MODULE 28

THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS AND ESC RIGHTS
USING MODULE 28 IN A TRAINING PROGRAM

The Purpose of Module 28

The purpose of this module is to examine possibilities for activists to pursue enforcement of ESC rights through access to the African Commission on Human and Peoples’ Rights.

The module

• examines ESC rights provisions in the African Charter on Human and Peoples’ Rights; and
• details the monitoring and enforcement responsibilities of the African Commission on Human and Peoples’ Rights.

Introduction

The adoption of the African Charter on Human and Peoples’ Rights [1] is easily the boldest step taken by African states to address the widespread and systematic violations of human rights in the African continent during the 1970s through the late 1980s.

Embodied in the African Charter are provisions on basic civil and political rights and on eco�nomic, social and cultural rights.� These are guaranteed without distinction of any kind such as race, ethnic group, color, sex, language, religion or political or any other opinion, na�tional and social origin, fortune, birth or other status.� Furthermore, the Charter articulates human rights-based duties for states parties as well as individuals.� Thus, individuals have du�ties to�wards their fellow beings, family and society, and must exercise their rights and duties "with due regard to the rights of others, collective security, morality and common interests.”

Economic, Social and Cultural Rights Provisions of the African Charter

The African Charter entrenches the principle of indivisibility and interdependence of all hu�man rights.� According to the preamble of the Charter, "It is henceforth essential to pay par�ticular at�tention to the right to development and that civil and political rights cannot be disso�ciated from economic, social and cultural rights in their conception as well as their univer�sality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights” (para. 8).

The Charter guarantees several ESC rights.� Article 15 provides that "every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.”� The right to the best attainable state of physical and mental health is guaranteed to every individual.� States parties are obligated to take necessary measures to ensure that sick people receive medical attention (art. 16). The physical health of families is guar�anteed, alongside protections for women, children, the aged and the disabled (art. 18). Every individual is also guaranteed the right to education (art. 17), and the freedom to take part in the cul�tural life of his community.�� Article 22 recognizes the right of all peoples to their economic, social and cultural development, with due regard to their freedom and iden�tity, and in the equal enjoyment of the common heritage of mankind, while article 24 recog�nizes the right of all peoples to a general satisfactory environment.

The Charter does not include some ESC rights, such as the right to housing. However, these may be claimed derivatively; for example, article 14, which guarantees the right to property, may provide a basis for claiming the right to adequate housing.� Despite the fact that the right to food is not expressly guaranteed under the Charter, the African Commission on Human and Peoples’ Rights established under the Charter has declared that food deprivation consti�tutes a violation of the Charter because it contravenes the right to respect of the dignity in�herent in a human being.

The African Commission on Human and Peoples’ Rights

The African Charter established the African Commission on Human and Peoples’ Rights.� The mandate of the commission is to promote and protect the rights guaranteed under the Charter.� The commission is composed of eleven members who are elected by the Assembly of Heads of State and Government of the Organization of African Unity (OAU). Members, upon election to the commission, shall serve in their personal capacity.� Article 36 of the Charter stipulates that members of the commission shall be elected for a six-year period and shall be eligible for reelection.� In the discharge of its func�tions, the commission is supported by a Secretary and staff appointed by the Secretary-Gen�eral of the OAU.� The commission’s Secretariat is based in Banjul, the Gambia.

Reporting procedure

As a treaty-monitoring body, the commission is charged with broad promotional, protective and interpretive responsibilities, [2] including the examination of states parties’ reports, [3] and consideration of interstate, [4] individual and NGO communications.�

As with other treaty-monitoring bodies, the African Commission is mandated to receive and examine states parties’ reports on legislative and other measures taken to give effect to the Charter within their jurisdictions.� This is a nonadversarial procedure designed to encourage states parties to voluntarily ensure the full implementation of the rights recognized under the Charter.� Review of states’ reports is usually conducted in open sessions of the commission and can provide a useful opportunity for NGOs to provide independent reports and other critical information to the commissioners in order to sharpen their scrutiny of the human rights situation in the state under review.�

However, many states parties to the Charter continue to default in their reporting obligation to the commission.� Where reports are submitted, they are generally incomplete and do not provide sufficient information for effective review of the state’s human rights situation.� Notwithstanding the African Charter’s express recognition of the indivisibility and interde�pendence of all human rights, ESC rights have been largely ignored by states parties to the Charter as well as by the African Commission.� The ESC rights provisions are the least cited aspects of the Charter.� Although, the states’ reporting guidelines issued by the African Commission requires the inclusion of ESC specific information, states parties’ reports to the commission hardly contain any useful information on the implementation of the ESC rights provisions of the Charter.�

Communication/complaints

The process for filing an individual or NGO communication to the commission is as speci�fied under articles 55-58 of the African Charter.� The commission’s Secretariat is required under article 55(1) to make a list of the communications it receives [5] and transmit the list to the members of the commission, who shall indicate which communications should be con�sidered by the commission by a simple majority decision. [6]

The requirements for admissibility of a communication are specified under article 56 of the Charter.� To be eligible to file a communication, the complainant must be the alleged victim of a violation(s) of a right under the Charter (or a representative, if the victim is unable to file on his or her own behalf).� An individual or NGO alleging serious or massive human and peoples’ rights violations may also submit a communication.� The communication should refer to the Charter, where relevant provisions exist; [7] indicate the author (even if anonymity is requested)(art. 56[2]); must not be based primarily on news reports (art. 56[4]); and must not be written in a language disparaging or insulting to states parties or to the OAU (art. 56[3]).

Before a communication can be considered on its merits, the complainant must demonstrate that all domestic remedies have been exhausted (art. 56[5]).� This requirement was designed to ensure that the commission does not become a tribunal of first instance.� Even where no domestic legal ac�tion has been attempted by the complainants, the commission will review a complaint where it is impractical or undesirable for the complainant to seek a remedy from domestic courts, or where, due to the seriousness of the human rights situation and the large numbers of people involved, such remedies are as a practical matter unavailable or "unduly prolonged.”

These exceptions to the "local remedies rule” provide important safety nets for communica�tions that would otherwise not be admissible by the commission.� The commission disre�garded the local remedies rule in a complaint submitted by the Lagos-based Social and Eco�nomic Rights Action Center (SERAC) and the New York-based Center on Economic and Social Rights (CESR).� The communication was filed on behalf of the Ogoni communities in the Niger Delta region of Nigeria.� The communication addressed widespread contamination of soil, water and air, and the destruction of homes.� The communication also documented the burning of crops and killing of farm animals, and the climate of terror that has been vis�ited upon the Ogoni communities in violation of their rights to health, a healthy environ�ment, adequate housing and food.� On the question of exhaustion of local remedies, the communi�cation stated that "local remedies do not bar the communication because of the futility of le�gal action in Nigeria resulting from the operation of ouster clauses contained in military decrees removing jurisdiction of the courts from entertaining human rights cases.”� The communication was filed in 1996.� Three years later, the communication is still awaiting the commission’s examination and decision.�

Another controversial feature of the African Commission’s procedure is the rule on confi�dentiality provided for under article 59 of the African Charter.� It provides that "all measures taken within the provisions of the present Chapter shall remain confidential until such a time as the Assembly of Heads of States and Government shall otherwise decide.” Pursuant to this provision, the examination of communications by the commission is usually con�ducted dur�ing private sessions, with the exclusion of the complainants. [8] � The commission may, how�ever, "issue through the Secretary and for the attention of the media and the public, releases on the activities of the commission in its private session.”

In appropriate cases, the African Commission may consider the application of interim meas�ures in order to hold the status quo or prevent irreparable prejudice against a complainant pending the examination or determination of a communication. �The commission has also sought to conduct on-site investigations of allegations of widespread and systematic viola�tions of human rights.� Such missions require the permission of the state party concerned.

While the Charter provides that states parties must accede to its jurisdiction, the commis�sion’s jurisdiction is far from compulsory and its enforcement powers are limited to only making recommendations to the Assembly of Heads of States and Government.� Comment�ing on the nature of its communications process, the commission has observed: "It is the pri�mary objective of the commission in the communications procedure to initiate a dialogue between the parties which will result in an amicable resolution to the satisfaction of both and which remedies the prejudice complained of.� An inevitable condition of this dialogue is the requirement that both parties act in good faith and show their will�ingness to participate in com�ing to an amicable resolu�tion.” [9] � Thus the commis�sion perceives itself as a mediator cognizant of its inherent incapacity to compel a particular out�come even in extremely ob�vious and deserving cases of flagrant human rights violations.

Author: The author of this module is Felix Morka.

USING MODULE 28 IN A TRAINING PROGRAM

NOTES

-To promote human and peoples’ rights and in particular:
a) to collect documents, undertake studies and research on African problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate in�formation, encourage national and local institutions concerned with human and peoples’ rights, and should the case arise, give its views or make recommendations to Govern�ments;
b) to formulate and lay down principles and rules aimed at resolving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Govern�ments may base their legislations;
c) cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights;
- Ensure the protection of human and peoples’ rights under the conditions laid down by the present Charter.
- Interpret all the provisions of the present Charter at the request of a State Party, an institution of the OAU or an African organization recognized by the OAU
- Perform any other tasks which may be entrusted to it by the Assembly of Heads of States and Government.