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Escalate It | Chapter Thirteen

Guide to the African Commission on Human and Peoples’ Rights


Q&A ON THE ACHPR


WHAT IS THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS?

Established in October 1987, the African Commission on Human and Peoples' Rights (ACHPR) is a mechanism that promotes and protects the rights guaranteed by the African Charter on Human and Peoples' Rights. The Commission also interprets the Charter as it applies to particular cases and can guides African governments in ensuring their legislation and practices adhere to the Charter.


WHO ARE ACHPR MEMBERS?

The Commission is made up of 11 members who are nominated by state governments and then elected by secret ballot through the Assembly of Heads of State and Government (AU Assembly) for a six-year renewable term. AU member states can nominate up to two individuals based on their human rights and legal expertise, high moral integrity and impartiality. All elected members are to act on personal interest, rather than in the interest of their state governments. From among its members, the Commission elects the chairperson and vice-chairperson, who serve for a two-year, renewable term.


WHAT IS THE PURPOSE OF THE ACHPR?

The ACHPR:

  • Decides whether alleged human rights abuses violate the Charter
  • Makes recommendations to AU governments to promote and protect human rights or address past violations
  • Organises seminars/conferences
  • Conducts country promotional visits
  • Distributes reports on human rights issues, violations and/or recommendations
  • Interprets the Charter and adopts further principles to clarify the Charter
  • Investigates human rights violations through fact-finding missions


WHEN AND WHERE DOES THE COMMISSION CONVENE?

The commission holds its “ordinary sessions” in March or April and in October or November. The sessions usually last 15 days and are held at headquarters in Banjul, The Gambia. The Chairman may also decide to hold additional “extraordinary sessions” at the request of the AU Chairman or a majority of Commission members. Past extraordinary sessions have been held to discuss, among others, the Nigerian government's execution
of writer and activist Ken Saro-Wiwa, and the 2010 military coup d'etat in Niger.


HOW DOES THE ACHPR PROTECT FREEDOM OF EXPRESSION?

Freedom of expression and access to information are enshrined in Article 9 of the African Charter, which states:

  • Every individual shall have the right to receive information.
  • Every individual shall have the right to express and disseminate his opinions within the law.

The ACHPR has also adopted the Declaration of Principles on Freedom of Expression in Africa. Under the Declaration, governments must distribute radio frequencies equitably among commercial and community broadcasters. Refusals to reveal public information are subject to appeal by an independent body or the courts.

WHAT HAPPENS IN THE ORDINARY SESSIONS?

WEEK 1:

Public Sessions

During the opening ceremony, the resolutions adopted by the NGO Forum are read out (see section below on the NGO Forum). The first week of the session is public and focuses on:

1) General human rights in Africa

2) Activities of the commission and its mechanisms

3) The examination and granting of observer and affiliate status and the assessment of state reports.

Every two years, states are required to submit periodic reports. These reports should include the steps taken to protect and promote Charter rights, and highlight progress and challenges in securing these rights. Two to three states present on these reports at each session. After presentations, the Commission asks state representatives about the human rights situation in the country. The commission may request information on the human-rights situation from its networks of NGOs prior to the session. Information received from NGOs and other sources are translated into questions that the Commission addresses to the state presenting reports. (See the following section for information on how NGOs can participate in the public sessions.)

WEEK 2:

Private Sessions

The second week is usually reserved for the Commission to decide if Charter violations have occurred in complaints made by individuals, organisations or other member states. In these private sessions, organisations and individuals who bring cases are admitted to make optional presentations; written submissions are considered sufficient as long as the complainant provides complete information. In addition, the Commission drafts concluding observations on state reports - suggesting steps the government should take to fulfil Charter obligations - which are later made public. Other reports from fact-finding or promotional missions may also be examined and adopted at this time. Decisions, resolutions, recommendations and administrative and financial matters are also carried out during private sessions.

In the closing session, which is public, the ACHPR summarises the resolutions passed by the Commission in private sessions.


WHAT ROLE DO NGOS PLAY IN THE ORDINARY SESSIONS?

NGOs with observer status may participate in and speak at the public discussions; however, they are not permitted to vote. These NGOs must register to attend specific sessions: fill out registration forms ahead of the ordinary session, or at the opening of the session. NGOs without observer status may attend the sessions but are not allowed to speak.

Civil society organisations are allowed to make one intervention or statement per agenda item and are usually allotted three to five minutes to speak. At the beginning of the session, NGOs should notify the Secretariat of which agenda items they wish to take the floor on. Organisations may wish to print copies of their statements to distribute to Commissioners, the Secretariat and other participants. Representatives speaking in a language other than Arabic, English, French or Portuguese will not be provided with a translator. It is advisable that written statements be in one of these four working languages. Ideally, statements should be written in more than one language so they resonate with more officials. The time allocated for each agenda item will vary, so an organisation's representatives should closely follow public sessions to ensure they are present to speak.

The agenda items most commonly commented on by NGOs are:

1) The human rights situation in Africa

2) The presentation of reports from Special Rapporteurs or working groups, as these categories are broad enough for organisations to forward their specific concerns, questions or requests for resolutions to be adopted.

Organisations are not permitted to make comments on agenda items that concern:

  • State parties’ periodic reports
  • A country’s compliance with the Charter
  • Decisions on granting observer status to other organisations

Thus, it is important to lobby Commissioners to ask the states presenting reports specific questions during the public sessions, and request certain recommendations be put in the concluding document. Civil society organisations may also wish to provide further written information to help guide Commissioners in their assessment of state reports.

During sessions, organisations can also run side events such as seminars or training sessions on particular human rights themes. Groups may wish to invite Commissioners and state representatives to these events. In addition, an organisation's representatives can informally approach state delegates and Commissioners, during breaks for example, to highlight particular concerns.


HOW DOES AN ORGANISATION OBTAIN OBSERVER STATUS WITH THE ACHPR?

Since its inception, the Commission has granted hundreds of NGOs observer status. To be considered, NGOs must provide information on how their objectives and activities aim to promote or protect Charter principles, their human rights work, and their financial resources. NGOs must apply (at no cost) at least three months before a session.

According to the ACHPR, NGO applications should include:

  • Legal statutes/codes

Proof of its legal existence (unless there is evidence that the State is hostile towards human rights activities and has made it unreasonably difficult to register legally)

  • A list of its members and its constituent organs
  • Its sources of funding
  • Its last financial statement
  • A statement on past and current activities

NGOs with observer status are expected to present reports on their activities to the Commission subsequently every two years, however the ACHPR has yet to strip NGOs of observer status for failing to comply with this requirement. Since its inception, the Commission has granted hundreds of NGOs observer status.

Organisations should apply for observer status to the Secretary of the ACHPR at the address at the bottom of this guide. See the Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organisations Working in the Field of Human and Peoples' Rights.


HOW DO ORGANISATIONS GET THE AGENDA AND TIMING OF UPCOMING SESSIONS?

An invitation and agenda for an upcoming session must be posted on the ACHPR's website at least four weeks before the session. The secretary must also inform all NGOs with observer status of a session's time and agenda no later than four weeks ahead.


WHAT HAPPENS WHEN THE ACHPR RECEIVES REPORTS OF HUMAN RIGHTS VIOLATIONS?

Any individual, organisation or state can send a complaint or “communication” to the ACHPR describing human rights violation(s) in a particular country. Only on one occasion has a state submitted a complaint; most come from civil society organisations. NGOs do not need observer status to submit a complaint. It may take years for the ACHPR to decide whether the incidents in a submission violate the Charter.

STEP 1:

Seven or more members must indicate they are “seized” by the communication, which means they feel it satisfies the seven requirements of Section 56 of the African Charter. More detailed instructions on meeting these seven requirements are included in Submitting a complaint to the ACHPR. If members fail to respond to a submission in between sessions, the members will decide whether or not to seize the communication at the next session.

STEP 2:

Once a communication has been seized, the Secretary notifies the state concerned and the report author. The state party is then asked to clarify the issue in writing and, if possible, explain measures it has taken to solve the situation. The complainant will have an opportunity to respond to the state’s interpretation of events and, if necessary, provide additional information.

STEP 3:

If both parties are willing to settle amicably, the Commission will mediate a “friendly settlement” between the complainant or victim(s) and the state. If an amicable resolution is reached, the terms of this resolution are shared with the Commission at the next session. If no settlement is reached, the Commission will make its own decision and recommendations on the case.

Communications are considered during the private sessions of ordinary sessions. When the Commission is considering a complaint, both parties have the opportunity to make written and oral presentations to the Commission. If the state fails to submit any written or oral information, the Commission decides based on the available evidence.

STEP 4:

If the Commission agrees with the complainant, the Commission will notify the complainant and forward its recommendations to the state. These recommendations may detail how the state should provide redress to the victim, investigate and prosecute the perpetrators of the violation and/or prevent such abuses from occurring in the future. The Commission includes these recommendations in its activity report, which is submitted to the AU Assembly once a year, and made public once authorised by the AU Assembly. The Commission has no enforcement powers; however, if a state fails to comply with recommendations, the Commission will refer the case to the African Court on Human and Peoples’ Rights.


WHAT OTHER ACTIVITIES DOES THE ACHPR DO?

The Commission can send members to states on “promotional visits” with the consent of the government. (The Commission must be invited by the government to conduct such a mission, but can request an invitation.) In such visits, the Commission's representatives meet with government officials, the public and civil society members to raise awareness about the ACHPR and to encourage states to fulfil their Charter obligations.

The Commission does not need permission to conduct fact-finding or investigative missions, as long as missions are approved by the AU General Assembly, Chairman or Peace and Security Council. Due to members' political influence, the AU Assembly and its Chairman have yet to authorise the Commission to conduct a fact-finding mission. For this reason, in requesting permission to conduct an investigative visit, the Commission now turns to the AU Peace and Security Council, which is much more likely to order or approve a mission. During investigative visits, the commission tries to meet government officials, police authorities, NGOs and national human rights institutions, and may visit prisons, refugee camps and other places. The Commission will often appoint a Special Rapporteur or working group to conduct the fact-finding mission. Following either a promotional or investigative trip, the Commission adopts a “mission report” in a private meeting in a regular session. Once adopted, mission reports are public documents and should be posted on the website, though this does not always happen promptly. Before publishing, the Commission will send the report to the state concerned for its observations on findings. This can sometimes delay the process further. The ACHPR is revising its process to release mission reports in a reasonable time frame.

Finally, the Commission can hold conferences, seminars and workshops to promote human rights and support government officials, organisations and individuals in their efforts to protect human rights.


WHAT IS THE ROLE OF SPECIAL RAPPORTEURS AND WORKING GROUPS?

Special rapporteurs have been established on six human rights issues including freedom of expression and access to information. In addition, the Commission oversees a handful of working groups, such as the Working Group on the Death Penalty in Africa. To read more about the rapporteurs and working groups see Special Mechanisms on the ACHPR website. The role of most of these mechanisms is to promote specific areas of human rights and advance recommendations, share information and carry out research. As with the ACHPR, the special rapporteurs and working groups have no enforcement powers.


How Else Can NGOs Work with The ACHPR in Campaigning?

Submitting shadow reports

After a state has submitted a report, NGOs can provide “parallel” or “shadow” reports that refute the official state report or provide additional information to it. Organisations do not need observer status for this. There is no set format for the report, but organisations should include at the top of the report:

  • The country’s name
  • The organisation’s name
  • The session time and number at the top of the report

NGOs may wish to include recommendations to the government, which may then be taken up by the Commissioners and adopted as their official recommendations to the countries. The state reports to be reviewed will be listed in the “Draft Agenda,” which is posted ahead of a session.

For sample shadow reports that reflect best practices, see:

Sharing ACHPR reports and information

Organisations should publish and translate relevant reports adopted by the Commission. Public reports and information disseminated online by the Commission include mission reports, session communiqués, press releases from special rapporteurs and concluding observations of state reports that are adopted by the Commission. These reports can be useful in campaigning and lobbying when appealing to the state to take steps to advance freedom of expression and other human rights.

Monitoring a state's compliance

Organisations should also monitor a government's compliance with recommendations and resolutions, and share findings with media or civil society partners. As the Commission has no follow-up mechanism, civil society organisations are vital in ensuring states adhere to recommendations. Groups should report on non-compliance to the ACHPR, which may then decide to forward the case to the African Court on Human and Peoples' Rights.

Assisting in fact-finding missions

Civil society organisations can encourage the Commission to conduct fact-finding missions by addressing requests to the Chairman or Secretary or directly to the special rapporteur or working group likely to carry out a mission. Once the Commission has decided to take on a fact-finding or investigative mission, NGOs should provide the Commission with information, reports and advice on places to visit and people to contact.


WHAT ARE SOME OF THE SHORTCOMINGS OF THE ACHPR?

Limited enforcement: According to Amnesty International, governments often ignore the Commission's recommendations. The ACHPR cannot force states to follow its recommendations, which depend on the good will of the state; the Commission can merely send letters reminding the states to honour their Charter obligations. However, the Commission may refer cases to the newly formed African Court on Human and Peoples' Rights.

Long wait times: It can take years to make a decision on a complaint. This is due to the short time period in which Commissioners gather to deliberate on cases (usually two or three days per ordinary session). In rare cases the ACHPR rules on a complaint within a year of its initial submission; past Commissions have taken up to eight years to make recommendations.

Lack of state cooperation: Most states do not submit their periodic reports every two years, despite this being a requirement; 15 AU states have yet to submit a report at all. Organisations should encourage governments to comply. See the most recent reports that have been published by the ACHPR.

Questionable independence: In the past, the Commission's membership has included government officials and cabinet ministers, raising questions about their independence. Amnesty International and other groups have expressed concern that states nominate members to the Commission who lack impartiality, independence and competence. In response, the organisation has developed criteria for states to consider when choosing commission nominees.

According to the Amnesty International, human rights organisations should encourage states to share their nomination processes for Commission members and involve civil society to ensure the nominees are experts in human rights, of high integrity, and independent from the state. They further encourage organisations to advocate that governments follow these criteria before electing new members.


WHAT IS THE NGO FORUM?

The NGO Forum is a great opportunity for organisations to network and develop solutions together in advance of the regular ACHPR sessions. The Forum is put together by the African Centre for Democratic and Human Rights Studies (ACDHRS), based in Banjul, Gambia. During the Forum, more than 100 NGOs routinely share information and best practices, formulate and decide upon resolutions and collaborate on initiatives to address human rights violations in Africa. The ACHPR's commissioners are also invited to some meetings and sessions.

The Forum normally takes place in the three days before the official session of the Commission and is usually held in the same venue.

DAY 1:

The Forum begins with general presentations on the human rights situation in Africa as well as on specific human rights themes or countries of pressing concern.

DAY 2:

NGOs can attend specific focus groups where they draft resolutions on a number of human rights themes, including freedom of expression.

DAY 3:

All NGOs present on the most urgent or current human rights issues and, in the afternoon, the draft resolutions are presented, edited and voted on by the wider forum. The adopted resolutions are formally presented at the opening session of the ACHPR meeting.


HOW CAN I CONTACT THE ACHPR?

African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District
Western Region
P.O. Box 673
Banjul, Gambia
Tel: (220) 441 05 05, 441 05 06
Fax: (220) 441 05 04
E-mail: au-banjul (@) africa-union.org
or achpr (@) achpr.org
http://www.achpr.org/

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