He 9780198767237 Chapter 23

23.
Africa
International Human Rights Law (3rd

edn)
Edited by Daniel Moeckli, Sangeeta Shah, Sandesh
Sivakumaran, and David Harris
Publisher: Oxford University Press Print Publication Date: Dec 2017

Print ISBN-13: 9780198767237 Published online: Sep 2018
DOI: 10.1093/he/
9780198767237.001.0001
23. Africa
Chapter: (p. 465) 23. Africa
Author(s): Christof Heyns and Magnus Killander
DOI: 10.1093/he/9780198767237.003.0023
Summary
The extent to which human rights is protected at the national level in

Africa is monitored not only by the UN system but also through an
extensive framework of regional instruments adopted by the African
Union and its predecessor, the Organization of African Unity, as well
as sub-regional organizations such as the Economic Community of
West African States, the East African Community, and the Southern
African Development Community. The African Commission on Human
and Peoples’ Rights, established by the African Charter on Human
and Peoples’ Rights 1981, and operating under the auspices of the
African Union, remains the main human rights body of the continent.
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23. Africa
The African Court on Human and Peoples’ Rights has been

established to complement the work of the Commission.
1 Introduction
The African continent of today is characterized, inter alia, by the

coexistence of traditional and modern strands of society. As is the case in
traditional societies across the world, recognition of values such as
human dignity, a prohibition of harm to others, and the ideals of
benevolent governance may be found in many African societies—the same
norms that underlie much of the modern notion of human rights.
However, the idea of enforcement of these norms is typically not well
developed in traditional societies. To the extent that people may be
considered to be the bearers of human rights in such societies, these
rights are rights in the weak sense of the word—the corresponding duty
they impose is at best a moral or an aspirational one. There are few
effective channels for actions against abusive leaders or governments.
While there is an increasing recognition of human rights in Africa not only

in the weak but also in the strong sense of the word, where enforcement
is possible, the continent is still facing a myriad of challenges to the full
realization of the human rights of its people. This is despite widespread
formal commitment to human rights across the continent in the form of
bills of rights, establishment of national human rights institutions,
declarations by intergovernmental organizations, and the establishment
of a regional human rights system. Poverty and human rights violations
go hand in hand in Africa, as is the case in other parts of the world.1
However, the situation is particularly pronounced in Africa in view of the
high general levels of poverty.
This chapter examines the role played by African regional

(p. 466)
intergovernmental organizations, in particular the African Union, in the

realization of human rights. The focus is on the African Charter on
Human and Peoples’ Rights (ACHPR or Charter) and the main organs, the
African Commission on Human and Peoples’ Rights (African Commission)
and the African Court on Human and Peoples’ Rights (African Court),
which have been established to ensure its implementation.
2 Historical overview
The Charter of the Organization of African Unity (OAU

Charter), adopted in 1963, made few references to human rights.
However, the Charter did set the task for the new organization of
enforcing human rights norms by recognizing the goal of bringing an end
to colonialism and apartheid in Africa. In the late 1970s, in the wake of
the mass murders of the regimes of, for example, Idi Amin in Uganda, the
OAU started to pay some attention to the human rights situation in its
member states.
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23. Africa
In 1978 President Jawara of The Gambia made the following statement

before the UN General Assembly:
With the attainment of self-determination and independence, it

would be ironic indeed if the freedom gained from the defeat of
colonialism should … be denied our people by our own leaders.
After centuries of a deliberate policy of dehumanisation,
subjugation, and oppression, the minimum our people expect and
must have is the full enjoyment of their political, economic, social,
and cultural rights … It should be the duty of all of us to … ensure
that … the people enjoy … their civil and political rights.2
Over the following years President Jawara, one of the few democratically
elected leaders in Africa at the time, played a leading role in the
development of the ACHPR, which is also known as the Banjul Charter,
after the capital of The Gambia. The OAU Assembly adopted the ACHPR
in 1981 and it entered into force in 1986. In 1987 the OAU Assembly
elected the 11 members of the African Commission on Human and
Peoples’ Rights. The Commission recommended that, to guard its
independence, the Secretariat of the Commission should not be located at
the headquarters of the OAU in Addis Ababa, Ethiopia. A year later, the
OAU Assembly decided that the Secretariat of the Commission should be
located in Banjul. Ironically, The Gambia would soon afterwards become
one of the most repressive societies on the African continent, and an ill-
placed host to the Commission.
With democratic elections in South Africa in April 1994, the OAU had
finally succeeded in its main objective of the liberation of Africa from
colonialism and apartheid. It was felt that the OAU was in need of
transformation and in 2000 the OAU Assembly adopted the Constitutive
Act of the African Union (AU). The AU was launched in Durban, South
Africa, in 2002. The headquarters of the AU remain in Addis Ababa,
Ethiopia.
The main principles of the OAU were sovereign equality and ‘non-
interference in the internal affairs of states’.3 These principles have been
retained in the AU Constitutive Act. However, it is noticeable that a
number of new objectives have been added in the Act. These include the
objective to ‘promote and protect human and peoples’ rights in
accordance with the ACHPR and other relevant human rights
instruments’.4 In addition to the (p. 467) commitments set out in the
Constitutive Act, the AU established a new institutional framework with a
mandate that includes the realization of human rights. The new
institutions include the African Court on Human and Peoples’ Rights, the
Pan-African Parliament, the Peace and Security Council, the New
Partnership for Africa’s Development, and the African Peer Review
Mechanism.
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23. Africa
There are no entry requirements in terms of human rights practices for

states to join the AU, and all the members of the OAU became members
of the AU without scrutiny of their human rights records. However, there
is at least a theoretical possibility that violations of human rights may
lead to suspension from the AU and other sanctions.5 AU inaction in the
face of gross human rights violations in, for example Burundi, Eritrea,
Sudan, and Zimbabwe, however, illustrates that the principle of non-
interference still dominates. In fact the AU has only used its power to
sanction member states after military coups. A sitting head of state runs
little risk of being castigated by his peers in respect of how much he (few
African heads of state have been women) has manipulated an election to
stay in power. Many current African presidents first came to power
through military coups. Most of them have then tried to legitimize their
rule through elections. However, sometimes the people manage to oust
such leaders as happened with President Compaoré of Burkina Faso in
2014 and President Jammeh of The Gambia in early 2017.
Concern over human rights in Africa by intergovernmental organizations

is of course not limited to the AU. The UN plays a major role through
treaty bodies, special procedures, field presences, and so on. Impunity is
being addressed, among others, through the work of the International
Criminal Court (ICC).6 However, it should be noted that many African
governments view the ICC as having focused too much on Africa and
interfered in domestic politics through indicting African leaders such as
the President of Sudan.
Sub-regional African intergovernmental organizations have taken an

increased interest in human rights. The AU has recognized eight Regional
Economic Communities (RECs) as building blocks towards an African
Economic Community.7 The most active of these in the field of human
rights is the Economic Community of West African States (ECOWAS).8
The ECOWAS Community Court of Justice can hear complaints about
human rights violations in member states without the requirement of
exhaustion of local remedies. Among its case law can be mentioned cases
dealing with arbitrary detention in The Gambia and slavery in Niger.9 The
East African Court of Justice (EACJ) does not have explicit jurisdiction to
deal with complaints of human rights violations, but has nevertheless
dealt with human rights issues that were considered to constitute
violations of the East African Community treaty.10
The Tribunal of the Southern African Development Community (SADC)

followed the same approach, but, in a step which does not auger well for
the protection of human rights through courts in Africa, this tribunal was
dissolved by the SADC Summit in 2012 following its finding of human
rights violations in Zimbabwe.11
Some RECs have also been active in human rights standard-

(p. 468)
setting. For example a SADC Protocol on Gender and Development was

adopted in 2008.
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23. Africa
At the domestic level, all 55 member states of the AU have written

constitutions which recognize human rights.12
3 The African Charter and other relevant treaties
The ACHPR has been ratified by 54 member states of the AU.

Morocco is yet to ratify.
3.1 Norms recognized in the African Charter
The ACHPR goes further than the primary regional human rights
conventions of Europe and the Americas in recognizing, in one treaty, not
only civil and political rights, but also some economic, social, and cultural
rights and not only individual rights but also peoples’ rights. The Charter
also provides for duties.
A number of shortcomings in respect of the provisions concerning civil

and political rights in the ACHPR when compared to other international
instruments can be noted. For example, the right to privacy and the right
against forced labour are not explicitly mentioned in the Charter. Fair
trial rights and the right of political participation are provided for in less
detail than in other human rights treaties. However, the African
Commission has, in resolutions and in its decisions on cases, interpreted
the Charter in line with established international practice. Thus, the
ACHPR has been interpreted to encompass some of the rights or aspects
of rights not explicitly included. For example, the content of the fair trial
rights in the ACHPR has been expounded by the Commission in its
detailed Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa adopted in 2003.13
The inclusion in the ACHPR of socio-economic rights alongside civil and

political rights emphasizes the indivisibility of human rights and the
importance of development issues, which are obviously important matters
in the African context. At the same time it should be noted that a modest
number of socio-economic rights are explicitly included in the Charter. It
only recognizes ‘a right to work under equitable and satisfactory
conditions’ (Article 15), a right to health (Article 16), and a right to
education (Article 17). Among rights not explicitly included are the rights
to food, water, social security, and housing. The socio-economic rights in
the ACHPR have generally received scant attention from the African
Commission, but in its 2001 decision in SERAC v Nigeria the Commission
dealt extensively with the issue.14 In this case, which dealt with gross
human rights violations in the oil-rich Ogoniland region of Nigeria, the
Commission deduced an implicit right to ‘housing or shelter’ in the
ACHPR from the provisions on health, property, and family life in the
Charter. Similarly, a right to food was read into the right to dignity. It
should also be noted that the Commission in 2004 established a Working
Group on Economic, Social, and Cultural Rights and in 2011 adopted
elaborate Principles and Guidelines on Economic, Social, and Cultural
Rights.15
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23. Africa
Peoples’ rights, on the other hand, are more fully developed in

(p. 469)
the ACHPR than in the UN covenants which set out only a right to self-
determination. According to the Charter, all ‘peoples’ have a right to be
equal (Article 19); to existence and self-determination (Article 20); to
freely dispose of their wealth and natural resources (Article 21); to
economic, social, and cultural development (Article 22); to peace and
security (Article 23); and to a satisfactory environment (Article 24).
Clearly, part of the motivation for the recognition of ‘peoples’ rights’ lies
in the fact that, historically, entire ‘peoples’ in Africa have been colonized
and otherwise exploited. ‘Peoples’ can thus refer to the whole population
of the country. For example, the African Commission has held that a
military coup constituted not only a violation of the right to political
participation in Article 13, but also violated the right to self-determination
in Article 20.16 Peoples’ rights may also be exercised by a part of the
population of a state ‘bound together by their historical, traditional,
racial, ethnic, cultural, linguistic, religious, ideological, geographical,
economic identities and affinities, or other bonds’.17
At the same time there is little room for secession to be found in the
Charter. In Katangese Peoples’ Congress v Zaire the claimant requested
that the African Commission recognize the independence of the Katanga
province in the then Zaire (now Democratic Republic of the Congo). The
Commission held:
In the absence of concrete evidence of violations of human rights to

the point that the territorial integrity of Zaire should be called to
question and in the absence of evidence that the people of Katanga
are denied the right to participate in government as guaranteed by
article 13(1) of the African Charter, the Commission holds the view
that Katanga is obliged to exercise a variant of self-determination
that is compatible with the sovereignty and territorial integrity of
Zaire.18
The Commission upheld this position in a case against Cameroon in which

it held that grievances of the Anglophone part of Cameroon against the
dominant Francophone part should not be ‘resolved through secession
but through a comprehensive national dialogue’.19
In SERAC v Nigeria, discussed earlier, the African Commission found the

Nigerian government guilty of violating Article 21 ACHPR by giving ‘the
green light to private actors, and the oil companies in particular, to
devastatingly affect the well-being of the Ogonis’.20 In this case, the
Commission also found a violation of the right to a satisfactory
environment in Article 24 ACHPR. The Endorois case, decided in 2009,
dealt with the rights of indigenous people in Kenya. Among other
violations, the Commission found that Kenya had violated the right to
economic, social, and cultural development (Article 22) of the Endorois
people.21
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23. Africa
3.2 Duties and limitations
Articles 27, 28, and 29 ACHPR provide for individual duties towards the
community. These range from duties towards the family, such as the
maintenance of parents ‘in case of need’, to duties towards the state. The
African Commission has not pronounced itself (p. 470) on the content of
these duties except for its application of Article 27(2) (‘the rights and
freedoms of each individual shall be exercised with due regard to the
rights of others, collective security, morality and common interest’) as a
general limitation clause.
Article 9(2) provides that ‘[e]very individual shall have the right to
express and disseminate his opinions within the law’. As phrased, the
right seems to recognize the right in question only to the extent that it is
not infringed upon by national law. Freedom of conscience and religion in
Article 8, freedom of association in Article 10, freedom of assembly in
Article 11, and freedom of movement in Article 12 are apparently
similarly restricted. This type of limitation is often referred to as a claw-
back clause—what is given with the one hand is taken away with the
other.22 However, the African Commission has held that provisions in the
ACHPR that allow rights to be limited ‘in accordance with law’, should be
understood to require such limitations to be provided by domestic legal
provisions that comply with the standards set by Article 27(2) and with
international human rights law standards.23
3.3 Protection of women, children, and vulnerable groups
Article 18(2) ACHPR places a duty on the state to assist the family as ‘the
custodian of morals and traditional values recognized by the community’.
However, such values may not discriminate as this would violate the
general prohibition of discrimination in Article 2 and the specific
prohibition of discrimination against women in Article 18(3), which also
provides for the protection of the rights of women and children ‘as
stipulated in international declarations and conventions’. Article 18(4)
provides for ‘special measures of protection’ for the aged and disabled.
The OAU Assembly adopted the African Charter on the Rights and
Welfare of the Child (Children’s Charter) in 1990. The Children’s Charter
can be seen as a regional response to the UN Convention on the Rights of
the Child (CRC), adopted less than a year before the African treaty. The
Children’s Charter provides some increased protection compared to the
CRC, including further protections for child soldiers, as well as
protections against child marriages and for internally displaced children.
Unlike the CRC, the Children’s Charter also provides for duties for
children.24
A Committee on the Rights and Welfare of the Child (separate, thus, from
the African Commission on Human and Peoples’ Rights) was established
under the Children’s Charter. The 11 members of the Committee were
elected in July 2001 and the first meeting of the Committee was held in
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23. Africa
2002. States have to report to the Committee within two years of the
entry into force of the convention for the state party concerned and every
three years thereafter. However, despite the fact that the Committee was
established in 2001, it only began to consider the reports it had received
in 2008.25 Apart from state reporting, the Children’s Charter also
provides for a communication procedure. The Committee does not have
its own secretariat, and is serviced by the Department for Social Affairs at
the AU Commission in Addis Ababa. The Committee has considered a
number of state reports and in 2011 handed down its first decision with
regard to a communication dealing with (p. 471) the right to nationality of
Nubian children in Kenya.26 This has been followed by decisions against
Uganda and Senegal.27
In 2003, the AU Assembly adopted the Protocol to the African Charter on

Human and Peoples’ Rights on the Rights of Women (Women’s Protocol).
As a protocol to the African Charter it expands and extends the protection
of the rights of women already recognized therein. Through its 24
substantive provisions the Women’s Protocol provides much more
comprehensive protection than the UN Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW). For example, the
Women’s Protocol includes provisions on domestic violence, trafficking,
elimination of harmful practices, reproductive rights, HIV/AIDS, and
inheritance and protection of elderly women.
During the drafting of the Protocol, there were many controversial issues,
including the question of polygamy which is recognized and practised in
many African countries. For example, South African President Zuma has
four wives, and King Mswati III of Swaziland, one of the world’s last
absolute monarchs, at the time of writing had 15 wives. The CEDAW
Committee has held that polygamy violates the right to equality in
marriage.28 In a clear attempt to strike a compromise, Article 6(c)
Women’s Protocol provides that ‘monogamy is encouraged as the
preferred form of marriage and that the rights of women in marriage and
family, including in polygamous marital relationships are promoted and
protected’. The African Commission and the African Court are responsible
for monitoring the implementation of the Women’s Protocol.
The OAU Convention Governing the Specific Aspects of Refugee Problems

in Africa was adopted in 1969 and can thus be seen as the first African
human rights treaty. The convention was a response to the 1967 UN
Protocol Relating to the Status of Refugees, which extended the
application of the UN Refugee Convention to the whole world. The
African Convention includes a broader definition of ‘refugee’ than the UN
Convention, extending the protection to those seeking refuge because of
‘external aggression, occupation, foreign domination or events seriously
disturbing public order’.29
The AU has adopted a number of treaties of relevance to human rights in

recent years such as the Convention on Preventing and Combating
Corruption, the African Youth Charter, the African Charter on Democracy,
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23. Africa
Elections and Governance, and the AU Convention for the Protection and
Assistance of Internally Displaced Persons in Africa.
4 The protective mechanisms
4.1 The African Commission
4.1.1 Structure and composition
Article 30 ACHPR provides for the establishment of the African

Commission on Human and Peoples’ Rights. The African Commission was
established in 1987 following the entry into force of the Charter in 1986.
According to Article 45 ACHPR, the mandate of the Commission includes
promoting human rights through research, dissemination of (p. 472)
information, and cooperation with other human rights bodies. The
Commission also has a mandate to interpret the provisions of the Charter
and consider complaints against a state alleging that it has violated the
ACHPR. The Commission has also been given the mandate to consider
state reports on implementation of the Charter. Although this is not
explicitly provided for in the Charter, the Commission also accepts and
considers communications or complaints lodged by individuals.
The African Commission consists of 11 Commissioners who serve in their

individual capacities and are nominated by states parties to the Charter
and elected by the AU Assembly. The independence of the Commission
has sometimes been questioned as a number of civil servants and
ambassadors have served on it. However, in a note verbale to the member
states in April 2005 the AU Commission provided guidelines that
excluded senior civil servants and diplomatic representatives from being
elected.30 These guidelines have been followed with regard to new
appointments to the Commission. The Commission meets twice a year in
regular sessions for a period of up to two weeks, alternating its meetings
between its headquarters in Banjul and other African capitals.
4.1.2 The complaints procedure
Both states and individuals may bring complaints to the African

Commission alleging violations of the ACHPR by states parties. The inter-
state complaint procedure by which one state brings a complaint about an
alleged human rights violation by another state is not often used. Only
one such case has been decided by the Commission. In Democratic
Republic of the Congo v Burundi, Rwanda and Uganda,31 the Commission
held that the three respondent states had violated a number of individual
and peoples’ rights during the presence of their armed forces on
Congolese territory.
Articles 55, 56, 57, and 58 ACHPR deal with ‘other communications’, that
is, communications not submitted by a state. As indicated above, while
the Charter is silent on who can bring such communications, the
Commission has in its practice accepted complaints from individuals as
well as from NGOs. From the case law of the Commission it is clear that
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23. Africa
the complainant does not need to be a victim or a family member of a

victim.32
Article 56 ACHPR lists the admissibility criteria. These include that

communications should indicate the author, be compatible with the
Charter, not be written in disparaging or insulting language, not be based
exclusively on media reports, be submitted within reasonable time, and
not deal with a situation which has already been settled. In practice, the
most important criterion for admissibility is the exhaustion of local
remedies. The Commission has stated that for a case not to be admissible,
local remedies must be available, effective, sufficient, and not unduly
prolonged.33 In Purohit and Another v The Gambia, a case dealing with
detention in a mental health institution, the Commission gave a
potentially far-reaching decision on the exhaustion of local remedies
when it held that:
[t]he category of people being represented in the present

communication are likely to be people picked up from the streets or
people from poor backgrounds and as such it cannot be said that
the remedies available in terms of the Constitution are realistic
remedies for them in the absence of legal aid services.34
(p. 473)
Figure 23.1
The African Charter communications procedure
The criterion of submission within reasonable time has become

increasingly important as the Commission has narrowed its definition of
what constitutes reasonable time so as, in many cases, to effectively apply
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23. Africa
the six-month rule originally inscribed in the European and American

Conventions.
When a complaint is lodged, the state in question is asked to respond in

writing to the allegations against it. If it does not respond, and the
admissibility criteria are met, the Commission proceeds on the basis of
the facts as provided by the complainant. If a state has responded, the
Commission gives the complainant an opportunity to respond to the
arguments by the state. The communication is then scheduled for a
hearing at one of the sessions of the Commission. The complainant and
respondent state are invited to make presentations at the hearing which
is not public.
If the Commission finds a violation, it may make recommendations. These

may include that continuing violations should stop (for example, prisoners
be released), or specific laws be amended or repealed. However, often the
recommendations are rather vague, and the state party is merely urged to
‘take all necessary steps to comply with its obligations under the
Charter’.
The ACHPR does not contain a provision on interim or provisional

measures. However, the Rules of Procedure of the Commission grant the
Commission the power to grant provisional measures. The Commission
has used provisional measures in a number of cases, (p. 474) for example
when an execution has been imminent, although this has often been
without success. The Commission has held that a breach of provisional
measures constitutes a violation of Article 1 ACHPR.
The Commission has handed down approximately 200 decisions on

communications since it was established in 1987 (including cases that
were declared inadmissible or discontinued due to withdrawal or loss of
contact with the complainant). The individual complaints procedure is
thus not used as frequently as would have been expected on a continent
with the type of human rights problems that Africa experiences. This
could, to some extent, be attributed to a lack of awareness about the
system. Even where there is awareness, however, there is often not much
faith that the system will make a difference, given the emphasis on the
continent on state sovereignty and the dismissive approach which is often
taken in respect of human rights.
The Commission’s recommendations are often vague and there is no

system of follow-up to its recommendations. While the Commission
sometimes recommends compensation to the complainant, it has
generally not decided on the amount to award. However, this practice has
changed in some recent cases.35 It is also noticeable that, despite the
relatively low number of cases, the Commission often takes more than
five years to decide a case.
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4.1.3 Consideration of state reports
Unique amongst the regional human rights systems, the ACHPR contains
a state reporting procedure modelled on those of the UN human rights
treaties. Each state party is required to submit a report every two years
on its efforts to comply with the ACHPR. Reporting has been very tardy,
and some states have never submitted a report. Reporting under the
Charter requires the state to measure its legislation, policies, and
practices against the norms of the ACHPR (‘introspection’). This
introspection is followed by ‘inspection’ by the African Commission in
which it measures the performance of the state in question against the
Charter. The objective is to facilitate a ‘constructive dialogue’ between
the Commission and the states. The dialogue takes place at the public
sessions of the African Commission.
NGOs are allowed to submit shadow or alternative reports, but the impact
of this avenue is diminished by the lack of access of NGOs to the state
reports to which they are supposed to respond. However, recently the
Commission has begun to publish the state reports for the upcoming
session on its website. Since 2001 the Commission has adopted
concluding observations after considering the reports.
4.1.4 Special rapporteurs and working groups
The system of special procedures of the Commission, again loosely similar

in nature to those of the UN, is a further unique feature among regional
human rights systems. The Commission has appointed a number of
Special Rapporteurs to deal with thematic human rights issues. The
Special Rapporteurs are always appointed from within the ranks of the
members of the Commission. The Commission has also appointed working
groups, some of which include members who are not Commissioners.
In the mid-1990s the Commission adopted the first Special Rapporteur

mandates: the Special Rapporteur on extrajudicial, summary or arbitrary
executions; the Special Rapporteur on prisons and conditions of
detention; and the Special Rapporteur on the rights of women. The
position of Special Rapporteur on extrajudicial, summary or arbitrary
executions has been defunct since 2001, though the mandate of the
Working Group (p. 475) on the Death Penalty was expanded in 2012, and
it is now known as the Working Group on the Death Penalty and Extra-
Judicial, Summary or Arbitrary Killings in Africa. The Commission has
more recently appointed Special Rapporteurs on freedom of expression
and access to information; refugees and internally displaced persons; and
human rights defenders. The Commission has also established a
committee to monitor the implementation of the Guidelines and Measures
for the Prohibition and Prevention of Torture, Cruel, Inhuman or
Degrading Treatment or Punishment in Africa (Robben Island Guidelines);
and Working Groups on Indigenous People or Communities; Economic,
Social and Cultural Rights; the Death Penalty; and the Rights of Older
Persons and Persons with Disabilities in Africa.36
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23. Africa
The Special Rapporteurs and Working Groups follow developments in the

area covered by their mandate and engage with NGOs. They may issue
press releases or write letters to governments when they receive reliable
information about violations of the ACHPR. The Special Rapporteurs also
undertake on-site visits and produce reports with recommendations to
governments. Special procedures also take the lead in developing
normative instruments such as the Model Law on Access to Information,
developed under the auspices of the Special Rapporteur on Freedom of
Expression and Access to Information;37 and General Comment 3 on the
Right to Life, developed by the Working Group on the Death Penalty and
Extra-Judicial, Summary or Arbitrary Killings in Africa.38
4.1.5 On-site visits
The Commission has conducted a number of on-site visits or missions.

These can be divided into protective and promotional missions. Protective
missions may be linked to a case under consideration by the Commission
or to a situation of massive violations of human rights. Promotional
missions help to give the Commission an understanding of the human
rights situation in a country through meetings with governments and
NGO representatives. They are often aimed at spreading knowledge
about the Commission and its work. The missions are generally conducted
by one or two members of the Commission, sometimes the Special
Rapporteur on a specific issue, together with a legal officer from the
Secretariat. Mission reports are adopted by the Commission as a whole at
its sessions. Many reports have never been published, in print or on the
internet, which diminishes their impact.
4.1.6 Resolutions
The African Commission has adopted resolutions on a number of human

rights issues in Africa. In addition to country-specific and other more ad
hoc resolutions, it has adopted resolutions on topics such as fair trial;
freedom of association; human and peoples’ rights education;
humanitarian law; contemporary forms of slavery; antipersonnel mines;
prisons in Africa; the independence of the judiciary; the electoral process
and participatory governance; the International Criminal Court; the death
penalty; torture; HIV/AIDS; maternal mortality; and freedom of
expression. The Commission, in turn, has relied on these resolutions in its
case law. Some of the resolutions, for example the Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, are
quite elaborate and can be seen as regional equivalents of the general
comments adopted by the UN treaty bodies. The Commission has also
taken the lead on issues that remain deeply divisive on the African
continent such as, for example, through the adoption in 2014 of the
Resolution (p. 476) on Protection against Violence and other Human
Rights Violations against Persons on the basis of their real or imputed
Sexual Orientation or Gender Identity.39
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4.1.7 Relationship with NGOs
NGOs have often been instrumental in bringing cases to the African

Commission and in supporting its work in general. NGOs submit shadow
reports, propose agenda items at the outset of Commission sessions, and
provide logistical and other support to the Commission, for example by
placing interns at the Commission and providing support to the Special
Rapporteurs and missions of the Commission. NGO workshops are
arranged prior to Commission sessions, and many NGOs participate
actively in the public sessions of the Commission. NGOs also collaborate
with the Commission in developing resolutions and new normative
instruments. NGOs that wish actively to engage with the Commission
need to apply for observer status, which to date has been granted to more
than 400 African and international NGOs.40
4.1.8 Interaction with AU political bodies
The activity reports of the Commission, which reflect the decisions,

resolutions, and other acts of the African Commission, are submitted after
the Commission’s meetings to the AU summit, which is held twice a year.
The activity report must be adopted by the AU Assembly before it can be
published. Controversy arose in 2004 when Zimbabwe managed to delay
the publication of a case against it due to lack of consultation by the
Commission. At around the same time there was debate over the
publication of country-specific resolutions.41 For a few years the AU
Assembly and Executive Council reverted to their previous practice of
serving as a rubber stamp for the Activity Report of the Commission
before there was renewed controversy over the contents of a report
leading to a delay in publication. The principle that the very people in
charge of the institutions whose human rights practices are at stake—the
heads of state—take the final decision on publicity, undermines the
legitimacy of the system. This is not to deny that constructive
engagement by the AU political organs could be used to put pressure on
states to comply with the decisions of the Commission. The relationship
between the African Commission and the AU Executive Council came in
to focus in 2015 when the African Commission granted observer status to
the Coalition for African Lesbians. In a response reflecting the
homophobic nature of many African governments, the Executive Council
called on the African Commission to review its decision and revise its
guidelines for granting observer status to NGOs.42
4.2 The African Court on Human and Peoples’ Rights
4.2.1 Background
The only monitoring mechanism included in the ACHPR is the African

Commission. In 1994, the OAU Assembly adopted a resolution requesting
the Secretary-General of the OAU to convene a Meeting of Experts to
consider the establishment of an African Court on Human and Peoples’
Rights. The decision to strengthen the regional human rights system with
the establishment of a court should be seen in the context of the
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23. Africa
increased focus (p. 477) on human rights both in Africa and worldwide in
the early 1990s. The Protocol on the African Court on Human and
Peoples’ Rights was adopted in Addis Ababa, Ethiopia, in 1998 (Protocol
on the African Court). The Protocol entered into force in January 2004. By
the end of 2016, 30 states had ratified the Protocol. The seat of the court
is in Arusha, Tanzania.
The AU Assembly decided at its summit in July 2004 that the African
Human Rights Court must be merged with the African Court of Justice.
The reason behind the merger was seemingly a need to rationalize the AU
structures. The Court of Justice is one of the organs of the AU provided
for in the Constitutive Act but it has not been established. It was meant to
function as a court adjudicating disputes arising from the increasing
integration of the member states of the AU. In July 2008 the AU Assembly
adopted the Protocol on the Statute of the African Court of Justice and
Human Rights. This Protocol envisages that the new court will replace
the current African Human Rights Court, and that the new court will have
one human rights section and one general affairs section. This Protocol
has not yet entered into force.
In 2014, however, the plans for the future changed again. The Assembly
adopted the Malabo Protocol, which is aimed at giving the Court
jurisdiction over international crimes. However, by the end of 2016 no
state had ratified the Protocol. The Malabo Protocol, if it enters into
force, will give the African Human Rights Court jurisdiction over
international crimes covered by the ICC, such as genocide, crimes against
humanity, and war crimes, but also over crimes such as corruption,
unconstitutional change of government, and terrorism. In a major and
controversial departure from the position in the ICC Statute, the Malabo
Protocol provides for immunity for heads of state and senior state
officials.
4.2.2 Composition
The African Court on Human and Peoples’ Rights, as it currently exists,

‘complements’ the protective mandate of the African Commission under
the Charter. The court consists of 11 judges nominated by states parties
to the Protocol, and elected by the Assembly. Only the president holds a
full-time appointment. The Protocol on the African Court provides that the
judges are appointed in their individual capacities, and that their
independence is guaranteed. Special provision is made in Article 18
Protocol on the African Court that ‘[t]he position of judge of the Court is
incompatible with any activity that might interfere with the independence
or impartiality of such a judge’. A judge will not be allowed to sit in a case
if that judge is a national of a state which is a party to the case. The first
judges were elected by the Assembly in January 2006. Until recently the
Court had nine male judges and two female judges. However, in July 2016
the AU Executive Council elected the only two female candidates
nominated for the four vacancies on the Court. Two more female judges
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23. Africa
were elected in January 2017 leaving the Court with six male and five
female members.
4.2.3 Procedure
In the majority of cases the Commission will take a case to the African
Court if it has found a violation and has established that the state has not
complied with its recommendations. Individuals and those who act on
their behalf will be able to take cases directly to the African Court only in
respect of those states that have made an additional declaration in terms
of Article 34(6) Protocol on the African Court specifically authorizing
them to do so. Seven states (Benin, Burkina Faso, Cote d’Ivorie, Ghana,
Malawi, Mali, and Tanzania) have made such a declaration. Rwanda has
recently withdrawn its declaration. This opt-in process for direct access
to the Court will remain the same under the merged court. The Court may
also deliver advisory opinions at the request of the AU, any of its organs,
or (p. 478) any ‘African organisation recognised by the [AU]’.43 The Court
has handed down a number of merits judgments and separate judgments
on reparations. The Court may adopt provisional measures in cases of
‘extreme gravity and urgency’ when ‘irreparable harm to persons’ would
otherwise ensue and has done so in a few cases.44 Most of the merits
judgments have been against two of the states that have made the Article
34(6) declaration, Burkina Faso and Tanzania.
In respect of the Court’s findings, the Protocol on the African Court

determines that ‘[i]f the Court finds that there has been a violation of a
human or peoples’ right, it shall make appropriate orders to remedy the
violation, including the payment of fair compensation or reparation’.45
The Protocol provides that the Council of Ministers (now the AU
Executive Council) shall monitor the execution of the judgments of the
Court.46
4.3 The AU main organs and human rights
4.3.1 Overview
The African human rights system is not limited to the African

Commission, the African Court, and the Children’s Committee. The AU
also has the following main organs: the Assembly of Heads of State and
Government, the Executive Council, the Permanent Representative
Committee, the Pan-African Parliament, the African Court of Justice, the
AU Commission (which replaced the OAU Secretariat), Specialised
Technical Committees, the Economic, Social and Cultural Council,
financial institutions, and the Peace and Security Council. A number of
these organs have human rights mandates.
4.3.2 Pan-African Parliament
The Pan-African Parliament (PAP) shall ‘ensure the full participation of

African peoples in the development and economic integration of the
continent’. One of the Parliament’s objectives is to ‘[p]romote the
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23. Africa
principles of human and peoples’ rights and democracy in Africa’.47 The

PAP has held sessions twice a year since its inception in 2004. Each state
party to the Protocol establishing the Parliament sends five national
parliamentarians to the PAP, which is based in Midrand, South Africa.
Currently the powers of the Parliament are purely consultative and
advisory. In the implementation of its human rights mandate, the PAP has
sent fact-finding missions to, for example, Darfur, and election
observation missions to many AU member states. The PAP electoral
observation mission to the Zimbabwe presidential election in 2008
concluded that the elections had not been free and fair. In contrast, the
AU Assembly avoided criticizing the election. This episode is symptomatic
of the general lack of impact of the PAP.
4.3.3 The economic, social and cultural council
The Economic, Social and Cultural Council (ECOSOCC) is an advisory

organ made up of representatives nominated by civil society
organizations of member states. One of ECOSOCC’s objectives is to
‘[p]romote and defend a culture of good governance, democratic
principles and institutions, popular participation, human rights and
freedoms as well as social justice’. The statutes of ECOSOCC were
adopted by the AU Assembly in July 2004. Since then, ECOSOCC has
been busy establishing its structures rather than (p. 479) establishing
itself as a voice of civil society engaging with and putting issues such as
human rights on the AU agenda.
4.3.4 Peace and security council
The attempts to develop mechanisms to deal with conflict in Africa are by

their very nature also of importance in trying to prevent massive human
rights violations. The Protocol on the Peace and Security Council (PSC),
adopted in 2002, entered into force in 2003. The PSC has a rotating
membership of representatives of 15 AU member states. The criteria for
membership include ‘respect for constitutional governance … as well as
the rule of law and human rights’. Article 4 PSC Protocol provides that
the Council shall be guided by the AU Constitutive Act, the UN Charter,
and the Universal Declaration of Human Rights. The Protocol further
provides that one of the Council’s objectives is to ‘promote and encourage
democratic practices, good governance and the rule of law, protect
human rights and fundamental freedoms, respect for the sanctity of
human life and international humanitarian law, as part of efforts for
preventing conflicts’.
Article 19 PSC Protocol provides that the PSC ‘shall seek close
cooperation with the African Commission’. Nonetheless, from the activity
reports of the Commission and the communiqués of the PSC, it appears
that the two organs have not often collaborated, despite references to
PSC resolutions in the Commission’s country-specific resolutions. It
should also be noted that the PSC in 2015 requested the African
Commission to undertake a fact-finding mission to Burundi.48
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23. Africa
4.4 The African Peer Review Mechanism
The Declaration on Democracy, Political, Economic and Corporate

Governance (Governance Declaration) was adopted at the final OAU
Assembly in Durban in 2002. The Governance Declaration provided for
the establishment of an African Peer Review Mechanism (APRM) ‘to
promote adherence to and fulfilment of the commitments’ in the
Declaration.
The APRM grew out of the New Partnership for Africa’s Development
(NEPAD), adopted by the AU in 2001 as the development framework for
the Union. The secretariats of the APRM and NEPAD are based in
Midrand, South Africa. The highest decision-making body in the APRM is
the APRM Forum consisting of the heads of state and government of the
participating states. A panel of eminent persons with seven members
oversees the review process and a member of this panel is chosen to lead
the review team on its country mission.
The APRM process consists of a self-evaluation by the state that has

signed up to be reviewed and a review by an international review team.
The outcome of the process is a national Programme of Action with time-
bound action points to redress identified shortcomings.
The international review process consists of five stages. First, a

background study is carried out by the secretariat assisted by
consultants. This stage also includes a support mission to the country that
will be reviewed. In the second stage, a review team led by one of the
eminent persons visits the country for discussions with all stakeholders,
after which the team prepares its report (third stage). A number of
partner institutions and independent consultants participate in the review
mission and assist in the preparation of the report. The fourth stage
consists of the submission of the report to the APRM Forum (p. 480) and
the discussion among peers. The fifth stage is the publication of the
report and further discussion in other AU institutions such as the Pan-
African Parliament. After concluding the reviews, participating states
submit annual reports to the Forum on the implementation of the
Programme of Action.
The APRM is voluntary and 36 of the AU’s 55 member states have as of

September 2017 signed the Memorandum of Understanding which forms
the legal basis for the review. Of these, less than half had reached the
fourth stage of the process and there have been few country review
missions in recent years, illustrating a lack of commitment to the APRM.
The APRM integrates the political level of the AU in a way that other
parts of the African human rights system have not done. However, African
leaders have not shown a great interest in criticizing their peers. Hence,
there are reasons to be sceptical about whether ‘peer pressure’ will be
employed in the process and whether the provisions on sanctions as a last
resort against a recalcitrant state will ever be used. However, to focus
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23. Africa
solely on the pressure exercised at this level would be to underestimate

the process as a whole.
There has not been much cooperation between the APRM and the African
Commission on Human and Peoples’ Rights, which is unfortunate. For
example, despite the relevance of the APRM for the realization of human
rights, no member of the African Commission has participated in a
country review mission. The documents guiding the APRM process are
cumbersome and repetitive and do not sufficiently address human rights.
5 Conclusion
Human rights protection in Africa clearly has a long way to go,

and the mechanisms for their protection have been criticized by many
commentators. All too often human rights violations are merely endured
or it is left to those whose rights are infringed to seek their own redress,
resulting in more violations. At the same time, the progress that has been
made and the role of the official recognition of the concept of human
rights on all levels on the continent—the regional, sub-regional, and the
national—have to be recognized as steps in the right direction. By and
large, the standards have been set and the foundations for the
enforcement mechanisms have been laid.
The challenge remains primarily one of political will and implementation

—not only of the human rights standards and systems, but also of those
policies aimed at addressing the root causes of human rights violations,
such as poverty.
Further reading
AYENI(ed), The Impact of the African Charter and the Maputo Protocol in
Selected African States (Pretoria University Law Press, 2016).
EBOBRAH,‘Litigating Human Rights before Sub-Regional Courts in Africa:

Prospects and Challenges’ (2009) 17 African JCIL 79.
EBOBRAH, ‘Towards a Positive Application of Complementarity in the

African Human Rights System: Issues of Functions and Relations’ (2011)
22 EJIL 663.
EVANSand MURRAY (eds), The African Charter on Human and Peoples’

Rights: The System in Practice, 1986–2006 (Cambridge University Press,
2008).
HEYNS (ed), Human Rights Law in Africa (Martinus Nijhoff, 2004).
HEYNS and KILLANDER (eds), Compendium of Key Human Rights Documents

of the African Union (Pretoria University Law Press, 2016).
(p. 481)
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23. Africa
HEYNSand KILLANDER, ‘The African Regional Human Rights System’ in

Gómez Isa and de Feyter (eds), International Human Rights Law in a
Global Context (University of Deusto, 2009).
KILLANDER,‘The African Peer Review Mechanism and Human Rights: The

First Reviews and the Way Forward’ (2008) 30 HRQ 41.
KILLANDER,
‘African Human Rights Law in Theory and Practice’ in Joseph
and McBeth (eds), Research Handbook on International Human Rights
Law (Edward Elgar, 2010).
KILLANDER,
‘Human Rights Developments in the African Union During
2014’ (2015) 15 AHRLJ 537.
KILLANDER,
‘Human Rights Developments in the African Union During
2015’ (2016) 16 AHRLJ 532.
KUFUOR,
The African Human Rights System: Origin and Evolution (Palgrave
Macmillan, 2010).
MURRAY and LONG, The Implementation of the Findings of the African

Commission on Human and People’s Rights (Cambridge University Press,
2015).
OUGUERGOUZ,
The African Charter on Human and Peoples’ Rights: A
Comprehensive Agenda for Human Rights (Kluwer Law International,
2003).
SSENYONJO (ed), The African Regional Human Rights System (Martinus

Nijhoff Publishers, 2012).
VILJOEN,International Human Rights Law in Africa (Oxford University

Press, 2012).
VILJOEN,
‘Human Rights in Africa: Normative, Institutional and Functional
Complementarity and Distinctiveness’ (2011) 18 SAJIA 191.
VILJOENand LOUW, ‘State Compliance with the Recommendations of the

African Commission on Human and Peoples’ Rights, 1993–2004’ (2007)
101 AJIL 1.
Useful websites
African Commission on Human and Peoples’ Rights: <http://
www.achpr.org>
African Committee on the Rights and Welfare of the Child: <http://

acerwc.org/>
African Court on Human and Peoples’ Rights: <http://www.african-

court.org/en/>
Page 20 of 23


23. Africa
African Human Rights Case Law Analyser: <http://caselaw.ihrda.org/>
African Union: <http://www.africa-union.org>
Centre for Human Rights, University of Pretoria: <http://

www.chr.up.ac.za>
Notes:
1 See Chapter 30.
2Alhaji Sir Dawda Kairaba Jawara, Statement at the 33rd session of the
UN General Assembly, 22 September 1978, quoted in Touray, The Gambia
and the World—A History of the Foreign Policy of Africa’s Smallest State
1965–1995 (Institut für Afrika-Kunde, 2000) 161.
3 OAU Charter, Art 3.
4 AU Constitutive Act, Art 3.
5 AU Constitutive Act, Art 23.
6 See Chapter 26.
7 Assembly/AU/Dec.112 (VII) (July 2006).
8On the human rights mandate of the RECs, see Viljoen, International
Human Rights Law in Africa (OUP, 2012) 469.
9 Manneh v The Gambia, ECW/CCJ/JUD/03/08 (5 June 2008); (2008)

AHRLR 171; Koraou v Niger, ECW/CCJ/JUD/06/08 (27 October 2008);
(2008) AHRLR 182.
10Katabazi and Others v Secretary General of the East African

Community and Another [2007] EACJ 3, (2007) AHRLR 119 (EAC 2007);
Campbell (Pvt) Ltd and others v Zimbabwe [2007] SADCT 1 (28
November 2008); (2008) AHRLR 199.
11Final communiqué of the 32nd Summit of the SADC Heads of State and
Government, Maputo, Mozambique (18 August 2012) para 24.
12Heyns and Kaguongo, ‘Constitutional Human Rights Law in

Africa’ (2006) 22 S African JHR 673.
13 DOC/OS(XXX)247 (May 2003).
14155/96, 15th Activity Report of the ACommHPR (2001–2002); (2001)

AHRLR 60.
15Available at: <http://www.achpr.org/files/instruments/economic-social-

cultural/achpr_instr_guide_draft_esc_rights_eng.pdf>.
16147/95 and 149/96, Jawara v The Gambia, 13th Activity Report of the
ACommHPR (1999–2000); (2000) AHRLR 107, para 73.
Page 21 of 23


23. Africa
17266/03, Gunme and Others v Cameroon, 26th Activity Report of the

ACommHPR (2009), (2009) AHRLR 9, para 171.
1875/92, 8th Activity Report of the ACommHPR (1994–1995); (2000)

AHRLR 72, para 6.
19 Gunme, para 203.
20 SERAC, para 58.
21276/2003, Centre for Minority Rights Development (Kenya) and

Minority Rights Group International on behalf of Endorois Welfare
Council v Kenya, 27th Activity Report of the ACommHPR (2009); (2009)
AHRLR 75.
22 See Chapter 5.
23105/93, 128/94, 130/94 and 152/96, Media Rights Agenda and Others v
Nigeria, 12th Annual Activity Report of the ACommHPR (1998); (2000)
AHRLR 200, paras 64–71.
24 Viljoen (2012), 393–4.
25Mezmur and Sloth-Nielsen, ‘An Ice-Breaker: State Party Reports and

the 11th session of the African Committee of Experts on the Rights and
Welfare of the Child’ (2008) 8 African HRLJ 596.
26002/09, IHRDA and Open Society Justice Initiative (OSJI) (on behalf of
children of Nubian descent in Kenya) v Kenya (22 March 2011).
27001/05, Michelo Hansungule and others (on behalf of children in

Northern Uganda) v Uganda (15 April 2013); 001/12, The Centre for
Human Rights (University of Pretoria) and La Rencontre Africaine pour la
Defense Des Droits de l’homme (Senegal) v Senegal (15 April 2014).
28CEDAW Committee, General Recommendation 21, HRI/GEN/1/Rev.9

(Vol II) 337, para 14.
29OAU Convention Governing the Specific Aspects of the Refugee

Problem in Africa, Art I(2).
30 BC/OLC/66/VolXVIII (5 April 2005).
31227/99, 20th Activity Report of the ACommHPR (2006); (2003) AHRLR

19.
32 SERAC, para 49.
33 Jawara, paras 28–40.
34241/01, Purohit and Another v The Gambia, 16th Activity Report of the
ACommHPR (2002–2003); (2003) AHRLR 96, para 37.
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23. Africa
35eg 323/06, Egyptian Initiative for Personal Rights and Interights v

Egypt, 31st Activity Report of the ACommHPR (2011); (2011) AHRLR 90,
para 275.
36 Final communiqué of the 45th ordinary session of the ACommHPR held

in Banjul, The Gambia, 13–27 May 2009, para 31.
37 Available at: <http://www.achpr.org/instruments/access-information/>.
38 Available at: <http://www.achpr.org/instruments/general-comments-

right-to-life/>.
39 Available at: <http://www.achpr.org/sessions/55th/resolutions/275>.
40 Final communiqué of the 45th ordinary session, para 23.
41Killander, ‘Confidentiality v Publicity: Interpreting Article 59 of the

African Charter on Human and Peoples’ Rights’ (2006) 6 AHRLJ 572.
42Decision on the 38th activity report of the African Commission on

Human and Peoples’ Rights, EX.CL/Dec.887(XXVII) (June 2015).
43Protocol on the African Court, Art 4(1). It is unclear whether ‘African

organisations’ include NGOs or is simply a reference to the RECs. The
merged court will have advisory jurisdiction only at the request of AU
organs.
44 Protocol on the African Court, Art 27(2).
47Protocol to the Constitutive Act of the African Union relating to the

Pan-African Parliament, Art 3(c).
48AU Peace and Security Council’s communiqué PSC/PR/COMM.(DLI), 17

October 2015.
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23.

International Human Rights Law (3rd

Publisher: Oxford University Press Print Publication Date: Dec 2017

Chapter: (p. 465) 23. Africa

Author(s): Christof Heyns and Magnus Killander

The extent to which human rights is protected at the national level in

The African Court on Human and Peoples’ Rights has been

The African continent of today is characterized, inter alia, by the

While there is an increasing recognition of human rights in Africa not only

This chapter examines the role played by African regional

intergovernmental organizations, in particular the African Union, in the

The Charter of the Organization of African Unity (OAU

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In 1978 President Jawara of The Gambia made the following statement

With the attainment of self-determination and independence, it

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There are no entry requirements in terms of human rights practices for

Concern over human rights in Africa by intergovernmental organizations

Sub-regional African intergovernmental organizations have taken an

The Tribunal of the Southern African Development Community (SADC)

Some RECs have also been active in human rights standard-

setting. For example a SADC Protocol on Gender and Development was

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At the domestic level, all 55 member states of the AU have written

3 The African Charter and other relevant treaties

The ACHPR has been ratified by 54 member states of the AU.

3.1 Norms recognized in the African Charter

A number of shortcomings in respect of the provisions concerning civil

The inclusion in the ACHPR of socio-economic rights alongside civil and

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Peoples’ rights, on the other hand, are more fully developed in

In the absence of concrete evidence of violations of human rights to

The Commission upheld this position in a case against Cameroon in which

In SERAC v Nigeria, discussed earlier, the African Commission found the

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3.2 Duties and limitations

3.3 Protection of women, children, and vulnerable groups

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In 2003, the AU Assembly adopted the Protocol to the African Charter on

The OAU Convention Governing the Specific Aspects of Refugee Problems

The AU has adopted a number of treaties of relevance to human rights in

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4 The protective mechanisms

4.1 The African Commission

4.1.1 Structure and composition

Article 30 ACHPR provides for the establishment of the African

The African Commission consists of 11 Commissioners who serve in their

4.1.2 The complaints procedure

Both states and individuals may bring complaints to the African

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