Litigating at the African Commission on Human and Peoples’ Rights
Module 6: Litigating Digital Rights Cases in Africa
Overview of the African Commission on Human and Peoples’ Rights
The ACHPR is a quasi-judicial body that is empowered to make non-binding recommendations. It has three main functions:
- The protection of human and peoples’ rights.
- The promotion of human rights.
- The interpretation of the African Charter.
The ACHPR consists of eleven members elected by the African Union Assembly from experts nominated by states which are party to the African Charter. The ACHPR holds two ordinary sessions annually, which vary from 10 to 15 days, depending on needs and finances, and the ACHPR may also meet in extraordinary sessions, if necessary.
Examples of cases heard by the African Commission on Human and Peoples’ Rights
In 2005, the Botswanan government ordered the deportation of an Australian national in response to his co-authoring a publication that criticised the nature of political succession in Botswana. The ACHPR ruled that the order was a violation of the rights to freedom of expression and access to information, as well as of the right to a fair trial. It held that the publication had not been shown to threaten national security, and as such the deportation order was “unnecessary, disproportionate and incompatible with the practices of democratic societies, international human rights norms and the African Charter in particular”.(1) This case sheds light in particular on the use of national security justifications for infringements on freedom of expression, and the protection that should be afforded to dissenting views, even those that the government may consider to be offensive.
Several media advocacy groups in Zimbabwe challenged provisions in the country’s Access to Information and Protection of Privacy Act (AIPPA) that required all journalists to register with the Media and Information Commission and imposed punishments of up to two years imprisonment for “abusing journalistic privilege” which included the publication of false news, on the grounds that they infringed the right to freedom of expression. The ACHPR held that “registration procedures are not in themselves a violation of the right to freedom of expression, provided they are purely technical and administrative in nature and do not involve prohibitive fees, or […] impose onerous conditions”, but that the imposition of onerous conditions and the control of journalists by a non-independent body with the aim of controlling rather than regulating the journalism profession did infringe the rights to freedom of expression and to receive information.(2) This decision is instructive with regard to journalism registration schemes, as well as public order justifications for infringements on freedom of expression.
A US citizen living as a permanent resident in Zimbabwe was charged with contravening legal provisions outlawing the publication of falsehoods also in the AIPPA. He was acquitted of those charges but was subsequently deported, despite the AIPPA being declared unconstitutional in a separate case a week before the deportation and the existence of court orders prohibiting his deportation. The ACHPR held that as the deportation “arose from the publication of an article that the Respondent State did not appreciate”, it followed that “[the applicant’s] ability to express himself as guaranteed under article 9 was violated”, recommending that Zimbabwe rescind the deportation order and permit him to return as a permanent resident.(3) This ruling provides insight into how the ACHPR approaches questions related to due process in the context of freedom of expression and provides a strong endorsement of the importance of protecting critical speech.
Beyond the obligation to consider reports submitted by states, and shadow reports submitted by civil society organisations (CSOs) regarding states’ compliance with the African Charter, the ACHPR is empowered to receive and consider communications. Filing a communication is essentially the same as filing a complaint. Communications are the mechanism through which the ACHPR fulfils its function to protect the rights and freedoms guaranteed in the African Charter. Article 55 of the African Charter empowers the ACHPR to consider communications.
There are several stages involved in the communications process, which are governed by the Communication Procedure. The Rules of Procedure regulate the ACHPR and establish the procedure in accordance with article 42(2) of the African Charter on Human and Peoples’ Rights.
Stage 1: Registering the Communication
This stage is similar to filing a complaint or launching proceedings in a domestic court or forum. The communication must identify the parties and set out the alleged violation. Communications are usually directed to the Secretariat of the ACHPR, which is based in Banjul, The Gambia.
The communication should include:
- Identifying features of the person or organisation filing (e.g. name, nationality, address where correspondence can be received).
- Whether the identifying features should remain anonymous from the state.
- The state alleged to have committed the violation.
- The reason for registering the communication (if being for the public good or on behalf of someone).
- A description of the violation.
- Other steps taken before reaching this point.
Essentially, the communication should include all relevant information that would allow the ACHPR to make a determination as to whether it should engage with the matter.
This stage incorporates important standing considerations. The ACHPR has broad standing provisions. Anyone can register a communication, including CSOs. This includes a state claiming that another state party to the African Charter has violated one or more of the provisions in the African Charter; CSOs (which do not need to be registered with the AU or have observer status); victims of abuses; or interested individuals acting on behalf of victims of abuses. The matter can also be brought for the public good, as class or representative actions, under the actio popularis approach.(4)
In Article 19 v Eritrea, the ACHPR noted that it—
“has adopted an actio popularis approach where the author of a communication need not know or have any relationship with the victim. This is to enable poor victims of human rights violations on the continent to receive assistance from NGOs and individuals far removed from their locality. All the author needs to do is to comply with the requirements of Article 56. The African Commission has thus allowed many communications from authors acting on behalf of victims of human rights violations. Thus, having decided to act on behalf of the victims, it is incumbent on the author of a communication to take concrete steps to comply with the provisions of Article 56 or to show cause why it is impracticable to do so.”
This was reiterated in Law Society of Zimbabwe and Others v Zimbabwe, in which the AHCPR noted that although the African Charter does not explicitly define who is eligible to file complaints, the actio popularis approach allows the ACHPR to adopt a flexible approach which enables everyone including non-victim individuals, CSOs and pressure groups with an interest in the matter to file a communication, for its consideration.
It is not necessary for cases to be submitted by lawyers, although legal representation can be helpful. The Communication Procedure states that the preparation, submission, and processing of a communication is a relatively straightforward procedure, and that a complainant or author can act on their own without the need for professional assistance – but that legal representation can be useful, particularly for the interpretation of rights violations and the development of arguments in support of such violations.
Every communication should indicate if there is an imminent threat to the life, health or personal integrity of a person. The Rules of Procedure provide guidance on matters of emergency.
Rule 79: Decision on matters of emergency
- The Commission shall treat a situation as a matter of emergency under Article 58(3) of the African Charter, when:
- it is one of serious or massive human rights violations;
- it presents the danger of irreparable harm or requires urgent action to avoid irreparable damage;
- When a situation of emergency arises during a session of the Commission, the decision to treat it as such shall be taken by the Commission.
- When a situation arises during the Commission’s inter-session period, the decision to treat it as a matter of emergency shall be taken by the Bureau of the Commission, which shall keep other members of the Commission informed and present a report on the situation at the next session of the Commission.
Rule 80: Action on matters of emergency
- When the Commission has decided to treat a situation as one of emergency, it shall:
- Draw the attention of the Chairperson of the Assembly of Heads of State and Government of the African Union to the matter in accordance with Article 58(3) of the Charter;
- Draw the attention of the Peace and Security Council to the matter in accordance with Article 19 of the Protocol on Peace and Security Council;
- Inform the Executive Council;
- Inform the Chairperson of the African Union Commission of the matter.
- The Commission as well as its subsidiary mechanisms under the Charter and present Rules, shall also take any appropriate action, including Urgent Appeals.
Stage 2: Seizure and admissibility
Once it has been filed, the ACHPR will seize itself of the communication (i.e. it will consider the complaint) if it is satisfied that the communication alleges a prima facie violation of the African Charter, and it has been properly submitted.
The Secretariat of the Commission will issue a letter to the complainant acknowledging receipt of the communication. At this stage, a letter is sent to the state party concerned.
Article 55(2) of the African Charter requires that a decision by a simple majority of commissioners is needed for the ACHPR to be seized with a matter. Once the ACHPR has confirmed that it is seized with the matter, it will then proceed to consider whether the communication is admissible. There are seven formal requirements in terms of article 56 of the African Charter that must be met for a communication to be admissible:
- Article 56(1) – Indicate the authors: include your name and address and, if you are not the victim yourself, your relationship with the victim, including on what grounds you represent the victim.
- Article 56(2) – Compatible with the Constitutive Act of the AU or with the African Charter: the communication needs to explicitly and clearly discuss the specific violation of rights guaranteed in the African Charter.
- Article 56(3) – Non-insulting language: the language should not be aimed at undermining the integrity and status of the institution.
- Article 56(4) – Evidence other than simply news sources: the communication should not be based exclusively on news disseminated through the mass media. The evidence must be asserted at this stage but can be presented later.
- Article 56(5) – Exhaustion:local remedies must be exhausted before submitting the communication.
- Article 56(6) – Timeliness: the communication must be submitted within a reasonable period from the time that local remedies are exhausted
- Article 56(7) – No conflicting settlements: the ACHPR does not deal with matters which have been settled by another international mechanism similar to the ACHPR.
These requirements are similar to those listed above at stage 1. Accordingly, it is important at stage 1 to ensure that all relevant information is included to ensure that the admissibility threshold at stage 2 will be met.
The exhaustion of local remedies is often a stumbling block for litigants but is important to observe. The reason behind this requirement links to the principle of subsidiarity, and the need to notify a state of its failure and afford it an opportunity to rectify the violation before escalating the matter. It also ensures that the ACHPR does not become a forum of first instance for cases for which an effective domestic remedy exists.
In Sir Dawda K. Jawara v The Gambia, the ACHPR explained that a domestic remedy is “considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint.” The ACHPR went on to give examples of when a remedy would not be available:
- Where the jurisdiction of the courts has been ousted by decrees whose validity cannot be challenged or questioned.
- If the applicant cannot turn to the judiciary of his or her country because of a generalised fear for their life.
- A remedy that has no prospect of success does not constitute an effective remedy.
The ACHPR gave further guidance on admissibility and, in particular, the exhaustion of local remedies in the decision in the case of SERAC v Nigeria:
- If a local remedy is unduly prolonged it is not an effective remedy.
- If a right is not well provided for in domestic law, there cannot be effective remedies or any remedies at all.
If a communication is declared inadmissible, the ACHPR will provide reasons for the decision, and this will bring the consideration of the communication to a close. Rule 108 of the Rules of Procedure allows for this decision to be reviewed at a later date if the complainant can provide information to the effect that the grounds for inadmissibility no longer exist.
Stage 3: Proceedings and consideration of the matter
Following a confirmation of admissibility, the ACHPR will give the parties time to present their written arguments. Rule 108 provides for the consideration of the substantive issues of the matter:
- Once a communication has been declared admissible, the ACHPR shall set a period of sixty (60) days for the Complainant to submit observations on the merits. These observations shall be transmitted to the State Party concerned for the submission of its observations within sixty (60) days.
- Any written statements submitted by the State Party concerned shall be communicated, through the Secretary, to the Complainant, who may submit any additional written information or observations within thirty (30) days. This time limit cannot be extended.
This entails examining the allegations made and the defences raised with due regard to the provisions of the African Charter and other international human rights norms. The Communications Procedure explains that the Secretariat will prepare a draft decision on the merits for the guidance of the Commissioners.
Rule 88 of the Rules of Procedure allows for oral hearings. However, the ACHPR tends to prefer deciding matters on the papers. It is advisable to only insist on an oral hearing if there are exceptional circumstances to argue or an argument to make that is new to the ACHPR. If an oral hearing does take place, some states send representatives to contest allegations, while some do not. Where an oral hearing takes place, it is advisable to be thoroughly prepared to respond to questions from the commissioners at the hearing of the matter and to prepare the evidence on the basis that the state will be well-represented. CSOs and other interest parties who have been admitted as an amicus curiae can also make representations at this stage.
Note on amici curiae
Rule 99(16) of the Rules of Procedure provides for the ACHPR to receive amicus curiae briefs on communications. During the hearing of a communication in which an amicus curiae brief has been filed, the Commission, where necessary shall permit the author of the brief or the representative to address the Commission.
When considering the matter, the ACHPR will have regard to certain sources of law. Article 60 provides:
“The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.”
Article 61 allows the Commission to consider, as a subsidiary measure:
“[O]ther general or special international conventions, laying down rules expressly recognized by member states of the Organization of African Unity, African practices consistent with international norms on human and people’s rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine.”
After an evaluation of the factual and legal arguments put forward, the ACHPR will make a determination on whether there has been a violation of the African Charter or not. If it finds a violation, a recommendation will then be made.
Amicable settlements are also provided for in the Rules of Procedure. Rule 109 allows the ACHPR, on its own initiative or at the request of any of the parties concerned, to offer its offices for an amicable settlement between the parties. When reaching an amicable settlement, the Commission shall ensure that such amicable settlement:
- Complies with or respects the human rights and fundamental freedoms enshrined in the African Charter and other applicable instruments.
- Indicates that the victim of the alleged human rights violation or, his/her successors, as the case may be, have consented to the terms of the settlement and are satisfied with the conditions.
- Includes an undertaking by the parties to implement the terms of the settlement.
Stage 4: Recommendations
The final determination of the ACHPR is called a recommendation. A recommendation usually includes:
- A decision on admissibility.
- An interpretation of the provisions invoked.
- A discussion on the alleged violation.
- If a violation is found, what the required actions are for the state to remedy the violation.
The recommendations are not legally binding but can become binding if they are adopted by the African Union Assembly of Heads of State and Government, pursuant to article 59 of the African Charter.
Rule 98 provides that remedies can be provisional in nature with the aim of mitigating against irreparable harm to the victims of the alleged violation as urgently as the situation demands. This can take place at any time after the receipt of a communication and before a determination on the merits, at the discretion of the ACHPR or at the request of one of the parties.
Some of the past recommendations included compensation, the repeal of legislation, the return of deportees, grants of citizenship, and reform of electoral laws. The ACHPR does not have a discretion to create remedies beyond what has been asked for by the parties.(5) Therefore, it is important to craft remedies in a way that is clear, concise and includes all the relief that is being sought.
Stage 5: Enforcement
There are no procedures to supervise the implementation of the ACHPR recommendations; however, the Secretariat typically issues correspondence to states that have been found to have violated provisions of the African Charter which calls upon them to honour their obligations.
Commentary on the contribution of the ACHPR
International Human Rights Law Review (2018)
Manisuli Ssenyonjo has taken the following view in relation to the impact of the ACHPR as well as some of the challenges it faces.
“While there is much progress still to be made, the African Commission has greatly contributed to the regional protection of human rights in Africa. The Commission has exposed human rights violations in most authoritarian African States. Through its decisions on communications, it has developed human rights jurisprudence in Africa on several aspects consistent with the jurisprudence of other human rights bodies. These include jurisprudence on exhaustion of local remedies, State obligations concerning civil and political rights, economic, social and cultural rights as well as group rights such indigenous peoples’ rights and the right to development. Nevertheless, the African Commission has only received and decided very few communications related to economic, social and cultural rights.
Initially, it was thought the Commission would be unable to hold States accountable for violations of human rights and to provide reparations to victims. However, over the years the Commission has confronted human rights violations through its decisions on communications; adoption of resolutions, principles/guidelines, general comments, model laws and advisory opinions; special rapporteurs and working groups to deal with thematic human rights issues; conducting on-site visits; consideration of State reports and adoption of concluding observations; as well as the referral of communications to the African Court.
Nevertheless, compliance with the Commission’s ‘requests’ for provisional measures/letters of urgent appeals, decisions and recommendations of the Commission, as set out in the Communications and concluding observations on State reports, has been low. The insufficient funding of the Commission from the member States budget and human crisis at the Commission’s Secretariat, impedes the Commission’s capacity to follow-up on implementation as it prevents the Commission from developing effective follow up of its findings during country visits, and recommendations arising from its findings, resulting in the overall weakening of the effectiveness of the Commission.”
Practicalities of litigating before the ACHPR
There are some practical considerations that potential litigant should bear in mind when considering an application to the ACHPR.(6) Some considerations include:
- Cost: The ACHPR is a relatively cost-effective mechanism, given that legal representation is not a requirement, and complainants do not have to travel to the Commission as everything can be addressed through written submissions. Cost implications do, however, arise when there are oral hearings, as this requires being present at the ACHPR.
- Time: The timing of the process from beginning to end varies depending on the nature of the matter. The 60-day and 30-day time periods for the parties are relatively standard, but the time within which the final communication is delivered may take several years.
- Enforcement: If the State Respondents do not comply with the recommendations, it is usually up to the complainant to address enforcement. This can include engaging with the State Respondent, turning to parliament and relying on domestic courts.