Marking 30 Years of the African Charter – Where Next?
Iain Byrne contributes this post reflecting on the African Commission on Human and Peoples’ Rights most recent session and the 30th anniversary of the African Charter on Human and Peoples’ Rights.
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by Iain Byrne
The October 2011 session of the African Commission on Human and People’s Rights marked a watershed in the history of the institution and the regional system it seeks to safeguard. In addition to being the 50th ordinary session of the Commission it was also the 30th anniversary of the African Charter of Human and Peoples Rights. Hence, it was a good time to take stock of what has been achieved to date. Attending a seminar in Banjul to review the first 30 years, the mood seemed to be more glass-half-empty than full. Yet, there have been tangible achievements – a developing body of caselaw, 13 special procedures and a number of groundbreaking missions – and with the creation of the African Court handing down binding decisions, the prospects for improved protection are good.
The Charter continues to have significant normative gaps in areas such as privacy and nationality rights. This is unlikely to be rectified anytime soon due to the reluctance to adopt additional protocols but is not insurmountable given the precedent of the Commission to read in new rights such as in the SERAC v Nigeria case. At the same time the Commission struggles with lack of resources leading to long delays in consideration of cases, a poor implementation record and an apparent impotence in the face of massive and systematic violations such as those occurring in the DRC, Ivory Coast, Guinea and Libya. As if these challenges were not enough, there are a number of emerging issues such as LGBTI, statelessness, electoral violence and terrorism which the system has yet to address in any meaningful way.
The meeting emphasised the need for the Commission to carry out more preventive and promotional work to try and stop abuses occurring in the first place but one wonders how this is going to happen in the absence of any significant increase in resources. The relationship between the Commission and the Court on casework remains opaque and discussions continue. The recent referral by the Commission to the Court of a case brought by a number of NGOs against Libya is a promising initiative but, as in the European system, does the former have a long term future on protection work once the Court gets into its stride?
The opening of the main business session was an example of some of the problems faced by the Commission. Sessions started late and finished early, there was a delay in producing an agenda and only a handful of states bothered to attend and make opening statements – the representative for the post-Mubarak Egyptian government talking about the need to beware the imposition of “alien values”.
One significant milestone (although it was only allocated a few minutes on day 2) was the launch of the Commission’s guidelines and principles on economic, social and cultural rights (ESCR), produced by a working group which included members of civil society. Although the guidelines are primarily aimed at helping to clarify states’ reporting and implementation obligations, they also provide an important resource for all those working on ESCR issues. Above all, as well as drawing on international standards, the guidelines seek to interpret ESCR from an African perspective, recognising the increasing body of regional and national material from the Continent. In so doing, the guidelines could have an impact beyond Africa. Again, questions may be asked as to whether the Commission will have sufficient resources and capacity to properly promote the guidelines. However, their adoption demonstrates what the system can achieve on innovative standard setting with respect to a set of rights that have historically been neglected despite their relevance for all Africans. It was a good way to mark 30 years of the Charter.