Africa's Primary Human Rights Body May Soon Be Powerless

The African Union is systematically stripping the African Commission on Human and People’s Rights of any significant authority to fight against human rights abuses.

The African Commission on Human and People's Rights (ACHPR) Special Rapporteur on Human Rights Defenders, Reine Alapini-Gansou, speaks in June 2015. Like the words on the panel behind the speaker, the authority of the the ACHPR is slowly fading away. Photo: Maina Kiai, CC

Thanks to recent decisions by the African Union, a once-great African human rights institution founded almost 31 years ago could soon lose all relevance.

On November 2, 1987, the Organization of African Unity (OAU), the predecessor to today’s powerful African Union (AU), had the wisdom to found the African Commission on Human and People’s Rights (ACHPR). As an independent body chartered to investigate and hold OAU – and now AU – countries accountable for their human rights violations, it allowed those who had been subjected to the most terrible of human rights abuses a place to plead their case. It gave them a forum where they could seek justice when the governments of their own countries would not only not defend them, but often had a hand in committing those abuses. It also represented one of the few locations chartered to promote people’s rights among all member nations of the AU.

When the ACHPR ruled, its decisions had binding authority over the nations of the AU. Since the body was founded, it has ruled on such significant cases as abuses in Sudan, South Sudan, the Democratic Republic of the Congo (DRC) and Ethiopia. When those cases were brought forward, there were no places to go for help within the countries, either because the government itself was corrupt or ineffectual, or because the government itself was a party to the abuses.

A notable example is the case of Eritrea, which has suffered its own problems for decades and which may now, thanks to new leadership in Ethiopia – a past foe – finally be able to recover. Eritrean activists gathered together their case, made the long trek to the ACHPR, and eventually saw the ACHPR pass binding resolutions which have helped them to this day.

Since the time of the founding of the African Commission on Human and People’s Rights, those it challenged and found guilty of human rights violations have mounted a systemic campaign to slowly whittle away at the authority the African Union had granted it. If these campaigns are successful, Africa will have lost a critical means of keeping powerful nations honest and mindful of the rights of their citizens, just at the same time as Africa is finally and rightfully taking its place on the world stage as a group of strong global economic and political powers.

One of the most troubling of the loss of power for the ACHPR happened recently, when the AU Executive Council decided that the Commission only had a “functional nature” and was not supposed to act separately from the organization and structures which made it possible. It also said that the ACHPR was intended to act only as an “appellate body” and was not supposed to undercut the legal systems of individual member nations.

This decision ignores the fact that the commissioners appointed to the ACPHR are chartered to act independently of the countries which represented them. It also seems blind to one of the principal objectives of the Commission when it was founded, which was to launch its own independent investigations into human rights violations, regardless of the pleadings of individual states.

Another example of the ACPHR’s erosion of authority at the hands of the AU Executive Council is a demand for the ACHPR to remove its accreditation of the Coalition of Lesbians (CAL) by the end of 2018. Assuming this goes through, the CAL, a major force in promoting LGBTI rights on the continent, would no longer have ‘standing’ – in the legal sense – of seeking justice before the Commission. While that in itself is troubling for the rights of those CAL defends, even more concerning is the precedent the move sets in denying groups access to the ACPHR. If one activist group could be banned, what is to stop the AU from denying any other activist group from going before the Commission?

Two parallel efforts in Africa which do not directly impact the ACPHR also support the likelihood that the AU will continue to cut back on the Commission’s powers.

One happened in 2011, when the Southern African Development Community (SADC) chose to suspend activities in one of its key institutions, the SADC Tribunal. The SADC then passed a resolution three years later which allowed the Tribunal only to get involved in inter-state disputes. This wiped out key powers the Tribunal had previously used in dealing with in-country disputes that sought a higher authority to resolve them.

A second is happening now and involves the International Criminal Court (ICC), which operates out of the Hague. In 2016, the Gambia, South Africa and Burundi gave notice to the ICC that they were withdrawing from the court’s supporting nations as defined in the Rome Statute. South Africa ended up reversing its decision after its own High Court ruled the government could not withdraw from the ICC without the approval of the national parliament. The Gambia also backed out after a leadership change at the top of the country.

Since then, Kenya and Uganda have publicly threatened to abandon the ICC, saying that they felt that court was biased against African leaders.

All these moves are behind the strong words Mr. Femi Falana SAN, a human rights lawyer, said as he gave a major speech in support of the ACHPR at the African NGO (non-Governmental Organization) Forum held in Banjul, the Gambia from October 20-23. The theme of those meetings was a call to action itself: “The AU Convention on Preventing Corruption: Winning or Losing the Fight”.

In Mr. Falana’s keynote address entitled “How to Strengthen the African Commission on Human and People’s Rights and NGOs to Combat Corruption in Africa”, he said:

“Despite initial pessimism about its potential and relevance, the African Commission on Human and People’s Rights has over the years contributed significantly to the development of human rights law through its expansive case-law and jurisprudence. In some respects, such as those involving economic and social rights, the commission’s jurisprudence has been ground-breaking, leading to some effective remedies for victims of violations of human and peoples’ rights.”

As a strong example of the importance of the ACHPR’s role in directing landmark human rights changes, Falana cited the case of SERAC v Nigeria regarding the destruction of the environment and communities in Nigeria as “the most prominent of the commission’s jurisprudence on article 21”. In that case the Commission ruled that Nigeria had violated its charter-based obligations to respect and support the rights of its people. It further said that those obligations “universally apply to all rights and entail a combination of negative and positive duties; and that ‘there is no right in the African Charter that cannot be made effective”. He went on to say that, “The Commission also ruled that Nigeria had an obligation to respect the free use of resources of people, individually or collectively, for ‘the purpose of rights-related needs’, and that Nigeria should ensure compensation for victims of violations”.

This example, which shows the ACHPR standing up to actions taking place wholly within one country – and within one of its most politically and economically powerful at that, might never happen again after that recent ruling of the AU Executive Council about the ACHPR have only “functional authority” and needing to defer to local legal systems. If something further were to happen to the ACHPR such as occurred with the SADC Tribunal, in which its powers were restricted to rule solely on inter-state disputes, such a case would never have made it to the ACHPR at all. But in this case, under the rules at the time and with the ACHPR backed by full authority of the AU, Nigeria was held accountable and the peoples’ rights, for then at least, were protected.

In his speech, Falana called on NGOs to help lead the charge to fight for both the ACPHR and human rights in general across the continent. He did so in a forum which could not have been better, both in location – it was held in at the site where the ACHPR meets regularly – and in timing. The day after the symposium he addressed was over, the 63rd Ordinary Session of the African Commission on People’s and Human Rights took place.

Africa is on the rise as never before both politically and economically. Yet if the African Union has its way, the continent may cease to be the international model it once was as a place to fight for human rights – and the ACHPR may no longer be able to lead in that fight.