THE EFFICACY OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS IN PROTECTING AND PROMOTING HUMAN RIGHTS IN AFRICA: A FOCUS ON THE IMPLEMENTATION OF THE COMMISSION’S RECOMMENDATIONS AND CONCLUSIONS

Main Article Content

Prosper P. Tegamaisho

Abstract

This article analyses the impact of non-implementation of the African Commission on Human and Peoples’ Rights’ decisions and recommendations in Africa. The article concludes that there are still lots of pains to endure before the African system of human rights protection can favourably compare with its more advanced counterparts. Therefore, this article suggests that, in order to ensure compliance of Commission’s decisions, there is a need to have an institutionalized follow-up mechanism to encourage and monitor compliance whether within the framework of the body or by co-operating with relevant enforcement bodies or authorities.

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TEGAMAISHO, Prosper P.. THE EFFICACY OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS IN PROTECTING AND PROMOTING HUMAN RIGHTS IN AFRICA: A FOCUS ON THE IMPLEMENTATION OF THE COMMISSION’S RECOMMENDATIONS AND CONCLUSIONS. THE LAW SCHOOL OF TANZANIA, [S.l.], v. 2, n. 1, june 2018. Available at: <http://journal.lst.ac.tz/index.php/lst/article/view/22>. Date accessed: 12 dec. 2018.
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Articles

References

1 The Author is an Assistant

Lecturer in Law at Tanzania

Institute of Accountancy (TIA)-

Singida Campus, and
former Head of Public Law Department

at Ruaha Catholic University. He

received his Bachelor of Laws (Hons)
and Master of Laws in Trade and

Finance at Ruaha University College.

He also received his Master of Laws
Degree in Comparative Law,

Economics, and Finance from

International University Collage of

Turin, Italy.
M. Sekaggya, “Value of Human Rights

Institutions: Human Rights

Commission Processes”. A Paper

Presented at
the Regional Workshop on Human

Rights Commissions and

Accountability in East Africa,

organised by the East
African Centre for Constitutional

Development (Kituo Cha Katiba) held

on November 2004 in Arusha at 12–13.

It
is for this very reason that the

African Commission of Human and

Peoples’ Rights was established

under article
30 of the African Charter on Human

and Peoples’ Rights, 1986. See the

African Charter on Human and

Peoples’
Rights, article 45 (1) provides for

mandate of the Commission.

2 For the Purpose of this work, the

African Commission on Human and

Peoples’ Rights shall be abbreviated

as
ACHPR.

3 See, E. Ankumah, and A. Evelyn,

‘African Commission on Human and

Peoples’ Rights’, KluwerLaw Review,
(1996), 34 also see, A. Bösl, & J.

Diescho, Human Rights in Africa.

Legal Perspectives on their

Protection and Promotion,
(London: Macmillan, 2009), at 87,

also see, the African Charter on

Human and Peoples Rights, adopted in

Nairobi
June 27, 1981 and entered into force

October 21, 1986, Article 45 of the

Article 45 (2) this article provides

for
mandate of the Commission. The

Commission is established under

article 30 of the Charter.

4 The Commission is established

under article 30 of the African

Charter on Human and Peoples Rights

Adopted
in Nairobi June 27, 1981 Entered

into Force October 21, 1986. Also

see OAU Doc OAU/CAB/LEG/67/3/Rev 5.
Reprinted in Human rights law in

Africa 1996 (1996) 7.

5 African Commission on Human and

Peoples Rights available at

www.ishr.ch/node/404/pdf (Accessed

on 23
June 2016).

6 Human Rights Centre Uganda

available at

http://www.hrcug.org/index.php?

option=com_
content&view=category&layout=blog&id

=60&Itemid=191(accessedon 23 June

2016).

7 Comprising of practicing lawyers

and teachers of law, from 23 African

Nations as well as 9 countries of

other
Continents. See, T. O., Elias, New

Horizons in International Law, 2th

edn (Netherlands: Brill, 1992), at

95, also see,
C. D. Dakas, ‘The Lessons of

History’, 4 Journal of Public and

Private Law,(2003), 7.

8 Law of Lagos, 7 January 1961’, 3

International Commission of Jurists

Journal, 3 (1961), 3.

9 Ibid, at 6.

10

https://globaljournals.org/GJHSS_Vol

ume12/7-Over-Two-Decades-of-

African.pdf (accessed 24 November

2016).

11

www.chr.up.al.za/publication/occ_pag

es/ocl/3html (accessed on 23

November 2016).

12 UN, Seminar on the “Establishment

of Regional Commission on Human

Rights with Special Reference to

Africa,
Cairo Egypt, 1969, 12-15, UN

Doc.ST/TAO/HR/38.

13 E. Osita, Human Rights in Africa:

Selected Problems, (Lagos: Nigerian

Institute of International Affairs &
Macmillan,1984), pp.202-203.

14 For example, Dar-Es-Salaam

Seminar, alias, UN Seminar on the

Study of New Ways and Means for

promoting
Human Rights with Special Reference

to the Problems and Needs of Africa,

Tanzania Oct.23 Nov5 1973’, UN
Doc/ST/TAO/HR/48.

15 The setting up of the Committee

tagged “The Follow up Committee”,

was headed by Judge K. Mbaye. As

traced,
“The Committee visited several

African States considered supportive

of human rights. It was in the

course of one
of such visits that President

Senghor of Senegal agreed to present

a proposal for the establishment of

an African
Human Rights Commission at the next

Session of the OAU”. See C.D. Dakas,

supra, note 7, at 16.

16 African Charter on Human and

Peoples’ Rights, 27 June 1981,

Doc.OAU/CAB/LEG/67/3/Rev.5. 21 ILM

52,
(`982) (hereinafter African Charter

or Charter).

17 C. A. Odinkalu, ‘The Individual

Complaints Procedures of the African

Commission on Human and Peoples’
Rights’ African Human Rights Law

Journal, 2 (2000), 925.

18 The African Charter of Human and

Peoples Rights, Article 45(3) and

(4).

19 Other Convections that complement

the African Charter are, African

Charter on the Rights and Welfare of

the
Child, Protocol to the African

Charter on Human And Peoples’ Rights

on the Establishment of an African

Court
on Human and Peoples’ Rights,

Protocol of the Court of Justice of

the African Union, Protocol on the

Statute of
the African Court of Justice and

Human Rights, Protocol to the

African Charter on Human and

Peoples’ Rights
on the Rights of Older Persons in

Africa, to mention but few.

20 C. Flinterman & C. Henderson,

‘The African Charter on Human Rights

and Peoples‟ Rights’, in An

Introduction
to the International Protection of

Human Rights, eds. R. Hanski & M.

Suksi, (Finland: Abo Akademi

University,
1999) at 387.

21 T. Boven ‘The Relations between

Peoples’ Rights and Human Rights in

the African Charter’7 Human Rights

Law
Journal (1986),186; also, cited by

E. Ankumah, supra, note 3 at 1.

22 The African Charter on Human and

Peoples Rights, Articles 2–13.

23 Ibid, articles 14–18.

24 Ibid, articles 19–24.

25 R. Kiwanuka ‘The Meaning of

Peoples’ Rights in the African

Charter on Human and Peoples’

Rights’ 2 American
Journal of International Law,

(1988), 80 and E. Ankumah, supra,

note 3, at 160.

26 The African Charter on Human and

Peoples Rights, Articles 1, 25 & 26.

27 Ibid, Articles 27–29.

28 Ibid, article 45.

29 Ibid, article 62.

30

https://www.opensocietyfoundations.o

rg/fact-sheets/african-commission-

human-and-peoples-rights
(accessed on 24 November 2016).

31 Botswana Case of Attorney-General

v Dow [1994] 6 BCLR 1.

32 The Vienna Convention, which

entered into force on 27 January

1980, article 14 provides as

follows:
‘1. The consent of a State to be

bound by a treaty is expressed by

ratification when: (a) the treaty
provides for such consent to be

expressed by means of ratification;

(b) it is otherwise established that
the negotiating States were agreed

that ratification should be

required; (c) the representative of

the
State has signed the treaty subject

to ratification; or (d) the

intention of the State to sign the

treaty
subject to ratification appears from

the full powers of its

representative or was expressed

during the
negotiation. 2. The consent of a

State to be bound by a treaty is

expressed by acceptance or approval
under conditions similar to those

which apply to ratification.

33 C. P. Maina, ‘Human Rights

Commission in Africa: Lessons and

Challenges’, in Legal Perspectives

on their Protection
and Promotion, eds. A. Bösl & J.

Diesch,
(Windhoek : Macmillan Education

Namibia, 2009) at 369, also

available at

http://www.kas.de/upload/
auslandshomepages/namibia/Human_Righ

ts_in_Africa/11_Peter.pdf (Accessed

on 23 June 2016).

34 S. B. Keetharuth, ‘Implementation

of Decisions of the African

Commission on
Human and People’s Rights,’ at 1.

Also available at

http://www.bristol.ac.uk/law/researc

h/centres-themes/
ihrsp/documents/sheilakeetharuthpres

.pdf (Accessed on 23 June 2016).

35 Article 2 of the Protocol

provides inter alia that the Court

shall, bearing in mind the

provisions of this Protocol,
complement the protective mandate of

the African Commission on Human and

Peoples’ Rights conferred upon
it by the African Charter on Human

and Peoples’ Rights.

36 [2013] Application no. 002 of

2013.

37 [2012] Application no. 006 of

2012.

38 The African Charter on Human and

Peoples’ Rights, Article 45(1)(a).

39 See the Botswana Case of Attorney

General V Dow [1964] 6 BCLR 1 and

Jawara v. The Gambia (2000) AHRLR

107
(ACHPR 2000) para 46; see also J.

Dugard, International law: A South

African Perspective, 4th edn (New

York: Cornell
Faculty of Law, 1992) at 266. See

also D. J Harris, Cases and

Materials on International Law, 5th

Edn (London: Sweet
and Maxwell, 1991), at 747. the

Vienna Convention, Article 14

provides that ‘[t]he consent of a

state to be bound
by a treaty is expressed by

ratification when, inter alia, the

treaty provides for such consent to

be expressed by
means of ratification, or the

consent of a state to be bound by a

treaty is expressed by acceptance or

approval
under conditions similar to those

which apply to ratification’.

40 G. Naldi, ‘Reparations in the

Practice of the African Commission

on Human and Peoples Rights’, 14

Leiden Journal
of International Law, (2001), 684.

41 The Vienna Convention on the Law

of Treaties, Article 26, explains

the principle of pacta sunt servanda

as meaning
that ‘[e]very treaty in force is

binding upon the parties to it and

must be performed by them in good

faith’. It
further states under Article 31(1)

that a treaty must be interpreted in

good faith in the light of its

objects and
purpose. The protective purpose of

the African Charter will be realised

optimally if the Commission’s

findings
constitute legal obligations.

42 The Vienna Convention, Article

26, also See Media Rights Agenda v

Nigeria (2000) AHRLR 262 (ACHPR

2000) para
75; Jawara v. The Gambia (2000)

AHRLR 107.

43 As the Permanent Court of

International Justice articulated,

‘A state which has contracted valid

international
obligations is bound to make in its

legislation such modifications as

may be necessary to ensure the

fulfilment
of the obligations undertaken’;

Advisory Opinion No 10, Exchange of

Greek and Turkish Populations, 1925

PCIJ
(ser B) 10 at 20; see Media Rights

Agenda v Nigeria (2000) AHRLR 262.

44 Civil Liberties Organisation &

Others v. Nigeria (2001) AHRLR 75

(ACHPR 2001) para 26.

45 The Vienna Convention, Article 27

states that ‘A party may not invoke

the provisions of its internal law

as
justification for its failure to

perform a treaty.’ See also Draft

Declaration on Rights and Duties of

States, article
13, also Year Book of the

International Law Commission 286 UN

Doc A/CN4/SER A/1949; I. A. Shearer

Starke’s
international law (1994) at 22.

46 See Purohit & Another v The

Gambia (2003) AHRLR 96 (ACHPR 2003)

para 43. See Vienna Convention,

article
27 and Caso Loayza Tamayo v Peru

[1997], also available at

http://www.corteidh.or.cr/docs/casos

/articulos/
seriec_33_ing.pdf (accessed on 23

June 2016).

47 The Legal Resources Foundation v.

Zambia (2001) AHRLR 84 (ACHPR 2001)

Para 59-60.

48 See submissions by the Federal

Republic of Nigeria to the 2nd

extraordinary session of the African

Commission
held 18-19 December 1995, Kampala,

Uganda, ACHPR Documentation, Banjul,

The Gambia.

49 (2000) AHRLR 188 (ACHPR 1995)

para 20, also in Prince v. South

Africa (2004) AHRLR 105 (ACHPR

2004),
the respondent state expressly

questioned the jurisdiction of the

Commission over the communication.

The
Commission expounded two important

doctrines, namely the Margin of

Appreciation and Subsidiarity. The
Margin of Appreciation is the

logical result of the application of

the principle of subsidiary. It’s a

discretion
that a state’s authority is allowed

in the implementation and

application of domestic human rights

norms
and standards. This discretion that

the state is allowed, rests on its

direct and continuous knowledge of

its
society, its needs, resources,

economic and political situation,

legal practices, and the fine

balance that need to
be struck between the competing and

sometimes conflicting forces that

shape a society. Accordingly, the

African
Commission, in considering the

matter, has to take into account the

legal and factual situation in South

Africa.
It should not view this

communication in abstracto, but in

the light of the specific

circumstances pertaining in
the Respondent State. The South

African Constitutional Court did

take into account such specific

circumstances:
the ratio for the decision to limit

the right to freedom of religion in

terms of the Constitution was that

the use of
cannabis by Rastafari could not be

sanctioned without impairing the

State’s ability to enforce its drug

legislation
in the interest of the public at

large. While the doctrine of

Subsidiarity, the Commission states

that the principle
of subsidiarity indeed informs the

African Charter, like any other

international and/or regional human

rights
instrument does to its respective

supervisory body established under

it, in that the African Commission

could
not substitute itself for

internal/domestic procedures found

in the Respondent State that strive

to give effect to
the promotion and protection of

human and peoples’ rights enshrined

under the African Charter.

50 C. Anyangwe ‘Obligations of state

parties to the African Charter on

Human and Peoples’ Rights’ 10

African
Journal of International and

Comparative Law, (1998), 625.

51 African Commission on Human and

Peoples’ Rights ‘Account of Internal

Legislation of Nigeria and the
Dispositions of the African Charter

on Human and Peoples’ Rights’ Doc

II/ES/ACHPR/4;

52 Idem.

53 Idem.

54 The Vienna Convention, articles

14, 26, 27 & 31(1) and the African

Charter on Human and Peoples’

Rights, article 1.

55 Ibid, article 1, states that

member states shall recognise the

rights under the Charter and shall

undertake to adopt
legislative or other measures to

give effect to them.

56 African Charter on Human and

Peoples’ Rights, article 58.

57 The African Commission’s Rules of

Procedure 1998, Rule 111.

58 International Pen & Others (on

behalf of Saro-Wiwa) v. Nigeria

(2000) AHRLR 212 (ACHPR 1998).

59 Ibid, paras 114, 115 & 116.

60 Idem.

61 The Vienna Convention, Article

31(1).

62 See, the case of African

Commission on Human and Peoples’

Rights v. Libya, and African

Commission on Human and
Peoples’ Rights v. Kenya (supra,

note 36 and 37).

63 The ICJ has, however, held that

the provisional measures are

binding. See the judgment of the ICJ

in the La Grande
case (Federal Republic of Germany v

United State, Case no. 104 of 27

June 2001, ICJ at 506 para 109,

where the Court
held that orders indicating

provisional measures are (legally)

binding.

64 F. Viljoen, ‘A Human Rights Court

for Africa, and Africans,’ 30

Brooklyn Journal of International

Law, (2004), 15.

65 See Draft Resolution on the

Implementation of the

Recommendations of the African

Commission on Human
and Peoples’ Rights, annexed to

Non-Compliance of State Parties to

Adopted Recommendations of the

African
Commission: A Legal Approach, 24th

session OAU DOC/OS/50b (XXIV)

(1998).

66 African Commission on Human and

Peoples’ Rights ‘Account of Internal

Legislation of Nigeria and the
Dispositions of the African Charter

on Human and Peoples’ Rights’ Doc

II/ES/ACHPR/4.

67 See the European Convention,

article 46; the American Convention

on Human Rights article 68; Protocol

to the
African Charter on Human and

Peoples’ Rights on the Establishment

of an African Court on Human and

Peoples’
Rights, article 30.

68 Notably, some states have

recently even taken to pressurising

the AU Assembly through the

Executive Council
to suspend the publication of the

African Commission’s Annual Activity

Report for incorporating

unfavourable
resolutions and recommendations. See

Assembly/AU/Dec 49 (III). The AU

Assembly suspended the publication
of the African Commission’s

Seventeenth Annual Activity Report,

at its 4th Summit in Addis Ababa,

Ethiopia.
The report was suspended at the

behest of Zimbabwe, since it

incorporated a report on a fact-

finding mission
to that country. See also

Assembly/AU/ Dec 101(VI) para 1. The

AU Assembly sought the deletion of

certain
aspects of the Nineteenth Activity

Report before publication, at the

Assembly’s 6th Summit in Khartoum,

Sudan.
The report had, among others,

resolutions on the human rights

situation in Eritrea, Ethiopia,

Sudan, Uganda
and Zimbabwe. While this development

has been criticised for its

perceived interference with the

independence
of the African Commission, it is

also illustrative of the fact that

states are wary of being adversely

mentioned in
reports of the African Commission.

Consequently, the author notes that

the ‘naming and shaming approach’ is
effective, even though minimally so,

and urge the AU Assembly to be more

supportive of the Commission by
not yielding to states’ demands that

lead to the suspension of, or

deletion of, parts of the

Commission’s Activity
Reports; more so because this

approach compromises the

independence and effectiveness of

the Commission.

69 The African Commission made

notably concrete and specific

recommendations in its decisions in

Malawi African
Association & Others v Mauritania

(2000) AHRLR 149 (ACHPR 2000) and

SERAC.

70 C. A. Odinkalu, supra, note 17,

at 242. Also see, Mouvement

Burkinabe´ des Droits de l’Homme et

des Peuples v Burkina
Faso (2001) AHRLR 51 (ACHPR 2001);

Avocats Sans Frontie`res (on behalf

of Bwampamye) v Burundi (2000) AHRLR
48 (ACHPR 2000)) or ‘take the

necessary steps’ to bring their

practice in conformity with the

African Charter (for
instance, in Abubakar v Ghana (2000)

AHRLR 124 (ACHPR 1996); Media Rights

Agenda & Others v Nigeria (2000)
AHRLR 200 (ACHPR 1998)).

71 See Embga Mekongo v Cameroon

(2000) AHRLR 567 (ACHPR 1995).

72 Huri-Laws v. Nigeria (2000) AHRLR

273 (ACHPR 2000); Forum of

Conscience v Sierra Leone (2000)

AHRLR 293
(ACHPR 2000).

73 See Draft Resolution on the

Implementation of the

Recommendations of the African

Commission on Human
and Peoples’ Rights, annexed to

Non-Compliance of State Parties to

Adopted Recommendations of the

African
Commission: A Legal Approach, 24th

session OAU DOC/OS/50b (XXIV)

(1998).

74 F. Viljoen, supra, note 64, at 15

and 81, citing Report of the Human

Rights Committee, UN Human Rights

Committee
57th session CH 6, Follow-up

activities under the Optional

Protocol 118, UN Doc A/57/40 (vol.

1) (2002).

75 C. Heyns, et al ‘A Schematic

Comparison of Regional Human Rights

Systems: An update’ 4 International

Journal
on Human Rights, (2006), 168.

76 R. Bernhardt, ‘General report’,

in International Enforcement of

Human Rights, eds. J. A. Jolowicz,

(Berlin: SpringerVerlag, 1985) at 5.

77 The United Nations Charter, 1945,

Article 45.

78 H.J. Steiner & P. Alston,

International Human Rights in

Context: Law, Politics and Morals,

(Oxford: Clarendon Press,
1996) at 347. Compliance with

international law generally takes

place within a state and depends on

its legal
system, on its courts and other

official bodies but as with other

international obligations, the

international system
can exert influence on the state to

comply.

79 As was earlier stated, the

African Commission’s enforcement

powers and that of other relevant

bodies lay with
the Assembly of Heads of State and

Government of the OAU; which power

was not used.

80 Unlike the OAU Charter, which

made no provision for the

enforcement of its principles, the

AU Constitutive Act,
article 23(2) provides for the same.

81 The Rules of Procedure of the

African Commission, Rules 1 & 2(1).

82 It is noted that there has been a

recent departure from the ‘Annual’

Activity Report practice when the

Commission
in January 2006 was required to and

therefore submitted an Activity

Report to the AU Assembly, only

after its
38th session, that is, the

Nineteenth Activity Report (2006).

Thereafter, the African Commission

has submitted
its Twentieth Activity Report only

after its 39th session. This change

has been attributed to the fact that

the AU
Assembly now meets twice a year.

83 The African Charter on Human and

Peoples’ Rights, Articles 54 & 59

(1).

84 The 6th Summit of the AU Assembly

in Khartoum, Sudan in January 2006,

the Assembly instructed the African
Commission to submit its reports to

the Executive Council and or to the

Assembly.

85 Assembly/AU/Dec 49 (III). The

decision to suspend the publication

of the Seventeenth Annual Activity

Report
at the 4th Summit of the Assembly in

Addis Ababa, Ethiopia was made after

Zimbabwe protested that the report
did not incorporate its response to

the findings of the Commission on a

fact-finding mission which was part

of
the Annual Activity Report’s

annexes. This is despite the fact

that the African Commission had

solicited time and
again the said response to no avail

before its inclusion in the Annual

Activity Report.

86 The AU Assembly at its 6th Summit

in Khartoum, Sudan in January 2006,

decided ‘to adopt and authorize, in
accordance with article 59 of the

African Charter on Human and

Peoples’ Rights (the Charter), the

publication
of the Nineteenth Activity Report of

the African Commission on Human and

Peoples’ Rights (ACHPR) and its
annexes, except for those containing

the Resolutions on Eritrea,

Ethiopia, the Sudan, Uganda and

Zimbabwe.’

87 On the status of the African

Commission in the AU, the AU

Assembly, at its 1st (Durban)

Summit, incorporated
the Commission into the AU structure

under article 5(2) of the AU Act.

See AU ‘Decision on interim period’

1st
ordinary session of the AU Assembly

of Heads of State and Government AU

DOC ASS/AU/Dec 1(1) para 2(XI).

88 These Rules of Procedure are made

pursuant to article 8 of the

Constitutive Act.

89 G. M. Wachira ‘A Critical

Examination of the African Charter

on Human and Peoples’ Rights:

Towards
Strengthening the African Human

Rights System to enable it

effectively to meet the needs of the

African
Population’ Judiciary Watch Report,

(2006) at 84.

90 The African Charter on Human and

Peoples’ Rights, article 45(1)(c)

requires the African Commission to

‘cooperate with other African and

international institutions concerned

with the promotion and protection of

human
and peoples’ rights’, also

emphasises a relationship of co-

operation and collaboration with all

the relevant organs
of the OAU (now AU).

91 This provides that one of the

objectives of the AU is to promote

and protect human and peoples’

rights in
accordance with the African Charter.

92 K. Quashigah ‘The African Charter

on Human and Peoples’ Rights:

Towards a more Effective Reporting
Mechanism’ 2 African Human Rights

Law Journal, (2002), 284 notes that

the African Commission is designed

to
operate within the structure of the

OAU and collaborate with the

Assembly of Heads of State and

Government
in the execution of its function to

promote and protect human rights in

Africa.

93 It is undisputed that under the

African Charter, the African

Commission has no enforcement powers

and that
its decision is not ‘formally’

binding irrespective of its stated

opinion or follow-up measures. These

are all
still subject to the political will

of states. However, it is submitted

that the binding nature or otherwise

of the
decisions of an international body

is not sufficient to ensure

compliance unless the appropriate

mechanisms
are in place to ensure compliance.

For instance, without an efficient

enforcement mechanism, which is

being
proposed, the prospective binding

decisions of the proposed Court can

also be flouted.

94 The African political community

has recently reiterated and made

fresh commitments to human rights in

Africa
under the auspices of the AU as the

AU Constitutive Act makes firm

commitments to human rights

integrating
‘political, economic, and human

rights priorities’.

95 Constitutive Act, article 9(1)

(b).

96 Ibid, article 9(1)(e).

97 Ibid, Preambular para 10.

98 C. Heyns, supra, note 75, at 701.

99 See Assembly/AU/Dec 49 (III). The

AU Assembly suspended the

publication of the African

Commission’s
Seventeenth Annual Activity Report,

at its 4th Summit in Addis Ababa,

Ethiopia. The report was suspended
at the behest of Zimbabwe, since it

incorporated a report on a fact-

finding mission to that country.

See, also
Assembly/AU/ Dec 101(VI) para 1. The

AU Assembly sought the deletion of

certain aspects of the Nineteenth
Activity Report before publication,

at the Assembly’s 6th Summit in

Khartoum, Sudan.

100 Human rights might,

inadvertently, not have been

intended to be covered by the

provision. However, the
implementation of these provisions

can be broadened to cover the

enforcement of human rights, the

promotion
and protection of which are two of

the main objectives of the AU.

101 According to Ben Kioko, the

Legal Counsel of the African Union,

in a discussion held on 10 May 2006

in Banjul,
Gambia, during a brainstorming on

the African Commission and AU

organs. He said that a decision was

still
pending on which decisions would

fall under which category as per

rule 33. It is hereby submitted that

the
African Commission should motivate

and make a case for its

recommendations on communications

being
categorised as directives.

102 See, Denmark v. Greece,

application no. 3321/67, Norway v

Greece, application no. 3322/67,

Sweden v Greece,
application no. 3323/67 and

Netherlands v Greece, 3344/67 found

in (1969) 12 Yearbook of the

European
Convention on Human Rights. See also

N. J. Udombana, ‘Can the Leopard

Change its Spots? The African Union
Treaty and Human Rights’ 17 American

University International Law Review,

(2002), 1205.

103 R. Cornwell ‘Madagascar: First

Test for the African Union’, 12

African Security Review, (2003), 1.

104 After the death of President

Gnassingbe Eyadema of Togo in

February 2005, his son was quickly

unconstitutionally
installed as the president, a move

widely condemned by the AU and the

international community, which

imposed
sanctions on Togo;

http://www.un.org/av/radio/unandafri

ca/ transcript36.htm (accessed 6

July 2016)

105 Protocol Relating to the

Establishment of the Peace and

Security Council of the African

Union.

106 Ibid. Articles 3, 6 & 7.

107 Ibid, Article 7.

108 Ibid, Article 12.

109 Organisation Mondiale Contre la

Torture & Others v. Rwanda (2000)

AHRLR 282 (ACHPR 1996) which

preceded
the Rwandan Genocide of 1994.

110 See the European Convention

article 46; the American Convention

on Human Rights article 68; Protocol

to
the African Charter on Human and

Peoples’ Rights on the Establishment

of an African Court on Human and
Peoples’ Rights, article 30.

111 It is noted that the African

Commission’s practice of issuing of

recommendations pursuant to

communications is
a practice of the Commission that

has taken several years to develop,

as its earlier decisions were

characterised
by findings of admissibility of

violations or not, without anything

more. See generally Institute for

Human
Rights and Development Compilation

of decisions on communications of

the African Commission on Human
and Peoples’ Rights: 1994-2001

(2002) at 3-7.

112 Adopted by the Assembly of Heads

of State and Government of the OAU

in Ouagadougou, Burkina Faso, on 9
June 1998 OAU/LEG/MIN/AFCHPR/PROT

(111), and came into force on 25

January 2004. However, the 3rd
ordinary session of the Assembly of

Heads of State and Government of the

AU decided to integrate it with the
Court of Justice of the AU (Protocol

of the Court of Justice adopted by

the 2nd ordinary session of the

Assembly
of the AU in Maputo, 11 July 2003)

Assembly/AU/ Dec 45 (111).

113 Protocol to the African Charter,

article 30, F. Viljoen, supra, note

64, at 14.

114 Protocol to the African Charter,

on Human and Peoples’ rights on the

Establishment of an African Court on
Human and Peoples’ Rights, article

30.

115 Thus far, only the Republic of

Burkina Faso has made the

declaration.

116 Like in the Inter-American human

rights system; see American

Convention on Human Rights 1969,

article 51.
See also Inter-American Commission’s

Rules of Procedure (2003), article

44.

117 Rules of Procedure of the

African Commission on Human and

Peoples’ Rights, 2010.

118 Rules of Procedure of the

African Commission on Human and

Peoples’ Rights, 2010, Rule 112,

provides
procedures on how to enforce

Commission’s recommendations,

however, this practice has not been

achieved.

119 Protocol to the African Charter,

article 29(2).

120 C. Heyns, supra, note 75, at

168. See also the European

Convention for the Protection of

Human Rights and
Fundamental Freedoms, article 46.
121 Protocol to the African Charter,

article 31.

122 That is, in respect of the

African Commission.

123 Constitutive Act.

124 Protocol on the Court of Justice

of the African Union, 2nd ordinary

session of the AU, Maputo,

Mozambique,
July 2003.

125 Protocol on the Statute of the

African Court of Justice and Human

Rights, EX CL/ 253 (IX), Annex II

Rev
submitted to the 9th ordinary

session Executive Council of the AU,

25-29 June 2006, Banjul, The Gambia

(on file
with authors). See article 1.

126 Ibid, article 1.

127 Ibid, article 2.

128 Ibid, articles 5 & 16.

129 Ibid, article 7.

130 Ibid, articles 47(1) & (2).

131 Ibid, article 44 (6).

132 Ibid, article 47(4) & (5).