The African Commission on Human and Peoples' Rights: The Development of its Non-State Communication Procedures

I. Introduction

The African Charter on Human and Peoples’ Rights ² was adopted in June 1981 at the Eighteenth Conference of Heads of State and Government of the Organization of African Unity. As envisaged in Article 63, the Charter entered into force three months after ratification by a simple majority of state parties of the Organization of African Unity (OAU), on 21 October 1986. ³ A decade later, by October 1996, fifty African states had ratified it. ⁴

In accordance with Article 30, the African Commission on Human and Peoples’ Rights (African Commission or Commission) was inaugurated in October 1987. It consists of “eleven members chosen from amongst African personalities of the highest reputation.” ⁵ Although its Secretariat is located in Banjul, The Gambia, the Commission convenes its biannual Ordinary Sessions in different states that are parties to the Charter. The Ordinary Sessions, each of which lasts for ten days, ⁶ consist of discussions convened both in public and in camera. The Commission has a close collaboration with several African and non-African nongovernmental organizations (NGOs) to whom it has granted observer status in accordance with Rule 75 of its Rules of Procedure. ⁷ So far, more than 200 NGOs have been granted Observer Status with the Commission. ⁸

Article 1 of the African Charter on Human and Peoples’ Rights (Charter) delimits the territorial scope of the Commission to “the member states of the Organization of African Unity parties to the present Charter,” thereby making the capacity of states to ratify the Charter contingent upon their membership in the OAU. ⁹ But Article 30 of the Charter authorizes the Commission to carry out its functions “in Africa.” ¹⁰ At the time the Charter was adopted in 1981, territories like Namibia and South Africa were not part of the OAU (although they were, of course, “in Africa”). These states have since joined the OAU while Morocco has since withdrawn from the organization because of a difference with the OAU over the status of Western Sahara. There is thus a potential conflict between the provisions of Articles 1 and 30 of the Charter, in delimiting the territorial scope of the Charter; because, although it may be the aspiration, not all of Africa belongs to the OAU and not all OAU member states are party to the Charter. Although geographically within Africa, Morocco is not a member of the OAU and therefore not entitled to ratify the African Charter. Eritrea and Ethiopia, although state parties of the OAU, have not yet ratified the Charter. So far, the Commission has declared all the communications against Morocco and Ethiopia irreceivable, ¹¹ thus suggesting the inclination of the Commission to resolve this conflict by interpreting its territorial mandate narrowly, to encompass only state parties to the Charter and not the entire continent. ¹²

This article looks critically at the law, and the practice so far developed by the Commission, in relation to the procedure under the African Charter on Human and Peoples’ Rights for examining communications initiated by non-state entities (non-state or individual communications). This article will focus chiefly on how the Commission interpreted and operated those provisions of the Charter and of its own Rules of Procedure that govern these communications. Where necessary, reference will be made to the practice of other international or regional human rights institutions for comparative purposes. In appropriate cases, the article will also offer a critique of the decisions discussed and possible recommendations as to how the work of the Commission in the consideration of individual communications can be improved. This article is based on information on the work of the Commission available at the beginning of 1997, although every effort has been made to incorporate relevant developments occurring after this date. The annual activity reports of the Commission published since 1994 provide the main sources for the bases of information for this article. ¹³

II. Legal Basis for the Communication Procedure Under the African Charter

Article 47 of the Charter empowers the Commission...