commission

Functions of the African Commission

Procedure for inter-state communications

Once a communication is received, it is registered. The Secretariat acknowledges receipt of the

Withdrawal and re-opening of a communication

There is no requirement of “citizenship” for the authorship of a communication. Therefore, the

(c) There should be a common question of law or fact.

Once seizure of a communication is approved, the African Commission makes a decision

(a) The communication should indicate the author(s)

i. Prima facie violation (ratione materiae);

(b) Where there are continuous violations.

Applicable standard of proof for ‘compatibility’

(c) The communication should not be written in disparaging or insulting language

(d) The communication should not be based solely on media reports

(e) The communication should be submitted after exhaustion of local remedies

(c) Where a domestic law limits or ousts the right to appeal;103

(e) Where a domestic law applies retrospectively;105

(n) Where victims had no legal representation;114

Evidence and burden of proof

Njawè Noumeni v. Cameroon,158the complainant requested the African Commission to discontinue

Referral of communication to the African Court of Human and People’s Rights

Consideration on the merits

Recommendations of the Commission

(a) The decision on admissibility;

Follow-up on the Commission’s recommendations

(a) Various African instruments on human and peoples’ rights;

(b) The UN Charter;

(c) The Constituent Act of the African Union;

(d) The Universal Declaration of Human Rights;

(b) African general principles of law recognized by African States;

(d) Customs generally accepted as law; and

(e) Legal precedents and doctrine

Special Rapporteur on Freedom of Expression and Access to Information in Africa

Special Rapporteur on Prisons and Conditions of Detention

Special Rapporteur on Human Rights Defenders

The mandate has been twice renewed, in 2007 and in 2011.

Special Rapporteur on Rights of Women in Africa

Advisory Committee on Budgetary and Staff Matters

Working Group on Economic, Social and Cultural Rights

Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary Killings in

(a) Further elaborate a Concept Paper on the Death Penalty in Africa;

Working Group on Indigenous Populations/Communities in Africa

This working Group was established in 2000. It is mandated to:

(a) Examine the concept of indigenous people and communities in Africa;

(i) the right to equality (Articles 2 and 3);

Working Group on Rights of Older Persons and People with Disabilities

Working Group on Communications

“The African Commission may establish one or more working

African Commission undertakes missions as a method of investigation. The main purpose of

(a) Protective missions

(b) Promotional missions

Obligations of States and Role of Civil Society during a mission

(a) Guarantee free movement of members of the mission;

(b) Provide the mission with any necessary information or document;

(c) Take steps to protect members of the mission;

The African Court on Human and Peoples’ Rights