African Commission on Human Rights and the Rights of the Peoples

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The African Commission on Human and Peoples 'Rights ( English African Commission on Human and Peoples' Rights , ACHPR) is a supranational organization with the task of human rights and the rights of ethnic groups on the African continent to promote and protect. Originally it was an office of the Organization for African Unity (OAU), after the transformation of the OAU into the African Union (AU) in June 2002, the commission is part of its area of ​​responsibility. The commission was created by the entry into force of the African Declaration of Human Rights and the Rights of the Peoples on October 21, 1986 , which had already been adopted by the OAU on June 27, 1981 . The first members of the commission were appointed at the 23rd meeting of heads of state or government in June 1987 . The commission met for the first time on November 2 of the same year. Initially, the Commission was housed together with the OAU Secretariat in Addis Ababa ( Ethiopia ), and in November 1989 it moved into its own premises in Banjul ( Gambia ).

composition

The commission is composed of eleven members who are elected by secret ballot by the assembly of heads of state and government of the OAU and the AU. These members, who are elected for six years and can be re-elected, are to be “selected from among the best reputable African personalities known for their high moral standards, integrity, impartiality and competence in matters of human rights and the rights of the people Peoples. ”(Article 31 of the Charter in unofficial translation). People with legal experience should be given preference. Until 1995, the first sixteen commissioners were lawyers. In the exercise of their duties, the commissioners enjoy the privileges and immunities provided for in the OAU General Convention on Privileges and Immunities (Art. 43). Since the commissioners work only part-time, there may be certain professions and posts that are incompatible with membership of the commission. The Charter does not provide any guidance on this. It was felt that high office gives the Commissioner a better opportunity to carry out his functions, during the Second Workshop on NGO Participation in the work of the African Commission (Tunis, February 28 to March 1, 1992) became that in particular posts of diplomat or interior minister are incompatible with employment at the commission. A state can only nominate one member of the commission at a time. The committee elects a chairperson and a deputy from among its members for a period of two years (with possible re-election).

The members are elected by the assembly of heads of state and government of the OAU by secret ballot from a list drawn up by the contracting states of the Charter (Art. 33), whereby the commission may only belong to one national of the same state (Art. 32). Each contracting state may propose a maximum of two candidates, both of whom come from a member state of the Charter, but not both from the proposing country (Art. 34). The candidates must have been nominated no later than four months before the election (Art. 35 Paragraph 1). The Secretary General of the OAU then draws up a list of all candidates and sends this to the heads of state and government of the member states (Art. 35, Paragraph 2). The commissioners are elected for six years, only the term of office of four members elected in the first election expires after two years, that of the other three members after four years (Art. 36).

In addition, the Secretary General of the OAU appoints a secretary to the Commission and sets up a secretariat (Art. 41 sentence 1). The costs are borne by the OAU (Art. 41 sentence 2). The commission also elects a chairman and a deputy for two years (Art. 42, Paragraph 1). The committee has a quorum if seven members are present (Art. 42 Para. 3); in the event of a tie, the chairperson's vote is decisive (Art. 42 Para. 4). The Secretary General of the OAU may take part in the meetings of the Commission, but not in its deliberations (Art. 42 (5) sentence 1). He has no right to vote, but the chairman can ask for an oral statement (Art. 42 Para. 5 old version).

The various political divisions and legal systems of Africa (French, English and Arabic) are represented in the commission, as are the geographical regions (West Africa: 3 members, North Africa: 3, Central and South Africa: 3 and East Africa: 2). The seat of the Commission was not regulated in the Charter. Therefore, at its third meeting from 18-28 April 1988 in Libreville , Gabon , the Commission decided to have its headquarters in Banjul , Gambia .

In November 2005 members were:

mandate

The mandate of the Commission is stated in Article 45:

  1. Promotion of human rights and the rights of peoples (para. 1);
  2. Protection of human rights and the rights of peoples (para. 2);
  3. Interpretation of the provisions of the Charter at the request of a contracting party, an organ of the OAU or an organization recognized by the OAU (para. 3);
  4. Other tasks assigned to the OAU by the Assembly of Heads of State and Government (para. 4).

The order in which the tasks mentioned in Article 45 are to be carried out makes the weighting of the work of the Commission clear: before the protection of human and peoples' rights comes its promotion. Part of the attempt to explain this is that many of the regional initiatives that have pushed for the establishment of the Charter have focused on promoting rather than protecting human rights. NS Rembe calls it a banal realization that the promotion of human rights must precede protection and in reality support it. In the negotiations to set up the Commission, there were even some calls for the Commission's task to be limited to the promotion of human rights. The protection of human rights and the task of interpreting the provisions of the Charter are legal functions that the Commission has should take over, since the Charter did not initially provide for the establishment of a court of law. This made it a quasi-legal institution. Above all, paragraph 4 is also important: This makes it clear that the mandate of the commission is not final. The Assembly of Heads of State or Government of the OAU can entrust the Commission with new tasks, such as investigating facts.

In order to achieve its goals, the Commission is empowered to “collect documents, carry out investigations and studies on African human rights problems, organize seminars, symposiums and conferences, disseminate information, support national and regional human rights organizations and, if necessary, assess and assess governments To pass on advice. ”(Article 45 of the Charter in unofficial translation). With a protocol to the charter, which was adopted in 1998 and came into force in January 2004 , an African Court of Justice for Human Rights and the Rights of the Peoples was created with its seat in Arusha (Tanzania). In July 2004 it was decided that the future Court of Human Rights would be part of the African Court of Justice. Here the Commission will have the additional task of preparing procedures for referral to this court.

Special facilities

The Commission has six special bodies that address cross-border issues:

  • extrajudicial, accelerated or arbitrary executions
  • freedom of speech
  • Human Rights Defender
  • Prisons and Conditions of Detention
  • Refugees and displaced persons
  • Women's rights

Members of the Commission are appointed rapporteurs who monitor, investigate and publicize signs of violation in the member states of the African Union .

Proceedings before the Commission

The third chapter of the second part, Articles 46 to 59, regulates the procedure before the Commission. The African Charter provides for two different complaint procedures: “Communications from States” (Art. 47–54) and “Other communications” (Art. 55–59). The first procedure is divided into two sub-procedures: the "arbitration procedure" (§§ 87 ff of the rules of procedure) and the "complaint procedure" (§§ 92 ff of the rules of procedure).

Arbitration

The aim of this procedure, initiated by a Member State, is a peaceful settlement of the dispute. This procedure is also found in many other human rights conventions. The Charter stipulates that a state which believes that another state has violated one or more provisions of the Charter sends a detailed written communication to the Commission, as well as to the Secretary General of the OAU and the Chairman of the Commission and thereby draws attention to the infringing state (Art. 47 in conjunction with § 87 of the rules of procedure). This communication is intended to identify the allegedly violated provisions of the Charter, as well as a comprehensive report on the alleged acts (Art. 47). Within three months of receiving the notification, the state concerned issues a written statement or statement to clarify the matter (Art. 47). This should contain relevant information about already applied and applicable laws and rules of procedure, as well as about the contested or still available legal remedy. If, within three months after the recipient state has received the original notification, the request has not yet been resolved through bilateral negotiations or another peaceful process to the satisfaction of the two states involved, each state has the right to resolve the matter through its chairman of the To hand over the commission and to notify the other state involved (Art. 48). In this case, the "complaints procedure" would apply.

Complaints procedure

It is also possible for a Member State to address its complaint directly to the Commission without first seeking a peaceful dispute settlement (Art. 49). The notification must be submitted in the same way as for the "arbitration procedure". The Commission should only deal with the notification if the three-month period mentioned in Art. 48 has expired, the procedure pursuant to Art. 47 has been complied with and all national legal remedies have been exhausted, unless this procedure would take disproportionately long (§ 96 the rules of procedure and Art. 50). According to Section 97 of the rules of procedure, it is the task of the Commission in this procedure to try to find a peaceful settlement of the dispute between the two parties to the dispute. Only if a peaceful settlement of the dispute cannot be achieved, after examining the relevant information in a secret meeting, the commission prepares a report which is sent by the Secretary General of the OAU to the states involved and to the Assembly of Heads of State and Government of the OAU (Art. 52 ). The Commission can add recommendations to this report which it considers useful (Art. 53). After this report has been submitted, the OAU will deal with the matter at its General Assembly.

Other communications

The African Charter provides for another procedure for “other communications” (Articles 55–59). There is no precise definition of these communications either in the charter itself or in the rules of procedure . Regarding the lack of a definition of this term, Taslim Olawale Elias wrote :

One might legitimately wonder what is meant by "other communications": The drafter seems to have drawn back of the difficulty of defining them. In my opinion, these are communications from physical or moral persons. Therefore, an individual, a non-governmental organization, or even an international or national organization may denounce before the Commission any act considered a violation of the provisions of the Charter.

Even if the term “other communications” is not explicitly defined, the rules of procedure leave no doubt as to who can submit communications. Section 114 of the rules of procedure regulates in paragraph 1 (a) that notifications from the victim of a human rights violation that have been brought to him by a Member State can be brought before the Commission, or, if the victim is unable to do so, by a third party on behalf of the victim. Paragraph 1 (b) allows individuals or organizations to file a notice when there is evidence of 'serious or massive' violations of human or international law. The commission can consider notifications regardless of the current whereabouts of the individual or the organization (Section 114 (2)).

In addition, the chairman of the commission briefly presents the submitted communications before each meeting and the commission members decide by simple majority which communications they intend to take into account (Art. 55). However, only communications that comply with the provisions of Art. 56 may be taken into account: the author must be indicated, even if he asks for anonymity; the communication must be compatible with the Charter of the OAU and the African Charter; it must not be written in a disparaging or offensive language; it cannot be based solely on news from the mass media; the domestic legal process must be exhausted, unless this took a disproportionately long time; it must have been filed within a reasonable period of time after the domestic legal process has been exhausted; and it shall not deal with cases that have already been settled by the States concerned in accordance with the principles of the Charter of the United Nations and this Charter. Section 114 of the rules of procedure specifies the requirements of Art. 56 further.

If, after deliberation, the Commissioners have the impression that one or more communications appear to relate to particular cases which appear to reveal a wide range of violations of human and peoples' rights, the Commission will bring the OAU to the meeting of Heads of State or Government on them attentive (Art. 58 Para. 1). The Commission can then request a detailed investigation of these cases (Art. 58 (2)). If the commission has taken sufficient notice of an emergency, it is submitted to the Chairman of the Assembly of Heads of State and Government of the OAU, who can then request a detailed investigation (Art. 58 (3)). Art. 59 stipulates that all steps taken under these provisions must be treated confidentially until the Assembly of Heads of State and Government of the OAU determines otherwise.

Summary

In particular with the latter procedure, “other communications”, it is striking that, in contrast to other regional human rights protection regimes, the individual has unrestricted access to the commission. Neither additional competence nor the signing of an additional protocol is required. However, the limited powers of the Commission must be held against. Furthermore, there is no human rights court for the enforcement of the rights guaranteed in the Charter, as is provided for in other regimes. The forwarding of notifications of violations to the OAU is also no guarantee of effective protection: for example, in 1991 the Commission received numerous notifications of persistent and massive violations of human rights in Rwanda and Sudan , which it sent to the Assembly of Heads of State and Heads of government of the OAU forwarded without this having initiated legal action. Another problem with the work of the Commission, according to CE Welch, Jr. , is the widespread antagonism in Africa against governmental institutions, even those with the potential to improve living conditions. This explains the very low number of notifications up to the end of 1990 (approx. 100). According to Rachel Murray , the Commission needs to make its deliberations on individual complaints ("other notices") more open to public scrutiny to ensure that African states who violate their obligations under the Charter are condemned by the African people and by the African and international community become.

literature

  • EVO Dankwa: Conference on regional systems of human rights protection in Africa: The Americas and Europe . Human Rights Law Journal, 1992, pp. 314-317
  • Edem Kodjo: The African Charter on Human and Peoples' Rights . Human Rights Law Journal, 1990, 271-283
  • Nuala Mole and Hezekiah Laitag Awaseb: The African Charter on Human and Peoples' Rights . The Courier No. 128, 1991, pp. 65-67
  • Christian Much: The African Charter of Human Rights and the Rights of the Peoples . Europa-Archiv , 1988, pp. 17-26
  • Rachel Murray: Decisions by the African Commission on Individual Communications under The African Charter on Human and Peoples' Rights . International and Comparative Law Quarterly, 1997, pp. 412-434
  • Clement Nwanko: The OAU and Human Rights . Journal of Democracy, 1994, pp. 50-54
  • Anselm Chidi Odinkalu: Proposals for Review of the Rules of Procedure of The African Commission on Human and Peoples' Rights . Human Rights Quarterly 1993, pp. 533-548
  • B. Obinna Okere: The Protection of Human Rights in Africa and The African Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems . Human Rights Quarterly 1984, pp. 141-159
  • BG Ramcharan: The Travaux Préparatoires of The African Commission on Human Rights . Human Rights Law Journal, 1992, pp. 307-314
  • Sabine Thomsen: Banjul Charter of Human Rights and the Rights of Peoples (German translation) . Yearbook of African Law, 1981
  • U. Oji Umozurike: The African Charter on Human and Peoples' Rights . American Journal of International Law , 1983, pp. 902-912
  • Claude E. Which Jr .: The African Commission on Human and Peoples' Rights: A Five-Year Report and Assessment . Human Rights Quarterly 1992, pp. 43-61

Web links

Individual evidence

  1. ↑ The African Court of Human Rights and the Rights of the Peoples. In: humanrights.ch. June 29, 2011, accessed February 23, 2017 .
  2. ^ TO Elias, quoted from NS Rembe