The latest African Union (AU) Summit, held in Nouakchott, Mauritania, from 25 June to 2 July 2018, has left the African Commission on Human and Peoples’ Rights (ACHPR) severely undermined. The Executive Council adopted Decision EX.CL/Dec.1015(XXIII), which endorses some worrying recommendations that emanated from the joint retreat, held in June, by the ACHPR and the Permanent Representatives’ Committee (PRC). The adoption of the Decision has turned the recommendations into binding AU decisions or directives (see Executive Council Rules of Procedure, Rule 34 and Art. 23(2) of the Constitutive Act of the AU). This post reflects on the political motivations for, the legality of, and potential implications of three of these decisions or directives, namely:
The decision to review the interpretative mandate of the ACHPR “in light of a similar mandate exercised by the African Court [on Human and Peoples’ Rights] and the potential for conflicting jurisprudence”;
The directive to the ACHPR to align its guidelines for granting observer status to NGOs with “the already existing criteria on the accreditation of NGOs to the AU”; and
The directive to the ACHPR formulate a code of conduct, in consultation with the AU Legal Counsel.
These decisions are seemingly noble or harmless. However, their underlying motive and impact dovetail into the broader backlash against human rights bodies in Africa (Alter et al 2016). Indeed, the decisions are based on a misconception about the nature of ACHPR’s independence. According to the Executive Council, ACHPR’s independence is merely “functional in nature and not independence from the same organs that created the body” (Decision EX.CL/Dec.1015(XXVIII) para 5). Yet, ACHPR’s independence is more than functional; it enjoys absolute institutional independence from external actors in the discharge of its mandate. It is guided only by its foundational treaty, the African Charter, and other relevant human rights treaties. This understanding of ACHPR’s independence is in keeping with the object and purpose of the African Charter as well as best practice on independence of international judicial or quasi-judicial bodies (Shelton 2003 and Mahoney 2008).
The Burgh House Principles offer a useful guide here, although they relate to international courts. Principle 1.2 provides that “[w]here a court is established as an organ or under the auspices of an international organisation, the court and judges shall exercise their judicial functions free from interference from other organs or authorities of that organisation”. The AU tacitly acknowledged this principle when it located the ACHPR in Banjul, the Gambia, away from its own seat in Addis Ababa, Ethiopia (See relevant decisions here and here). This move was meant to serve as a symbol of the independence that the ACHPR ought to enjoy from.
The Original Sin
Before examining the specific directives, it is vital to understand their political origin. In April 2015, the ACHPR granted observer status to the Coalition of African Lesbians (CAL), a South-African based NGO. Many human rights groups were excited by this decision. It affirmed the increasing attention to the rights of sexual minorities in Africa (Murray & Viljoen 2007). However, AU member states did not share in the excitement. At the June 2015 Summit, the Executive Council directed the ACHPR to withdraw CAL’s observer status because it considered CAL’s work to be an affront to “African values” (Decision EX.CL/887(XXVII)).
In November 2015, CAL partnered with the Centre for Human Rights (University of Pretoria) to request an advisory opinion from the African Court on the legality of the Executive Council directive. In September 2017, the African Court delivered its opinion, focusing on the legal standing of the applicants to file the request rather than on its merits. The Court held that it could not render a substantive opinion because the applicants lacked locus standi (see relevant critique here). In its 43rd Activity Report dated January 2018, the ACHPR explained that it could not withdraw CAL’s observer status as this was properly granted and that it is mandated under the African Charter to promote and protect the rights of everyone. In response, an apparently infuriated Executive Council once again demanded that CAL’s observer status be withdrawn (Decision EX.C/Dec.995(XXXII)). It also requested the ACHPR to hold a joint retreat with the PRC to “resolve various concerns about the relationship between the ACHPR and the policy organs and Member States”. The retreat took place from 4 to 6 June in Nairobi, Kenya, and is the source of the above Executive Council decisions.
Overlap in Mandates
The mandate of the ACHPR to interpret the African Charter undoubtedly overlaps with that of the African Court. This overlap, however, is neither accidental nor a sufficient reason to strip the ACHPR of its interpretative mandate. The African Court was created for the specific purpose of complementing the mandate of the ACHPR to determine complaints (African Court Protocol, art 2). The ensuing overlap has not resulted in conflicting jurisprudence. Instead, the ACHPR’s jurisprudence has enriched that of the Court. Reviewing ACHPR’s mandate will restrict access to it and deny victims of human rights violations the right to effective remedies.
Citing the overlap in mandates as the basis for a review is an attempt to conceal the fact that most AU member states are intent on frustrating scrutiny of domestic human rights policies and practices. They are conveniently happy for the African Court to be the sole body with the mandate to interpret the African Charter because it has a limited or no application to them. Since the African Charter has been ratified by all AU member states except Morocco, African citizens can directly file complaints before the ACHPR. However, 45% of AU member states have not ratified the African Court Protocol. More importantly, only eight of the 30 countries that have ratified the African Court Protocol have made a declaration allowing individuals and NGOs to directly file cases before the African Court (See African Court Protocol, Art. 34(6)). This means that the Court is not accessible to the majority of African citizens. It thus offers little chance for them to hold their governments accountable. When domestic legal systems fail them, the ACHPR, and to a lesser extent the African Children’s Rights Committee, are their only hope within the continent.
Relationship with NGOs
The directive to the ACHPR to align its criteria for granting observer status with that of the AU is a culmination of many years of member states’ efforts to unduly control how and with which NGOs the ACHPR interacts. The AU criteria for granting observer status to NGOs (Decision EX.CL/230 (VII)) and its Statute of the Economic, Social and Cultural Council place overly restrictive requirements on prospective applicants. The most concerning is the requirement that the “basic resources of such an NGO shall be substantially, at least two-thirds, be derived from contributions of its members”. The ACHPR’s criteria are quite flexible; they require NGOs applying for observer status to simply declare their financial resources.
Given the limited financial resources in the region, most NGOs are understandably unable to meet the AU’s requirement. They depend substantially on donor funding. This is not dissimilar with how the AU is funded. The AU covers about 28% of its annual budget, with donors covering the rest of the budget (see here for details). These figures do not extend to the peace and security operations budget, which the AU covers only a mere 2% (Kaberuka Report, Annex 1, para 5). In 2014, the AU Peace and Security Council acknowledged that AU’s financial requirement had hindered many CSOs from participating in its activities (Maseru Conclusions, para 4(d)). It resolved to adopt a “flexible application”, which has allowed a relatively wide range of NGOs to now participate in its activities. If it is compelled to abandon its flexible criteria and adopt the AU approach, the ACHPR will close its doors on many of its partners who have supported its work for decades.
A Code of Conduct
The directive that the ACHPR formulates a code of conduct for its members is questionable given the political context that led to it. There is a potential risk that the proposed code will be used to circumscribe and undermine the activities of the ACHPR. Some AU member states have deployed a similar tactic within the auspices of the UN Human Rights Council, albeit with limited success (Limon & Power 2014).
The directive ignores the fact that the African Charter already contains provisions relating to the independence and impartiality of the ACHPR. The ACHPR members are experts serving in their personal capacity (African Charter, art 31). They are required to be individuals of high morality, integrity and impartiality. Before assuming office, they make a solemn declaration committing to discharge their responsibilities impartially and faithfully (African Charter, art 38). The ACHPR’s Rules of Procedure contain additional provisions meant to address issues arising from real or perceived conflict of interest (Rules 7, 101 and 102).
If such a code is nevertheless adopted, its purpose should be to enhance rather than constrain ACHPR’s work. It should reflect existing best practices, as the code of conduct for UN special procedures or the guidelines on the independence UN human rights treaty bodies do.
The long-term effects of Decision EX.CL/Dec.1015(XXIII) are bound to be dire. It will erode ACHPR’s independence and undermine its mandate. Egypt, which has been leading the backlash against the ACHPR, will become the political figurehead of the AU in 2019. It is likely to use this position to further undermine the ACHPR. Yet, an effective ACHPR is essential to the success of the African human rights system. In its 2016 Annual Report on the state of the world’s human rights, Amnesty International called attention to the fact that “the system of international protection of human rights itself needs to be protected”. This call has never been more urgent.