Introduction

For over 16 years of its existence, the Organisation of African Unity (OAU) concentrated all its efforts on dismantling the relics of colonialism and fighting apartheid. The protection of individual human rights was relegated to a secondary position and priority was instead given to the security and inviolability of states at the expense of individual liberty.

The desire to jealously protect territorial integrity and newly won independence, coupled with rigorous adherence to the principle of “non-interference in the internal affairs of member states”1 enshrined in the Charter of the OAU, gave room for massive human rights violations on the continent. The OAU was always tightlipped when its members were involved in human rights violations. The atrocities perpetrated in the 1970s by Idi Amin of Uganda, Jean Bedel-Bokassa of the Central African Republic and Marçias Nguema of Equatorial Guinea therefore drew no condemnation from the organisation.

The activities of these dictators and several other human rights violators on the continent threatened the reputation of the OAU and brought embarrassment to many African leaders at international forums. For instance, the US chief delegate to the UN in 1975, Daniel P Moynihan, lambasted Idi Amin and the OAU claiming “… it is no accident, I fear, that this racist murderer … is the head of the Organisation of African Unity…”.2 The OAU and African leaders were constantly accused of adopting double standards in their fight for respect for human rights: for condemning apartheid in South Africa while remaining silent in the face of massive human rights violations within member states.

The organisation was caught in a moral dilemma and found it difficult to garner international support for its fight against apartheid while continuing its conspiracy of silence for the gross maltreatment of other African peoples by their governments. The organisation had to take steps to ameliorate the human rights situation on the continent.

By the late 1970s, mounting international pressure from Western countries, non-governmental organisations (NGOs) and churches, together with some support and encouragement from the UN, introduced some flexibility into the OAU approach to human rights issues. In 1979, the organisation took a bold step to adopt a positivist approach towards recognising and respecting human rights in Africa.

At its 16th Ordinary Session, the OAU Assembly of Heads of State and Government meeting in Monrovia, Liberia, requested the secretary general of the organisation “… to convene a meeting of government experts …” to prepare a “preliminary draft of an African Charter on Human and Peoples’ Rights, providing inter alia for the establishment of bodies to promote and protect human and peoples’ rights …”.3 The charter was adopted in June 1981 in Nairobi, Kenya, at the 18th Ordinary Session of the Assembly; this ushered in a new era in human rights discourse on the continent. The charter came into force on 21 October 1986 and today all 53 member states of the OAU have ratified it.

The charter stands out as one of the most comprehensive human rights treaties currently in existence, recognising a wide range of human and peoples’ rights: civil and political, economic, social and cultural and group rights. It is the only human rights instrument that incorporates into one document all generations of human rights and gives them equal importance in terms of recognition, promotion and protection, thereby adhering to the principle of indivisibility and interdependency of all human rights.4 The charter therefore approaches human rights from a holistic perspective.

Another significant feature of the charter that makes it distinct from other regional and international human rights instruments is that it does not have a provision allowing for the suspension of rights during a time of war, public danger and any other emergency that could threaten the independence or security of a state.

The African Charter has been criticised for being too ambitious providing for ‘unenforceable rights’, and questions have been asked whether such an ambitious document could ever be implemented.
The African Charter provides for the establishment of an African Commission on Human and Peoples’ Rights (the Commission) composed of 11 members drawn from among African personalities with the highest reputation and integrity. The Commission was established on 2 November 1987 and is based in Banjul, The Gambia. From its inception to date, the Commission has been criticised for being ineffective and failing to meet the expectations of the African people. There have been calls for the establishment of a more credible human rights mechanism, in particular, the establishment of a human rights court to supplement the work of the Commission. A protocol establishing such a court was adopted in 1998 and is yet to come into force.

This paper examines the African Commission on Human and Peoples’ Rights, making an appraisal of its 15 years of existence. The author also analyses the Commission as an effective weapon for the promotion and protection of human and peoples’ rights on the continent. The paper will also look at the role and place of the Commission in the new African dispensation following the adoption of the Constitutive Act of the African Union and the adoption of the New Partnership for African Development (NEPAD). The paper concludes with some recommendations on how to ‘perfect’ the African human rights regime and enhance the promotion of human rights on the continent.

The African Commission on Human and Peoples’ Rights—an appraisal

The African human rights system is anchored5 by the African Charter on Human and Peoples’ Rights

and implementation is entrusted to the African Commission on Human and Peoples’ Rights, which by virtue of article 30 of the charter is established within the OAU and mandated to “promote and protect human and peoples’ rights in Africa”.

The promotional mandate of the Commission involves education and sensitisation. This function is regarded as a sine qua non for the recognition, respect and protection of human rights. It includes research and documentation, dissemination of information through workshops, seminars and symposia, and the formulation of principles to address legal problems of human rights and co-operation with African and international human rights institutions. The Commission is empowered to interpret the charter at the request of a state party, the OAU, or an institution recognised by the OAU. The mandate of the Commission also includes creating a culture of respect for human rights on the continent. The insistence on promotion of human rights is based on the premise that if people are not aware of their rights they, most likely, cannot ensure their protection.

The examination of reports compiled by member states in conformity with article 62 of the charter is a key promotional and protective activity carried out by the Commission. The state reporting exercise seems to have yielded few results as many state representatives who come to present their reports appear ill-prepared and unable to provide relevant information on the state of human rights in their countries; the time allocated and the conduct of the ‘dialogue’ is inappropriate, as representatives are hardly ever engaged fully on important issues. As a matter of fact, the whole exercise turns out to be a monologue rather than a dialogue.

States do not appear to be taking the reporting exercise seriously and the comments and observations of the Commission on state reporting have not had any discernible effect on states’ policies and human rights practices.

As part of its promotional mandate, commissioners have been allocated countries within the continent that they are expected to visit, disseminating information about the African Charter and the Commission. The Commission also publishes a quarterly journal and a periodic newsletter on its activities. The Commission has improved its working relations with NGOs,6 national human rights institutions,7 and more states delegates are now taking part in the sessions of the Commission.

The Commission has appointed three special rapporteurs—and has undertaken missions to investigate allegations of massive human rights violations within member states. At the end of each such mission, reports are published making recommendations on how to improve the human rights situation in the country concerned.

The protective function of the Commission entails the receipt and consideration of complaints alleging human rights violations. These complaints (commonly referred to as communications) can be submitted by individuals, NGOs or a state party to the charter alleging that another state party to the charter has violated the rights contained therein. While examining these communications, the Commission would seek an amicable resolution and should that fail, would make non-binding recommendations to the OAU Assembly of Heads of States and Governments.

The Commission’s primary protective function, that of examining complaints, has a large potential which thus far has not been adequately utilised. The African Commission is one of the most flexible regional instruments that entertains complaints from the whole world regarding violations of human rights in Africa. The complainant need not know the victim but simply has to comply with the provisions under article 56 of the Charter.8 This actio popularis approach gives credence and generous access to the Commission to anyone who has an interest in human rights, whether he/she is a victim or not.

The African Charter thus provides the Commission with wide room for manoeuvring in the discharge of its mandate. It bestows generous powers to the Commission, comparable to no other regional human rights body. From the foregoing, one may be correct to assert that the African Charter remains a sleeping beauty whose bride price is yet to be paid to manifest its beauty. Such a price must be paid not only by the Commission but contributions must come from all stakeholders—state parties, NGOs, individuals, the international community and civil society as a whole.

The limping watchdog

The weakness or strength of any human rights institution revolves around its normative and procedural scope, its implementation machinery and above all the practice of all the relevant actors. As mentioned, the Commission has for the past 15 years failed to convince the African people that it can be relied upon for the promotion and protection of human rights on the continent. Like many inter-governmental institutions in Africa, the Commission is handicapped financially, materially and lacks human resources. The ineffectiveness of the African Commission has also been attributed to many other factors including, in particular, lack of political will, lack of independence, inadequate follow-up on decisions or recommendations, lack of a monitoring role, lack of publicity and awareness, and so on.

The Commission is unknown to more than half the people it is supposed to be working for, and even those who do know about it, approach it with scepticism.

In order for the millions of people living in Africa to benefit from the rights and freedoms contained in the Charter, they must be aware of these rights, of how they can seek redress both at national and international level if they are threatened, of the role of the African Commission and African Court in this regard, etc. The charter itself recognises the need for public awareness and has mandated the Commission to, inter alia, “promote human and peoples’ rights and in particular organise seminars, symposia and conferences; disseminate information, encourage national and local institutions concerned with human and peoples’ rights…”.9

The lack of publicity of its activities, perhaps more than anything else, has led to the impression (rightly or wrongly) among potential petitioners that the Commission is not worth approaching. Therefore, in spite of the massive human rights violations on the continent, only few communications are addressed to it. While a national institution such as the South African Human Rights Commission receives on average 400 complaints of human rights violations each year, the African Commission has received slightly more than 300 communications since it was established 15 years ago. Surely something must be wrong, unless we are to conclude that human rights violations in South Africa outnumber the violations taking place in the whole of Africa. Of course, this is not the case; either people are unaware of the existence of the Commission or they know, but do not trust it.

Lack of publicity aside, the lack of adequate resources has also hampered the effective functioning of the Commission. The Commission has been operating under very limited resources. Financial allocations to the Commission are never always adequate to enable it to carry out its mandate. The Commission has therefore been forced to resort to sourcing funds from donors. The European Community, the UN, international human rights organisations and semi-governmental bodies have provided, and continue to provide, human, material and financial assistance to keep operations at the Secretariat going. More than half of the professional staff and equipment at the Secretariat is donor-funded. Such an arrangement is highly disruptive, as the Commission cannot plan properly because of uncertainty regarding the continued availability of staff and other resources. For instance, the Commission has not been able to execute up to half the activities outlined in the Mauritius Plan of Action of 1996–2001.

Perhaps more than anything else, the ineffectiveness of the Commission has been caused by a lack of support and political will from states. Given the history of human rights on the continent, the Commission was founded on shallow ground. Not only does it struggle with the meagre resources allocated to it, it also gets very little co-operation and support from African leaders. State parties have woefully failed to comply with their obligations under the charter and have deliberately ignored recommendations made by the Commission. African states favour co-operation and do actually co-operate more with the UN human rights bodies than with the African Commission. For instance, many African states that have not submitted reports to the Commission have done so to the Human Rights Committee. As at the 30th Ordinary Session of the Commission, about 167 reports were still due from 38 states. Only 15 states had a clean sheet of submission in conformity with article 62 of the charter. Many of the reports submitted still fall short of the guidelines for state reporting prepared by the Commission, and some states rarely send representatives to present their reports.

There is no doubt that such attitudes by African states have negative effects on the activities of the Commission. Not only does it indicate to potential complainants that the Commission is a paper tiger, it also has telling moral consequences for the commissioners who sit and deliberate on communications and see nothing come of their ‘sweat’.

Unlike other regional and global human rights bodies, the Commission has not developed any follow-up mechanism to ensure implementation of its recommendations. When the OUA Assembly adopts the Commission’s Annual Report, the Commission publishes the report and makes no effort to see that the recommendations contained therein are implemented. This has been very frustrating, especially for the victims who have to pursue the execution of the decisions on their own. Because there is no pressure from the Commission, states have tended to turn a blind eye to the recommendations and a deaf ear to the victims’ pleas for compliance.

These constraints not withstanding, it is fair to say that there has been considerable improvement in the work of the Commission over the years. Much interest has been demonstrated not only by NGOs but also by state parties to the charter. The Commission has increased its working days from 10 to 15 and now has more time allocated to the consideration of communications.10 Journalists and human rights scholars are writing more and more on the work of the Commission, thus publicising the same. The Commission has given broader interpretation to some of the provisions of the charter that have for a long time restricted its ability to publicise its work. It has appointed some of its members as special rapporteurs on specific issues: extra-judicial, summary and arbitrary execution, prisons and other places of detention and the rights of women in Africa.

At its 30th Ordinary Session held in Banjul, The Gambia, from 13–27 October 2001, the Commission decided to produce a code of conduct to regulate the behaviour of commissioners, especially the conflict of interest that might arise with states. This is aimed at ensuring that commissioners work independently and also to make them accountable. This will be a significant development as the Commission has suffered a great deal due to suspicion about its independence. Nothing discourages the public desire to send communications to the Commission more than rumours and perceptions of ineffectiveness arising from possible conflict of interest. The code of conduct is also important because those commissioners who fail to undertake their promotional activities during the inter-session period would be exposed.

It will therefore not be wrong to pronounce that the Commission has done a great deal in creating a culture of human rights on the continent and contributed in developing the international human rights jurisprudence. It has also been able to prevent states from taking certain actions while awaiting its decisions, and above all, it has taken several decisions on communications submitted to it, condemning states for human rights violations and recommending appropriate action. Thus, in spite of the lukewarm attitudes of some states about the efficacy of the Commission, it remains a fact that the latter has been able to implant the subject of human rights on the agenda of political leaders in Africa.

However, these achievements are still too remote to convince the African people that the Commission is the right weapon to rely on in upholding respect for human rights on the continent. It has not had the required impact capable of creating a viable human rights environment necessary to win the support and confidence of the African people. The Commission still remains unknown and inaccessible to more than 75% of the people it was established to cater for. For 15 years, the Commission has not proven to the African people that it is an institution they can trust.

Which is the way forward?

While it is not easy to establish a ‘perfect’ working mechanism at first instance, it is not impossible to put in place a credible working system over time. We live in a world that changes every day and new developments and ideas on how to improve the lives of its people come to mind so as to meet the challenges of our time. To ensure an appropriate working human rights system for Africa, one must not lose sight of the current regional and international changes. One must also consider all relevant factors and seek to find out why the current system is not working properly. From the foregoing it would seem, therefore, to perfect the system is to address the problems identified above. In this light, the following would be recommended:

Establishment of sub-regional commissions

It may seem strange that while Europe is strengthening its human rights enforcement mechanisms by merging them, this author is advocating for the establishment of more structures. This reasoning is based on the fact that one of the most serious constraints to the effectiveness of the Commission is the lack of awareness and publicity. Without enhancing people’s knowledge of their rights, no proper improvement would be made on the African human rights system.

A merger is possible in Europe principally because the defunct European Commission had no promotional function, as envisaged in the African Charter. Western European states were culturally identifiable units with the cause of human rights firmly rooted in their past—the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration on the Rights of Man and the Citizen (1793). Their citizens have had a long-standing culture of individual liberty. To a large extent, they are aware of their rights and responsibilities and know the limits of state action. Institutions such as the police, the army, the judiciary, etc., which are essential for the protection of human rights, understand, to a large extent, their roles vis-à-vis respect for human rights. The European human rights regime therefore focuses on protection with little or no emphasis on promotion.

This is in sharp contrast to the African human rights set up in which the population is still grappling with the concept, let alone the very practice, of human rights. Institutions for the protection of human rights are either very weak or are under the umbrella of the executive branch of government. Non-human rights–friendly laws enacted during the ruthless colonial and one party eras still feature in the statute books of most African countries. African governments are renowned for ignoring court orders, flouting the rule of law, and officials and security agents are well known for violating human rights with impunity. In such an arid condition, the protection of human rights cannot flourish without a systematic promotional drive. People must be made aware of their rights, if they are to shape institutional and other reforms to better their livelihood.

The African Commission as it currently stands is incapable of delivering on this; it is far removed from the people and access to the Commission is difficult for many. Enhancing the African human rights system would need a vigorous campaign for the promotion of human rights in Africa. A restructuring process of the African human rights system is therefore necessary to create a human rights culture on the continent.

The promotion and protection of human rights in Africa can be pursued simultaneously through the establishment of sub-regional human rights commissions and a continental human rights court with priority, of course, given to the former. These sub-regional commissions shall be established within the sub-regional intergovernmental bodies in the five main political regions of the continent: Central Africa, East Africa, North Africa, Southern Africa and West Africa. These commissions shall be responsible for the promotion of human rights within their respective regions —receive complaints of human rights abuses and process them to the court if they cannot be solved amicably. Thus, the Commission will act as some kind of a barrier to weed out frivolous or mischievous petitions emanating from the regions. The Commissions may represent a petitioner in court if the matter is referred to the latter.

The creation of these sub-regional commissions will bring the subject of human rights closer to the people and they will collaborate more effectively with local NGOs within their regions. Most local NGOs cannot attend the bi-annual sessions of the Commission because of the expense involved, and bringing these sessions closer to home will enable such NGOs to attend and participate in the development of a viable African human rights system. Sub-regional commissions will also create a sense of identity and cohesiveness among the few states in the region and will generate a desire to work in a smaller rather than a larger group.

It is also necessary to establish such commissions for practical reasons. Given the diversity of the modern state system, it is natural that sub-regional arrangements of enforcement would be more readily accepted than global or continental arrangements. A state cannot be forced to submit itself to a system of international control and will do so only if it has confidence in the system. It is much more likely to have such confidence if the machinery has been set up by a group of like-minded countries, which may already be partners in a regional organisation, than if this is not the case. Moreover, a state will be willing to surrender more power to a regional organ of restricted membership, in which the other members are its friends and neighbours, than to a continental or world-wide organ in which it and its associates play a relatively small part.

On a more practical level, it is obviously easier and more convenient for a case to be heard within the region than elsewhere. To take the Southern African Development Community (SADC) as an example, it would be more convenient, and probably less expensive for all concerned, when a complaint by one state against another, and a fortiori an individual application against a state, can be heard in say Harare, Zimbabwe or Gaberone, Botswana, rather than Banjul, The Gambia. Also, it is easy for states within a region to agree on sanctions against another state member which ignores the decisions of the Commission or the court, than at continental level. The case of Burundi and Sierra Leone are glaring examples, where East African states and the Economic Community of West African States (ECOWAS) respectively imposed sanctions on these states to force the military juntas to step down. This would probably not have been the case had it been left to a continental body like the OAU to decide on what to do. The OAU’s failure in Congo Brazzaville and Nigeria justifies this assertion.

The establishment of sub-regional commissions will equally generate some form of ‘competition’ among the different commissions in the regions as each will strive to ensure that it does not fail the region by being labelled the region with the worst human rights record on the continent.

Each region will take care of the expenses of its commission, and since there will be fewer states, one commissioner can be nominated from each state, or at least from half the states. This will give a greater number of commissioners compared to the current situation and enable the commissioners to be able to cover more countries for promotional activities than is currently the case. It might also make it possible for these regions to appoint full-time commissioners.

From the foregoing, it would therefore be beneficial to identify sub-regional groupings (e.g. SADC, ECOWAS, ECCAS) with common convictions on human rights, preferably associated with other functional common interests (history, legal systems, economic, political) and thus the possibility of formulating more substantive procedures combined with a better enforcement machinery.

Second thoughts about the establishment of a court

Both the European and the Inter-American human rights systems give the impression that a human rights court is an indispensable component of an effective regime for the protection of human rights. The reasoning is that norms prescribing state conduct are not meaningful unless they are anchored in functioning and effective institutions such as courts. In the case of the African system, this truism merits special attention.

When the 30th Ordinary Session of the OAU Assembly meeting in Tunis, Tunisia adopted a resolution calling for the consideration of means on how to enhance the work of the African Commission, most human rights analysts jumped at the opportunity and concentrated on the establishment of a court without carefully looking at the root causes of the ineffectiveness of the current setup. Even though the resolution invited the experts to look at the possibility of establishing a human rights court, it did not limit the process of enhancing the African human rights system on the establishment of a court; it allowed experts the room to manoeuvre to come up with other ‘means’.

It is true that a court will deliver legally, authoritative and conclusive decisions, it will provide for remedies, it will bring the African human rights system to conform with universal mechanisms, will maximise publicity and develop an African human rights jurisprudence.

The above benefits notwithstanding, the establishment of a human rights court in Africa is not a priority. Such a court when established, risks being a white elephant if adequate human rights promotional mechanisms are not put in place. The failure of the African Commission is one such white elephant. Cases cannot go to the court if people are not aware of their rights.

It should be noted that individuals and NGOs do not have direct access to the court for they have to channel their communications through the Commission and if the Commission is not delivering, as is the case, this will disempower the court and render it ineffective.

The assertion that the court will render binding decisions and thus give some credence to the human rights system is true, however, if the political will to promote and protect human rights on the continent is there, states can abide by decisions taken even by quasi-judicial institutions such as the Commission, and if the political will is not there, no court decision will enforce itself. Examples of cases where African leaders have ignored court decisions abound.

The primary focus therefore should be on sensitisation and education to be carried out by sub-regional commissions, NGOs and states themselves. It is said that information is power and if power is given to the people, no state, no matter how authoritarian it may be, will be able to suppress this power. An effective human rights system is built on an informed populace and not by the number of institutions created.

The African Commission and the Africa Union

The political vision for Africa envisaged by the founding fathers of the OAU found concrete expression in Lomé, Togo, in 1998 when African leaders decided to adopt the Constitutive Act of the African Union (AU). The adoption of this act concludes a long journey in the quest for ‘African unity’ that started well before the OAU was formed. This act entered into force in July 2001 at the 31st Ordinary Session of the OAU in Lusaka, Zambia.11

The establishment of the AU ‘coincides’ with the adoption of the New African Initiative, NEPAD, an ambitious economic programme aimed at taking Africa out of her economic doldrums. The AU is therefore seen as the political machine to drive the new economic vision. This vision for a new Africa has been endorsed internationally and is getting support from the major industrialised countries.

The quest for political and economic change in Africa has had some repercussions on the human rights landscape on the continent. Within the context of political, socio-economic development and conflict resolution, efforts must be made to ensure that human rights form the core in the process of peace negotiations, developmental programmes and democratic governance.

The AU is governed by several progressive and broad objectives and principles, most of which embody basic human rights values. These broad principles and objectives appear to present a holistic perspective of the way the new breed of African leaders perceive and intend to approach issues of human rights on the continent.

Even though the AU has maintained the ‘dreaded’, non-interference in the domestic affairs principle, this has been greatly watered down by other more progressive human rights–focused and democratic principles. For instance, while recognising the inviolability of states, the act permits intervention in a member state “pursuant to a decision of the Union in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”,12 and the right of the member state to request intervention from the AU to restore “peace and security”.13

The AU departs strongly from the OAU in that it promotes specific rights and values: promotion of gender equality, respect for democratic principles, the rule of law and good governance, promotion of social justice to ensure balanced economic development, respect for the sanctity of human life, condemnation and rejection of impunity and political assassinations, and condemnation and rejection of unconstitutional changes of governments.

The express mention of these basic tenets in the Constitutive Act is a dramatic shift from the old order of the OAU where decolonisation and the dismantling of apartheid were the focus of the organisation and issues of human rights were regarded as secondary.

To ensure implementation of the objectives and principles outlined in the Constitutive Act, several organs have been created which will be directly or indirectly responsible for human rights promotion. These include, the Assembly, the Executive Council, the Pan African Parliament, the Court of Justice, the Permanent Representative Committee, the Economic, Social and Cultural Council, Financial Institutions and the Specialised Technical Committees, etc.

These innovations notwithstanding, the act seemed not to have placed human rights in their rights perspectives. It tends to regard human rights as an appendage and does not capture the centrality of human rights in the activities of the AU. It was hoped that transforming the OAU into a new organisation that will face the challenges of this century will put emphasis on respect for human rights, put human rights at the centre of all its activities and build a strong foundation for development and unity based on respect for human rights. This seems not to have been the case, as the act does not create any organ specifically dealing with issues of human rights.

Apart from failing to provide for an organ specifically dealing with human rights, the act fails to recognise the existing human rights instruments, such as the African Commission and Court on Human and Peoples’ Rights. As a matter of fact, it appears the Commission and the court were never thought of. Some analysts believe this omission was deliberate, while others think the non-inclusion of these organs into the act illustrates another weakness of the Commission. They hold the view that had the Commission been very active in the field of human rights to make its impact felt on the continent or to be seen as an important tool for socio-economic and political development, such impact would not have been ignored by the drafters of the act. Alternatively, if the Commission had lobbied for its inclusion this would have been done.

However, some analysts still think room has been created for the existing human rights instruments within the act. They point to article 33 of the act which provides that:

This Act shall replace the Charter of the Organisation of African Unity. However, the Charter shall remain operative for a transitional period of one year or such further period as may be determined by the Assembly, following the entry into force of the Act, for the purpose of enabling the OAU/AEC to undertake the necessary measures regarding the devolution of its assets and liabilities to the union and all matters relating thereto.

It is believed that this provision covers the Commission and the Court.

It is my submission that article 33 does not cover the Commission and the Court. It provides that the OAU Charter will remain in force for a transitional period of one year “for the purpose of enabling the OAU/AEC to undertake the necessary measures regarding the devolution of its assets and liabilities to the union and all matters relating thereto”. It is true that by virtue of article 30 of the African Charter, the Commission is established within the OAU and also true that the Protocol establishing the Court makes the latter an organ of the OAU. Article 33 could not have contemplated organs such as the Commission and the Court, which have lifespans beyond one year. One may, however, argue that the all matters relating thereto at the end of article 33 envisages the incorporation of other organs of the OAU, not specifically mentioned in the act.

The act seems not to have provided a process for incorporating existing instruments such as the Commission into the AU structures. It expressly provides in articles 17, 18 and 19 dealing with the Pan-African Parliament, the Court of Justice and the Financial Institutions, as organs whose rules and regulations shall be defined by protocols. The Assembly shall determine the establishment of the Economic, Social and Cultural Council under article 22. Thus, the process of recognising the existing human rights structures through a protocol is not envisaged in the act.

One could have argued that the African Commission and Court can be conveniently accommodated under article 5(2) that recognises “other organs that the Assembly may decide to establish” and article 9(1)(d) which gives the Assembly the power to “establish any organ of the Union”. However, these articles envisage the establishment of new organs and not necessarily the recognition and/or incorporation of existing ones.

The only feasible means therefore is that provided for under article 33(1), if “… all matters relating thereto” is interpreted to include all existing organs of the OAU.

The omission expressly to include vital institutions such as the Commission and the Court in the Constitutive Act of the AU begs the question whether today’s African leaders have actually moved away from their independence peers who considered human rights as secondary to development and unity. It should be recalled that the African Commission was established as an organ of the OAU only 18 years after the existence of the organisation, and this was done after serious pressure from civil society and the international community. It, however, remains to be seen how the innovative objectives and principles enshrined in the act will be translated in practice to enhance the human dignity of the African peoples.

Conclusion

It is possible to guarantee effective protection of human rights on the continent where there is a strong political will to do so, but the absence of the latter cannot be compensated even with the mightiest of mechanisms. The political will can only be influenced by the citizens themselves and to do so they must be empowered with knowledge of their rights. Ignorance of their rights gives leeway to political leaders to capitalise on this weakness to trample on them. The African human rights enforcement mechanism can only be as strong as the African peoples themselves make it to be.

The effectiveness of the African human rights system will depend on the extent to which the African states support it, by allocating sufficient resources to it, by implementing the recommendations and decisions that emanate from it and, above all, by striving to fulfill their human rights obligations under the African Charter, and other African and international human rights instruments. African states need to take action in order to indicate their conviction that genuine respect for human rights in Africa is the only firm foundation on which peace and economic development can be built and sustained.

The establishment of a human rights court will only be useful if it genuinely seeks to correct the shortcomings of the present system and provides victims of human rights with a real and accessible forum to assert these rights. What the African human rights system does not need at the moment is yet another remote and opaque body—one that promises little and delivers nothing.
If the Constitutive Act of the AU is to have any impact on the human rights regime in Africa, the AU must be prepared to adopt a rights-based approach to development and unity. Specific human rights bodies on the continent must be assigned specific roles to play in upholding respect for human rights, the rule of law and good governance.

There must be a role assigned to the Executive Council to monitor issues of human rights. This is in conformity with the Mauritius Declaration of 1999 adopted at the First Conference of African Foreign Ministers to discuss human rights on the continent. The declaration provides that:

The Conference notes that, under the African Charter on Human and People’s Rights, it is the Assembly of Heads of State and Government that is authorised to take decisive action on the activity reports of the African Commission on Human and People’s Rights and express the hope that the Assembly would consider delegating the task to the Council of Ministers.

The involvement of the Commissions and the Court in electoral matters through election observation, state reporting, on-site investigations, the issuing of advisory opinions and even litigation, will undoubtedly contribute to the prevention of conflicts and give legitimacy to some of the electoral processes on the continent.

Notes

Article III (2) of the OAU Charter of 1963.



It should be stated that Amin’s atrocities had gotten out of hand, to the annoyance of some African leaders such that when the OAU decided that he host the 1975 session, leaders opposed to Amin’s style of leadership protested. Julius Nyerere of Tanzania and Kenneth Kaunda of Zambia boycotted the session, while Samora Machel of Mozambique sent a low-level delegation. Some analyst, however, contend that these leaders boycotted the session not on human rights principles but solely because of their political differences with Amin.



Decision 115 (XVI) of the Assembly of Heads of State and Government of the OAU.



The European Convention provides for only civil and political rights with socio-economic rights provided for in the European Social Charter of 1981, which allows a different standard of protection.



It is worth stating that there are other human rights instruments adopted by the OAU to promote and protect human rights on the continent: the Convention on the Specific Aspects of Refugees in Africa, 1969; the Convention on the Rights and Welfare of the Child; however, the Charter represents some sort of ‘Universal Declaration on Human Rights in Africa’ because all the rights protected in the other conventions and declarations are contained therein.



More than 300 NGOs have been granted observer status before the Commission. These NGOs can participate in the sessions of the Commission and propose agenda items to it.



At least seven national human rights institutions have affiliate status before the Commission.



The article provides that:

Article 56: Communications relating to human and peoples’ rights referred to in 55 received by the Commission, shall be considered if they:

1. Indicate their authors even if the latter request anonymity;

2. Are compatible with the Charter of the Organisation of African Unity or with the present Charter;

3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organisation of African Unity;

4. Are not based exclusively on news disseminated through the mass media;

5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;

6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter; and

7. Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organisation of African Unity or the provisions of the present Charter.



Article 25 of the African Charter.



The OAU increased the budget of the Commission to enable it to increase the number of days per session.



The first meeting of the African Union will be held in Pretoria, South Africa in July 2001 and South Africa has tentatively agreed to host the Secretariat.



Article 3(h) of the Constitutive Act of the African Union.



Article 3(j).