COMPENDIUM OF

KEY HUMAN RIGHTS

DOCUMENTS OF
THE AFRICAN
UNION
Seventh Edition
Editors: Christof Heyns and Magnus Killander

2022
Compendium of Key Human Rights Documents
of the African Union (Seventh Edition)

Published by:
Pretoria University Law Press (PULP)
The Pretoria University Law Press (PULP) is a publisher, based in Africa,
launched and managed by the Centre for Human Rights and the Faculty of
Law, University of Pretoria, South Africa. PULP endeavours to publish and
make available innovative, high-quality scholarly texts on law in Africa that
have been peer-reviewed. PULP also publishes a series of collections of legal
documents related to public law in Africa, as well as text books from African
countries other than South Africa.

For more information on PULP, see: www.pulp.up.ac.za

To order, contact:
Centre for Human Rights
Faculty of Law
University of Pretoria
South Africa
0002
pulp@up.ac.za
www.chr.up.ac.za/pulp

Printed and bound by:

Pinetown Printers, Durban, South Africa

Cover design:
Lizette Hermann, the Centre for Human Rights

Copyright permission:
Reproductions from the African Human Rights Law Reports (2000-2004) with
permission from JUTA, ISSN 1812-2418 and from Human Rights Law in Africa
(2004) Christof Heyns and Morné van der Linde (eds), ISBN 90 04 13881 1, with
permission from Martinus Nijhoff Publishers.

ISBN: 978-1-7764116-1-0
 Table of Contents
INTRODUCTION vii

INSTRUMENTS OF THE AFRICAN UNION

Charter of the Organization of African Unity (1963/1963) 2
Treaty Establishing the African Economic Community (1991/1994) 4
Constitutive Act of the African Union (2000/2001) 4
Protocol on Amendments to the Constitutive Act (2003/) 12
Protocol on the Pan African Parliament (2001/2003) 14
Protocol on the Peace and Security Council (2002/2003) 17
Statutes of the Economic, Social and Cultural Council (2004) 26
African Charter on Human and Peoples’ Rights (1981/1986) 29
Protocol on the African Human Rights Court (1998/2004) 41
Protocol on the Statute of the African Court of Justice and 47
Human Rights (2008/)
Protocol on Amendments to the Protocol on the Statute of the 62
African Court of Justice and Human Rights (2014/)
Protocol on the Rights of Women (2003/2005) 65
Protocol to the African Charter on Human and Peoples’ Rights 75
on the Rights of Older Persons in Africa (2016)
Protocol to the African Charter on Human and Peoples’ Rights 83
on the Rights of Persons with Disabilities in Africa (2018)
Protocol to the African Charter on Human and Peoples’ Rights 100
on the Rights of Citizens to Social Protection and Social
Security (2022)
OAU Refugee Convention (1969/1974) 114
African Children’s Charter (1990/1999) 119
Convention on the Prevention and Combating of Terrorism 132
(1999/2002)
Protocol on the Prevention and Combating of Terrorism (2004/) 134
African Convention on the Conservation of Nature (Revised) 137
(2003/)
Convention on Preventing and Combating Corruption 139
(2003/2006)
Non-Aggression and Common Defence Pact (2005/2009) 150
African Youth Charter (2006/2009) 151
African Charter on Democracy, Elections and Governance 164
(2007/2012)
AU Convention for the Protection and Assistance of Internally 176
Displaced Persons (2009/2012)
Grand Bay (Mauritius) Declaration (1999) 187
Kigali Declaration (2003) 192
Solemn Declaration on Gender Equality in Africa (2004) 196
Guidelines for Electoral Observation Missions (2004) 198
Banjul Declaration (2006) 201
Declaration by the Assembly on the theme of year 2016 203

iii
AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS
Rules of Procedure of the African Commission (2020) 206
Guidelines for National Periodic Reports (1998) 241
Guidelines for state reporting on Women’s Protocol (2010) 242
Concluding Observations and Recommendations on the 245
Initial Periodic Report of the Republic of Botswana (2009)
List of reprinted decisions by article of the African Charter 208

Selected decisions of the African Commission

Achuthan and Another v Malawi (2000) AHRLR 144 (ACHPR 1995) 253
African Institute for Human Rights and Development v Guinea 254
(2004) AHRLR 57 (ACHPR 2004)
Amnesty International v Sudan (2000) AHRLR 297 256
(ACHPR 1999)
Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007) 258
Avocats Sans Frontières v Burundi (2000) AHRLR 48 261
(ACHPR 2000)
Bissangou v Republic of Congo (2006) AHRLR 80 (ACHPR 2006) 262
Centre for Minority Rights Development (Kenya) and Minority 265
Rights Group International on behalf of Endorois Welfare
Council v Kenya (2009) AHRLR 75 (ACHPR 2009)
Civil Liberties Organisation v Nigeria (2000) AHRLR 186 279
(ACHPR 1995)
Commission Nationale des Droits de l’Homme et des Libertés 280
v Chad (2000) AHRLR 66 (ACHPR 1995)
Constitutional Rights Project and Another v Nigeria (2000) 282
AHRLR 191 (ACHPR 1998)
Constitutional Rights Project and Another v Nigeria (2000) 283
AHRLR 235 (ACHPR 1999)
Constitutional Rights Project and Others v Nigeria (2000) 285
AHRLR 180 (ACHPR 1995)
Constitutional Rights Project and Others v Nigeria (2000) 286
AHRLR 227 (ACHPR 1999)
Democratic Republic of the Congo v Burundi, Rwanda and 287
Uganda (2004) AHRLR 19 (ACHPR 2003)
Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003) 293
Egyptian Initiative for Personal rights and Interights v Egypt 295
(2011) AHRLR 90 (ACHPR 2011)
Forum of Conscience v Sierra Leone (2000) AHRLR 293 297
(ACHPR 2000)
Gunme and Others v Cameroon (2009) AHRLR 9 (ACHPR 2009) 298
Human Rights Council and Others v Ethiopia 304
[Communication 445/13 (2015)]
Huri-Laws v Nigeria (2000) AHRLR 273 (ACHPR 2000) 305
Institute for Human Rights and Development in Africa v Angola 308
(2008) AHRLR 43 (ACHPR 2008)
Interights & Ditshwanelo v Botswana 312
[Communication 319/06 (2015)]
Interights and Others v Mauritania (2004) AHRLR 87 (ACHPR 2004) 313
International Pen and Others v Nigeria (2000) AHRLR 212 314
(ACHPR 1998)

iv
 Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) 317
Katangese Peoples’ Congress v Zaire (2000) AHRLR 72 324
(ACHPR 1995)
Law Office of Ghazi Suleiman v Sudan (I) (2003) AHRLR 134 324
(ACHPR 2003)
Law Office of Ghazi Suleiman v Sudan (II) (2003) AHRLR 144 326
(ACHPR 2003)
Lawyers for Human Rights v Swaziland (2005) AHRLR 66 329
(ACHPR 2005)
Legal Resources Foundation v Zambia (2001) AHRLR 84 333
(ACHPR 2001)
Ligue Camerounaise des Droits de l’Homme v Cameroon 335
(2000) AHRLR 61 (ACHPR 1997)
Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008) 336
Malawi African Association and Others v Mauritania (2000) 337
AHRLR 149 (ACHPR 2000)
Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 340
(ACHPR 1998)
The Nubian Community in Kenya v Kenya 347
[Communication 317/06 (2015)]
Ouko v Kenya (2000) AHRLR 135 (ACHPR 2000) 348
Pagnoulle v Cameroon (2000) AHRLR 57 (ACHPR 1997) 349
Prince v South Africa (2004) AHRLR 105 (ACHPR 2004) 350
Purohit and Others v The Gambia (2003) AHRLR 96 (ACHPR 2003) 353
Shumba v Zimbabwe communication 288/2004 360
Social and Economic Rights Action Centre (SERAC) and 362
Another v Nigeria (2001) AHRLR 60 (ACHPR 2001)
Sudan Human Rights Organisation and Another v Sudan (2009) 372
AHRLR 153 (ACHPR 2009)
Tembani and Freeth v Angola and Thirteen Others 375
[Communication 409/12 (2013)]
Zegveld and Another v Eritrea (2003) AHRLR 84 (ACHPR 2003) 376
Zimbabwe Human Rights NGO Forum v Zimbabwe (2005) 377
AHRLR 128 (ACHPR 2005)
Zimbabwe Lawyers for Human Rights and Another (on behalf of 382
Medrum) v Zimbabwe (2009) AHRLR 268 (ACHPR 2009)

Resolutions, guidelines and general comments of the African Commission

Observer Status for National Human Rights Institutions (1998) 385
Criteria for Observer Status for NGOs (1999) 386
Principles on Freedom of Expression (2002) 388
Robben Island Guidelines on Torture (2002) 401
Principles and Guidelines on the Right to a Fair Trial (2003) 406
Access to Health and Needed Medicines in Africa (2008) 430
Resolution on protection against violence and other human rights 431
violations against persons on the basis of their real or
imputed sexual orientation or gender identity (2015)
General Comment No. 3 on the African Charter on Human 432
and Peoples’ Rights: The Right to Life (Article 4)

v
AFRICAN COMMITTEE ON THE RIGHTS AND
WELFARE OF THE CHILD
Recommendations and observations sent to the government of 442
the Republic of Uganda on the Initial Implementation Report
of the African Charter of the Rights and
Welfare of the Child (2010)

Selected decisions of the African Committee

IHRDA and OSJI v Kenya (2011) AHRLR 181 (ACERWC 2011) 448
The Centre for Human Rights (University of Pretoria) and 455
Another v Senegal [Communication 1/2012 (2014)]

AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

Rules of Court (2020) 458

Selected decisions of the African Court

Konaté v Burkina Faso, order of provisional measures 483
[Application 004/2013 (2013)]
Konaté v Burkina Faso, judgment on merits 483
[Application 004/2013 (2014)]
Mtikila v Tanzania applications 9/2011 & 11/2011 (2013) 484
Zongo v Burkina Faso, judgment on reparations 488
[Application 013/2011 (2015)]

CHART OF RATIFICATIONS: AU HUMAN RIGHTS TREATIES 489

USEFUL WEBSITES 491

SELECTED BIBLIOGRAPHY 492

vi
 Introduction
This is the seventh edition of the Compendium of key human rights documents
of the African Union updated to June 2022. It is the first edition published
since the untimely passing of Prof Christof Heyns who approached me many
years ago with the idea for this Compendium. The Compendium was first
published in 2005 and thereafter regularly updated.
This compendium contains documents on human rights adopted under the
auspices of the African Union (AU) and its predecessor, the Organization of
African Unity (OAU), including documents adopted by the African Commission
on Human and Peoples’ Rights, the African Court on Human and Peoples’
Rights and the African Committee on the Rights and Welfare of the Child.
Since the sixth edition of this Compendium was published in 2016 there has
been several normative developments but due to space reasons only a small
number of the key new documents have been included in this edition.
Due to space constraints only extracts are reprinted of many of the
documents. This compendium is by no means comprehensive but includes
some key documents of relevance for students of the African human rights
system and others interested in its functioning. Extracts from documents
related to the New Partnership for Africa’s Development (NEPAD) and the
African Peer Review Mechanism (APRM) reprinted in previous editions of this
compendium have been left out of this edition.
For comprehensive coverage of human rights law in Africa, see
www.chr.up.ac.za and the web sites listed at the end of this compendium.
The assistance of Frans Viljoen, Trésor Makunya, Clement Agyemang,
Omotunde Enigbokan and Lizette Hermann in preparing this edition of the
compendium and the financial support of the Norwegian government for its
printing is gratefully acknowledged.

June 2022

Magnus Killander
Editor
Professor of human rights law
Centre for Human Rights,
Faculty of Law,
University of Pretoria,
Pretoria

vii
INSTRUMENTS OF
THE AFRICAN
UNION
2 Instruments of the AU

Charter of the Organization of African Unity

(1963/1963)

Adopted in Addis Ababa, Ethiopia, on 25 May 1963 and entered into force on 13
September 1963. Replaced in 2001 by the Constitutive Act of the African Union (see
below), when the OAU was succeeded by the AU. The full text is available at
www.au.int

Excerpts

We, the Heads of African States and Governments assembled in the city of
Addis Ababa, Ethiopia,

Convinced that it is the inalienable right of all people to control their own
destiny;
Conscious of the fact that freedom, equality, justice and dignity are essential
objectives for the achievement of the legitimate aspirations of the African
peoples;
Conscious of our responsibility to harness the natural and human resources of
our continent for the total advancement of our peoples in all spheres of
human endeavour;
Inspired by a common determination to promote understanding among our
peoples and co-operation among our states in response to the aspirations of
our peoples for brotherhood and solidarity, in a larger unity transcending
ethnic and national differences;
Convinced that, in order to translate this determination into a dynamic force
in the cause of human progress, conditions for peace and security must be
established and maintained;
Determined to safeguard and consolidate the hard-won independence as well
as the sovereignty and territorial integrity of our states, and to fight against
neo-colonialism in all its forms;
Dedicated to the general progress of Africa;
Persuaded that the Charter of the United Nations and the Universal
Declaration of Human Rights, to the principles of which we reaffirm our
adherence, provide a solid foundation for peaceful and positive co-operation
among states;
Desirous that all African states should henceforth unite so that the welfare
and well–being of their peoples can be assured;
Resolved to reinforce the links between our states by establishing and
strengthening common institutions;

HAVE AGREED to the present Charter.

Establishment

Article 1
1. The High Contracting parties do by the present Charter establish an
Organization to be known as the Organization of African Unity.
2. The Organization shall include the continental African states,
Madagascar and other islands surrounding Africa.
 Charter of the OAU 3

Purposes

Article 2
1. The Organization shall have the following purposes:
(a) To promote the unity and solidarity of the African states;
(b) To co-ordinate and intensify their co-operation and efforts to achieve a
better life for the peoples of Africa;
(c) To defend their sovereignty, their territorial integrity and
independence;
(d) To eradicate all forms of colonialism from the continent of Africa; and
(e) To promote international co-operation, having due regard to the
Charter of the United Nations and the Universal Declaration of Human Rights.
2. To these ends, the member states shall co-ordinate and harmonise their
general policies, especially in the following fields:
(a) Political and diplomatic co-operation;
(b) Economic co-operation, including transport and communications;
(c) Educational and cultural co-operation;
(d) Health, sanitation and nutritional co-operation;
(e) Scientific and technical co-operation; and
(f) Co-operation for defence and security.

Principles

Article 3
The member states, in pursuit of the purposes stated in article 2, solemnly
affirm and declare their adherence to the following principles:
1. The sovereign equality of all member states;
2. Non-interference in the internal affairs of states;
3. Respect for the sovereignty and territorial integrity of each state and
for its inalienable right to independent existence;
4. Peaceful settlement of disputes by negotiation, mediation, conciliation
or arbitration;
5. Unreserved condemnation, in all its forms, of political assassination as
well as of subversive activities on the part of neighbouring states or any other
states;
6. Absolute dedication to the total emancipation of the African territories
which are still dependent;
7. Affirmation of a policy of non-alignment with regard to all blocs.
...
4 Instruments of the AU

Treaty Establishing the African Economic

Community (1991/1994)

While the Organization of African Unity was a political body, the African Economic
Community (AEC) was set up to pursue the economic integration of Africa. The
Treaty Establishing the AEC was adopted in Abuja, Nigeria, in 1991 and entered
into force in 1994, with the AEC forming an integral part of the OAU. A Pan-African
Parliament is provided for under the AEC Treaty. When the AU replaced the OAU,
the AU Constitutive Act left intact the AEC Treaty in so far as it does not contradict
it (article 33(2) of the AU Constitutive Act).
Although the AEC is for practical purposes now dormant, the founding treaty
remains relevant in that some of the AU organs, such as the Pan-African
Parliament, were created with reference to the AEC Treaty. For the text of the
AEC Treaty, see www.au.int

_____________________________________

Constitutive Act of the African Union (2000/2001)

Adopted in Lomé, Togo, on 11 July 2000 and entered into force on 26 May 2001.
The Assembly of the AU held its inaugural meeting in Durban, South Africa in July
2002.

We, Heads of State and Government of the member states of the Organization
of African Unity (OAU),
...
Inspired by the noble ideals which guided the founding fathers of our
continental Organization and generations of Pan-Africanists in their
determination to promote unity, solidarity, cohesion and co-operation among
the peoples of Africa and African states;
Considering the principles and objectives stated in the Charter of the
Organization of African Unity and the Treaty establishing the African
Economic Community;
Recalling the heroic struggles waged by our peoples and our countries for
political independence, human dignity and economic emancipation;
Considering that since its inception, the Organization of African Unity has
played a determining and invaluable role in the liberation of the continent,
the affirmation of a common identity and the process of attainment of the
unity of our continent and has provided a unique framework for our collective
action in Africa and in our relations with the rest of the world;
Determined to take up the multifaceted challenges that confront our
continent and peoples in the light of the social, economic and political
changes taking place in the world;
Convinced of the need to accelerate the process of implementing the Treaty
establishing the African Economic Community in order to promote the socio-
economic development of Africa and to face more effectively the challenges
posed by globalisation;
Guided by our common vision of a united and strong Africa and by the need
to build a partnership between governments and all segments of civil society,
 Constitutive Act of the AU 5

in particular women, youth and the private sector, in order to strengthen

solidarity and cohesion among our peoples;
Conscious of the fact that the scourge of conflicts in Africa constitutes a
major impediment to the socio-economic development of the continent and
of the need to promote peace, security and stability as a prerequisite for the
implementation of our development and integration agenda;
Determined to promote and protect human and peoples’ rights, consolidate
democratic institutions and culture, and to ensure good governance and the
rule of law;
Further determined to take all necessary measures to strengthen our common
institutions and provide them with the necessary powers and resources to
enable them to discharge their respective mandates effectively;
Recalling the Declaration which we adopted at the fourth extraordinary
session of our Assembly in Sirté, the Great Socialist Peoples’ Libyan Arab
Jamahiriya, on 9 September 1999, in which we decided to establish and
African Union, in conformity with the ultimate objectives of the Charter of
our continental Organization and the Treaty establishing the African
Economic Community;

HAVE AGREED as follows:

Article 1: Definitions
In this Constitutive Act:
‘Act’ means the present Constitutive Act;
‘AEC’ means the African Economic Community;
‘Assembly’ means the Assembly of Heads of State and Government of the
Union;
‘Charter’ means the Charter of the OAU;
‘Commission’ means the Secretariat of the Union;
‘Committee’ means a Specialised Technical Committee of the Union;
‘Council’ means the Economic, Social and Cultural Council of the Union;
‘Court’ means the Court of Justice of the Union;
‘Executive Council’ means the Executive Council of Ministers of the Union;
‘Member state’ means a member state of the Union;
‘OAU’ means the Organization of African Unity;
‘Parliament’ means the Pan-African Parliament of the Union;
‘Union’ means the African Union established by the present Constitutive Act.

Article 2: Establishment
The African Union is hereby established in accordance with the provisions of
this Act.

Article 3: Objectives
The objectives of the Union shall be to:
(a) achieve greater unity and solidarity between the African countries and
the peoples of Africa;
(b) defend the sovereignty, territorial integrity and independence of its
member states;
(c) accelerate the political and socio-economic integration of the
continent;
(d) promote and defend African common positions on issues of interest to
the continent and its peoples;
(e) encourage international co-operation, taking due account of the
Charter of the United Nations and the Universal Declaration of Human Rights;
(f) promote peace, security, and stability on the continent;
6 Instruments of the AU

(g) promote democratic principles and institutions, popular participation

and good governance;
(h) promote and protect human and peoples’ rights in accordance with the
African Charter on Human and Peoples’ Rights and other relevant human
rights instruments;
(i) establish the necessary conditions which enable the continent to play its
rightful role in the global economy and in international negotiations;
(j) promote sustainable development at the economic, social and cultural
levels as well as the integration of African economies;
(k) promote co-operation in all fields of human activity to raise the living
standards of African peoples;
(l) co-ordinate and harmonise the policies between the existing and future
Regional Economic Communities for the gradual attainment of the objectives
of the Union;
(m) advance the development of the continent by promoting research in all
fields, in particular in science and technology;
(n) work with relevant international partners in the eradication of
preventable diseases and the promotion of good health on the continent.

Article 4: Principles
The Union shall function in accordance with the following principles:
(a) sovereign equality and interdependence among member states of the
Union;
(b) respect of borders existing on achievement of independence;
(c) participation of the African peoples in the activities of the Union;
(d) establishment of a common defence policy for the African continent;
(e) peaceful resolution of conflicts among member states of the Union
through such appropriate means as may be decided upon by the Assembly;
(f) prohibition of the use of force or threat to use force among member
states of the Union;
(g) non-interference by any member state in the internal affairs of another;
(h) the right of the Union to intervene in a member state pursuant to a
decision of the Assembly in respect of grave circumstances, namely: war
crimes, genocide and crimes against humanity;
(i) peaceful co-existence of member states and their right to live in peace
and security;
(j) the right of member states to request intervention from the Union in
order to restore peace and security;
(k) promotion of self-reliance within the framework of the Union;
(l) promotion of gender equality;
(m) respect for democratic principles, human rights, the rule of law and
good governance;
(n) promotion of social justice to ensure balanced economic development;
(o) respect for the sanctity of human life, condemnation and rejection of
impunity and political assassination, acts of terrorism and subversive
activities;
(p) condemnation and rejection of unconstitutional changes of
governments.

Article 5: Organs of the Union

1. The organs of the Union shall be:
(a) The Assembly of the Union;
(b) The Executive Council;
(c) The Pan-African Parliament;
(d) The Court of Justice;
(e) The Commission;
 Constitutive Act of the AU 7

(f) The Permanent Representatives Committee;

(g) The Specialised Technical Committees;
(h) The Economic, Social and Cultural Council;
(i) The Financial Institutions.
2. Other organs that the Assembly may decide to establish.

Article 6: The Assembly

1. The Assembly shall be composed of Heads of State and Government or
their duly accredited representatives.
2. The Assembly shall be the supreme organ of the Union.
3. The Assembly shall meet at least once a year in ordinary session. At the
request of any member state and on approval by a two-thirds majority of the
member states, the Assembly shall meet in extraordinary session.
4. The Office of the Chairman of the Assembly shall be held for a period of
one year by a Head of State and Government elected after consultations
among the member states.

Article 7: Decisions of the Assembly

1. The Assembly shall take its decisions by consensus or, failing which, by
a two-thirds majority of the member states of the Union. However,
procedural matters, including the question of whether a matter is one of
procedure or not, shall be decided by a simple majority.
2. Two-thirds of the total membership of the Union shall form a quorum at
any meeting of the Assembly.

Article 8: Rules of Procedure of the Assembly

The Assembly shall adopt its own Rules of Procedure.

Article 9: Powers and functions of the Assembly

1. The functions of the Assembly shall be to:
(a) determine the common policies of the Union;
(b) receive, consider and take decisions on reports and recommendations
from the other organs of the Union;
(c) consider requests for membership of the Union;
(d) establish any organ of the Union;
(e) monitor the implementation of policies and decisions of the Union as
well as ensure compliance by all member states;
(f) adopt the budget of the Union;
(g) give directives to the Executive Council on the management of conflicts,
war and other emergency situations and the restoration of peace;
(h) appoint and terminate the appointment of the judges of the Court of
Justice;
(i) appoint the Chairman of the Commission and his or her deputy or
deputies and commissioners of the Commission and determine their functions
and terms of office.
2. The Assembly may delegate any of its powers and functions to any organ
of the Union.

Article 10: The Executive Council

1.The Executive Council shall be composed of the Ministers of Foreign Affairs
or such other Ministers or Authorities as are designated by the governments
of member states.
2. The Executive Council shall meet at least twice a year in ordinary
session. It shall also meet in an extra-ordinary session at the request of any
member state and upon approval by two-thirds of all member states.
8 Instruments of the AU

Article 11: Decisions of the Executive Council

1. The Executive Council shall take its decisions by consensus or, failing
which, by a two-thirds majority of the member states. However, procedural
matters, including the question of whether a matter is one of procedure or
not, shall be decided by a simple majority.
2. Two-thirds of the total membership of the Union shall form a quorum at
any meeting of the Executive Council.

Article 12: Rules of Procedure of the Executive Council

The Executive Council shall adopt its own Rules of Procedure.

Article 13: Functions of the Executive Council

1. The Executive Council shall co-ordinate and take decisions on policies in
areas of common interest to the member states, including the following:
(a) foreign trade;
(b) energy, industry and mineral resources;
(c) food, agricultural and animal resources, livestock production and
forestry;
(d) water resources and irrigation;
(e) environmental protection, humanitarian action and disaster response
and relief;
(f) transport and communications;
(g) insurance;
(h) education, culture, health and human resources development;
(i) science and technology;
(j) nationality, residency and immigration matters;
(k) social security, including the formulation of mother and child care
policies, as well as policies relating to the disabled and the handicapped;
(l) establishment of a system of African awards, medals and prizes.
2. The Executive Council shall be responsible to the Assembly. It shall
consider issues referred to it and monitor the implementation of policies
formulated by the Assembly.
3. The Executive Council may delegate any of its powers and functions
mentioned in paragraph 1 of this article to the Specialised Technical
Committees established under article 14 of this Act.

Article 14: The Specialised Technical Committees - establishment and

composition
1. There is hereby established the following Specialised Technical Commit-
tees, which shall be responsible to the Executive Council:
(a) The Committee on Rural Economy and Agricultural Matters;
(b) The Committee on Monetary and Financial Affairs;
(c) The Committee on Trade, Customs and Immigration Matters;
(d) The Committee on Industry, Science and Technology, Energy, Natural
Resources and Environment;
(e) The Committee on Transport, Communications and Tourism;
(f) The Committee on Health, Labour and Social Affairs; and
(g) The Committee on Education, Culture and Human Resources.
2. The Assembly shall, whenever it deems appropriate, restructure the
existing Committees or establish other Committees.
3. The Specialised Technical Committees shall be composed of Ministers or
senior officials responsible for sectors falling within their respective areas of
competence.

Article 15: Functions of the Specialised Technical Committees

Each Committee shall within its field of competence:
 Constitutive Act of the AU 9

(a) prepare projects and programmes of the Union and submit it to the
Executive Council;
(b) ensure the supervision, follow-up and the evaluation of the implemen-
tation of decisions taken by the organs of the Union;
(c) ensure the co-ordination and harmonisation of projects and programmes
of the Union;
(d) submit to the Executive Council either on its own initiative or at the
request of the Executive Council, reports and recommendations on the imple-
mentation of the provisions of this Act; and
(e) carry out any other functions assigned to it for the purpose of ensuring
the implementation of the provisions of this Act.

Article 16: Meetings

Subject to any directives given by the Executive Council, each Committee
shall meet as often as necessary and shall prepare its Rules of Procedure and
submit them to the Executive Council for approval.

Article 17: The Pan-African Parliament

1. In order to ensure the full participation of African peoples in the
development and economic integration of the continent, a Pan-African
Parliament shall be established.
2. The composition, powers, functions and organisation of the Pan-African
Parliament shall be defined in a protocol relating thereto.

Article 18: The Court of Justice

1. A Court of Justice of the Union shall be established.
2. The statute composition and functions of the Court of Justice shall be
defined in a protocol relating thereto.

Article 19: The financial institutions

The Union shall have the following financial institutions whose rules and
regulations shall be defined in protocols relating thereto:
(a) The African Central Bank;
(b) The African Monetary Fund;
(c) The African Investment Bank.

Article 20: The Commission

1. There shall be established a Commission of the Union, which shall be the
Secretariat of the Union.
2. The Commission shall be composed of the Chairman, his or her deputy
or deputies and the commissioners. They shall be assisted by the necessary
staff for the smooth functioning of the Commission.
3. The structure, functions and regulations of the Commission shall be
determined by the Assembly.

Article 21: The Permanent Representatives Committee

1. There shall be established a Permanent Representatives Committee. It
shall be composed of Permanent Representatives to the Union and other
plenipotentiaries of member states.
2. The Permanent Representatives Committee shall be charged with the
responsibility of preparing the work of the Executive Council and acting on the
Executive Council’s instructions. It may set up such sub-committees or
working groups as it may deem necessary.
10 Instruments of the AU

Article 22: The Economic, Social and Cultural Council

1. The Economic, Social and Cultural Council shall be an advisory organ
composed of different social and professional groups of the member states of
the Union.
2. The functions, powers, composition and organisation of the Economic,
Social and Cultural Council shall be determined by the Assembly.

Article 23: Imposition of sanctions

1. The Assembly shall determine the appropriate sanctions to be imposed
on any member state that defaults in the payment of its contributions to the
budget of the Union in the following manner: denial of the right to speak at
meetings, to vote, to present candidates for any position or post within the
Union or to benefit from any activity or commitments, therefrom.
2. Furthermore, any member state that fails to comply with the decisions
and policies of the Union may be subjected to other sanctions, such as the
denial of transport and communications links with other member states, and
other measures of a political and economic nature to be determined by the
Assembly.

Article 24: The headquarters of the Union

1. The headquarters of the Union shall be in Addis Ababa in the Federal
Democratic Republic of Ethiopia.
2. There may be established such other offices of the Union as the
Assembly may, on the recommendation of the Executive Council, determine.

Article 25: Working languages

The working languages of the Union and all its institutions shall be, if possible,
African languages, Arabic, English, French and Portuguese.

Article 26: Interpretation

The Court shall be seized with matters of interpretation arising from the
application or implementation of this Act. Pending its establishment, such
matters shall be submitted to the Assembly of the Union which shall decide
by a two-thirds majority.

Article 27: Signature, ratification and accession

1. This Act shall be open to signature, ratification and accession by the
member states of the OAU in accordance with their respective constitutional
procedures.
2. The instruments of ratification shall be deposited with the Secretary-
General of the OAU.
3. Any member state of the OAU acceding to this Act after its entry into
force shall deposit the instrument of accession with the Chairman of the
Commission.

Article 28: Entry into force

This Act shall enter into force thirty (30) days after the deposit of the
instruments of ratification by two-thirds of the member states of the OAU.

Article 29: Admission to membership

1. Any African state may, at any time after the entry into force of this Act,
notify the Chairman of the Commission of its intention to accede to this Act
and to be admitted as a member of the Union.
2. The Chairman of the Commission shall, upon receipt of such
notification, transmit copies thereof to all member states. Admission shall be
 Constitutive Act of the AU 11

decided by a simple majority of the member states. The decision of each

member state shall be transmitted to the Chairman of the Commission who
shall, upon receipt of the required number of votes, communicate the
decision to the state concerned.

Article 30: Suspension

Governments which come to power through unconstitutional means shall not
be allowed to participate in the activities of the Union.

Article 31: Cessation of membership

1. Any state which desires to renounce its membership shall forward a
written notification to the Chairman of the Commission, who shall inform
member states thereof. At the end of one year from the date of such notifi-
cation, if not withdrawn, the Act shall cease to apply with respect to the
renouncing state, which shall thereby cease to belong to the Union.
2. During the period of one year referred to in paragraph 1 of this article,
any member state wishing to withdraw from the Union shall comply with the
provisions of this Act and shall be bound to discharge its obligations under this
Act up to the date of its withdrawal.

Article 32: Amendment and revision

1. Any member state may submit proposals for the amendment or revision
of this Act.
2. Proposals for amendment or revision shall be submitted to the Chairman
of the Commission who shall transmit same to member states within thirty
(30) days of receipt thereof.
3. The Assembly, upon the advice of the Executive Council, shall examine
these proposals within a period of one year following notification of member
states, in accordance with the provisions of paragraph 2 of this article.
4. Amendments or revisions shall be adopted by the Assembly by consensus
or, failing which, by a two-thirds majority and submitted for ratification by
all member states in accordance with their respective constitutional
procedures. They shall enter into force thirty (30) days after the deposit of
the instruments of ratification with the Chairman of the Commission by a two-
thirds majority of the member states.

Article 33: Transitional arrangements and final provisions

1. This Act shall replace the Charter of the Organization of African Unity.
However, the Charter shall remain operative for a transitional period of one
year or such further period as may be determined by the Assembly, following
the entry into force of the Act, for the purpose of enabling the OAU/AEC to
undertake the necessary measures regarding the devolution of its assets and
liabilities to the Union and all matters relating thereto.
2. The provisions of this Act shall take precedence over and supersede any
inconsistent or contrary provisions of the Treaty Establishing the African
Economic Community.
3. Upon the entry into force of this Act, all necessary measures shall be
undertaken to implement its provisions and to ensure the establishment of
the organs provided for under the Act in accordance with any directives or
decisions which may be adopted in this regard by the parties thereto within
the transitional period stipulated above.
4. Pending the establishment of the Commission, the OAU General
Secretariat shall be the interim Secretariat of the Union.
5. This Act, drawn up in four (4) original texts in the Arabic, English,
French and Portuguese languages, all four (4) being equally authentic, shall
be deposited with the Secretary-General of the OAU and, after its entry into
12 Instruments of the AU

force, with the Chairman of the Commission who shall transmit a certified
true copy of the Act to the government of each signatory state. The
Secretary-General of the OAU and the Chairman of the Commission shall
notify all signatory states of the dates of the deposit of the instruments of
ratification or accession and shall upon entry into force of this Act register the
same with the Secretariat of the United Nations.

_____________________________________

Protocol on Amendments to the Constitutive Act of

the African Union (2003/)

Adopted in Maputo, Mozambique on 11 July 2003. As of June 2022, the Protocol had
not entered into force.

The member states of the African Union states parties to the Constitutive Act
of the African Union;

HAVE AGREED to adopt amendments to the Constitutive Act as follows:

Article 1: Definitions
In this Protocol, the following expressions shall have the meanings assigned to
them hereunder unless otherwise specified:
‘Act’ means the Constitutive Act;
‘Assembly’ means the Assembly of Heads of State and Government of the
African Union;
‘Chairperson’ means Chairperson of the Assembly;
‘Court’ means the Court of Justice of the Union and Court of Justice has the
same meaning;
‘Union’ means the African Union;

Article 2: Preamble
In the first paragraph of the Preamble to the Constitutive Act, the
replacement of the words ‘founding fathers’ with ‘founders’.

Article 3: Objectives
In article 3 of the Act (Objectives), the insertion of three new subparagraphs
(i), (p) and (q) with consequential renumbering of subparagraphs:
The objectives of the Union shall be to:
...
(i) ensure the effective participation of women in decision-making,
particularly in the political, economic and socio-cultural areas;
...
(p) develop and promote common policies on trade, defence and foreign
relations to ensure the defence of the continent and the strengthening of its
negotiating positions;
(q) invite and encourage the full participation of the African Diaspora as an
important part of our continent, in the building of the African Union.
 Protocol on Amendments to the Constitutive Act of the AU 13

Article 4: Principles
In article 4 of the Act (Principles), the expansion of subparagraph (h) and the
insertion of two new subparagraphs (q) and (r):
...
(h) the right of the Union to intervene in a member state pursuant to a
decision of the Assembly in respect of grave circumstances, namely: war
crimes, genocide and crimes against humanity as well as a serious threat to
legitimate order to restore peace and stability to the member state of the
Union upon the recommendation of the Peace and Security Council;
...
(q) restraint by any member state from entering into any treaty or alliance
that is incompatible with the principles and objectives of the Union;
(r) prohibition of any member state from allowing the use of its territory as
a base for subversion against another member state.

Article 5: Organs of the Union

In article 5 of the Act (Organs of the Union), the insertion of a new
subparagraph (f) with consequential renumbering of subsequent subpara-
graphs:
...
(f) The Peace and Security Council
...
Article 6: The Assembly
In article 6 of the Act (The Assembly) and where-ever else it occurs in the Act,
the substitution of the word ‘Chairman’ with ‘Chairperson’; the deletion of
the second sentence of subparagraph 3 and the insertion of new paragraphs
4, 5, 6 and 7.
...
3. The Assembly shall meet at least once a year in ordinary session.
4. At the initiative of the Chairperson after due consultation with all
member states, or at the request of any member state and upon approval by
two-thirds majority of member states, the Assembly shall meet in
extraordinary session.
5. The Assembly shall elect its Chairperson from among the Heads of State
or Government at the beginning of each ordinary session and on the basis of
rotation for a period of one year renewable.
6. The Chairperson shall be assisted by a Bureau chosen by the Assembly
on the basis of equitable geographical representation.
7. Where the Assembly meets at the Headquarters, an election of the
Chairperson shall be held taking into account the principle of rotation.

Article 7: Functions of the Chairperson of the Assembly

The insertion in the Act of a new article 7 (bis):
1. The Chairperson shall represent the Union, during his/her tenure with a
view to promoting the objectives and principles of the African Union as
stipulated in articles 3 and 4 of the Act. He/She shall also, with the
collaboration of the Chairperson of the Commission, carry out the functions
of the Assembly set out in article 9(e) and (g) of the Act.
2. The Chairperson may convene the meeting of the other organs through
their Chairpersons or Chief Executives and in accordance with their respective
Rules of Procedure.

Article 8: The Executive Council

In article 10 of the Act (The Executive Council), the insertion of a new
paragraph 3:
...
14 Instruments of the AU

3. The Chairperson of the Executive Council shall be assisted by a Bureau

chosen by the Executive Council on the basis of equitable geographical
representation.

Article 9: Peace and Security Council

The insertion in the Act of a new article 20(bis):
1. There is hereby established, a Peace and Security Council (PSC) of the
Union, which shall be the standing decision-making organ for the prevention,
management and resolution of conflicts.
2. The functions, powers, composition and organisation of the PSC shall be
determined by the Assembly and set out in a protocol relating thereto.

Article 10: The Permanent Representatives Committee

In article 21 of the Act (The Permanent Representatives Committee) the
insertion of a new paragraph 3:
...
3. The Chairperson of the Permanent Representatives Committee shall be
assisted by a Bureau chosen on the basis of equitable geographical
representation.

Article 11: Official languages

In article 25 of the Act (working languages), replace the title ‘working
languages’ by ‘Official Languages’ and substitute the existing provision with:
1. The official languages of the Union and all its institutions shall be
Arabic, English, French, Portuguese, Spanish, Kiswahili and any other African
language.
2. The Executive Council shall determine the process and practical
modalities for the use of official languages as working languages.

Article 12: Cessation of membership

Article 31 of the Act (Cessation of Membership) is deleted.

Article 13: Entry into force

This Protocol shall enter into force thirty days after the deposit of the
instruments of ratification by a two-thirds majority of the member states.

_____________________________________

Protocol to the Treaty Establishing the African

Economic Community relating to the Pan-African
Parliament (2001/2003)

The Pan-African Parliament (PAP) was provided for under the AU Constitutive Act
as well as the Treaty Establishing the AEC. The Protocol Establishing PAP, reprinted
here, was adopted in Sirte, Libya, on 2 March 2001 and entered into force on 14
December 2003. The first meeting of PAP was held in Addis Ababa, Ethiopia, in
March 2004. PAP is based in Midrand, South Africa. Its powers are currently purely
advisory and consultative. In June 2014 the AU adopted a Protocol to the
Constitutive Act of the African Union relating to the Pan-African Parliament. For
more information see www.pan-african parliament.org. The full text is available
at www.au.int
 Protocol on the Pan-African Parliament 15

Excerpts

Preamble

The member states of the Organization of African Unity state parties to the
Treaty Establishing the African Economic Community:
...
Further noting that the establishment of the Pan-Parliament is informed by a
vision to provide a common platform for African peoples and their grass-roots
organisations to be more involved in discussions and decision-making on the
problems and challenges facing the continent;
Conscious of the imperative and urgent need to further consolidate the
aspiration of the African peoples for greater unity, solidarity and cohesion in
a larger community transcending cultural, ideological, ethnic, religious and
national differences;
...
Determined to promote democratic principles and popular participation, to
consolidate democratic institutions and culture and to ensure good gover-
nance;
Further determined to promote and protect human and peoples’ rights in
accordance with the African Charter on Human and Peoples’ Rights and other
relevant human rights instruments;
Conscious of the obligations and legal implications for member states of the
need to establish the Pan-African Parliament;
Firmly convinced that the establishment of the Pan-African Parliament will
ensure effectively the full participation of the African peoples in the
economic development and integration of the continent;

HEREBY AGREED as follows:

...
Article 2: Establishment of the Pan-African Parliament
1. Member states hereby establish a Pan-African Parliament the
composition, functions, powers and organisation of which shall be governed
by the present Protocol.
2. The Pan-African Parliamentarians shall represent all the peoples of
Africa.
3. The ultimate aim of the Pan-African Parliament shall be to evolve into
an institution with full legislative powers, whose members are elected by
universal adult suffrage. However, until such time as the member states
decide otherwise by an amendment to this Protocol:
(i) The Pan-African Parliament shall have consultative and advisory powers
only; and
(ii) The members of the Pan-African Parliament shall be appointed as
provided for in article 4 of this Protocol.

Article 3: Objectives
The objectives of the Pan-African Parliament shall be to:
1. facilitate the effective implementation of the policies and objectives of
the OAU/AEC and, ultimately, of the African Union;
2. promote the principles of human rights and democracy in Africa;
3. encourage good governance, transparency and accountability in
member states;
4. familiarise the peoples of Africa with the objectives and policies aimed
at integrating the African Continent within the framework of the establish-
ment of the African Union;
5. promote peace, security and stability.
16 Instruments of the AU

Article 4: Composition
1. Member states shall be represented in the Pan-African Parliament by an
equal number of Parliamentarians;
2. Each member state shall be represented in the Pan-African Parliament
by five (5) members, at least one of whom must be a woman;
3. The representation of each member state must reflect the diversity of
political opinions in each National Parliament or other deliberative organ.
...
Article 5: Election, tenure and vacancies
1. The Pan-African Parliamentarians shall be elected or designated by the
respective national parliaments or any other deliberative organs of the
member states, from among their members.
2. The Assembly shall determine the beginning of the first term of office
of the Pan-African Parliament at its session immediately following the entry
into force of this Protocol.
3. The term of a member of the Pan-African Parliament shall run
concurrently with his or her term in the national parliament or other
deliberative organ.
4. The seat of a member of the Pan-African Parliament shall become
vacant if he or she:
(a) dies;
(b) resigns in writing to the President;
(c) is unable to perform his or her functions for reasons of physical or
mental incapacity;
(d) is removed on grounds of misconduct;
(e) ceases to be a member of the National Parliament or other deliberative
organ;
(f) is recalled by the National Parliament or other deliberative organ; or
(g) ceases to be a Pan-African Parliamentarian in terms of article 19 of this
Protocol.

Article 6: Vote
The Pan-African Parliamentarians shall vote in their personal and
independent capacity.

Article 7: Incompatibility
Membership of the Pan-African Parliament shall not be compatible with the
exercise of executive or judicial functions in a member state.
...
Article 11: Functions and powers
The Pan-African Parliament shall be vested with legislative powers to be
defined by the Assembly. However, during the first term of its existence, the
Pan-African Parliament shall exercise advisory and consultative powers only.
In this regard, it may:
1. examine, discuss or express an opinion on any matter, either on its own
initiative or at the request of the Assembly or other policy organs and make
any recommendations it may deem fit relating to, inter alia, matters
pertaining to respect of human rights, the consolidation of democratic
institutions and the culture of democracy, as well as the promotion of good
governance and the rule of law;
2. discuss its budget and the budget of the Community and make
recommendations thereon prior to its approval by the Assembly;
3. work towards the harmonisation or co-ordination of the laws of member
states;
 Protocol on the Peace and Security Council 17

4. make recommendations aimed at contributing to the attainment of the

objectives of the OAU/AEC and draw attention to the challenges facing the
integration process in Africa as well as the strategies for dealing with them;
5. request officials of the OAU/AEC to attend its sessions, produce
documents or assist in the discharge of its duties;
6. promote the programmes and objectives of the OAU/AEC, in the
constituencies of the member states;
7. promote the co-ordination and harmonisation of policies, measures,
programmes and activities of the Regional Economic Communities and the
parliamentary fora of Africa;
8. adopt its Rules of Procedure, elect its own President and propose to the
Council and the Assembly the size and nature of the support staff of the Pan-
African Parliament;
9. perform such other functions as it deems appropriate to achieve the
objectives set out in article 3 of this Protocol.
...

_____________________________________

Protocol relating to the Establishment of the Peace

and Security Council of the African Union
(2002/2003)

Adopted by the AU Assembly in Durban, South Africa on 10 July 2002, in terms of

article 5(2) of the AU Constitutive Act, and entered into force on 26 December
2003. Full text available at www.au.int

Excerpts

We, the Heads of State and Government of the member states of the African
Union;
...
Concerned about the continued prevalence of armed conflicts in Africa and
the fact that no single internal factor has contributed more to socio-economic
decline on the continent and the suffering of the civilian population than the
scourge of conflicts within and between our states;
Concerned also by the fact that conflicts have forced millions of our people,
including women and children, into a drifting life as refugees and internally
displaced persons, deprived of their means of livelihood, human dignity and
hope;
...
Aware also of the fact that the development of strong democratic institutions
and culture, observance of human rights and the rule of law, as well as the
implementation of post-conflict recovery programmes and sustainable
development policies, are essential for the promotion of collective security,
durable peace and stability, as well as for the prevention of conflicts;
Determined to enhance our capacity to address the scourge of conflicts on the
Continent and to ensure that Africa, through the African Union, plays a
central role in bringing about peace, security and stability on the Continent;
18 Instruments of the AU

Desirous of establishing an operational structure for the effective imple-

mentation of the decisions taken in the areas of conflict prevention, peace-
making, peace support operations and intervention, as well as peace-building
and post-conflict reconstruction, in accordance with the authority conferred
in that regard by article 5(2) of the Constitutive Act of the African Union;
...
Article 3: Objectives
The objectives for which the Peace and Security Council is established shall
be to:
(a) promote peace, security and stability in Africa, in order to guarantee
the protection and preservation of life and property, the well-being of the
African people and their environment, as well as the creation of conditions
conducive to sustainable development;
(b) anticipate and prevent conflicts. In circumstances where conflicts have
occurred, the Peace and Security Council shall have the responsibility to
undertake peace-making and peacebuilding functions for the resolution of
these conflicts;
(c) promote and implement peace-building and post-conflict
reconstruction activities to consolidate peace and prevent the resurgence of
violence;
(d) co-ordinate and harmonise continental efforts in the prevention and
combating of international terrorism in all its aspects;
(e) develop a common defence policy for the Union, in accordance with
article 4(d) of the Constitutive Act;
(f) promote and encourage democratic practices, good governance and the
rule of law, protect human rights and fundamental freedoms, respect for the
sanctity of human life and international humanitarian law, as part of efforts
for preventing conflicts.

Article 4: Principles
The Peace and Security Council shall be guided by the principles enshrined in
the Constitutive Act, the Charter of the United Nations and the Universal
Declaration of Human Rights. It shall, in particular, be guided by the following
principles:
(a) peaceful settlement of disputes and conflicts;
(b) early responses to contain crisis situations so as to prevent them from
developing into full-blown conflicts;
(c) respect for the rule of law, fundamental human rights and freedoms,
the sanctity of human life and international humanitarian law;
(d) interdependence between socio-economic development and the
security of peoples and states;
(e) respect for the sovereignty and territorial integrity of member states;
(f) non interference by any member state in the internal affairs of another;
(g) sovereign equality and interdependence of member states;
(h) inalienable right to independent existence;
(i) respect of borders inherited on achievement of independence;
(j) the right of the Union to intervene in a member state pursuant to a
decision of the Assembly in respect of grave circumstances, namely war
crimes, genocide and crimes against humanity, in accordance with article 4(h)
of the Constitutive Act;
(k) the right of member states to request intervention from the Union in
order to restore peace and security, in accordance with article 4(j) of the
Constitutive Act.
 Protocol on the Peace and Security Council 19

Article 5: Composition
1. The Peace and Security Council shall be composed of fifteen members
elected on the basis of equal rights, in the following manner:
(a) ten members elected for a term of two years; and
(b) five members elected for a term of three years in order to ensure
continuity.
2. In electing the members of the Peace and Security Council, the Assembly
shall apply the principle of equitable regional representation and rotation, and
the following criteria with regard to each prospective member state:
(a) commitment to uphold the principles of the Union;
(b) contribution to the promotion and maintenance of peace and security in
Africa – in this respect, experience in peace support operations would be an
added advantage;
(c) capacity and commitment to shoulder the responsibilities entailed in
membership;
(d) participation in conflict resolution, peace-making and peacebuilding at
regional and continental levels;
(e) willingness and ability to take up responsibility for regional and
continental conflict resolution initiatives;
(f) contribution to the Peace Fund and/or Special Fund created for specific
purposes;
(g) respect for constitutional governance, in accordance with the Lomé
Declaration, as well as the rule of law and human rights;
(h) having sufficiently staffed and equipped permanent missions at the
Headquarters of the Union and the United Nations, to be able to shoulder the
responsibilities which go with the membership; and
(i) commitment to honour financial obligations to the Union.
3. A retiring member of the Peace and Security Council shall be eligible for
immediate re-election.
4. There shall be a periodic review by the Assembly to assess the extent to
which the members of the Peace and Security Council continue to meet the
requirements spelt out in article 5(2) and to take action as appropriate.

Article 6: Functions
The Peace and Security Council shall perform functions in the following areas:
(a) promotion of peace, security and stability in Africa;
(b) early warning and preventive diplomacy;
(c) peace-making, including the use of good offices, mediation, conciliation
and enquiry;
(d) peace support operations and intervention, pursuant to article 4(h) and
(j) of the Constitutive Act;
(e) peace-building and post-conflict reconstruction;
(f) humanitarian action and disaster management;
(g) any other function as may be decided by the Assembly.

Article 7: Powers
1. In conjunction with the Chairperson of the Commission, the Peace and
Security Council shall:
(a) anticipate and prevent disputes and conflicts, as well as policies that may
lead to genocide and crimes against humanity;
(b) undertake peace-making and peace-building functions to resolve
conflicts where they have occurred;
(c) authorise the mounting and deployment of peace support missions;
(d) lay down general guidelines for the conduct of such missions, including
the mandate thereof, and undertake periodic reviews of these guidelines;
20 Instruments of the AU

(e) recommend to the Assembly, pursuant to article 4(h) of the Constitutive

Act, intervention, on behalf of the Union, in a member state in respect of grave
circumstances, namely war crimes, genocide and crimes against humanity, as
defined in relevant international conventions and instruments;
(f) approve the modalities for intervention by the Union in a member state,
following a decision by the Assembly, pursuant to article 4(j) of the Constitutive
Act;
(g) institute sanctions whenever an unconstitutional change of government
takes place in a member state, as provided for in the Lomé Declaration;
(h) implement the common defense policy of the Union;
(i) ensure the implementation of the OAU Convention on the Prevention and
Combating of Terrorism and other relevant international, continental and
regional conventions and instruments and harmonise and co-ordinate efforts at
regional and continental levels to combat international terrorism;
(j) promote close harmonisation, co-ordination and co-operation between
regional mechanisms and the Union in the promotion and maintenance of
peace, security and stability in Africa;
(k) promote and develop a strong ‘partnership for peace and security’
between the Union and the United Nations and its agencies, as well as with
other relevant international organisations;
(l) develop policies and action required to ensure that any external initiative
in the field of peace and security on the continent takes place within the
framework of the Union’s objectives and priorities;
(m) follow-up, within the framework of its conflict prevention
responsibilities, the progress towards the promotion of democratic practices,
good governance, the rule of law, protection of human rights and fundamental
freedoms, respect for the sanctity of human life and international humanitarian
law by member states;
(n) promote and encourage the implementation of OAU/AU, UN and other
relevant international conventions and treaties on arms control and
disarmament;
(o) examine and take such appropriate action within its mandate in situations
where the national independence and sovereignty of a member state is
threatened by acts of aggression, including by mercenaries;
(p) support and facilitate humanitarian action in situations of armed conflicts
or major natural disasters;
(q) submit, through its Chairperson, regular reports to the Assembly on its
activities and the state of peace and security in Africa; and
(r) decide on any other issue having implications for the maintenance of
peace, security and stability on the Continent and exercise powers that may be
delegated to it by the Assembly, in accordance with article 9(2) of the
Constitutive Act.
2. The member states agree that in carrying out its duties under the present
Protocol, the Peace and Security Council acts on their behalf.
3. The member states agree to accept and implement the decisions of the
Peace and Security Council, in accordance with the Constitutive Act.
4. The member states shall extend full co-operation to, and facilitate action
by the Peace and Security Council for the prevention, management and
resolution of crises and conflicts, pursuant to the duties entrusted to it under
the present Protocol.

Article 8: Procedure
Organisation and Meetings:
1. The Peace and Security Council shall be so organised as to be able to
function continuously. For this purpose, each member of the Peace and
 Protocol on the Peace and Security Council 21

Security Council shall, at all times, be represented at the headquarters of the

Union.
2. The Peace and Security Council shall meet at the level of permanent
representatives, ministers or heads of state and government. It shall convene
as often as required at the level of permanent representatives, but at least
twice a month. The ministers and the heads of state and government shall
meet at least once a year, respectively.
3. The meetings of the Peace and Security Council shall be held at the
headquarters of the Union.
4. In the event a member state invites the Peace and Security Council to
meet in its country, provided that two-thirds of the Peace and Security
Council members agree, that member state shall defray the additional
expenses incurred by the Commission as a result of the meeting being held
outside the headquarters of the Union.
...
Voting:
12. Each member of the Peace and Security Council shall have one vote.
13. Decisions of the Peace and Security Council shall generally be guided by
the principle of consensus. In cases where consensus cannot be reached, the
Peace and Security Council shall adopt its decisions on procedural matters by
a simple majority, while decisions on all other matters shall be made by a
two-thirds majority vote of its members voting.

Article 9: Entry points and modalities for action

1. The Peace and Security Council shall take initiatives and action it deems
appropriate with regard to situations of potential conflict, as well as to those
that have already developed into full-blown conflicts. The Peace and Security
Council shall also take all measures that are required in order to prevent a
conflict for which a settlement has already been reached from escalating.
2. To that end, the Peace and Security Council shall use its discretion to
effect entry, whether through the collective intervention of the Council
itself, or through its Chairperson and/or the Chairperson of the Commission,
the Panel of the Wise, and/or in collaboration with the regional mechanisms.

Article 10: The role of the Chairperson of the Commission

1. The Chairperson of the Commission shall, under the authority of the
Peace and Security Council, and in consultation with all parties involved in a
conflict, deploy efforts and take all initiatives deemed appropriate to
prevent, manage and resolve conflicts.
2. To this end, the Chairperson of the Commission:
(a) shall bring to the attention of the Peace and Security Council any
matter, which, in his or her opinion, may threaten peace, security and
stability in the Continent;
(b) may bring to the attention of the Panel of the Wise any matter which,
in his or her opinion, deserves their attention;
(c) may, at his or her own initiative or when so requested by the Peace and
Security Council, use his or her good offices, either personally or through
special envoys, special representatives, the Panel of the Wise or the regional
mechanisms, to prevent potential conflicts, resolve actual conflicts and
promote peacebuilding and post-conflict reconstruction.
3. The Chairperson of the Commission shall also:
(a) ensure the implementation and follow-up of the decisions of the Peace
and Security Council, including mounting and deploying peace support
missions authorised by the Peace and Security Council. In this respect, the
Chairperson of the Commission shall keep the Peace and Security Council
informed of developments relating to the functioning of such missions. All
22 Instruments of the AU

problems likely to affect the continued and effective functioning of these

missions shall be referred to the Peace and Security Council, for its
consideration and appropriate action;
(b) ensure the implementation and follow-up of the decisions taken by the
Assembly in conformity with article 4(h) and (j) of the Constitutive Act;
(c) prepare comprehensive and periodic reports and documents, as
required, to enable the Peace Security Council and its subsidiary bodies to
perform their functions effectively.
4. In the exercise of his/her functions and powers, the Chairperson of the
Commission shall be assisted by the commissioner in charge of Peace and
Security, who shall be responsible for the affairs of the Peace and Security
Council. The Chairperson of the Commission shall rely on human and material
resources available at the Commission, for servicing and providing support to
the Peace and Security Council. In this regard, a Peace and Security Council
Secretariat shall be established within the Directorate dealing with conflict
prevention, management and resolution.

Article 11: Panel of the Wise

1. In order to support the efforts of the Peace and Security Council and
those of the Chairperson of the Commission, particularly in the area of
conflict prevention, a Panel of the Wise shall be established.
2. The Panel of the Wise shall be composed of five highly respected African
personalities from various segments of society who have made outstanding
contribution to the cause of peace, security and development on the
continent. They shall be selected by the Chairperson of the Commission after
consultation with the member states concerned, on the basis of regional
representation and appointed by the Assembly to serve for a period of three
years.
3. The Panel of the Wise shall advise the Peace and Security Council and
the Chairperson of the Commission on all issues pertaining to the promotion,
and maintenance of peace, security and stability in Africa.
4. At the request of the Peace and Security Council or the Chairperson of
the Commission, or at its own initiative, the Panel of the Wise shall undertake
such action deemed appropriate to support the efforts of the Peace and
Security Council and those of the Chairperson of the Commission for the
prevention of conflicts, and to pronounce itself on issues relating to the
promotion and maintenance of peace, security and stability in Africa.
5. The Panel of the Wise shall report to the Peace and Security Council
and, through the Peace and Security Council, to the Assembly.
6. The Panel of the Wise shall meet as may be required for the
performance of its mandate. The Panel of the Wise shall normally hold its
meetings at the headquarters of the Union. In consultation with the
Chairperson of the Commission, the Panel of the Wise may hold meetings at
such places other than the headquarters of the Union.
7. The modalities for the functioning of the Panel of the Wise shall be
worked out by the Chairperson of the Commission and approved by the Peace
and Security Council.
8. The allowances of members of the Panel of the Wise shall be determined
by the Chairperson of the Commission in accordance with the financial rules
and regulations of the Union.

Article 12: Continental Early Warning System

1. In order to facilitate the anticipation and prevention of conflicts, a
Continental Early Warning System to be known as the Early Warning System
shall be established.
2. The Early Warning System shall consist of:
 Protocol on the Peace and Security Council 23

(a) an observation and monitoring centre, to be known as ‘The Situation

Room’, located at the Conflict Management Directorate of the Union, and
responsible for data collection and analysis on the basis of an appropriate
early warning indicators module; and
(b) observation and monitoring units of the regional mechanisms to be
linked directly through appropriate means of communications to the Situation
Room, and which shall collect and process data at their level and transmit the
same to the Situation Room.
3. The Commission shall also collaborate with the United Nations, its
agencies, other relevant international organisations, research centres,
academic institutions and NGOs, to facilitate the effective functioning of the
Early Warning System.
4. The Early Warning System shall develop an early warning module based
on clearly defined and accepted political, economic, social, military and
humanitarian indicators, which shall be used to analyse developments within
the continent and to recommend the best course of action.
5. The Chairperson of the Commission shall use the information gathered
through the Early Warning System timeously to advise the Peace and Security
Council on potential conflicts and threats to peace and security in Africa and
recommend the best course of action. The Chairperson of the Commission
shall also use this information for the execution of the responsibilities and
functions entrusted to him or her under the present Protocol.
6. The member states shall commit themselves to facilitate early action by
the Peace and Security Council and or the Chairperson of the Commission
based on early warning information.
7. The Chairperson of the Commission shall, in consultation with member
states, the regional mechanisms, the United Nations and other relevant
institutions, work out the practical details for the establishment of the Early
Warning System and take all the steps required for its effective functioning.

Article 13: African Standby Force

Composition:
1. In order to enable the Peace and Security Council perform its
responsibilities with respect to the deployment of peace support missions and
intervention pursuant to article 4(h) and (j) of the Constitutive Act, an African
Standby Force shall be established. Such Force shall be composed of standby
multidisciplinary contingents, with civilian and military components in their
countries of origin and ready for rapid deployment at appropriate notice.
2. For that purpose, the member states shall take steps to establish
standby contingents for participation in peace support missions decided on by
the Peace and Security Council or intervention authorised by the Assembly.
The strength and types of such contingents, their degree of readiness and
general location shall be determined in accordance with established African
Union Peace Support Standard Operating Procedures (SOPs), and shall be
subject to periodic reviews depending on prevailing crisis and conflict
situations.
...
Article 14: Peace-building
Institutional Capacity for Peace-building:
1. In post-conflict situations, the Peace and Security Council shall assist in
the restoration of the rule of law, establishment and development of
democratic institutions and the preparation, organisation and supervision of
elections in the concerned member state.
Peace-building during Hostilities:
24 Instruments of the AU

2. In areas of relative peace, priority shall be accorded to the

implementation of policy designed to reduce degradation of social and
economic conditions arising from conflicts.
Peace-building at the End of Hostilities:
3. To assist member states that have been adversely affected by violent
conflicts, the Peace and Security Council shall undertake the following
activities:
(a) consolidation of the peace agreements that have been negotiated;
(b) establishment of conditions of political, social and economic
reconstruction of the society and government institutions;
(c) implementation of disarmament, demobilisation and reintegration pro-
grammes, including those for child soldiers;
(d) resettlement and reintegration of refugees and internally displaced
persons;
(e) assistance to vulnerable persons, including children, the elderly, women
and other traumatised groups in the society.

Article 15: Humanitarian action

1. The Peace and Security Council shall take active part in coordinating and
conducting humanitarian action in order to restore life to normalcy in the event
of conflicts or natural disasters.
2. In this regard, the Peace and Security Council shall develop its own
capacity to efficiently undertake humanitarian action.
3. The African Standby Force shall be adequately equipped to undertake
humanitarian activities in their mission areas under the control of the
Chairperson of the Commission.
4. The African Standby Force shall facilitate the activities of the
humanitarian agencies in the mission areas.

Article 16: Relationship with regional mechanisms for conflict

prevention, management and resolution
1. The regional mechanisms are part of the overall security architecture of
the Union, which has the primary responsibility for promoting peace, security
and stability in Africa. In this respect, the Peace and Security Council and the
Chairperson of the Commission, shall:
(a) harmonise and co-ordinate the activities of regional mechanisms in the
field of peace, security and stability to ensure that these activities are
consistent with the objectives and principles of the Union;
(b) work closely with regional mechanisms, to ensure effective partnership
between them and the Peace and Security Council in the promotion and
maintenance of peace, security and stability. The modalities of such
partnership shall be determined by the comparative advantage of each and
the prevailing circumstances.
...
Article 17: Relationship with the United Nations and other international
organisations
1. In the fulfillment of its mandate in the promotion and maintenance of
peace, security and stability in Africa, the Peace and Security Council shall
co-operate and work closely with the United Nations Security Council, which
has the primary responsibility for the maintenance of international peace and
security. The Peace and Security Council shall also co-operate and work
closely with other relevant UN agencies in the promotion of peace, security
and stability in Africa.
2. Where necessary, recourse will be made to the United Nations to
provide the necessary financial, logistical and military support for the African
Unions’ activities in the promotion and maintenance of peace, security and
 Protocol on the Peace and Security Council 25

stability in Africa, in keeping with the provisions of chapter VIII of the UN

Charter on the role of regional organisations in the maintenance of
international peace and security.
3. The Peace and Security Council and the Chairperson of the Commission
shall maintain close and continued interaction with the United Nations
Security Council, its African members, as well as with the Secretary-General,
including holding periodic meetings and regular consultations on questions of
peace, security and stability in Africa.
4. The Peace and Security Council shall also co-operate and work closely
with other relevant international organisations on issues of peace, security
and stability in Africa. Such organisations may be invited to address the Peace
and Security Council on issues of common interest, if the latter considers that
the efficient discharge of its responsibilities does so require.

Article 18: Relationship with the Pan-African Parliament

1. The Mechanism shall maintain close working relations with the Pan-
African Parliament in furtherance of peace, security and stability in Africa.
2. The Peace and Security Council shall, whenever so requested by the Pan
African Parliament, submit, through the Chairperson of the Commission,
reports to the Pan-African Parliament, in order to facilitate the discharge by
the latter of its responsibilities relating to the maintenance of peace, security
and stability in Africa.
3. The Chairperson of the Commission shall present to the Pan-African
Parliament an annual report on the state of peace and security in the
continent. The Chairperson of the Commission shall also take all steps
required to facilitate the exercise by the Pan-African Parliament of its
powers, as stipulated in article 11(5) of the Protocol to the Treaty establishing
the African Economic Community relating to the Pan-African Parliament, as
well as in article 11(9) in so far as it relates to the objective of promoting
peace, security and stability as spelt out in article 3(5) of the said Protocol.

Article 19: Relationship with the African Commission on Human and

Peoples’ Rights
The Peace and Security Council shall seek close co-operation with the African
Commission on Human and Peoples’ Rights in all matters relevant to its
objectives and mandate. The Commission on Human and Peoples’ Rights shall
bring to the attention of the Peace and Security Council any information
relevant to the objectives and mandate of the Peace and Security Council.

Article 20: Relations with civil society organisations

The Peace and Security Council shall encourage non-governmental
organisations, community-based and other civil society organisations,
particularly women’s organisations, to participate actively in the efforts
aimed at promoting peace, security and stability in Africa. When required,
such organisations may be invited to address the Peace and Security Council.

Article 21: Funding

Peace Fund:
1. In order to provide the necessary financial resources for peace support
missions and other operational activities related to peace and security, a
special fund, to be known as the Peace Fund, shall be established. The
operations of the Peace Fund shall be governed by the relevant Financial
Rules and Regulations of the Union.
2. The Peace Fund shall be made up of financial appropriations from the
regular budget of Union, including arrears of contributions, voluntary
contributions from member states and from other sources within Africa,
26 Instruments of the AU

including the private sector, civil society and individuals, as well as through
appropriate fund raising activities.
3. The Chairperson of the Commission shall raise and accept voluntary
contributions from sources outside Africa, in conformity with the objectives
and principles of the Union.
4. There shall also be established, within the Peace Fund, a revolving Trust
Fund. The appropriate amount of the revolving Trust Fund shall be
determined by the relevant Policy Organs of the Union upon recommendation
by the Peace and Security Council.
Assessment of Cost of Operations and Pre-financing:
5. When required, and following a decision by the relevant policy organs
of the Union, the cost of the operations envisaged under article 13(3) of the
present Protocol shall be assessed to member states based on the scale of
their contributions to the regular budget of the Union.
6. The states contributing contingents may be invited to bear the cost of
their participation during the first three (3) months.
7. The Union shall refund the expenses incurred by the concerned
contributing states within a maximum period of six (6) months and then
proceed to finance the operations.
...

_____________________________________

Statutes of the Economic, Social and Cultural

Council of the African Union (2004)

Adopted in Addis Ababa, Ethiopia in July 2004 by the AU Assembly, under article
22(2) of the AU Constitutive Act.
ECOSOCC is intended to provide a voice for civil society in the AU. The Council held
its first meeting in March 2005 in Addis Ababa, Ethiopia. Full text available at
www.au.int

Excerpts

Preamble

The Assembly of the African Union,

Recalling the objectives and principles enshrined in the Constitutive Act of
the African Union;
Recalling further the establishment of ECOSOCC under the provision of
articles 5 and 22 of the Constitutive Act;
Convinced that popular participation in the activities of the African Union, as
enunciated in the African Charter for Popular Participation, is a prerequisite
for its success;
Guided by the common vision of a united and strong Africa and by the need
to build a partnership between governments and all segments of civil society,
in particular women, youth and the private sector, in order to strengthen
solidarity and cohesion among our peoples;
Recalling the decision of the Assembly to invite and encourage the full
participation of the African Diaspora as an important part of the continent, in
the building of the African Union.
 Statutes of the Economic, Social and Cultural Council 27

Agrees as follows:
...
Article 2: Objectives
ECOSOCC shall amongst other things, and in conformity of objectives of the
African Union as provided in the Constitutive Act, perform the following
functions:
1. Promote continuous dialogue between all segments of the African
people on issues concerning Africa and its future;
2. Forge strong partnerships between governments and all segments of the
civil society, in particular women, the youth, children, the diaspora,
organised labour, the private sector and professional groups;
3. Promote the participation of African civil society in the implementation
of the policies and programmes of the Union.
4. Support policies and programmes that will promote peace, security and
stability in Africa, and foster development and integration of the continent;
5. Promote and defend a culture of good governance, democratic
principles and institutions, popular participation, human rights and freedoms
as well as
social justice;
6. Promote, advocate and defend a culture of gender equality;
7. Promote and strengthen the institutional, human and operational capa-
cities of the African civil society;

Article 3: Composition
1. ECOSOCC shall be an advisory organ of the African Union composed of
different social and professional groups of the member states of the African
Union.
2. These CSOs include but are not limited to the following:
(a) Social groups such as those representing women, children, the youth,
the elderly and people with disability and special needs;
(b) Professional groups such as associations of artists, engineers, health
practitioners, social workers, media, teachers, sport associations, legal
professionals, social scientists, academia, business organisations, national
chambers of commerce, workers, employers, industry and agriculture as well
as other private sector interest groups;
(c) Non-governmental organisations (NGOs), community-based
organisations (CBOs) and voluntary organisations;
(d) Cultural organisations.
3. ECOSOCC shall also include social and professional groups in the African
Diaspora, organisations in accordance with the definition approved by the
Executive Council.
...
Article 6: Eligibility requirements for membership
The requirements to be fulfilled by CSOs seeking membership are as follows:
1. Be national, regional, continental or African Diaspora CSO, without
restriction to undertake regional or international activities.
2. Have objectives and principles that are consistent with the principles
and objectives of the Union as set out in articles 3 and 4 of the Constitutive
Act.
3. Registration and status:
(a) Be registered in a member state of the Union and/or;
(b) Meet the general conditions of eligibility for the granting of observer
status to non-governmental organisations;
(c) Show a minimum of three (3) years proof of registration as either an
African or an African Diaspora CSO prior to the date of submission of
application, including proof of operations for those years.
28 Instruments of the AU

4. Provide annual audit statements by an independent auditing company.

5. Show proof that the ownership and management of the CSO is made up
of not less than fifty percent (50%) of Africans or of African Diaspora.
6. The basic resources of such an organisation shall substantially, at least
fifty percent (50%), be derived from contributions of the members of the
organisation. Where external voluntary contributions have been received,
their amounts and donors shall be faithfully revealed in the application for
membership. Any financial or other support or contribution, direct or
indirect, from a government to the organisation shall be declared and fully
recorded in the financial records of the organisation.
7. Provide information on funding sources in the preceding three (3) years.
8. For regional and continental CSOs, show proof of activities that engage
or are operative in at least three (3) member states of the Union.
9. CSOs that discriminate on the basis of religion, gender, tribe, ethnic,
racial or political basis shall be barred from representation to ECOSOCC.
10. Adherence to a Code of Ethics and Conduct for civil society organisations
affiliated to or working with the Union.

Article 7: Functions
As an advisory organ, ECOSOCC shall:
1. Contribute, through advice, to the effective translation of the
objectives, principles and policies of the Union into concrete programmes, as
well as the evaluation of these programmes;
2. Undertake studies that are recommended or deemed necessary by any
other organ of the Union and submit recommendations accordingly;
3. Carry out other studies as it deems necessary and submit recom-
mendations as appropriate;
4. Contribute to the promotion of popularisation, popular participation,
sharing of best practices and expertise, and to the realisation of the vision
and objectives of the Union;
5. Contribute to the promotion of human rights, the rule of law, good
governance, democratic principles, gender equality and child rights;
6. Promote and support efforts of institutions engaged in review of the
future of Africa and forge Pan-African values in order to enhance an African
social model and way of life;
7. Foster and consolidate partnership between the Union and CSOs through
effective public enlightenment, mobilisation and feedback on the activities
of the Union;
8. Assume such other functions as may be referred to it by any other organ
of the Union.
 African Charter on Human and Peoples’ Rights 29

African Charter on Human and Peoples’ Rights

(1981/1986)

Also sometimes called the ‘Banjul Charter’, the African Charter was adopted by
the OAU in Nairobi, Kenya, on 27 June 1981 and entered into force on 21 October
1986. The Charter is the pivotal human rights instrument of the OAU/AU. It
recognises individual rights as well as peoples’ rights, rights and duties, and some
socio-economic rights, in addition to civil and political rights. The supervisory
mechanism created by the Charter is the African Commission on Human and
Peoples’ Rights, which had its first meeting in 1987. The Commission is now being
supplemented with an African Human Rights Court. The Commission’s mandate
includes the review of periodic state reports on the implementation of the Charter
by state parties (see the Guidelines for National Periodical Reports, reprinted
below). The Commission also has the power to review individual and inter-state
complaints. Selected decisions on complaints concerning Charter violations
committed by state parties are reprinted below.

Preamble

The African states member of the Organization of African Unity, parties to the
present Convention entitled ‘African Charter on Human and Peoples’ Rights’,

Recalling Decision 115(XVI) of the Assembly of Heads of State and Government

at its sixteenth ordinary session held in Monrovia, Liberia, from 17 to 20 July
1979 on the preparation of ‘a preliminary draft on an African Charter on
Human and Peoples’ Rights providing inter alia for the establishment of
bodies to promote and protect human and peoples’ rights’;
Considering the Charter of the Organization of African Unity, which stipulates
that ‘freedom, equality, justice and dignity are essential objectives for the
achievement of the legitimate aspirations of the African peoples’;
Reaffirming the pledge they solemnly made in article 2 of the said Charter to
eradicate all forms of colonialism from Africa, to co-ordinate and intensify
their co-operation and efforts to achieve a better life for the peoples of Africa
and to promote international co-operation, having due regard to the Charter
of the United Nations and the Universal Declaration of Human Rights;
Taking into consideration the virtues of their historical tradition and the
values of African civilisation which should inspire and characterise their
reflection on the concept of human and peoples’ rights;
Recognising on the one hand, that fundamental human rights stem from the
attributes of human beings, which justifies their international protection and
on the other hand, that the reality and respect of peoples’ rights should
necessarily guarantee human rights;
Considering that the enjoyment of rights and freedom also implies the
performance of duties on the part of everyone;
Convinced that it is henceforth essential to pay particular attention to the
right to development and that civil and political rights cannot be dissociated
from economic, social and cultural rights in their conception as well as
universality and that the satisfaction of economic, social and cultural rights
is a guarantee for the enjoyment of civil and political rights;
Conscious of their duty to achieve the total liberation of Africa, the peoples
of which are still struggling for their dignity and genuine independence, and
undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism,
and to dismantle aggressive foreign military bases and all forms of
discrimination, particularly those based on race, ethnic group, colour, sex,
language, religion or political opinion;
30 Instruments of the AU

Reaffirming their adherence to the principles of human and peoples’ rights

and freedoms contained in the declarations, conventions and other
instruments adopted by the Organization of African Unity, the Movement of
Non-Aligned Countries and the United Nations;
Firmly convinced of their duty to promote and protect human and peoples’
rights and freedoms taking into account the importance traditionally attached
to these rights and freedoms in Africa;

HAVE AGREED as follows:

PART I: RIGHTS AND DUTIES

CHAPTER I: Human and Peoples’ Rights

Article 1
The member states of the Organization of African Unity parties to the present
Charter shall recognise the rights, duties and freedoms enshrined in this
Charter and shall undertake to adopt legislative or other measures to give
effect to them.

Article 2
Every individual shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in the present Charter without distinction of any
kind such as race, ethnic group, colour, sex, language, religion, political or
any other opinion, national and social origin, fortune, birth or other status.

Article 3
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.

Article 4
Human beings are inviolable. Every human being shall be entitled to respect
for his life and the integrity of his person. No one may be arbitrarily deprived
of this right.

Article 5
Every individual shall have the right to the respect of the dignity inherent in
a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment shall be pro-
hibited.

Article 6
Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained.

Article 7
1. Every individual shall have the right to have his cause heard. This
comprises:
(a) the right to an appeal to competent national organs against acts
violating his fundamental rights as recognised and guaranteed by conventions,
laws, regulation and customs in force;
(b) the right to be presumed innocent until proved guilty by a competent
court or tribunal;
 African Charter on Human and Peoples’ Rights 31

(c) the right to defence, including the right to be defended by counsel of

his choice;
(d) the right to be tried within a reasonable time by an impartial court or
tribunal.
2. No one may be condemned for an act or omission which did not
constitute a legally punishable offence at the time it was committed. No
penalty may be inflicted for an offence for which no provision was made at
the time it was committed. Punishment is personal and can be imposed only
on the offender.

Article 8
Freedom of conscience, the profession and free practice of religion shall be
guaranteed. No one may, subject to law and order, be submitted to measures
restricting the exercise of these freedoms.

Article 9
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his
opinions within the law.

Article 10
1. Every individual shall have the right to free association provided that he
abides by the law.
2. Subject to the obligation of solidarity provided for in article 29, no one
may be compelled to join an association.

Article 11
Every individual shall have the right to assemble freely with others. The
exercise of this right shall be subject only to necessary restrictions provided
for by law in particular those enacted in the interest of national security, the
safety, health, ethics and rights and freedoms of others.

Article 12
1. Every individual shall have the right to freedom of movement and
residence within the borders of a state provided he abides by the law.
2. Every individual shall have the right to leave any country including his
own, and to return to his country. This right may only be subject to
restrictions provided for by law for the protection of national security, law
and order, public health or morality.
3. Every individual shall have the right, when persecuted, to seek and
obtain asylum in other countries in accordance with the laws of those
countries and international conventions.
4. A non-national legally admitted in a territory of a state party to the
present Charter, may only be expelled from it by virtue of a decision taken in
accordance with the law.
5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion
shall be that which is aimed at national, racial, ethnic or religious groups.

Article 13
1. Every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law.
2. Every citizen shall have the right of equal access to the public service
of his country.
32 Instruments of the AU

3. Every individual shall have the right of access to public property and
services in strict equality of all persons before the law.

Article 14
The right to property shall be guaranteed. It may only be encroached upon in
the interest of public need or in the general interest of the community and in
accordance with the provisions of appropriate laws.

Article 15
Every individual shall have the right to work under equitable and satisfactory
conditions and shall receive equal pay for equal work.

Article 16
1. Every individual shall have the right to enjoy the best attainable state
of physical and mental health.
2. State parties to the present Charter shall take the necessary measures
to protect the health of their people and to ensure that they receive medical
attention when they are sick.

Article 17
1. Every individual shall have the right to education.
2. Every individual may freely take part in the cultural life of his
community.
3. The promotion and protection of morals and traditional values
recognised by the community shall be the duty of the state.

Article 18
1. The family shall be the natural unit and basis of society. It shall be
protected by the state which shall take care of its physical and moral health.
2. The state shall have the duty to assist the family which is the custodian
of morals and traditional values recognised by the community.
3. The state shall ensure the elimination of every discrimination against
women and also ensure the protection of the rights of the woman and the
child as stipulated in international declarations and conventions.
4. The aged and the disabled shall also have the right to special measures
of protection in keeping with their physical or moral needs.

Article 19
All peoples shall be equal; they shall enjoy the same respect and shall have
the same rights. Nothing shall justify the domination of a people by another.

Article 20
1. All peoples shall have right to existence. They shall have the
unquestionable and inalienable right to self-determination. They shall freely
determine their political status and shall pursue their economic and social
development according to the policy they have freely chosen.
2. Colonised or oppressed peoples shall have the right to free themselves
from the bonds of domination by resorting to any means recognised by the
international community.
3. All peoples shall have the right to the assistance of the state parties to
the present Charter in their liberation struggle against foreign domination, be
it political, economic or cultural.
 African Charter on Human and Peoples’ Rights 33

Article 21
1. All peoples shall freely dispose of their wealth and natural resources.
This right shall be exercised in the exclusive interest of the people. In no case
shall a people be deprived of it.
2. In case of spoliation the dispossessed people shall have the right to the
lawful recovery of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised
without prejudice to the obligation of promoting international economic co-
operation based on mutual respect, equitable exchange and the principles of
international law.
4. State parties to the present Charter shall individually and collectively
exercise the right to free disposal of their wealth and natural resources with
a view to strengthening African unity and solidarity.
5. State parties to the present Charter shall undertake to eliminate all
forms of foreign economic exploitation particularly that practised by
international monopolies so as to enable their peoples to fully benefit from
the advantages derived from their national resources.

Article 22
1. All peoples shall have the right to their economic, social and cultural
development with due regard to their freedom and identity and in the equal
enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the
exercise of the right to development.

Article 23
1. All peoples shall have the right to national and international peace and
security. The principles of solidarity and friendly relations implicitly affirmed
by the Charter of the United Nations and reaffirmed by that of the
Organization of African Unity shall govern relations between states.
2. For the purpose of strengthening peace, solidarity and friendly
relations, state parties to the present Charter shall ensure that:
(a) any individual enjoying the right of asylum under article 12 of the
present Charter shall not engage in subversive activities against his country of
origin or any other state party to the present Charter;
(b) their territories shall not be used as bases for subversive or terrorist
activities against the people of any other state party to the present Charter.

Article 24
All peoples shall have the right to a general satisfactory environment
favourable to their development.

Article 25
State parties to the present Charter shall have the duty to promote and
ensure through teaching, education and publication, the respect of the rights
and freedoms contained in the present Charter and to see to it that these
freedoms and rights as well as corresponding obligations and duties are
understood.

Article 26
State parties to the present Charter shall have the duty to guarantee the
independence of the courts and shall allow the establishment and
improvement of appropriate national institutions entrusted with the
promotion and protection of the rights and freedoms guaranteed by the
present Charter.
34 Instruments of the AU

CHAPTER II: Duties

Article 27
1. Every individual shall have duties towards his family and society, the
state and other legally recognised communities and the international
community.
2. The rights and freedoms of each individual shall be exercised with due
regard to the rights of others, collective security, morality and common
interest.

Article 28
Every individual shall have the duty to respect and consider his fellow beings
without discrimination, and to maintain relations aimed at promoting, safe-
guarding and reinforcing mutual respect and tolerance.

Article 29
The individual shall also have the duty:
1. To preserve the harmonious development of the family and to work for
the cohesion and respect of the family; to respect his parents at all times, to
maintain them in case of need;
2. To serve his national community by placing his physical and intellectual
abilities at its service;
3 Not to compromise the security of the state whose national or resident
he is;
4. To preserve and strengthen social and national solidarity, particularly
when the latter is threatened;
5. To preserve and strengthen the national independence and the
territorial integrity of his country and to contribute to its defence in
accordance with the law;
6. To work to the best of his abilities and competence, and to pay taxes
imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his
relations with other members of the society, in the spirit of tolerance,
dialogue and consultation and, in general, to contribute to the promotion of
the moral well-being of society;
8. To contribute to the best of his abilities, at all times and at all levels,
to the promotion and achievement of African unity.

PART II: MEASURES OF SAFEGUARD

CHAPTER I: Establishment and Organisation of the African
Commission on Human and Peoples’ Rights

Article 30
An African Commission on Human and Peoples’ Rights, hereinafter called ‘the
Commission’, shall be established within the Organization of African Unity to
promote human and peoples’ rights and ensure their protection in Africa.

Article 31
1. The Commission shall consist of eleven members chosen from amongst
African personalities of the highest reputation, known for their high morality,
integrity, impartiality and competence in matters of human and peoples’
rights; particular consideration being given to persons having legal
experience.
2. The members of the Commission shall serve in their personal capacity.
 African Charter on Human and Peoples’ Rights 35

Article 32
The Commission shall not include more than one national of the same state.

Article 33
The members of the Commission shall be elected by secret ballot by the
Assembly of Heads of State and Government, from a list of persons nominated
by the state parties to the present Charter.

Article 34
Each state party to the present Charter may not nominate more than two
candidates. The candidates must have the nationality of one of the state
parties to the present Charter. When two candidates are nominated by a
state, one of them may not be a national of that state.

Article 35
1. The Secretary-General of the Organization of African Unity shall invite
state parties to the present Charter at least four months before the elections
to nominate candidates.
2. The Secretary-General of the Organization of African Unity shall make
an alphabetical list of the persons thus nominated and communicate it to the
Heads of State and Government at least one month before the elections.

Article 36
The members of the Commission shall be elected for a six-year period and
shall be eligible for re-election. However, the term of office of four of the
members elected at the first election shall terminate after two years and the
term of office of the three others, at the end of four years.

Article 37
Immediately after the first election, the Chairman of the Assembly of Heads
of State and Government of the Organization of African Unity shall draw lots
to decide the names of those members referred to in article 36.

Article 38
After their election, the members of the Commission shall make a solemn
declaration to discharge their duties impartially and faithfully.

Article 39
1. In case of death or resignation of a member of the Commission, the
Chairman of the Commission shall immediately inform the Secretary-General
of the Organization of African Unity, who shall declare the seat vacant from
the date of death or from the date on which the resignation takes effect.
2. If, in the unanimous opinion of other members of the Commission, a
member has stopped discharging his duties for any reason other than a
temporary absence, the Chairman of the Commission shall inform the
Secretary-General of the Organization of African Unity, who shall then
declare the seat vacant.
3. In each of the cases anticipated above, the Assembly of Heads of State
and Government shall replace the member whose seat became vacant for the
remaining period of his term unless the period is less than six months.

Article 40
Every member of the Commission shall be in office until the date his successor
assumes office.
36 Instruments of the AU

Article 41
The Secretary-General of the Organization of African Unity shall appoint the
Secretary of the Commission. He shall also provide the staff and services
necessary for the effective discharge of the duties of the Commission. The
Organization of African Unity shall bear the costs of the staff and services.

Article 42
1. The Commission shall elect its Chairman and Vice-Chairman for a two-
year period. They shall be eligible for re-election.
2. The Commission shall lay down its rules of procedure.
3. Seven members shall form a quorum.
4. In case of an equality of votes, the Chairman shall have a casting vote.
5. The Secretary-General may attend the meetings of the Commission. He
shall neither participate in deliberations nor shall he be entitled to vote. The
Chairman of the Commission may, however, invite him to speak.

Article 43
In discharging their duties, members of the Commission shall enjoy diplomatic
privileges and immunities provided for in the General Convention on the
Privileges and Immunities of the Organization of African Unity.

Article 44
Provision shall be made for the emoluments and allowances of the members
of the Commission in the Regular Budget of the Organization of African Unity.

CHAPTER II: Mandate of the Commission

Article 45
The functions of the Commission shall be:
1. To promote human and peoples’ rights and in particular:
(a) To collect documents, undertake studies and research on African
problems in the field of human and peoples’ rights, organise seminars,
symposia and conferences, disseminate information, encourage national and
local institutions concerned with human and peoples’ rights, and, should the
case arise, give its views or make recommendations to governments;
(b) To formulate and lay down principles and rules aimed at solving legal
problems relating to human and peoples’ rights and fundamental freedoms
upon which African governments may base their legislations;
(c) Co-operate with other African and international institutions concerned
with the promotion and protection of human and peoples’ rights.
2. Ensure the protection of human and peoples’ rights under conditions
laid down by the present Charter.
3. Interpret all the provisions of the present Charter at the request of a
state party, an institution of the Organization of African Unity or an African
organisation recognised by the Organization of African Unity.
4. Perform any other tasks which may be entrusted to it by the Assembly
of Heads of State and Government.

CHAPTER III: Procedure of the Commission

Article 46
The Commission may resort to any appropriate method of investigation; it
may hear from the Secretary-General of the Organization of African Unity or
any other person capable of enlightening it.
 African Charter on Human and Peoples’ Rights 37

Communication from States

Article 47
If a state party to the present Charter has good reason to believe that another
state party to this Charter has violated the provisions of the Charter, it may
draw, by written communication, the attention of that state to the matter.
This communication shall also be addressed to the Secretary-General of the
Organization of African Unity and to the Chairman of the Commission. Within
three months of the receipt of the communication the state to which the
communication is addressed shall give the enquiring state written explanation
or statement elucidating the matter. This should include as much as possible
relevant information relating to the laws and rules of procedure applied and
applicable and the redress already given or course of action available.

Article 48
If, within three months from the date on which the original communication is
received by the state to which it is addressed, the issue is not settled to the
satisfaction of the two states involved through bilateral negotiation or by any
other peaceful procedure, either state shall have the right to submit the
matter to the Commission through the Chairman and shall notify the other
state involved.

Article 49
Notwithstanding the provisions of article 47, if a state party to the present
Charter considers that another state party has violated the provisions of the
Charter, it may refer the matter directly to the Commission by addressing a
communication to the Chairman, to the Secretary-General of the
Organization of African Unity and the state concerned.

Article 50
The Commission can only deal with a matter submitted to it after making sure
that all local remedies, if they exist, have been exhausted, unless it is obvious
to the Commission that the procedure of achieving these remedies would be
unduly prolonged.

Article 51
1. The Commission may ask the states concerned to provide it with all
relevant information.
2. When the Commission is considering the matter, states concerned may
be represented before it and submit written or oral representation.

Article 52
After having obtained from the states concerned and from other sources all
the information it deems necessary and after having tried all appropriate
means to reach an amicable solution based on the respect of human and
peoples’ rights, the Commission shall prepare, within a reasonable period of
time from the notification referred to in article 48, a report stating the facts
and its findings. This report shall be sent to the states concerned and
communicated to the Assembly of Heads of State and Government.

Article 53
While transmitting its report, the Commission may make to the Assembly of
Heads of State and Government such recommendations as it deems useful.
38 Instruments of the AU

Article 54
The Commission shall submit to each ordinary session of the Assembly of
Heads of State and Government a report on its activities.

Other Communications

Article 55
1. Before each session, the Secretary of the Commission shall make a list
of the communications other than those of state parties to the present
Charter and transmit them to the members of the Commission, who shall
indicate which communications should be considered by the Commission.
2. A communication shall be considered by the Commission if a simple
majority of its members so decide.

Article 56
Communications relating to human and peoples’ rights referred to in article
55, received by the Commission, shall be considered if they:
1. Indicate their authors even if the latter request anonymity;
2. Are compatible with the Charter of the Organization of African Unity or
with the present Charter;
3. Are not written in disparaging or insulting language directed against the
state concerned and its institutions or to the Organization of African Unity;
4. Are not based exclusively on news disseminated through the mass
media;
5. Are sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged;
6. Are submitted within a reasonable period from the time local remedies
are exhausted or from the date the Commission is seized of the matter; and
7. Do not deal with cases which have been settled by the states involved
in accordance with the principles of the Charter of the United Nations, or the
Charter of the Organization of African Unity or the provisions of the present
Charter.

Article 57
Prior to any substantive consideration, all communications shall be brought to
the knowledge of the state concerned by the Chairman of the Commission.

Article 58
1. When it appears after deliberations of the Commission that one or more
communications apparently relate to special cases which reveal the existence
of a series of serious or massive violations of human and peoples’ rights, the
Commission shall draw the attention of the Assembly of Heads of State and
Government to these special cases.
2. The Assembly of Heads of State and Government may then request the
Commission to undertake an in-depth study of these cases and make a factual
report, accompanied by its findings and recommendations.
3. A case of emergency duly noticed by the Commission shall be submitted
by the latter to the Chairman of the Assembly of Heads of State and
Government who may request an in-depth study.

Article 59
1. All measures taken within the provisions of the present Chapter shall
remain confidential until such a time as the Assembly of Heads of State and
Government shall otherwise decide.
 African Charter on Human and Peoples’ Rights 39

2. However, the report shall be published by the Chairman of the

Commission upon the decision of the Assembly of Heads of State and
Government.
3. The report on the activities of the Commission shall be published by its
Chairman after it has been considered by the Assembly of Heads of State and
Government.

CHAPTER IV: Applicable Principles

Article 60
The Commission shall draw inspiration from international law on human and
peoples’ rights, particularly from the provision 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 specialised agencies of
the United Nations of which the parties to the present Charter are members.

Article 61
The Commission shall also take into consideration, as subsidiary measures to
determine the principles of law, other general or specialised international
conventions laying down rules expressly recognised by member states of the
Organization of African Unity, African practices consistent with international
norms on human and peoples’ rights, customs generally accepted as law,
general principles of law recognised by African states, as well as legal
precedents and doctrine.

Article 62
Each state party shall undertake to submit every two years, from the date the
present Charter comes into force, a report on the legislative or other
measures taken with a view to giving effect to the rights and freedoms
recognised and guaranteed by the present Charter.

Article 63
1. The present Charter shall be open to signature, ratification or
adherence of the member states of the Organization of African Unity.
2. The instruments of ratification or adherence to the present Charter
shall be deposited with the Secretary-General of the Organization of African
Unity.
3. The present Charter shall come into force three months after the
reception by the Secretary-General of the instruments of ratification or
adherence of a simple majority of the member states of the Organization of
African Unity.

PART III: GENERAL PROVISIONS

Article 64
1. After the coming into force of the present Charter, members of the
Commission shall be elected in accordance with the relevant articles of the
present Charter.
2. The Secretary-General of the Organization of African Unity shall
convene the first meeting of the Commission at the Headquarters of the
Organization within three months of the constitution of the Commission.
40 Instruments of the AU

Thereafter, the Commission shall be convened by its Chairman whenever

necessary but at least once a year.

Article 65
For each of the states that will ratify or adhere to the present Charter after
its coming into force, the Charter shall take effect three months after the
date of the deposit by that state of its instrument of ratification or
adherence.

Article 66
Special protocols or agreements may, if necessary, supplement the provisions
of the present Charter.

Article 67
The Secretary-General of the Organization of African Unity shall inform
member states of the Organization of the deposit of each instrument of
ratification or adherence.

Article 68
The present Charter may be amended if a state party makes a written request
to that effect to the Secretary-General of the Organization of African Unity.
The Assembly of Heads of State and Government may only consider the draft
amendment after all the state parties have been duly informed of it and the
Commission has given its opinion on it at the request of the sponsoring state.
The amendment shall be approved by a simple majority of the state parties.
It shall come into force for each state which has accepted it in accordance
with its constitutional procedure three months after the Secretary-General
has received notice of the acceptance.
 Protocol on the African Human Rights Court 41

Protocol to the African Charter on Human and

Peoples’ Rights on the Establishment of an African
Court on Human and Peoples’ Rights (1998/2004)

Adopted in Ouagadougou, Burkina Faso, on 10 June 1998 and entered into force on
25 January 2004. In terms of this Protocol, the protective mandate of the African
Commission on Human and Peoples’ Rights is complemented by the establishment
of an African Human Rights Court. The first judges were sworn in during the July
2006 Summit of the AU in Banjul, The Gambia. The seat of the Court is Arusha,
Tanzania. This Protocol will be replaced by the Protocol on the Statute of the
African Court of Justice and Human Rights, reprinted below, once the latter has
entered into force. As of June 2022, eight states (Burkina Faso, Gambia, Ghana,
Guinea-Bissau, Malawi, Mali, Niger and Tunisia) had a declaration in effect
under article 34(6) allowing direct access for individuals and NGOs. Four states
which had previously made such declarations had withdrawn them (Benin, Côte
d'Ivoire, Rwanda and Tanzania).

The member states of the Organization of African Unity hereinafter referred

to as the OAU, state parties to the African Charter on Human and Peoples’
Rights:

Considering that the Charter of the Organization of African Unity recognises

that freedom, equality, justice, peace and dignity are essential objectives for
the achievement of the legitimate aspirations of the African peoples;
Noting that the African Charter on Human and Peoples’ Rights reaffirms
adherence to the principles of human and peoples’ rights, freedoms and
duties contained in the declarations, conventions and other instruments
adopted by the Organization of African Unity, and other international
organisations;
Recognising that the twofold objective of the African Charter on Human and
Peoples’ Rights is to ensure on the one hand promotion and on the other
protection of human and peoples’ rights, freedoms and duties;
Recognising further, the efforts of the African Commission on Human and
Peoples’ Rights in the promotion and protection of human and peoples’ rights
since its inception in 1987;
Recalling Resolution AHG/Res 230 (XXX) adopted by the Assembly of Heads of
State and Government in June 1994 in Tunis, Tunisia, requesting the
Secretary-General to convene a Government Experts’ Meeting to ponder, in
conjunction with the African Commission, over the means to enhance the
efficiency of the African Commission and to consider in particular the
establishment of an African Court on Human and Peoples’ Rights;
Noting the first and second Government Legal Experts’ Meetings held
respectively in Cape Town, South Africa (September 1995) and Nouakchott,
Mauritania (April 1997) and the Third Government Legal Experts Meeting held
in Addis Ababa, Ethiopia (December 1997), which was enlarged to include
diplomats;
Firmly convinced that the attainment of the objectives of the African Charter
on Human and Peoples’ Rights requires the establishment of an African Court
on Human and Peoples’ Rights to complement and reinforce the functions of
the African Commission on Human and Peoples’ Rights;

HAVE AGREED as follows:

42 Instruments of the AU

Article 1: Establishment of the Court

There shall be established within the Organization of African Unity an African
Court on Human and Peoples’ Rights (hereinafter referred to as ‘the Court’),
the organisation, jurisdiction and functioning of which shall be governed by
the present Protocol.

Article 2: Relationship between the Court and the Commission

The Court shall, bearing in mind the provisions of this Protocol, complement
the protective mandate of the African Commission on Human and Peoples’
Rights (hereinafter referred to as ‘the Commission’), conferred upon it by the
African Charter on Human and Peoples’ Rights, hereinafter referred to as ‘the
Charter’.

Article 3: Jurisdiction
1. The jurisdiction of the Court shall extend to all cases and disputes
submitted to it concerning the interpretation and application of the Charter,
this Protocol and any other relevant human rights instrument ratified by the
states concerned.
2. In the event of a dispute as to whether the Court has jurisdiction, the
Court shall decide.

Article 4: Advisory opinions

1. At the request of a member state of the OAU, the OAU, any of its organs,
or any African organisation recognised by the OAU, the Court may provide an
opinion on any legal matter relating to the Charter or any other relevant
human rights instruments, provided that the subject matter of the opinion is
not related to a matter being examined by the Commission.
2. The Court shall give reasons for its advisory opinions provided that every
judge shall be entitled to deliver a separate or dissenting opinion.

Article 5: Access to the Court

1. The following are entitled to submit cases to the Court:
(a) The Commission;
(b) The state party which has lodged a complaint to the Commission;
(c) The state party against which the complaint has been lodged at the
Commission;
(d) The state party whose citizen is a victim of a human rights violation;
(e) African Intergovernmental Organisations.
2. When a state party has an interest in a case, it may submit a request to
the Court to be permitted to join.
3. The Court may entitle relevant non-governmental organisations (NGOs)
with observer status before the Commission, and individuals to institute cases
directly before it, in accordance with article 34(6) of this Protocol.

Article 6: Admissibility of cases

1. The Court, when deciding on the admissibility of a case instituted under
article 5(3) of this Protocol, may request the opinion of the Commission which
shall give it as soon as possible.
2. The Court shall rule on the admissibility of cases taking into account the
provisions of article 56 of the Charter.
3. The Court may consider cases or transfer them to the Commission.

Article 7: Sources of law

The Court shall apply the provisions of the Charter and any other relevant
human rights instruments ratified by the states concerned.
 Protocol on the African Human Rights Court 43

Article 8: Consideration of cases

The Rules of Procedure of the Court shall lay down the detailed conditions
under which the Court shall consider cases brought before it, bearing in mind
the complementarity between the Commission and the Court.

Article 9: Amicable settlement

The Court may try to reach an amicable settlement in a case pending before
it in accordance with the provisions of the Charter.

Article 10: Hearings and representation

1. The Court shall conduct its proceedings in public. The Court may,
however, conduct proceedings in camera as may be provided for in the Rules
of Procedure.
2. Any party to a case shall be entitled to be represented by a legal
representative of the party’s choice. Free legal representation may be
provided where the interests of justice so require.
3. Any person, witness or representative of the parties, who appears
before the Court, shall enjoy protection and all facilities, in accordance with
international law, necessary for the discharging of their functions, tasks and
duties in relation to the Court.

Article 11: Composition

1. The Court shall consist of eleven judges, nationals of member states of
the OAU, elected in an individual capacity from among jurists of high moral
character and of recognised practical, judicial or academic competence and
experience in the field of human and peoples’ rights.
2. No two judges shall be nationals of the same state.

Article 12: Nominations

1. State parties to the Protocol may each propose up to three candidates,
at least two of whom shall be nationals of that state.
2. Due consideration shall be given to adequate gender representation in
the nomination process.

Article 13: List of candidates

1. Upon entry into force of this Protocol, the Secretary-General of the OAU
shall request each state party to the Protocol to present, within ninety (90)
days of such a request, its nominees for the office of judge of the Court.
2. The Secretary-General of the OAU shall prepare a list in alphabetical
order of the candidates nominated and transmit it to the member states of
the OAU at least thirty days prior to the next session of the Assembly of Heads
of State and Government of the OAU hereinafter referred to as ‘the
Assembly’.

Article 14: Elections

1. The judges of the Court shall be elected by secret ballot by the
Assembly from the list referred to in article 13(2) of the present Protocol.
2. The Assembly shall ensure that in the Court as a whole there is
representation of the main regions of Africa and of their principal legal
traditions.
3. In the election of the judges, the Assembly shall ensure that there is
adequate gender representation.
44 Instruments of the AU

Article 15: Term of office

1. The judges of the Court shall be elected for a period of six years and
may be re-elected only once. The terms of four judges elected at the first
election shall expire at the end of two years, and the terms of four more
judges shall expire at the end of four years.
2. The judges whose terms are to expire at the end of the initial periods of
two and four years shall be chosen by lot to be drawn by the Secretary-
General of the OAU immediately after the first election has been completed.
3. A judge elected to replace a judge whose term of office has not expired
shall hold office for the remainder of the predecessor’s term.
4. All judges except the President shall perform their functions on a part-
time basis. However, the Assembly may change this arrangement as it deems
appropriate.

Article 16: Oath of office

After their election, the judges of the Court shall make a solemn declaration
to discharge their duties impartially and faithfully.

Article 17: Independence

1. The independence of the judges shall be fully ensured in accordance
with international law.
2. No judge may hear any case in which the same judge has previously
taken part as agent, counsel or advocate for one of the parties or as a member
of a national or international court or a commission of enquiry or in any other
capacity. Any doubt on this point shall be settled by decision of the Court.
3. The judges of the Court shall enjoy, from the moment of their election
and throughout their term of office, the immunities extended to diplomatic
agents in accordance with international law.
4. At no time shall the judges of the Court be held liable for any decision
or opinion issued in the exercise of their functions.

Article 18: Incompatibility

The position of judge of the Court is incompatible with any activity that might
interfere with the independence or impartiality of such a judge or the
demands of the office, as determined in the Rules of Procedure of the Court.

Article 19: Cessation of office

1. A judge shall not be suspended or removed from office unless, by the
unanimous decision of the other judges of the Court, the judge concerned has
been found to be no longer fulfilling the required conditions to be a judge of
the Court.
2. Such a decision of the Court shall become final unless it is set aside by
the Assembly at its next session.

Article 20: Vacancies

1. In case of death or resignation of a judge of the Court, the President of
the Court shall immediately inform the Secretary-General of the Organization
of African Unity, who shall declare the seat vacant from the date of death or
from the date on which the resignation takes effect.
2. The Assembly shall replace the judge whose office became vacant
unless the remaining period of the term is less than one hundred and eighty
(180) days.
3. The same procedure and considerations as set out in articles 12, 13 and
14 shall be followed for the filling of vacancies.
 Protocol on the African Human Rights Court 45

Article 21: Presidency of the Court

1. The Court shall elect its President and one Vice-President for a period
of two years. They may be re-elected only once.
2. The President shall perform judicial functions on a full-time basis and
shall reside at the seat of the Court.
3. The functions of the President and the Vice-President shall be set out in
the Rules of Procedure of the Court.

Article 22: Exclusion

If a judge is a national of any state which is a party to a case submitted to the
Court, that judge shall not hear the case.

Article 23: Quorum

The Court shall examine cases brought before it, if it has a quorum of at least
seven judges.

Article 24: Registry of the Court

1. The Court shall appoint its own Registrar and other staff of the registry
from among nationals of member states of the OAU according to the Rules of
Procedure.
2. The office and residence of the Registrar shall be at the place where the
Court has its seat.

Article 25: Seat of the Court

1. The Court shall have its seat at the place determined by the Assembly
from among state parties to this Protocol. However, it may convene in the
territory of any member state of the OAU when the majority of the Court
considers it desirable, and with the prior consent of the state concerned.
2. The seat of the Court may be changed by the Assembly after due
consultation with the Court.

Article 26: Evidence

1. The Court shall hear submissions by all parties and if deemed necessary,
hold an enquiry. The states concerned shall assist by providing relevant
facilities for the efficient handling of the case.
2. The Court may receive written and oral evidence including expert
testimony and shall make its decision on the basis of such evidence.

Article 27: Findings

1. If the Court finds that there has been violation of a human or peoples’
right, it shall make appropriate orders to remedy the violation, including the
payment of fair compensation or reparation.
2. In cases of extreme gravity and urgency, and when necessary to avoid
irreparable harm to persons, the Court shall adopt such provisional measures
as it deems necessary.

Article 28: Judgment

1. The Court shall render its judgment within ninety (90) days of having
completed its deliberations.
2. The judgment of the Court decided by majority shall be final and not
subject to appeal.
3. Without prejudice to sub-article 2 above, the Court may review its
decision in the light of new evidence under conditions to be set out in the
Rules of Procedure.
4. The Court may interpret its own decision.
46 Instruments of the AU

5. The judgment of the Court shall be read in open court, due notice
having been given to the parties.
6. Reasons shall be given for the judgment of the Court.
7. If the judgment of the Court does not represent, in whole or in part, the
unanimous decision of the judges, any judge shall be entitled to deliver a
separate or dissenting opinion.

Article 29: Notification of judgment

1. The parties to the case shall be notified of the judgment of the Court
and it shall be transmitted to the member states of the OAU and the
Commission.
2. The Council of Ministers shall also be notified of the judgment and shall
monitor its execution on behalf of the Assembly.

Article 30: Execution of judgment

The state parties to the present Protocol undertake to comply with the
judgment in any case to which they are parties within the time stipulated by
the Court and to guarantee its execution.

Article 31: Report

The Court shall submit to each regular session of the Assembly, a report on its
work during the previous year. The report shall specify, in particular, the
cases in which a state has not complied with the Court’s judgment.

Article 32: Budget

Expenses of the Court, emoluments and allowances for judges and the budget
of its registry, shall be determined and borne by the OAU, in accordance with
criteria laid down by the OAU in consultation with the Court.

Article 33: Rules of Procedure

The Court shall draw up its Rules and determine its own Procedures. The
Court shall consult the Commission as appropriate.

Article 34: Ratification

1. This Protocol shall be open for signature and ratification or accession by
any state party to the Charter.
2. The instrument of ratification or accession to the present Protocol shall
be deposited with the Secretary-General of the OAU.
3. The Protocol shall come into force thirty days after fifteen instruments
of ratification or accession have been deposited.
4. For any state party ratifying or acceding subsequently, the present
Protocol shall come into force in respect of that state on the date of the
deposit of its instrument of ratification or accession.
5. The Secretary-General of the OAU shall inform all member states of the
entry into force of the present Protocol.
6. At the time of the ratification of this Protocol or any time thereafter,
the state shall make a declaration accepting the competence of the court to
receive petitions under article 5(3) of this Protocol. The Court shall not
receive any petition under article 5(3) involving a state party which has not
made such a declaration.
7. Declarations made under sub-article 6 above shall be deposited with the
Secretary-General, who shall transmit copies thereof to the state parties.

Article 35: Amendments

1. The present Protocol may be amended if a state party to the Protocol
makes a written request to that effect to the Secretary-General of the OAU.
 Protocol on the Statute of the African Court of Justice and Human Rights 47

The Assembly may adopt, by simple majority, the draft amendment after all
the state parties to the present Protocol have been duly informed of it and
the Court has given its opinion on the amendment.
2. The Court shall also be entitled to propose such amendments to the
present Protocol as it may deem necessary, through the Secretary-General of
the OAU.
3. The amendment shall come into force for each state party which has
accepted it thirty days after the Secretary-General of the OAU has received
notice of the acceptance.

_____________________________________

Protocol on the Statute of the African Court of

Justice and Human Rights (2008/)

Adopted in Sharm el-Sheikh, Egypt, 1 July 2008. Once it has entered into force,
this Protocol will replace the 1998 Protocol on the African Court on Human and
Peoples’ Rights and the 2003 Protocol on the African Court of Justice. As of June
2022 eight states had ratified the Protocol.

The member states of the African Union, parties to this Protocol,

Recalling the objectives and principles enunciated in the Constitutive Act of
the African Union, adopted on 11 July 2000 in Lomé, Togo, in particular the
commitment to settle their disputes through peaceful means;
Bearing in mind their commitment to promote peace, security and stability
on the continent and to protect human and peoples’ rights in accordance with
the African Charter on Human and Peoples’ Rights and other relevant
instruments relating to human rights;
Considering that the Constitutive Act of the African Union provides for the
establishment of a Court of Justice charged with hearing, among other things,
all cases relating to interpretation or application of the said Act or of all other
treaties adopted within the framework of the Union;
Further considering Decisions Assembly/AU/Dec.45 (III) and Assembly/AU/
Dec.83 (V) of the Assembly of the Union, adopted respectively at its third (6-
8 July 2004, Addis Ababa, Ethiopia) and fifth (4-5 July 2005, Sirte, Libya),
ordinary sessions, to merge the African Court on Human and Peoples’ Rights
and the Court of Justice of the African Union into a single Court,
Firmly convinced that the establishment of an African Court of Justice and
Human Rights shall assist in the achievement of the goals pursued by the
African Union and that the attainment of the objectives of the African Charter
on Human and Peoples’ Rights requires the establishment of a judicial organ
to supplement and strengthen the mission of the African Commission on
Human and Peoples’ Rights as well as the African Committee of Experts on the
Rights and Welfare of the Child;
Taking due account of the Protocol to the African Charter on Human and
Peoples’ Rights on the Establishment an African Court on Human and Peoples’
Rights, adopted by the Assembly of Heads of States and Governments of the
Organization of African Unity on 10 June 1998 at Ouagadougou, Burkina Faso,
and which entered into force on 25 January 2004;
48 Instruments of the AU

Taking due account also of the Protocol of the Court of Justice of the African
Union, adopted by the Assembly of the Union on 11 July 2003 in Maputo,
Mozambique;
Recalling their commitment to take all necessary measures to strengthen
their common institutions and to endow them with the necessary powers and
resources to carry out their missions effectively;
Cognisant of the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa, and the commitments contained in
the Solemn Declaration on the gender equality in Africa (Assembly/AU/
Decl.12 (III) adopted by the Assembly of the Union respectively at its second
and third ordinary sessions held in July 2003 and 2004, in Maputo,
Mozambique and in Addis Ababa, Ethiopia);
Convinced that that the present Protocol shall supplement the mandate and
efforts of other continental treaty bodies as well as national institutions in
protecting human rights:

HAVE AGREED AS FOLLOWS:

CHAPTER I: Merger of the African Court on Human and Peoples’

Rights and the Court of Justice of the African Union

Article 1: Replacement of the 1998 and 2003 Protocols

The Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and Peoples’ Rights, adopted on
10 June 1998 in Ouagadougou, Burkina Faso and which entered into force on
25 January 2004, and the Protocol of the Court of Justice of the African Union,
adopted on 11 July 2003 in Maputo, Mozambique, are hereby replaced by the
present Protocol and Statute annexed as its integral part hereto, subject to
the provisions of article 5, 7 and 9 of this Protocol.

Article 2: Establishment of a single Court

The African Court on Human and Peoples’ Rights established by the Protocol
to the African Charter on Human and Peoples’ Rights on the Establishment of
an African Court on Human and Peoples’ Rights and the Court of Justice of the
African Union established by the Constitutive Act of the African Union, are
hereby merged into a single Court and established as ‘The African Court of
Justice and Human Rights’.

Article 3: Reference to the single Court in the Constitutive Act

References made to the ‘Court of Justice’ in the Constitutive Act of the
African Union shall be read as references to the ‘African Court of Justice and
Human Rights’ established under article 2 of this Protocol.

CHAPTER II: Transitional Provisions

Article 4: Term of office of the judges of the African Court on Human

and Peoples’ Rights
The term of office of the judges of the African Court on Human and Peoples’
Rights shall end following the election of the judges of the African Court of
Justice and Human Rights. However, the judges shall remain in office until the
newly elected judges of the African Court of Justice and Human Rights are
sworn in.
 Protocol on the Statute of the African Court of Justice and Human Rights 49

Article 5: Cases pending before the African Court on Human and

Peoples’ Rights
Cases pending before the African Court on Human and Peoples’ Rights, that
have not been concluded before the entry into force of the present Protocol,
shall be transferred to the human rights section of the African Court of Justice
and Human Rights on the understanding that such cases shall be dealt with In
accordance with the protocol to the ACHPR on the establishment of the
African Court on Human and Peoples’ Rights.

Article 6: Registry of the Court

The Registrar of the African Court on Human and Peoples’ Rights shall remain
in office until the appointment of a new Registrar for the African Court of
Justice and Human Rights.

Article 7: Provisional validity of the 1998 Protocol

The Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and Peoples’ Rights shall remain
in force for a transitional period not exceeding one (1) year or any other
period determined by the Assembly, after entry into force of the present
Protocol, to enable the African Court on Human and Peoples’ Rights to take
the necessary measures for the transfer of its prerogatives, assets, rights and
obligations to the African Court of Justice and Human Rights.

CHAPTER III: Final Provisions

Article 8: Signature, ratification and accession

1. The present Protocol shall be open for signature, ratification or
accession by member states, in accordance with their respective
constitutional procedures.
2. The instruments of ratification or accession to the present Protocol shall
be deposited with the Chairperson of the Commission of the African Union.
3. Any member state may, at the time of signature or when depositing its
instrument of ratification or accession, or at any time thereafter, make a
declaration accepting the competence of the Court to receive cases under
article 30(f) involving a state which has not made such a declaration.

Article 9: Entry into force

1. The present Protocol and the Statute annexed to it shall, enter into
force thirty (30) days after the deposit of the instruments of ratification by
fifteen (15) member states.
2. For each member state which shall ratify or accede to it subsequently,
the present Protocol shall enter into force on the date on which the
instruments of ratification or accession are deposited.
3. The Chairperson of the Commission shall inform all member states of
the entry into force of the present Protocol.

ANNEX
STATUTE OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS
CHAPTER I: General Provisions

Article 1: Definitions
In this Statute, except otherwise indicated, the following shall mean:
‘African Charter’ means the African Charter on Human and Peoples’ Rights;
‘African Commission’ means the African Commission on Human and Peoples’
Rights;
50 Instruments of the AU

‘African Committee of Experts’ means the African Committee of Experts on

the Rights and Welfare of the Child;
‘African intergovernmental organisations’ means an organisation that has
been established with the aim of ensuring socio-economic integration, and to
which some member states have ceded certain competences to act on their
behalf, as well as other sub-regional, regional or inter-African Organisations;
‘African non-governmental organisations’ means non-governmental
organisations at the sub-regional, regional or inter-African levels as well as
those in the diaspora as may be defined by the Executive Council;
‘Agent’ means a person mandated in writing to represent a party in a case
before the Court;
‘Assembly’ means the Assembly of Heads of State and Government of the
Union;
‘Chamber(s)’ means a chamber established in accordance with article 19 of
the Statute;
‘Constitutive Act’ means the Constitutive Act of the African Union;
‘Commission’ means the Commission of the Union;
‘Court’ means the African Court of Justice and Human Rights as well as its
sections and chambers;
‘Executive Council’ means the Executive Council of Ministers of the Union;
‘Full Court’ means joint sitting of the general affairs and human rights
sections of the Court;
‘Human rights section’ means the human and peoples’ rights section of the
Court;
‘Judge’ means a judge of the Court;
‘Member state’ means a member state of the Union;
‘National human rights institutions’ means public institutions established by
a state to promote and protect human rights;
‘President’ means the President of the Court elected in accordance with
article 22(1) of the Statute;
‘Protocol’ means the Protocol on the Statute of the African Court of Justice
and Human Rights;
‘Registrar’ means the person appointed as such in accordance with article
22(4) of the Statute;
‘Rules’ means the Rules of the Court;
‘Section’ means the general affairs or the human rights section of the Court;
‘Senior Judge’ means the person defined as such in the Rules of Court;
‘States parties’ means member states, which have ratified or acceded to this
Protocol;
‘Statute’ means the present Statute;
‘Union’ means the African Union established by the Constitutive Act;
‘Vice President’ means the Vice President of the Court elected in accordance
with article 22(1) of the Statute.

Article 2: Functions of the Court

1. The African Court of Justice and Human Rights shall be the main judicial
organ of the African Union.
2. The Court shall be constituted and function in accordance with the
provisions of the present Statute.
 Protocol on the Statute of the African Court of Justice and Human Rights 51

CHAPTER II: Organisation of the Court

Article 3: Composition
1. The Court shall consist of sixteen (16) judges who are nationals of states
parties. Upon recommendation of the Court, the Assembly, may, review the
number of judges.
2. The Court shall not, at any one time, have more than one judge from a
single member state.
3. Each geographical region of the continent, as determined by the
decisions of the Assembly shall, where possible, be represented by three (3)
judges except the western region which shall have four (4) judges.

Article 4: Qualifications of judges

The Court shall be composed of impartial and independent judges elected
from among persons of high moral character, who possess the qualifications
required in their respective countries for appointment to the highest judicial
offices, or are juris-consults of recognised competence and experience in
international law and /or, human rights law.

Article 5: Presentation of candidates

1. As soon as the Protocol to this Statute enters into force, the Chairperson
of the Commission shall invite each state party to submit, in writing, within a
period of ninety (90) days, candidatures to the post of judge of the Court.
2. Each state party may present up to two (2) candidates and shall take
into account equitable gender representation in the nomination process.

Article 6: List of candidates

1. For the purpose of election, the Chairperson of the Commission shall
establish two alphabetical lists of candidates presented as follows: (i) List A
containing the names of candidates having recognised competence and
experience in International law; and (ii) List B containing the names of
candidates possessing recognised competence and experience in human rights
law.
2. States parties that nominate candidates possessing the competences
required on the two lists shall choose the list on which their candidates may
be placed.
3. At the first election, eight (8) Judges shall be elected from amongst the
candidates of list A and eight (8) from among the candidates of list B. The
elections shall be organised in a way as to maintain the same proportion of
judges elected on the two lists.
4. The Chairperson of the Commission shall communicate the two lists to
member states, at least thirty (30) days before the ordinary session of the
Assembly or of the Council, during which the elections shall take place.

Article 7: Election of judges

1. The judges shall be elected by the Executive Council, and appointed by
the Assembly.
2. They shall be elected through secret ballot by a two-thirds majority of
member states with voting rights, from among the candidates provided for in
article 6 of this Statute.
3. Candidates who obtain the two-thirds majority and the highest number
of votes shall be elected. However, if several rounds of election are required,
the candidates with the least number of votes shall withdraw.
4. The Assembly shall ensure that in the Court as a whole there is equitable
representation of the regions and the principal legal traditions of the
Continent.
52 Instruments of the AU

5. In the election of the judges, the Assembly shall ensure that there is
equitable gender representation.

Article 8: Term of office

1. The judges shall be elected for a period of six (6) years and may be re-
elected only once. However, the term of office of eight (8) judges, four (4)
from each section, elected during the first election shall end after four (4)
years.
2. The judges, whose term of office shall end after the initial period of four
(4) years, shall be determined for each section, by lot drawn by the
Chairperson of the Assembly or the Executive Council, immediately after the
first election.
3. A judge, elected to replace another whose term of office has not
expired, shall complete the term of office of his predecessor.
4. All the judges except the President and the Vice-President, shall
perform their functions on a part-time basis.

Article 9: Resignation, suspension and removal from office

1. A judge may resign his/her position in writing addressed to the President
for transmission to the Chairperson of the Assembly through the Chairperson
of the Commission.
2. A judge shall not be suspended or removed from office save, where, on
the recommendation of two-thirds majority of the other members, he/she no
longer meets the requisite conditions to be a judge.
3. The President shall communicate the recommendation for the
suspension or removal of a judge to the Chairperson of the Assembly through
the Chairperson of the Commission.
4. Such a recommendation of the Court shall become final upon its
adoption by the Assembly.

Article 10: Vacancies

1. A vacancy shall arise in the Court under the following circumstances: (a)
Death; (b) Resignation; (c) Removal from office.
2. In the case of death or resignation of a judge, the President shall
immediately inform the Chairperson of the Assembly through the Chairperson
of the Commission in writing, who shall declare the seat vacant.
3. The same procedure and consideration for the election of a judge shall
also be followed in filling the vacancies.

Article 11: Solemn declaration

1. After the first election, the Judges shall, at the first session of the Court
and in the presence of the Chairperson of the Assembly, make a Solemn
Declaration as follows: ‘I … do solemnly swear (or affirm or declare) that I
shall faithfully exercise the duties of my office as judge of the African Court
of Justice and Human Rights of the African Union impartially and
conscientiously, without fear or favour, affection or ill will and that I will
preserve the integrity of the Court.’
2. The Chairperson of the Assembly or his/her duly authorised
representative shall administer the Solemn Declaration.
3. Subsequently, the Solemn Declaration shall be made before the
President of the Court.

Article 12: Independence

1. The independence of the judges shall be fully ensured in accordance
with international law.
2. The Court shall act impartially, fairly and justly.
 Protocol on the Statute of the African Court of Justice and Human Rights 53

3. In performance of the judicial functions and duties, the Court and its
judges shall not be subject to the direction or control of any person or body.

Article 13: Conflict of interest

1. Functions of a judge are incompatible with all other activities, which
might infringe on the need for independence or impartiality of the judicial
profession. In case of doubt, the Court shall decide.
2. A judge shall not exercise the function of agent, or counsel, or lawyer
in any case before the Court.

Article 14: Conditions governing the participation of members in the

settlement of a specific case
1. Where a particular judge feels he/she has a conflicting interest in a
particular case, he/she shall so declare. In any event, he/she shall not
participate in the settlement of a case for which he/she was previously
involved as agent, counsel or lawyer of one of the parties, or as a member of
a national or international court or tribunal, or a commission of enquiry or in
any other capacity.
2. If the President considers that a judge should not participate in a
particular case, he/she shall notify the judge concerned. Such notification
from the President shall, after agreement by the Court, exclude that judge
from participating in that particular case.
3. A judge of the nationality of a state party to a case before the full Court
or one of its sections shall not have the right to sit on the case.
4. Where there is doubt on these points, the Court shall decide.

Article 15: Privileges and immunities

1. The judges shall enjoy, from the time of their election and throughout
their term of office, the full privileges and immunities extended to diplomatic
agents in accordance with international law.
2. The judges shall be immune from legal proceedings for any act or
omission committed in the discharge of their judicial functions.
3. The judges shall continue, after they have ceased to hold office, to
enjoy immunity in respect of acts performed by them when engaged in their
official capacity.

Article 16: Sections of the Court

The Court shall have two (2) sections; a general affairs section composed of
eight (8) Judges and a human rights section composed of eight (8) judges.

Article 17: Assignment of matters to sections

1. The general affairs section shall be competent to hear all cases
submitted under article 28 of this Statute save those concerning human and/
or peoples’ rights issues.
2. The human rights section shall be competent to hear all cases relating
to human and/or peoples’ rights.

Article 18: Referral of matters to the full Court

When a section of the Court is seized with a case, it may, if it deems it
necessary refer that case to the full Court for consideration.

Article 19: Chambers

1. The general affairs section and the human rights section may, at any
time, constitute one or several chambers. The quorum required to constitute
such chambers shall be determined in the Rules of Court.
54 Instruments of the AU

2. A judgment given by any section or chamber shall be considered as

rendered by the Court.

Article 20: Sessions

1. The Court shall hold ordinary and extraordinary sessions.
2. The Court shall decide each year on the periods of its ordinary sessions.
3. Extraordinary sessions shall be convened by the President or at the
request of the majority of the judges.

Article 21: Quorum

1. A quorum of nine (9) judges shall be required for deliberations of the
full Court.
2. A quorum of six (6) judges shall be required for the deliberations of the
general affairs section.
3. A quorum of six (6) judges shall be required for the deliberations of the
human and peoples’ rights section.

Article 22: Presidency, Vice-Presidency and Registry

1. At its first ordinary session after the election of the judges, the full
Court shall elect its President as well as the Vice-President from the different
lists for a period of three (3) years. The President and the Vice-President may
be re-elected once.
2. The President shall preside over all sessions of the full Court and those
of the section to which he/she belongs; in the event of being unable to sit,
the President shall be replaced by the Vice President for the full Court and by
the most senior judge for the sessions of his/her section.
3. The Vice-President shall preside over all sessions of the section to which
he/she belongs. In the event of being unable to sit, the Vice-President shall
be replaced by the most senior judge of that section.
4. The Court shall appoint a Registrar and may provide for the appointment
of such other officers as may be necessary.
5. The President, the Vice-President and the Registrar shall reside at the
seat of the Court.

Article 23: Remuneration of judges

1. The President and the Vice-President shall receive an annual salary and
other benefits.
2. The other judges shall receive a sitting allowance for each day on which
he/she exercises his/her functions.
3. These salaries, allowances and compensation shall be determined by
the Assembly, on the proposal of the Executive Council. They may not be
decreased during the term of office of the judges.
4. Regulations adopted by the Assembly on the proposal of the Executive
Council shall determine the conditions under which retirement pensions shall
be given to the judges as well as the conditions under which their travel
expenses shall be paid.
5. The above-mentioned salaries, allowances and compensation shall be
free from all taxation.

Article 24: Conditions of service of the Registrar and Members of the

Registry
The salaries and conditions of service of the Registrar and other court officials
shall be determined by the Assembly on the proposal of the Court, through
the Executive Council.
 Protocol on the Statute of the African Court of Justice and Human Rights 55

Article 25: Seat and seal of the Court

1. The seat of the Court shall be same as the seat of the African Court on
Human and Peoples’ Rights. However, the Court may sit in any other member
state, if circumstances warrant, and with the consent of the member state
concerned. The Assembly may change the seat of the Court after due
consultations with the Court.
2. The Court shall have a seal bearing the inscription ‘The African Court of
Justice and Human Rights’.

Article 26: Budget

1. The Court shall prepare its draft annual budget and shall submit it to the
Assembly through the Executive Council.
2. The budget of the Court shall be borne by the African Union.
3. The Court shall be accountable for the execution of its budget and shall
submit report thereon to the Executive Council in conformity with the
Financial Rules and Regulations of the African Union.

Article 27: Rules of Court

1. The Court shall adopt rules for carrying out its functions and the
implementation of the present Statute. In particular, it shall lay down its own
Rules.
2. In elaborating its Rules, the Court shall bear in mind the
complementarity it maintains with the African Commission and the African
Committee of Experts.

CHAPTER III: Competence of the Court

Article 28: Jurisdiction of the Court

The Court shall have jurisdiction over all cases and all legal disputes
submitted to it in accordance with the present Statute which relate to:
(a) the interpretation and application of the Constitutive Act;
(b) the interpretation, application or validity of other Union treaties and all
subsidiary legal instruments adopted within the framework of the Union or
the Organization of African Unity;
(c) the interpretation and the application of the African Charter, the
Charter on the Rights and Welfare of the Child, the Protocol to the African
Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or
any other legal instrument relating to human rights, ratified by the states
parties concerned;
(d) any question of international law;
(e) all acts, decisions, regulations and directives of the organs of the Union;
(f) all matters specifically provided for in any other agreements that states
parties may conclude among themselves, or with the Union and which confer
jurisdiction on the Court;
(g) the existence of any fact which, if established, would constitute a
breach of an obligation owed to a state party or to the Union;
(h) the nature or extent of the reparation to be made for the breach of an
international obligation.

Article 29: Entities eligible to submit cases to the Court

1. The following entities shall be entitled to submit cases to the Court on
any issue or dispute provided for in article 28:
(a) State parties to the present Protocol;
(b) The Assembly, the Parliament and other organs of the Union authorised
by the Assembly;
56 Instruments of the AU

(c) A staff member of the African Union on appeal, in a dispute and within
the limits and under the terms and conditions laid down in the Staff Rules and
Regulations of the Union;
2. The Court shall not be open to states, which are not members of the
Union. The Court shall also have no jurisdiction to deal with a dispute
involving a member state that has not ratified the Protocol.

Article 30: Other entities eligible to submit cases to the Court

The following entities shall also be entitled to submit cases to the Court on
any violation of a right guaranteed by the African Charter, by the Charter on
the Rights and Welfare of the Child, the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa, or any other
legal instrument relevant to human rights ratified by the states parties
concerned:
(a) State parties to the present Protocol;
(b) The African Commission on Human and Peoples’ Rights;
(c) The African Committee of Experts on the Rights and Welfare of the
Child;
(d) African intergovernmental organisations accredited to the Union or its
organs;
(e) African national human rights institutions;
(f) Individuals or relevant non-governmental organisations accredited to
the African Union or to its organs, subject to the provisions of article 8 of the
Protocol.

Article 31: Applicable law

1. In carrying out its functions, the Court shall have regard to:
(a) The Constitutive Act;
(b) International treaties, whether general or particular, ratified by the
contesting states;
(c) International custom, as evidence of a general practice accepted as
law;
(d) The general principles of law recognised universally or by African states;
(e) Subject to the provisions of paragraph 1, of article 46 of the present
Statute, judicial decisions and writings of the most highly qualified publicists
of various nations s well as the regulations, directives and decisions of the
Union, as subsidiary means for the determination of the rules of law;
(f) Any other law relevant to the determination of the case.
2. This article shall not prejudice the power of the Court to decide a case
ex aequo et bono, if the parties agree thereto.

CHAPTER IV: Procedure

Article 32: Official languages

The official and working languages of the Court shall be those of the Union.

Article 33: Institution of proceedings before the General Affairs Section

1. Cases brought before the Court by virtue of article 29 of the present
Statute shall be submitted by written application addressed to the Registrar.
The subject of the dispute, the applicable law and basis of jurisdiction shall
be indicated.
2. The Registrar shall forthwith give notice of the application to the parties
concerned.
3. The Registrar shall also notify, through the Chairperson of the
Commission, all member states and, if necessary, the organs of the Union
whose decisions are in dispute.
 Protocol on the Statute of the African Court of Justice and Human Rights 57

Article 34: Institution of proceedings before the Human Rights Section

1. Cases brought before the Court relating to an alleged violation of a
human or peoples’ right shall be submitted by a written application to the
Registrar. The application shall indicate the right(s) alleged to have been
violated, and, insofar as it is possible, the provision or provisions of the
African Charter on Human and Peoples’ Rights, the Charter on the Rights and
Welfare of the Child, Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa or any other relevant human rights
instrument, ratified by the State concerned, on which it is based.
2. The Registrar shall forthwith give notice of the application to all parties
concerned, as well as the Chairperson of the Commission.

Article 35: Provisional measures

1. The Court shall have the power, on its own motion or on application by
the parties, to indicate, if it considers that circumstances so require any
provisional measures which ought to be taken to preserve the respective
rights of the parties.
2. Pending the final decision, notice of the provisional measures shall
forthwith be given to the parties and the Chairperson of the Commission, who
shall inform the Assembly.

Article 36: Representation of parties

1. The States, parties to a case, shall be represented by agents.
2. They may, if necessary, have the assistance of counsel or advocates
before the Court.
3. The organs of the Union entitled to appear before the Court shall be
represented by the Chairperson of the Commission or his /her representative.
4. The African Commission, the African Committee of Experts, African
inter-governmental organisations accredited to the Union or its organs and
African national human rights institutions entitled to appear before the Court
shall be represented by any person they choose for that purpose.
5. Individuals and non-governmental organisations accredited to the Union
or its organs may be represented or assisted by a person of their choice.
6. The agents and other representatives of parties before the Court, their
counsel or advocates, witnesses, and any other persons whose presence is
required at the Court shall enjoy the privileges and immunities necessary to
the independent exercise of their duties or the smooth functioning of the
Court.

Article 37: Communications and notices

1. Communications and notices addressed to agents or counsel of parties
to a case shall be considered as addressed to the parties.
2. For the service of all communications or notices upon persons other than
the agents, counsel or advocates of parties concerned, the Court shall direct
its request to the government of the state upon whose territory the
communication or notice has to be served.
3. The same provision shall apply whenever steps are to be taken to
procure evidence on the spot.

Article 38: Procedure before the Court

The procedures before the Court shall be laid out in the Rules of Court, taking
into account the complementarity between the Court and other treaty bodies
of the Union.
58 Instruments of the AU

Article 39: Public hearing

The hearing shall be public, unless the Court, on its own motion or upon
application by the parties, decides that the session shall be closed.

Article 40: Record of proceedings

1. A record of proceedings shall be made at each hearing and shall be
signed by the Registrar and the presiding judge of the session.
2. This record alone shall be authentic.

Article 41: Default judgment

1. Whenever one of the parties does not appear before the Court, or fails
to defend the case against it, the Court shall proceed to consider the case and
to give its judgment.
2. The Court shall before doing so, satisfy itself, not only that it has
jurisdiction in accordance with articles 28, 29 and 30 of the present Statute,
but also that the claim is well founded in fact and law, and that the other
party had due notice.
3. An objection by the party concerned may be lodged against the
judgment within ninety (90) days of it being notified of the default judgment.
Unless there is a decision to the contrary by the Court, the objection shall not
have effect of staying the enforcement of the default judgment.

Article 42: Majority required for decision of the Court

1. Without prejudice to the provisions of article 50(4) of the present
Statute, the decisions of the Court shall be decided by a majority of the
Judges present.
2. In the event of an equality of votes, the presiding judge shall have a
casting vote.

Article 43: Judgments and decisions

1. The Court shall render its judgment within ninety (90) days of having
completed its deliberations.
2. All judgments shall state the reasons on which they are based.
3. The judgment shall contain the names of the judges who have taken
part in the decision.
4. The judgment shall be signed by all the judges and certified by the
presiding Judge and the Registrar. It shall be read in open session, due notice
having been given to the agents.
5. The parties to the case shall be notified of the judgment of the Court
and it shall be transmitted to the member states and the Commission.
6. The Executive Council shall also be notified of the judgment and shall
monitor its execution on behalf of the Assembly.

Article 44: Dissenting opinion

If the judgment does not represent in whole or in part the unanimous opinion
of the judges, any judge shall be entitled to deliver a separate or dissenting
opinion.

Article 45: Compensation

Without prejudice to its competence to rule on issues of compensation at the
request of a party by virtue of paragraph 1(h), of article 28 of the present
Statute, the Court may, if it considers that there was a violation of a human
or peoples’ right, order any appropriate measures in order to remedy the
situation, including granting fair compensation.
 Protocol on the Statute of the African Court of Justice and Human Rights 59

Article 46: Binding force and execution of judgments

1. The decision of the Court shall be binding on the parties.
2. Subject to the provisions of paragraph 3, article 41 of the present
Statute, the judgment of the Court is final.
3. The parties shall comply with the judgment made by the Court in any
dispute to which they are parties within the time stipulated by the Court and
shall guarantee its execution.
4. Where a party has failed to comply with a judgment, the Court shall
refer the matter to the Assembly, which shall decide upon measures to be
taken to give effect to that judgment.
5. The Assembly may impose sanctions by virtue of paragraph 2 of article
23 of the Constitutive Act.

Article 47: Interpretation

In the event of any dispute as to the meaning or scope of a judgment, the
Court shall construe it upon the request of any party.

Article 48: Revision

1. An application for revision of a judgment may be made to the Court only
when it is based upon discovery of a new fact of such nature as to be a
decisive factor, which fact was, when the judgment was given, unknown to
the Court and also to the party claiming revision, provided that such
ignorance was not due to negligence.
2. The proceedings for revision shall be opened by a ruling of the Court
expressly recording the existence of the new fact, recognising that it has such
a character as to lay the case open to revision, and declaring the revision
admissible on this ground.
3. The Court may require prior compliance with the terms of the judgment
before it admits proceedings in revision.
4. The application for revision shall be made within six (6) months of the
discovery of the new fact.
5. No application may be made after the lapse of ten (10) years from the
date of the judgment.

Article 49: Intervention

1. Should a member state or organ of the Union consider that it has an
interest of a legal nature which may be affected by the decision in the case,
it may submit a request to the Court to be permitted to intervene. It shall be
for the Court to decide upon this request.
2. If a member state or organ of the Union should exercise the option
offered under paragraph 1 of the present article, the interpretation contained
in the decision shall be equally binding upon it.
3. In the interest of the effective administration of justice, the Court may
invite any member state that is not a party to the case, any organ of the Union
or any person concerned other than the claimant, to present written
observations or take part in hearings.

Article 50: Intervention in a case concerning the interpretation of the

Constitutive Act
1. Whenever the question of interpretation of the Constitutive Act arises,
in a case in which member states other than the parties to the dispute have
expressed an interest, the Registrar shall notify all such states and organs of
the Union forthwith.
2. Every state party and organ of the Union so notified has the right to
intervene in the proceedings.
60 Instruments of the AU

3. The decisions of the Court concerning the interpretation and application

of the Constitutive Act shall be binding on member states and organs of the
Union, notwithstanding the provisions of paragraph 1, of article 46 of this
Statute.
4. Any decision made by virtue of this article shall be made by a qualified
majority of at least two (2) votes and in the presence of at least two-thirds of
the judges.

Article 51: Intervention in a case concerning the interpretation of other

treaties
1. Whenever the question is that of interpretation of other treaties ratified
by member states other than the parties to a dispute, the Registrar shall
notify all such states and the organs of the Union forthwith.
2. Every state party and organ of the Union so notified has the right to
intervene in the proceedings, and if it exercises this right, the interpretation
given by the judgment shall be equally binding upon it.
3. This article shall not be applicable to cases relating to alleged violations
of a human or peoples’ right, submitted by virtue of articles 29 or 30 of the
present Statute.

Article 52: Costs

1. Unless otherwise decided by the Court, each party shall bear its own
costs.
2. Should it be required in the interest of justice, free legal aid may be
provided for the person presenting an individual communication, under
conditions to be set out in the Rules of Court.

CHAPTER V: Advisory Opinion

Article 53: Request for advisory opinion

1. The Court may give an advisory opinion on any legal question at the
request of the Assembly, the Parliament, the Executive Council, the Peace
and Security Council, the Economic, Social and Cultural Council (ECOSOCC),
the Financial Institutions or any other organ of the Union as may be authorised
by the Assembly.
2. A request for an advisory opinion shall be in writing and shall contain an
exact statement of the question upon which the opinion is required and shall
be accompanied by all relevant documents.
3. A request for an advisory opinion must not be related to a pending
application before the African Commission or the African Committee of
Experts.

Article 54: Service of notice

1. The Registrar shall forthwith give notice of the request for an advisory
opinion to all states or organs entitled to appear before the Court by virtue
of article 30 of the present Statute.
2. The Registrar shall also, by means of a special and direct
communication, notify any state entitled to appear before the Court or any
intergovernmental organisation considered by the Court, or should it not be
sitting, by the President, as likely to be able to furnish information on the
question, that the Court will be prepared to receive, within a time limit to be
fixed by the President, written statements, or to hear, at a public sitting to
be held for the purpose, oral statements relating to the question.
3. Should any such state entitled to appear before the Court have failed to
receive the special communication referred to in paragraph 2 of this article,
 Protocol on the Statute of the African Court of Justice and Human Rights 61

such state may express the desire to submit a written statement or to be

heard, and the Court shall decide.
4. States and organisations having presented written or oral statements or
both shall be permitted to comment on the statements made by other states
or organisations in the form, to the extent, and within the time limits which
the Court, or should it not be sitting, the President, shall decide in each
particular case. Accordingly, the Registrar shall in due course communicate
any such written statements to states and organisations having submitted
similar statements.

Article 55: Delivery of advisory opinion

The Court shall deliver its advisory opinion in open court, notice having been
given to the Chairperson of the Commission and member states, and other
international organisations directly concerned.

Article 56: Application by analogy of the Provisions of the Statute

applicable to contentious cases
In the exercise of its advisory functions, the Court shall further be guided by
the provisions of the present Statute which apply in contentious cases to the
extent to which it recognises them to be applicable.

CHAPTER VI: Report to the Assembly

Article 57: Annual activity report

The Court shall submit to the Assembly, an annual report on its work during
the previous year. The report shall specify, in particular, the cases in which
a party has not complied with the judgment of the Court.

CHAPTER VII: Procedure for Amendments

Article 58: Proposed amendments from a state party

1. The present Statute may be amended if a state party makes a written
request to that effect to the Chairperson of the Commission, who shall
transmit same to member states within thirty (30) days of receipt thereof.
2. The Assembly may adopt by a simple majority, the proposed
amendment after the Court has given its opinion on it.

Article 59: Proposed amendments from the Court

The Court may propose such amendments to the present Statute as it may
deem necessary, to the Assembly through written communication to the
Chairperson of the Commission, for consideration in conformity with the
provisions of article 58 of the present Statute.

Article 60: Entry into force of amendments

The amendment shall enter into force for every state which has accepted it
in conformity with its constitutional laws thirty (30) days after the
Chairperson of the Commission is notified of this acceptance.
62 Instruments of the AU

Protocol on Amendments to the Protocol on the

Statute of the African Court of Justice and Human
Rights (2014/)

This Protocol provides the African Court of Justice and Human Rights with criminal
jurisdiction. The Protocol was adopted in Malabo, Equatorial Guinea on 27 June
2014. As of June 2022 no state had ratified the Protocol.

Statute of the African Court of Justice and Human Rights

(as amended)

…
CHAPTER III: Competence of the Court

Article 28: Jurisdiction of the Court

The Court shall have jurisdiction over all cases and all legal disputes
submitted to it in accordance with the present Statute which relate to:
(a) the interpretation and application of the Constitutive Act;
(b) the interpretation, application or validity of other Union Treaties and
all subsidiary legal instruments adopted within the framework of the Union or
the Organization of African Unity;
(c) the interpretation and the application of the African Charter, the
Charter on the Rights and Welfare of the Child, the Protocol to the African
Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or
any other legal instrument relating to human rights, ratified by the States
parties concerned;
(d) The crimes contained in this Statute, subject to a right of appeal.
(e) any question of international law;
(f) all acts, decisions, regulations and directives of the organs of the Union;
(g) all matters specifically provided for in any other agreements that States
parties may conclude among themselves, or with the Union and which confer
jurisdiction on the Court;
(h) the existence of any fact which, if established, would constitute a
breach of an obligation owed to a State Party or to the Union;
(i) the nature or extent of the reparation to be made for the breach of an
international obligation.

Article 28A: International criminal jurisdiction of the Court

1. Subject to the right of appeal, the International Criminal Law Section of
the Court shall have power to try persons for the crimes provided hereunder:
(1) Genocide
(2) Crimes against humanity
(3) War crimes
(4) The crime of unconstitutional change of government;
(5) Piracy
(6) Terrorism
(7) Mercenarism
(8) Corruption
(9) Money laundering
(10) Trafficking in persons
(11) Trafficking in drugs
(12) Trafficking in hazardous wastes
 Malabo Protocol 63

(13) Illicit exploitation of natural resources

(14) The crime of aggression
2. The Assembly may extend upon the consensus of States parties the
jurisdiction of the Court to incorporate additional crimes to reflect
developments in international law.
3. The crimes within the Jurisdiction of the Court shall not be subject to
any statute of limitations.
…
Article 28E: The crime of unconstitutional change of government
1. For the purposes of this Statute, ‘unconstitutional change of
government’ means committing or ordering to be committed the following
acts, with the aim of illegally accessing or maintaining power:
(a) A putsch or coup d’état against a democratically elected government;
(b) An intervention by mercenaries to replace a democratically elected
government;
(c) Any replacement of a democratically elected government by the use of
armed dissidents or rebels or through political assassination;
(d) Any refusal by an incumbent government to relinquish power to the
winning party or candidate after free, fair and regular elections;
(e) Any amendment or revision of the Constitution or legal instruments,
which is an infringement on the principles of democratic change of
government or is inconsistent with the Constitution;
(f) Any substantial modification to the electoral laws in the last six (6)
months before the elections without the consent of the majority of the
political actors.
2. For purposes of this Statute, ‘democratically elected government’ has
the same meaning as contained in AU instruments.
…
Article 28N: Modes of responsibility
An offence is committed by any person who, in relation to any of the crimes
or offences provided for in this Statute: i. Incites, instigates, organizes,
directs, facilitates, finances, counsels or participates as a principal, co-
principal, agent or accomplice in any of the offences set forth in the present
Statute; ii. Aids or abets the commission of any of the offences set forth in
the present Statute; iii. Is an accessory before or after the fact or in any other
manner participates in a collaboration or conspiracy to commit any of the
offences set forth in the present Statute; iv. Attempts to commit any of the
offences set forth in the present Statute.

Article 29: Entities eligible to submit cases to the Court

1. The following entities shall be entitled to submit cases to the Court on
any issue or dispute provided for in Article 28:
(a) State parties to the present Protocol;
(b) The Assembly, the Peace and Security Council, the Parliament and other
organs of the Union authorized by the Assembly;
(c) A staff member of the African Union on appeal, in a dispute and within
the limits and under the terms and conditions laid down in the Staff Rules and
Regulations of the Union;
(d) The Office of the Prosecutor.
2. The Court shall not be open to States, which are not members of the
Union. The Court shall also have no jurisdiction to deal with a dispute
involving a Member State that has not ratified the Protocol.
…
64 Instruments of the AU

Article 43A:Sentences and penalties under the international criminal

jurisdiction of the Court
1. Without prejudice to the provisions of article 43, the Court shall
pronounce judgment and impose sentences and/ or penalties, other than the
death penalty, for persons convicted of international crimes under this
Statute.
2. For the avoidance of doubt, the penalties imposed by the Court shall be
limited to prison sentences and/ or pecuniary fines.
3. The sentences and/ or penalties shall be pronounced in public and,
wherever possible, in the presence of the accused.
4. In imposing the sentences and/ or penalties, the Court should take into
account such factors as the gravity of the offence and the individual
circumstances of the convicted person.
5. In addition to the sentences and/ or penalties, the Court may order the
forfeiture of any property, proceeds or any asset acquired unlawfully or by
criminal conduct, and their return to their rightful owner or to an appropriate
Member State.
…
Article 45: Compensation and reparations to victims
1. Without prejudice to the provisions of paragraph (i) of article 28, the
Court shall establish in the Rules of Court principles relating to reparations
to, or in respect of, victims, including restitution, compensation and
rehabilitation. On this basis, in its decision the Court may, either upon
request or on its own motion in exceptional circumstances, determine the
scope and extent of any damage, loss or injury to, or in respect of, victims
and will state the principles on which it is acting.
2. With respect to its international criminal jurisdiction, the Court may
make an order directly against a convicted person specifying appropriate
reparations to, or in respect of, victims, including restitution, compensation
and rehabilitation.
3. Before making an order the Court may invite and take account of
representations from or on behalf of the convicted person, victims, other
interested persons or interested States.
4. Nothing in this article shall be interpreted as prejudicing the rights of
victims under national or international law.
…
CHAPTER IVA: Provisions specific to the international criminal
jurisdiction of the Court
…
Article 46A bis: Immunities
No charges shall be commenced or continued before the Court against any
serving AU Head of State or Government, or anybody acting or entitled to act
in such capacity, or other senior state officials based on their functions,
during their tenure of office.

Article 46B: Individual criminal responsibility

1. A person who commits an offence under this Statute shall be held
individually responsible for the crime.
2. Subject to the provisions of article 46A bis of this Statute, the official
position of any accused person shall not relieve such person of criminal
responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in article 28A of the present
Statute was committed by a subordinate does not relieve his or her superior
of criminal responsibility if he or she knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior
 Protocol on the Rights of Women 65

failed to take the necessary and reasonable measures to prevent such acts or
to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to the order of a
Government or of a superior shall not relieve him or her of criminal
responsibility, but may be considered in mitigation of punishment if the Court
determines that justice so requires.

Article 46C: Corporate criminal liability

1. For the purpose of this Statute, the Court shall have jurisdiction over
legal persons, with the exception of States.
2. Corporate intention to commit an offence may be established by proof
that it was the policy of the corporation to do the act which constituted the
offence.
3. A policy may be attributed to a corporation where it provides the most
reasonable explanation of the conduct of that corporation.
4. Corporate knowledge of the commission of an offence may be
established by proof that the actual or constructive knowledge of the relevant
information was possessed within the corporation.
5. Knowledge may be possessed within a corporation even though the
relevant information is divided between corporate personnel.
6. The criminal responsibility of legal persons shall not exclude the
criminal responsibility of natural persons who are perpetrators or accomplices
in the same crimes.
…

_____________________________________

Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Women in Africa
(2003/2005)

Adopted in Maputo, Mozambique on 11 July 2003 and entered into force on 25

November 2005. The Commission has adopted guidelines on state reporting under
the Protocol reprinted below. The Commission adopted general comments on
various aspects of article 14 of the Protocol in 2012 and 2014, see http://
www.achpr.org/instruments/

The states parties to this Protocol,

Considering that article 66 of the African Charter on Human and Peoples’

Rights provides for special protocols or agreements, if necessary, to
supplement the provisions of the African Charter, and that the Assembly of
Heads of State and Government of the Organization of African Unity meeting
in its Thirty-first ordinary session in Addis Ababa, Ethiopia, in June 1995,
endorsed by resolution AHG/Res.240 (XXXI) the recommendation of the
African Commission on Human and Peoples’ Rights to elaborate a Protocol on
the Rights of Women in Africa;
Considering that article 2 of the African Charter on Human and Peoples’
Rights enshrines the principle of non-discrimination on the grounds of race,
66 Instruments of the AU

ethnic group, colour, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status;
Further considering that article 18 of the African Charter on Human and
Peoples’ Rights calls on all states parties to eliminate every discrimination
against women and to ensure the protection of the rights of women as
stipulated in international declarations and conventions;
Noting that articles 60 and 61 of the African Charter on Human and Peoples’
Rights recognise regional and international human rights instruments and
African practices consistent with international norms on human and peoples’
rights as being important reference points for the application and
interpretation of the African Charter;
Recalling that women’s rights have been recognised and guaranteed in all
international human rights instruments, notably the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, the
Convention on the Elimination of All Forms of Discrimination Against Women
and its Optional Protocol, the African Charter on the Rights and Welfare of
the Child, and all other international and regional conventions and covenants
relating to the rights of women as being inalienable, interdependent and
indivisible human rights;
Noting that women’s rights and women’s essential role in development, have
been reaffirmed in the United Nations Plans of Action on the Environment and
Development in 1992, on Human Rights in 1993, on Population and
Development in 1994 and on Social Development in 1995;
Recalling also United Nations Security Council’s Resolution 1325 (2000) on the
role of women in promoting peace and security;
Reaffirming the principle of promoting gender equality as enshrined in the
Constitutive Act of the African Union as well as the New Partnership for
Africa’s Development, relevant declarations, resolutions and decisions, which
underline the commitment of the African states to ensure the full
participation of African women as equal partners in Africa’s development;
Further noting that the African Platform for Action and the Dakar Declaration
of 1994 and the Beijing Platform for Action of 1995 call on all member states
of the United Nations, which have made a solemn commitment to implement
them, to take concrete steps to give greater attention to the human rights of
women in order to eliminate all forms of discrimination and of gender-based
violence against women;
Recognising the crucial role of women in the preservation of African values
based on the principles of equality, peace, freedom, dignity, justice,
solidarity and democracy;
Bearing in mind related resolutions, declarations, recommendations,
decisions, conventions and other regional and sub-regional instruments aimed
at eliminating all forms of discrimination and at promoting equality between
women and men;
Concerned that despite the ratification of the African Charter on Human and
Peoples’ Rights and other international human rights instruments by the
majority of states parties, and their solemn commitment to eliminate all
forms of discrimination and harmful practices against women, women in
Africa still continue to be victims of discrimination and harmful practices;
Firmly convinced that any practice that hinders or endangers the normal
growth and affects the physical and psychological development of women and
girls should be condemned and eliminated;
Determined to ensure that the rights of women are promoted, realised and
protected in order to enable them to enjoy fully all their human rights;

HAVE AGREED as follows:

 Protocol on the Rights of Women 67

Article 1: Definitions
For the purpose of the present Protocol:
(a) African Charter means the African Charter on Human and Peoples’
Rights;
(b) African Commission means the African Commission on Human and
Peoples’ Rights;
(c) Assembly means the Assembly of Heads of State and Government of the
African Union;
(d) AU means the African Union;
(e) Constitutive Act means the Constitutive Act of the African Union;
(f) Discrimination against women means any distinction, exclusion or
restriction or any differential treatment based on sex and whose objectives
or effects compromise or destroy the recognition, enjoyment or the exercise
by women, regardless of their marital status, of human rights and
fundamental freedoms in all spheres of life;
(g) Harmful practices means all behaviour, attitudes and/or practices
which negatively affect the fundamental rights of women and girls, such as
their right to life, health, dignity, education and physical integrity;
(h) NEPAD means the New Partnership for Africa’s Development established
by the Assembly;
(i) States parties means the states parties to this Protocol;
(j) Violence against women means all acts perpetrated against women
which cause or could cause them physical, sexual, psychological, and
economic harm, including the threat to take such acts; or to undertake the
imposition of arbitrary restrictions on or deprivation of fundamental freedoms
in private or public life in peace time and during situations of armed conflicts
or of war;
(k) Women means persons of female gender, including girls.

Article 2: Elimination of discrimination against women

1. States parties shall combat all forms of discrimination against women
through appropriate legislative, institutional and other measures. In this
regard they shall:
(a) include in their national constitutions and other legislative instruments,
if not already done, the principle of equality between women and men and
ensure its effective application;
(b) enact and effectively implement appropriate legislative or regulatory
measures, including those prohibiting and curbing all forms of discrimination
particularly those harmful practices which endanger the health and general
well-being of women;
(c) integrate a gender perspective in their policy decisions, legislation,
development plans, programmes and activities and in all other spheres of life;
(d) take corrective and positive action in those areas where discrimination
against women in law and in fact continues to exist;
(e) support the local, national, regional and continental initiatives directed
at eradicating all forms of discrimination against women.
2. States parties shall commit themselves to modify the social and cultural
patterns of conduct of women and men through public education,
information, education and communication strategies, with a view to
achieving the elimination of harmful cultural and traditional practices and all
other practices which are based on the idea of the inferiority or the
superiority of either of the sexes, or on stereotyped roles for women and men.

Article 3: Right to dignity

1. Every woman shall have the right to dignity inherent in a human being
and to the recognition and protection of her human and legal rights.
68 Instruments of the AU

2. Every woman shall have the right to respect as a person and to the free
development of her personality.
3. States parties shall adopt and implement appropriate measures to
prohibit any exploitation or degradation of women.
4. States parties shall adopt and implement appropriate measures to
ensure the protection of every woman’s right to respect for her dignity and
protection of women from all forms of violence, particularly sexual and verbal
violence.

Article 4: The rights to life, integrity and security of the person

1. Every woman shall be entitled to respect for her life and the integrity
and security of her person. All forms of exploitation, cruel, inhuman or
degrading punishment and treatment shall be prohibited.
2. States parties shall take appropriate and effective measures to:
(a) enact and enforce laws to prohibit all forms of violence against women
including unwanted or forced sex whether the violence takes place in private
or public;
(b) adopt such other legislative, administrative, social and economic
measures as may be necessary to ensure the prevention, punishment and
eradication of all forms of violence against women;
(c) identify the causes and consequences of violence against women and
take appropriate measures to prevent and eliminate such violence;
(d) actively promote peace education through curricula and social
communication in order to eradicate elements in traditional and cultural
beliefs, practices and stereotypes which legitimise and exacerbate the
persistence and tolerance of violence against women;
(e) punish the perpetrators of violence against women and implement
programmes for the rehabilitation of women victims;
(f) establish mechanisms and accessible services for effective information,
rehabilitation and reparation for victims of violence against women;
(g) prevent and condemn trafficking in women, prosecute the perpetrators
of such trafficking and protect those women most at risk;
(h) prohibit all medical or scientific experiments on women without their
informed consent;
(i) provide adequate budgetary and other resources for the
implementation and monitoring of actions aimed at preventing and
eradicating violence against women;
(j) ensure that, in those countries where the death penalty still exists, not
to carry out death sentences on pregnant or nursing women;
(k) ensure that women and men enjoy equal rights in terms of access to
refugee status determination procedures and that women refugees are
accorded the full protection and benefits guaranteed under international
refugee law, including their own identity and other documents.

Article 5: Elimination of harmful practices

States parties shall prohibit and condemn all forms of harmful practices which
negatively affect the human rights of women and which are contrary to
recognised international standards. States parties shall take all necessary
legislative and other measures to eliminate such practices, including:
(a) creation of public awareness in all sectors of society regarding harmful
practices through information, formal and informal education and outreach
programmes;
(b) prohibition, through legislative measures backed by sanctions, of all
forms of female genital mutilation, scarification, medicalisation and para-
medicalisation of female genital mutilation and all other practices in order to
eradicate them;
 Protocol on the Rights of Women 69

(c) provision of necessary support to victims of harmful practices through

basic services such as health services, legal and judicial support, emotional
and psychological counselling as well as vocational training to make them
self-supporting;
(d) protection of women who are at risk of being subjected to harmful
practices or all other forms of violence, abuse and intolerance.

Article 6: Marriage
States parties shall ensure that women and men enjoy equal rights and are
regarded as equal partners in marriage. They shall enact appropriate national
legislative measures to guarantee that:
(a) no marriage shall take place without the free and full consent of both
parties;
(b) the minimum age of marriage for women shall be 18 years;
(c) monogamy is encouraged as the preferred form of marriage and that the
rights of women in marriage and family, including in polygamous marital
relationships are promoted and protected;
(d) every marriage shall be recorded in writing and registered in accordance
with national laws, in order to be legally recognised;
(e) the husband and wife shall, by mutual agreement, choose their
matrimonial regime and place of residence;
(f) a married woman shall have the right to retain her maiden name, to use
it as she pleases, jointly or separately with her husband’s surname;
(g) a woman shall have the right to retain her nationality or to acquire the
nationality of her husband;
(h) a woman and a man shall have equal rights, with respect to the
nationality of their children except where this is contrary to a provision in
national legislation or is contrary to national security interests;
(i) a woman and a man shall jointly contribute to safeguarding the interests
of the family, protecting and educating their children;
(j) during her marriage, a woman shall have the right to acquire her own
property and to administer and manage it freely.

Article 7: Separation, divorce and annulment of marriage

States parties shall enact appropriate legislation to ensure that women and
men enjoy the same rights in case of separation, divorce or annulment of
marriage. In this regard, they shall ensure that:
(a) separation, divorce or annulment of a marriage shall be effected by
judicial order;
(b) women and men shall have the same rights to seek separation, divorce
or annulment of a marriage;
(c) in case of separation, divorce or annulment of marriage, women and
men shall have reciprocal rights and responsibilities towards their children. In
any case, the interests of the children shall be given paramount importance;
(d) in case of separation, divorce or annulment of marriage, women and
men shall have the right to an equitable sharing of the joint property deriving
from the marriage.

Article 8: Access to justice and equal protection before the law

Women and men are equal before the law and shall have the right to equal
protection and benefit of the law. States parties shall take all appropriate
measures to ensure:
(a) effective access by women to judicial and legal services, including legal
aid;
(b) support to local, national, regional and continental initiatives directed
at providing women access to legal services, including legal aid;
70 Instruments of the AU

(c) the establishment of adequate educational and other appropriate

structures with particular attention to women and to sensitise everyone to
the rights of women;
(d) that law enforcement organs at all levels are equipped to effectively
interpret and enforce gender equality rights;
(e) that women are represented equally in the judiciary and law
enforcement organs;
(f) reform of existing discriminatory laws and practices in order to promote
and protect the rights of women.

Article 9: Right to participation in the political and decision-making

process
1. States parties shall take specific positive action to promote
participative governance and the equal participation of women in the
political life of their countries through affirmative action, enabling national
legislation and other measures to ensure that:
(a) women participate without any discrimination in all elections;
(b) women are represented equally at all levels with men in all electoral
processes;
(c) women are equal partners with men at all levels of development and
implementation of state policies and development programmes.
2. States parties shall ensure increased and effective representation and
participation of women at all levels of decision-making.

Article 10: Right to peace

1. Women have the right to a peaceful existence and the right to
participate in the promotion and maintenance of peace.
2. States parties shall take all appropriate measures to ensure the
increased participation of women:
(a) in programmes of education for peace and a culture of peace;
(b) in the structures and processes for conflict prevention, management
and resolution at local, national, regional, continental and international
levels;
(c) in the local, national, regional, continental and international decision
making structures to ensure physical, psychological, social and legal
protection of asylum seekers, refugees, returnees and displaced persons, in
particular women;
(d) in all levels of the structures established for the management of camps
and settlements for asylum seekers, refugees, returnees and displaced
persons, in particular, women;
(e) in all aspects of planning, formulation and implementation of post-
conflict reconstruction and rehabilitation.
3. States parties shall take the necessary measures to reduce military
expenditure significantly in favour of spending on social development in
general, and the promotion of women in particular.

Article 11: Protection of women in armed conflicts

1. States parties undertake to respect and ensure respect for the rules of
international humanitarian law applicable in armed conflict situations, which
affect the population, particularly women.
2. States parties shall, in accordance with the obligations incumbent upon
them under international humanitarian law, protect civilians including
women, irrespective of the population to which they belong, in the event of
armed conflict.
3. States parties undertake to protect asylum seeking women, refugees,
returnees and internally displaced persons, against all forms of violence, rape
 Protocol on the Rights of Women 71

and other forms of sexual exploitation, and to ensure that such acts are
considered war crimes, genocide and/or crimes against humanity and that
their perpetrators are brought to justice before a competent criminal
jurisdiction.
4. States parties shall take all necessary measures to ensure that no child,
especially girls under 18 years of age, take a direct part in hostilities and that
no child is recruited as a soldier.

Article 12: Right to education and training

1. States parties shall take all appropriate measures to:
(a) eliminate all forms of discrimination against women and guarantee
equal opportunity and access in the sphere of education and training;
(b) eliminate all stereotypes in textbooks, syllabuses and the media, that
perpetuate such discrimination;
(c) protect women, especially the girl-child from all forms of abuse,
including sexual harassment in schools and other educational institutions and
provide for sanctions against the perpetrators of such practices;
(d) provide access to counselling and rehabilitation services to women who
suffer abuses and sexual harassment;
(e) integrate gender sensitisation and human rights education at all levels
of education curricula including teacher training.
2. States parties shall take specific positive action to:
(a) promote literacy among women;
(b) promote education and training for women at all levels and in all
disciplines, particularly in the fields of science and technology;
(c) promote the enrolment and retention of girls in schools and other
training institutions and the organisation of programmes for women who leave
school prematurely.

Article 13: Economic and social welfare rights

States parties shall adopt and enforce legislative and other measures to
guarantee women equal opportunities in work and career advancement and
other economic opportunities. In this respect, they shall:
(a) promote equality of access to employment;
(b) promote the right to equal remuneration for jobs of equal value for
women and men;
(c) ensure transparency in recruitment, promotion and dismissal of women
and combat and punish sexual harassment in the workplace;
(d) guarantee women the freedom to choose their occupation, and protect
them from exploitation by their employers violating and exploiting their
fundamental rights as recognised and guaranteed by conventions, laws and
regulations in force;
(e) create conditions to promote and support the occupations and economic
activities of women, in particular, within the informal sector;
(f) establish a system of protection and social insurance for women working
in the informal sector and sensitise them to adhere to it;
(g) introduce a minimum age for work and prohibit the employment of
children below that age, and prohibit, combat and punish all forms of
exploitation of children, especially the girl-child;
(h) take the necessary measures to recognise the economic value of the
work of women in the home;
(i) guarantee adequate and paid pre- and post-natal maternity leave in
both the private and public sectors;
(j) ensure the equal application of taxation laws to women and men;
72 Instruments of the AU

(k) recognise and enforce the right of salaried women to the same
allowances and entitlements as those granted to salaried men for their
spouses and children;
(l) recognise that both parents bear the primary responsibility for the
upbringing and development of children and that this is a social function for
which the state and the private sector have secondary responsibility;
(m) take effective legislative and administrative measures to prevent the
exploitation and abuse of women in advertising and pornography.

Article 14: Health and reproductive rights

1. States parties shall ensure that the right to health of women, including
sexual and reproductive health is respected and promoted. This includes:
(a) the right to control their fertility;
(b) the right to decide whether to have children, the number of children
and the spacing of children;
(c) the right to choose any method of contraception;
(d) the right to self-protection and to be protected against sexually
transmitted infections, including HIV/AIDS;
(e) the right to be informed on one’s health status and on the health status
of one’s partner, particularly if affected with sexually transmitted infections,
including HIV/AIDS, in accordance with internationally recognised standards
and best practices;
(f) the right to have family planning education.
2. States parties shall take all appropriate measures to:
(a) provide adequate, affordable and accessible health services, including
information, education and communication programmes to women especially
those in rural areas;
(b) establish and strengthen existing pre-natal, delivery and post-natal
health and nutritional services for women during pregnancy and while they
are breast-feeding;
(c) protect the reproductive rights of women by authorising medical
abortion in cases of sexual assault, rape, incest, and where the continued
pregnancy endangers the mental and physical health of the mother or the life
of the mother or the foetus.

Article 15: Right to food security

States parties shall ensure that women have the right to nutritious and
adequate food. In this regard, they shall take appropriate measures to:
(a) provide women with access to clean drinking water, sources of domestic
fuel, land, and the means of producing nutritious food;
(b) establish adequate systems of supply and storage to ensure food
security.

Article 16: Right to adequate housing

Women shall have the right to equal access to housing and to acceptable living
conditions in a healthy environment. To ensure this right, states parties shall
grant to women, whatever their marital status, access to adequate housing.

Article 17: Right to positive cultural context

1. Women shall have the right to live in a positive cultural context and to
participate at all levels in the determination of cultural policies.
2. States parties shall take all appropriate measures to enhance the
participation of women in the formulation of cultural policies at all levels.
 Protocol on the Rights of Women 73

Article 18: Right to a healthy and sustainable environment

1. Women shall have the right to live in a healthy and sustainable
environment.
2. States parties shall take all appropriate measures to:
(a) ensure greater participation of women in the planning, management
and preservation of the environment and the sustainable use of natural
resources at all levels;
(b) promote research and investment in new and renewable energy sources
and appropriate technologies, including information technologies and
facilitate women’s access to, and participation in their control;
(c) protect and enable the development of women’s indigenous knowledge
systems;
(d) regulate the management, processing, storage and disposal of domestic
waste;
(e) ensure that proper standards are followed for the storage,
transportation and disposal of toxic waste.

Article 19: Right to sustainable development

Women shall have the right to fully enjoy their right to sustainable
development. In this connection, the states parties shall take all appropriate
measures to:
(a) introduce the gender perspective in the national development planning
procedures;
(b) ensure participation of women at all levels in the conceptualisation,
decision-making, implementation and evaluation of development policies and
programmes;
(c) promote women’s access to and control over productive resources such
as land and guarantee their right to property;
(d) promote women’s access to credit, training, skills development and
extension services at rural and urban levels in order to provide women with a
higher quality of life and reduce the level of poverty among women;
(e) take into account indicators of human development specifically relating
to women in the elaboration of development policies and programmes; and
(f) ensure that the negative effects of globalisation and any adverse effects
of the implementation of trade and economic policies and programmes are
reduced to the minimum for women.

Article 20: Widows’ rights

States parties shall take appropriate legal measures to ensure that widows
enjoy all human rights through the implementation of the following
provisions:
(a) that widows are not subjected to inhuman, humiliating or degrading
treatment;
(b) that a widow shall automatically become the guardian and custodian of
her children, after the death of her husband, unless this is contrary to the
interests and the welfare of the children;
(c) that a widow shall have the right to remarry, and in that event, to marry
the person of her choice.

Article 21: Right to inheritance

1. A widow shall have the right to an equitable share in the inheritance of
the property of her husband. A widow shall have the right to continue to live
in the matrimonial house. In case of remarriage, she shall retain this right if
the house belongs to her or she has inherited it.
2. Women and men shall have the right to inherit, in equitable shares,
their parents’ properties.
74 Instruments of the AU

Article 22: Special protection of elderly women

The states parties undertake to:
(a) provide protection to elderly women and take specific measures
commensurate with their physical, economic and social needs as well as their
access to employment and professional training;
(b) ensure the right of elderly women to freedom from violence, including
sexual abuse, discrimination based on age and the right to be treated with
dignity.

Article 23: Special protection of women with disabilities

The states parties undertake to:
(a) ensure the protection of women with disabilities and take specific
measures commensurate with their physical, economic and social needs to
facilitate their access to employment, professional and vocational training as
well as their participation in decision-making;
(b) ensure the right of women with disabilities to freedom from violence,
including sexual abuse, discrimination based on disability and the right to be
treated with dignity.

Article 24: Special protection of women in distress

The states parties undertake to:
(a) ensure the protection of poor women and women heads of families
including women from marginalised population groups and provide an
environment suitable to their condition and their special physical, economic
and social needs;
(b) ensure the right of pregnant or nursing women or women in detention
by providing them with an environment which is suitable to their condition
and the right to be treated with dignity.

Article 25: Remedies

States parties shall undertake to:
(a) provide for appropriate remedies to any woman whose rights or
freedoms, as herein recognised, have been violated;
(b) ensure that such remedies are determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by law.

Article 26: Implementation and monitoring

1. States parties shall ensure the implementation of this Protocol at
national level, and in their periodic reports submitted in accordance with
article 62 of the African Charter, indicate the legislative and other measures
undertaken for the full realisation of the rights herein recognised.
2. States parties undertake to adopt all necessary measures and in
particular shall provide budgetary and other resources for the full and
effective implementation of the rights herein recognised.

Article 27: Interpretation

The African Court on Human and Peoples’ Rights shall be seized with matters
of interpretation arising from the application or implementation of this
Protocol.

Article 28: Signature, ratification and accession

1. This Protocol shall be open for signature, ratification and accession by
the states parties, in accordance with their respective constitutional
procedures.
 Rights of Older Persons Protocol 75

2. The instruments of ratification or accession shall be deposited with the

Chairperson of the Commission of the AU.

Article 29: Entry into force

1. This Protocol shall enter into force thirty (30) days after the deposit of
the fifteenth (15th) instrument of ratification.
2. For each state party that accedes to this Protocol after its coming into
force, the Protocol shall come into force on the date of deposit of the
instrument of accession.
3. The Chairperson of the Commission of the AU shall notify all member
states of the coming into force of this Protocol.

Article 30: Amendment and revision

1. Any state party may submit proposals for the amendment or revision of
this Protocol.
2. Proposals for amendment or revision shall be submitted, in writing, to
the Chairperson of the Commission of the AU who shall transmit the same to
the states parties within thirty (30) days of receipt thereof.
3. The Assembly, upon advice of the African Commission, shall examine
these proposals within a period of one (1) year following notification of states
parties, in accordance with the provisions of paragraph 2 of this article.
4. Amendments or revision shall be adopted by the Assembly by a simple
majority.
5. The amendment shall come into force for each state party, which has
accepted it thirty (30) days after the Chairperson of the Commission of the AU
has received notice of the acceptance.

Article 31: Status of the present Protocol

None of the provisions of the present Protocol shall affect more favourable
provisions for the realisation of the rights of women contained in the national
legislation of states parties or in any other regional, continental or
international conventions, treaties or agreements applicable in these states
parties.

Article 32: Transitional provisions

Pending the establishment of the African Court on Human and Peoples’
Rights, the African Commission on Human and Peoples’ Rights shall be seized
with matters of interpretation arising from the application and
implementation of this Protocol.

_____________________________________

Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Older Persons in
Africa
(2016)

Adopted in Addis Ababa, Ethiopia on 31 January 2016. As of June 2022 six states
had ratified the Protocol.
76 Instruments of the AU

We, member states of the African Union,

Considering that article 66 of the African Charter provides for special

protocols or agreements, if necessary, to supplement the provisions of that
Charter;
Considering that the African Charter makes specific provisions for the
protection of the rights of older persons, under article 18(4) which stipulates
that, ‘older persons and people with disabilities shall also have the right to
special measures of protection in keeping with their physical or moral needs’;
Noting article 2 of the African Charter which states that, ‘Every individual
shall be entitled to the enjoyment of the rights and freedoms recognized and
guaranteed in the present Charter without distinction of any kind such as
race, ethnic group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or other status’;
Recalling article 22 of the Protocol to the African Charter on the Rights of
Women in Africa which provides for the special protection of elderly women;
Considering recommendation (1) contained in paragraph 4.1 of the African
Union Policy Framework and Plan of Action on Ageing (2002) which states that
‘member states recognise the fundamental rights of older persons and
commit themselves to abolish all forms of discrimination based on age; that
they undertake to ensure that the rights of older persons are protected by
appropriate legislation; including the right to organise themselves in groups
and to representation in order to advance their interests’;
Considering recommendation (1)(a) contained in paragraph 4.1 of the same
Policy Framework and Plan of Action which calls for the elaboration and
adoption of ‘an additional Protocol to the African Charter on Human and
Peoples’ Rights relating to the rights of Older Persons’;
Considering further paragraph 20 of the Kigali Declaration on Human Rights
(2003), which ‘calls upon states parties to develop a Protocol on the
protection of the rights of the elderly and persons with disabilities’;
Recalling section 2.2.11 of the African Union Social Policy Framework (2009)
which calls for the implementation of all the tenets of the African Union
Policy Framework and Plan of Action on Ageing (2002), other international
instruments that deal with the issues of ageing and older persons, the 1991
United Nations Principles for Older Persons, the 1992 United Nations
Proclamation on Ageing, and the 2002 Madrid International Plan of Action on
Ageing and which promotes the rights of older persons;
Considering also the World Population Plan of Action (1974), the Declaration
of Principles of the United Nations Conference on Human Settlements
(HABITAT) of 1996 and 1999, the International Labour Organization (ILO)
Convention No. 102 of 1952 concerning Minimum Standards of Social Security,
Convention No. 128 and Recommendations 131 of 1967 on Invalidity, Old Age
and Survivors’ Benefits, Recommendation No. 162 of 1980 Concerning Older
Workers, and Convention No. 157 Concerning Maintenance of Social Security
Rights of 1982;
Considering the various international declarations, conventions and
instruments including but not limited to: Convention on the Elimination of
Racial Discrimination (CERD) of 1965; International Covenant on Civil and
Political Rights (ICCPR) of 1966; International Covenant on Economic, Social
and Cultural Rights (ICESCR) of 1966; The Convention on the Elimination of all
Forms of Discrimination against Women (CEDAW) of 1979; United Nations Plan
of Action on Ageing of 1982; The Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) of 1984; United Nations
Declaration on the Right to Development of 1986; United Nations Principles
for Older Persons of 1991; United Nations Proclamation on Ageing of 1992;
Madrid Plan of Action on Ageing (MIPAA) of 2002;
 Rights of Older Persons Protocol 77

Taking into consideration the virtues of African traditions, values and

practices which should inspire and characterize the provision of mutual social
and communal care and support; respect for older members of society and the
passing of knowledge to younger population groups;
Noting that the increase in the number and needs of older persons in Africa
calls for African Governments to institute urgent measures aimed at
addressing these needs such as access to regular incomes, equitable
distribution of resources, employment opportunities; access to appropriate
health services; access to basic social services such as food, water, clothing
and shelter; access to good care and support from the family, the state, civil
society and private organizations; recognition of their contribution towards
the care of persons with AIDS and orphans; respect and recognition of the role
and contribution that older persons make to society; and a recognition of
their special needs in emergency situations.

HAVE AGREED AS FOLLOWS:

Article 1: Definitions
For purposes of this Protocol:
African Charter means the African Charter on Human and Peoples' Rights;
African Commission means the African Commission on Human and Peoples’
Rights;
Ageing means the process of getting old from birth to death and in this
Protocol, it shall also refer to issues concerned with older persons;
Assembly means the Assembly of Heads of State and Government of the
African Union;
AU means the African Union;
Commission means the African Union Commission;
Constitutive Act means the Constitutive Act of the African Union;
Harmful traditional practices means traditional beliefs, attitudes and
practices which violate the fundamental rights of older persons such as their
right to life, dignity and physical integrity;
ICT means Information Communication and Technology;
Member states means the member states of the African Union;
Older persons means those persons aged sixty (60) years and above, as
defined by the United Nations (1982) and the AU Policy Framework and Plan
of Action on Ageing (2002);
Residential care residential care means long-term care, including geriatric
care, given to Older Persons in a residential setting rather than their home.
States parties means member states of the African Union that have ratified
or acceded to this Protocol and deposited the instruments of ratification or
accession with the Chairperson of the African Union Commission;
The Advisory Council on Ageing means a Council established in accordance
with the African Union Policy Framework and Plan of Action on Ageing (2002);
The words ‘the aged’, ‘older persons’, ‘seniors’, ‘senior citizens’ and ‘the
elderly’ shall be construed to have the same meaning as ‘older persons’.

Article 2: Obligations of states parties

1. States parties shall recognize the rights and freedoms enshrined in this
Protocol and shall undertake to adopt legislative or other measures to give
effect to them.
2. States parties shall ensure that the 1991 United Nations Principles of
independence, dignity, self-fulfilment, participation and care of older
persons are included in their national laws and are legally binding as the basis
for ensuring their rights.
78 Instruments of the AU

Article 3: Elimination of discrimination against older persons

States parties shall:
1. Prohibit all forms of discrimination against older persons and encourage
the elimination of social and cultural stereotypes which marginalise older
persons;
2. Take corrective measures in those areas where discrimination and all
forms of stigmatisation against older persons continue to exist in law and in
fact; and
3. Support and enforce local, national, regional, continental and
international customs, traditions and initiatives directed at eradicating all
forms of discrimination against older persons.

Article 4: Access to justice and equal protection before the law

States parties shall:
1. Develop and review existing legislation to ensure that older persons
receive equal treatment and protection;
2. Ensure the provision of legal assistance to older persons in order to
protect their rights; and
3. Ensure that law enforcement organs at all levels are trained to
effectively interpret and enforce policies and legislation to protect the rights
of older persons.

Article 5: Right to make decisions

States parties shall:
1. Ensure that appropriate legislation exists that recognises the rights of
older persons to make decisions regarding their own well-being without undue
interference from any person or entity, and that older persons have the right
to appoint a party of their choice to carry out their wishes and instructions;
2. Ensure that, in the event of incapacity, older persons shall be provided
with legal and social assistance in order to make decisions that are in their
best interests and wellbeing; and
3. Enact legislation and take other measures that protect the right of older
persons to express opinions and participate in social and political life.

Article 6: Protection against discrimination in employment

States parties shall:
1. Take measures to eliminate work place discrimination against older
persons with regard to access to employment taking into consideration
occupational requirements; and
2. Ensure appropriate work opportunities for older persons taking into
account to their medical and physical abilities, skills and experience.

Article 7: Social protection

States parties shall:
1. Develop policies and legislation that ensure that older persons who
retire from their employment are provided with adequate pensions and other
forms of social security;
2. Ensure that universal social protection mechanisms exist to provide
income security for those older persons who did not have the opportunity to
contribute to any social security provisions;
3. Ensure that the processes and procedures of accessing pensions are
decentralised, simple and dignified;
4. Take legislative and other measures to enable individuals to prepare for
income security in old age; and
5. Take legislative and other measures that facilitate the rights of older
persons to access services from state service providers.
 Rights of Older Persons Protocol 79

Article 8: Protection from abuse and harmful traditional practices

States parties shall:
1. Prohibit and criminalise harmful traditional practices targeted at older
persons; and
2. Take all necessary measures to eliminate harmful traditional practices
including witchcraft accusations, which affect the welfare, health, life and
dignity of older persons, particularly older women.

Article 9: Protection of older women

States parties shall:
1. Ensure the protection of the rights of older women from violence,
sexual abuse and discrimination based on gender;
2. Put in place legislation and other measures that guarantee protection
of older women against abuses related to property and land rights; and
3. Adopt appropriate legislation to protect the right of inheritance of
older women.

Article 10: Care and support

States parties shall:
1. Adopt policies and legislation that provide incentives to family
members who provide home care for older persons;
2. Identify, promote and strengthen traditional support systems to
enhance the ability of families and communities to care for older family
members; and
3. Ensure the provision of preferential treatment in service delivery for
older persons.

Article 11: Residential care

States parties shall:
1. Enact or review existing legislation to ensure that residential care is
optional and affordable for older persons;
2. Ensure that older persons in residential care facilities are provided with
care that meets the national minimum standards provided that such standards
comply with regional and international standards; and
3. Ensure that older persons in palliative care receive adequate care and
pain management medication.

Article 12: Support for older persons taking care of vulnerable children
States parties shall:
1. Adopt measures to ensure that indigent older persons who take care of
orphans and vulnerable children are provided with financial, material and
other support; and
2. Ensure that when children are left in the care of older persons, any
social or other benefits designed for the children, are remitted to the older
persons.

Article 13: Protection of older persons with disabilities

States parties shall:
1. Adopt legislation and other measures to protect the rights of older
persons with disabilities;
2. Ensure that such legislation and measures comply with regional and
international standards; and
3. Ensure that older persons with disabilities have access to assistive
devices and specialised care, which respond to their needs within their
communities.
80 Instruments of the AU

Article 14: Protection of older persons in conflict and disaster situations

States parties shall:
1. Ensure that, in situations of risk, including natural calamities, conflict
situations, during civil strife or wars, older persons shall be among those to
enjoy access, on a priority basis, to assistance during rescue efforts,
settlement, repatriation and other interventions; and
2. Ensure that older persons receive humane treatment, protection and
respect at all times and are not left without needed medical assistance and
care.

Article 15: Access to health services

States parties shall:
1. Guarantee the rights of older persons to access health services that
meet their specific needs;
2. Take reasonable measures to facilitate access to health services and
medical insurance cover for older persons within available resources; and
3. Ensure the inclusion of geriatrics and gerontology in the training of
health care personnel.

Article 16: Access to education

States parties shall provide opportunities for older persons to have access to
education and to acquire ICT skills.

Article 17: Participation in programmes and recreational activities

States parties shall develop policies that ensure the rights of older persons to
enjoy all aspects of life, including active participation in socio-economic
development, cultural programmes, leisure and sports.

Article 18: Accessibility

States parties shall take measures to ensure that older persons have access to
infrastructure, including buildings, public transport and are accorded seating
priority.

Article 19: Awareness on ageing and preparation for old age

States parties shall:
1. Adopt measures to encourage the development of awareness raising
programmes to educate the younger population groups on ageing and older
persons to combat negative attitudes against older persons; and
2. Adopt measures to develop training programmes that prepare older
persons for the challenges faced in old age, including retirement.

Article 20: Duties of older persons

Older persons have responsibilities towards their families, communities, the
wider society, the state and the international community. In this regard they
shall:
1. Mentor and pass on knowledge and experience to the younger
generations;
2. Foster and facilitate inter-generational dialogue and solidarity within
their families and communities; and
3. Play a role in mediation and conflict resolution.

Article 21: Coordination and data collection

States parties shall:
1. Ensure the systematic collection and analysis of national data on older
persons;
 Rights of Older Persons Protocol 81

2. Develop a national mechanism on ageing with responsibility to asses,

monitor, evaluate and coordinate the integration and implementation of
older persons’ rights in national policies, strategies and legislation; and
3. Support the Advisory Council on Ageing, as a continental mechanism of
the African Union to facilitate the implementation and follow up of the
continental policies and plans on ageing.

Article 22: Implementation

1. States parties shall ensure the implementation of this Protocol, and
shall indicate in their periodic reports submitted to the African Commission in
accordance with article 62 of the African Charter, the legislative and other
measures undertaken for the full realisation of the rights recognized in this
Protocol.
2. In the implementation of this Protocol, the African Commission shall
have the mandate to interpret the provisions of the Protocol in accordance
with the African Charter.
3. The African Commission may refer matters of interpretation and
enforcement or any dispute arising from the application or implementation of
this Protocol to the African Court on Human and Peoples’ Rights.
4. Where applicable, the African Court on Human and Peoples’ Rights shall
have the mandate to hear disputes arising from the application or
implementation of this Protocol.

Article 23: Popularization of the Protocol

States parties shall take all appropriate measures to ensure the widest
possible dissemination of this Protocol in accordance with the relevant
provisions and procedures of their respective constitutions.

Article 24: Safeguard clause

1. No provision in this Protocol shall be interpreted as derogating from the
principles and values contained in other relevant instruments for the
realisation of the rights of older persons in Africa.
2. In the event of a contradiction between two or more provisions of this
Protocol, the interpretation which favours the rights of older persons and
protects their legitimate interests shall prevail.

Article 25: Signature, ratification and accession

1. This Protocol shall be open to member states of the Union for signature,
ratification or accession.
2. The instrument of ratification or accession to the present Protocol shall
be deposited with the Chairperson of the Commission who shall notify all
member states of the dates of the deposit of the instruments of ratification
or accession.

Article 26: Entry into force

1. This Protocol shall enter into force thirty (30) days after the deposit of
the fifteenth (15th) instrument of ratification by a member state.
2. The Chairperson of the Commission shall notify all members states of
the African Union of the entry into force of the present Protocol.
3. For any member state of the African Union acceding to the present
Protocol, the Protocol shall come into force in respect of that state on the
date of the deposit of its instrument of accession.

Article 27: Reservations

1. A state party may, when, ratifying or acceding to this Protocol, submit
in writing a reservation with respect to any of the provisions of this Protocol.
82 Instruments of the AU

reservation shall not be incompatible with the object and purpose of this
Protocol.
2. Unless otherwise provided, a reservation may be withdrawn at any
time.
3. The withdrawal of a reservation must be submitted in writing to the
Chairperson of the Commission who shall notify other States parties of the
withdrawal accordingly.

Article 28: Depository

This Protocol shall be deposited with the Chairperson of the African Union
Commission, who shall transmit a certified true copy of the Protocol to the
Government of each signatory state.

Article 29: Registration

The Chairperson of the Commission upon the entry into force of this Protocol
shall register this Protocol with the United Nations Secretary General in
conformity with article 102 of the Protocol of the United Nations.

Article 30: Withdrawal

1. At any time after three years from the date of entry into force of this
Protocol, a state party may withdraw by giving written notification to the
depository.
2. Withdrawal shall be effective one year after receipt of notification by
the depository, or on such later date as may be specified in the notification.
3. Withdrawal shall not affect any obligation of the withdrawing state
party prior to the withdrawal.

Article 31: Amendment and revision

1. Any state party may submit proposal(s) for the amendment or revision
of this Protocol. Such proposal(s) shall be adopted by the Assembly.
2. Proposals for amendment or revision shall be submitted to the
Chairperson of the Commission who shall transmit such proposals to the
Assembly at least six months before the meeting at which it shall be
considered for adoption.
3. Amendments or revisions shall be adopted by the Assembly by
consensus or, failing which, by a two-thirds majority.
4. The amendment or revision shall enter into force in accordance the
procedures outlined in article 26 of this Protocol.

Article 32: Authentic texts

This Protocol is drawn up in four (4) original texts, in Arabic, English, French
and Portuguese languages, all four (4) texts being equally authentic.

_____________________________________
 Rights of Persons with Disabilities Protocol 83

Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Persons with
Disabilities in Africa
(2018)

Adopted in Addis Ababa, Ethiopia on 29 January 2018. As of June 2022 the Protocol
had been ratified by three states.

Preamble

We, the Heads of State and Government of the Member States of the African
Union:
Considering that article 66 of the African Charter on Human and Peoples'
Rights of 27 June 1981 provides that special protocols or agreements, if
necessary, may supplement the provisions of the African Charter;
Further considering that article 18 (4) of the African Charter on Human and
Peoples' Rights of 27 June 1981 provides that persons with disabilities shall
have the right to special measures of protection in keeping with their physical
or moral needs;
Noting that the Constitutive Act of the African Union of 11 July 2000 identifies
respect for democratic principles, human rights, the rule of law and good
governance as essential principles for the proper functioning of the African
Union;
Recognising that the African Union and its agencies as well as states parties
to the African Charter have made various efforts towards ensuring the rights
of persons with disabilities;
Noting that articles 6 and 61 of the African Charter on Human and Peoples'
Rights of 27 June 1981 recognise regional and international human rights
instruments and African practices consistent with international norms on
human and peoples' rights as important reference points for the application
and interpretation of the African Charter;
Further noting that human rights and fundamental freedom are universal,
indivisible, interdependent and interrelated, and that the rights of every
individual are recognised in international human rights instruments including
the Universal Declaration of Human Rights of 10 December 1948, the
International Covenant on Economic, Social and Cultural Rights 16 December
1966 and the International Covenant on Civil and Political Rights 16 December
1966;
Recalling that the rights of persons with disabilities are affirmed in the
Convention on the Rights of Persons with Disabilities 13 December 2006;
Further recalling that various African Union human rights instruments,
including the African Charter on the Rights and Welfare of the Child of 11 July
1990, the Protocol to the African Charter on Human and Peoples' Rights on the
Rights of Women in Africa of 11 July 2003, the African Youth Charter of 2 July
2006, the African Charter on Democracy, Elections and Governance of 30
January 2007, and the African Union Convention for the Protection and
Assistance of Internally Displaced Persons in Africa 23 October 2009 make
provisions for the rights of persons with disabilities;
Considering further paragraph 20 of the Kigali Declaration on Human Rights
of 8 May 2003, which ‘calls upon states parties to develop a Protocol on the
protection of the rights of the elderly and persons with disabilities’;
84 Instruments of the AU

Recalling that the Decision 750 (XXII) of the Executive Council at its twenty-
second
ordinary session held in Addis Ababa, Ethiopia, from 21 to 25 January 2013,
endorsed the African Union Disability Architecture (AUDA), of which a
Protocol on the Rights of Persons with Disabilities to the African Charter is a
central legal pillar;
Acknowledging that persons with disabilities have inherent dignity and
individual autonomy including the freedom to make one's own choices;
Cognizant of the importance of full and effective participation and inclusion
of persons with disabilities in society;
Recognising the diversity of persons with disabilities;
Appreciating the value of persons with disabilities, including those with high
support needs, as full members of society;
Noting that persons with disabilities experience extreme levels of poverty;
Concerned that persons with disabilities continue to experience human rights
violations, systemic discrimination, social exclusion, prejudice within
political, social and economic spheres;
Gravely concerned by the harmful practices that persons with disabilities
often experience;
Alarmed in particular by the maiming and killing of persons with albinism in
many parts of the continent;
Concerned at the multiple forms of discrimination, high levels of poverty and
the great risk violence, exploitation, neglect and abuse that women and girls
with disabilities face;
Recognising that families, guardians, caregivers and community play essential
roles in the lives of persons with disabilities;
Concerned that adequate effective measures have not been taken to ensure
that persons with disabilities may exercise their full rights on an equal basis
with others;
Recalling the lack of a substantive binding African normative and institutional
framework for ensuring, protecting and promoting the rights of persons with
disabilities;
Conscious of the need to establish a firm legal African Union framework as a
basis for laws, policies, administrative actions and resources to ensure the
rights of persons with disabilities;
Determined that the rights and dignity of persons with disabilities should be
promoted, protected to enable them enjoy fully and equally all their human
rights and fundamental freedoms;

HAVE AGREED AS FOLLOWS:

Article 1: Definitions
For the purpose of the present Protocol:
African Charter means the African Charter on Human and Peoples' Rights;
African Commission means the African Commission on Human and Peoples'
Rights;
African Court means the African Court on Human and Peoples' Rights or any
successor court including the African Court and Human Rights established by
the Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and Peoples' Rights;
Assembly means the Assembly of Heads of State and Government of the
African Union;
AU or Union means the African Union;
Commission means the Commission of the African Union;
Deaf culture means the way deaf people interact, it includes a set of social
beliefs, behaviours, art, literary traditions, history, values, and shared
 Rights of Persons with Disabilities Protocol 85

institutions of communities that are influenced by deafness and which use

sign languages as the main means of communication;
Discrimination on the basis of disability means any distinction, exclusion or
restriction on the basis of disability which has the purpose or effect of
impairing or nullifying the recognition, enjoyment or exercise, on an equal
basis with others, of all human and people's rights in the political, economic,
social, cultural, civil or any other field. Discrimination on the basis of
disability shall include denial of reasonable accommodation;
Habilitation means inpatient or outpatient health care services such as
physical therapy, occupational therapy, speech-language pathology,
audiology that address the competencies and abilities needed for optimal
functioning to in interaction with their environments: enable persons with
disabilities to attain and maintain maximum independence, full physical,
mental, social, and vocational ability, full inclusion and participation in all
aspects of life;
Harmful practices include behaviour, attitudes and practices based on
tradition, culture, religion, superstition or other reasons, which negatively
affect the human rights and fundamental freedoms of persons with disabilities
or perpetuate discrimination;
Legal capacity means the ability to hold rights and duties and to exercise
those rights and duties;
Persons with disabilities include those who have physical, mental, psycho-
social, intellectual, neurological, developmental or other sensory
impairments which in interaction with environmental, attitudinal or other
barriers hinder their full and effective participation in society on an equal
basis with others;
Protocol means the Protocol to the African Charter on Human and Peoples'
Rights on the Rights of Persons with Disabilities in Africa;
Reasonable accommodation means necessary and appropriate modifications
and adjustments where needed in a particular case, to ensure to persons with
disabilities the enjoyment or exercise on an equal basis with others of.all
human and people's rights;
Rehabilitation means inpatient or outpatient health care services such as
physical therapy, occupational therapy, speech-language pathology and
psychiatric rehabilitation services that help a person keep, restore or
improve skills and functioning for daily living and skills related to
communication that have been lost or impaired because a person was sick,
injured or disabled;
Ritual killings means the killing of persons motivated by cultural, religious or
superstitious beliefs that the use of a body or a body part has medicinal value,
possesses supernatural powers and brings good luck, prosperity and
protection to the killer;
Situations of risks means any situation that poses grave risk to the general
population, including disasters and all forms of armed conflict;
States parties mean any member states of the African Union which have
ratified or acceded to this Protocol and deposited the instruments of
ratification or accession with the Chairperson of the African Union
Commission;
Universal design means the design of products, environments, programmes
and services to be usable by all people, to the greatest extent possible,
without the need for adaptation or specialised design, and shall not exclude
assistive devices for particular groups of persons with disabilities were this is
needed;
Youth means every person between the ages of 15 and 35 years.
86 Instruments of the AU

Article 2: Purpose
The purpose of this Protocol is to promote, protect and ensure the full and
equal enjoyment of all human and people's rights by all persons with
disabilities, and to ensure respect for their inherent dignity.

Article 3: General principles

This Protocol shall be interpreted and applied in accordance with the
following general principles:
(a) Ensuring respect for and protection of the inherent dignity, privacy,
individual autonomy including the freedom to make one's own choices, and
independence of persons;
(b) Non- discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as
part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Reasonable accommodation;
(h) Equality between men and women;
(i) The best interests of the child;
(j) Respect for the evolving capacities of children with disabilities and
respect for the right of children with disabilities to preserve their identities.

Article 4: General obligations

States parties shall take appropriate and effective measures, including policy,
legislative, administrative, institutional and budgetary steps, to ensure,
respect, promote, protect and fulfil the rights and dignity of persons with
disabilities, without discrimination on the basis of disability, including by:
(a) Adopting appropriate measures for the full and effective
implementation of the rights recognised in the present Protocol;
(b) Mainstreaming disability in policies, legislation, development plans,
programmes and activities and in all other spheres of life;
(c) Providing in their constitutions and other legislative instruments and
taking other measures to modify or abolish existing policies, laws,
regulations, customs and practices that constitute discrimination against
persons with disabilities;
(d) Modifying, outlawing, criminalising or campaigning against, as
appropriate, any harmful practice applied to persons with disabilities;
(e) Promoting positive representations and empowerment of persons with
disabilities through training and advocacy;
(f) Taking measures to eliminate discrimination on the basis of disability by
any person, organisation or private enterprise;
(g) Refraining from engaging in any act or practice that is inconsistent with
the present Protocol and ensuring that public authorities, institutions and
private entities act in conformity with the Protocol;
(h) Providing assistance and support as necessary and appropriate to enable
the realisation of the rights set out in the present Protocol;
(i) Putting in place adequate resources, including through budget
allocations, to ensure the full implementation of this Protocol;
(j) Ensuring effective participation of persons with disabilities or their
representative organisations including women and children with disabilities,
in all decision-making processes including in the development and
implementation of legislation, policies and administrative processes to this
Protocol;
(k) Ensuring, where persons with disabilities are lawfully deprived of any
rights or freedoms contained in this protocol that they are on an equal basis
 Rights of Persons with Disabilities Protocol 87

with others, entitled to guarantees in accordance with international human

rights law and the objects and principles of the present Protocol.

Article 5: Non-discrimination
1. Every person with a disability shall be entitled to the enjoyment of the
rights and freedoms recognised and guaranteed in this Protocol without
distinction of any kind on any ground including, race, ethnic group, colour,
sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or any status.
2. States parties shall:
(a) Prohibit discrimination on the basis of disability and guarantee to
persons with disabilities equal and effective legal protection against
discrimination on all grounds;
(b) Take steps to ensure that specific measures, as appropriate, are
provided to persons with disabilities in order to eliminate discrimination and
such measures shall not be considered discrimination;
(c) Take effective and appropriate measures to protect the parents,
children, spouses, other family members closely related to the persons with
disabilities, caregivers or intermediaries from discrimination on the basis of
their association with persons with disabilities.

Article 6: Right to equality

1. Every person with a disability is equal before the law and has the right
to equal protection and benefit of the law.
2. Equality includes the full and equal enjoyment of all human and people's
rights.
3. State parties shall take all appropriate legislative, administrative,
budgetary and other measures in order to promote equality for persons with
disabilities.

Article 7: Equal recognition before the law

1. States parties shall recognise that persons with disabilities are equal
before and under the law and are entitled without any discrimination to the
equal protection and equal benefit of the law.
2. States parties shall take all appropriate and effective measures to
ensure that:
(a) Persons with disabilities enjoy legal capacity on an equal basis with
others in all aspects of life;
(b) Non-state actors and other individuals do not violate the right to
exercise legal capacity by persons with disabilities;
(c) Persons with disabilities are provided with effective legal protection
and support they may require in enjoying their legal capacity consistent with
their rights, will and specific needs;
(d) Appropriate and effective safeguards are put in place to protect persons
with disabilities from abuses that may result from measures that relate to the
enjoyment of their legal capacity;
(e) Policies and laws which have the purpose or effect of limiting or
restricting the enjoyment of legal capacity by persons with disabilities are
reviewed or repealed;
(f) Persons with disabilities have the equal right to hold documents of
identity and other documents that may enable them to exercise their right to
legal capacity;
(g) Persons with disabilities have the equal right to own or inherit property
and are not arbitrarily dispossessed of their property;
88 Instruments of the AU

(h) Persons with disabilities have equal rights to control their own financial
affairs and to have equal access to bank loans, mortgages and other forms of
financial credit.

Article 8: Right to life

1. Every person with a disability has the inherent right to life and integrity.
2. States parties shall take effective and appropriate measures to ensure:
(a) Protection, respect for life and the dignity of persons with disabilities,
on an equal basis with others;
(b) That persons with disabilities have access to services, facilities and
devices to enable them to live with dignity and to realise fully their right to
life.

Article 9: Right to liberty and security of person

1. Every person with a disability has the right to liberty and security of
person.
2. States parties shall take appropriate and effective measures to ensure
that persons with disabilities, on an equal basis with others:
(a) Enjoy the right to liberty and security of person and are not deprived of
their liberty unlawfully or arbitrarily;
(b) Are not forcibly confined or otherwise concealed by any person or
institution;
(c) Are protected, both within and outside the home, from all forms of
exploitation, violence and abuse.
3. States parties shall take appropriate measures to prevent deprivation of
liberty to persons with disabilities, to prosecute perpetrators of such abuse
and to provide effective remedies for the victims.
4. Where persons with disabilities are lawfully deprived of their liberty,
States parties shall ensure that they are on an equal basis with others entitled
to guarantees in accordance with international human rights law and the
objects and principles of the present Protocol.
5. The existence of a disability or perceived disability shall in no case
justify deprivation of liberty.

Article 10: Freedom from torture or cruel, inhuman or degrading

treatment or punishment
1. Every person with a disability shall have the right to the respect of his/
her inherent dignity and to be free from torture or cruel, Inhuman or
degrading treatment, slavery, forced labour or unlawful punishment.
2. States parties shall take appropriate and effective measures to ensure
that persons with disabilities, on an equal basis with others:
(a) Are not subjected to torture or cruel, inhuman or degrading treatment
or punishment;
(b) Are not subjected without their free, prior and informed consent to
medical or scientific experimentation or intervention;
(c) Are not subjected to sterilisation or any other invasive procedure
without their free, prior and informed consent;
(d) Are protected, both within and outside the home, from all forms of
exploitation, violence and abuse.
3. States parties shall take appropriate measures t to prosecute
perpetrators of such abuse and to provide remedies for the victims.

Article 11: Harmful practices

1. States parties shall take all appropriate measures and offer appropriate
support and assistance to victims of harmful practices, including legal
sanctions, educational and advocacy campaigns, to eliminate harmful
 Rights of Persons with Disabilities Protocol 89

practices perpetrated on persons with disabilities, including witchcraft,

abandonment, concealment, ritual killings or the association of disability with
omens.
2. States parties shall take measures to discourage stereotyped views on
the capabilities, appearance or behaviour of persons with disabilities, and
they shall prohibit the use of derogatory language against persons with
disabilities.

Article 12: Situations of risk

States parties shall:
(a) Take specific measures to ensure the protection and safety of persons
with disabilities in situations of risk, including situations of armed conflict,
forced- displacements, humanitarian emergencies and natural disasters;
(b) Ensure that persons with disabilities are consulted and participate in all
aspects of planning, implementation and monitoring of pre and post-conflict
reconstruction and rehabilitation.

Article 13: Right to access justice

1. States parties shall take measures to ensure that persons with
disabilities have access to justice on an equal basis with others, including
through the provision of procedural, age and gender-appropriate
accommodations, in order to facilitate their effective roles as participants in
all legal proceedings.
2. States parties shall take reasonable steps to ensure that customary law
processes are inclusive and should not be used to deny persons with
disabilities their right to access appropriate and effective justice.
3. All law enforcement and justice personnel shall be trained at all levels
to effectively engage with and ensure the rights of persons with disabilities
are recognised and implemented without discrimination.
4. States parties shall ensure legal assistance including legal aid to persons
with disabilities.

Article 14: Right to live in the community

1. Every person with a disability has the right to live in the community with
choices on an equal basis with others.
2. States parties shall take effective and appropriate measures to
facilitate full enjoyment by persons with disabilities of the right to live in the
community, on an equal basis with others, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of
residence and where and with whom they live;
(b) Persons with disabilities who require intensive support and their
families have adequate and appropriate facilities and services, including
caregivers and respite services;
(c) Persons with disabilities have access to a range of in-home, residential
and other community support services necessary to support living and
inclusion in the community;
(d) Persons with disabilities have personal mobility with the greatest
possible independence;
(e) Community-based rehabilitation services are provided in ways that
enhance the participation and inclusion of persons with disabilities in the
community;
(f) Community living centres organised or established by persons with
disabilities are supported to provide training, peer support, personal
assistance services and other services to persons with disabilities; and
(g) Community services and facilities for the general population, including
health, transportation, housing, water, social and educational services, are
90 Instruments of the AU

available on an equal basis to persons with disabilities and are responsive to

their needs.

Article 15: Accessibility

1. Every person with a disability has the right to barrier free access to the
physical environment, transportation, information, including communications
technologies and systems, and other facilities and services open or provided
to the public.
2. States parties shall take reasonable and progressive step measures to
facilitate full enjoyment by persons with disabilities of this right, and such
measures shall, among others, apply to:
(a) Rural and urban settings and shall take account of population
diversities;
(b) Buildings, roads, transportation and other indoor and outdoor facilities,
including schools, housing, medical facilities and workplaces;
(c) Information, communications, sign languages and tactile interpretation
services, braille, audio and other services, including electronic services and
emergency services;
(d) Quality and affordable mobility aids, assistive devices or technologies
and forms of live assistance and intermediaries; and
(e) The modification of all inaccessible infrastructure and the universal
design of all new infrastructure.

Article 16: Right to education

1. Every person with a disability has the right to education.
2. States parties shall ensure to persons with disabilities the right to
education on an equal basis with others.
3. States parties shall take, reasonable, appropriate and effective
measures to ensure that inclusive quality education and skills training for
persons with disabilities is realised fully, including by:
(a) Ensuring that persons with disabilities can access free, quality and
compulsory basic and secondary education;
(b) Ensuring that persons with disabilities are able to access general tertiary
education, vocational training, adult education and lifelong learning without
discrimination and on an equal basis with others, including by ensuring the
literacy of persons with disabilities above compulsory school age;
(c) Ensuring reasonable accommodation of the individual's requirements is
provided, and that persons with disabilities receive the support required to
facilitate their effective education;
(d) Providing reasonable, progressive and effective individualised support
measures in environments that maximise academic and social development,
consistent with the goal of full inclusion;
(e) Ensuring appropriate schooling choices are available to persons with
disabilities who may prefer to learn in particular environments;
(f) Ensuring that persons with disabilities learn life and social development
skills to facilitate their full and equal participation in education and as
members of the community;
(g) Ensuring that multi-disciplinary assessments are undertaken to
determine appropriate reasonable accommodation and support measures for
learners with disabilities, early intervention, regular assessments and
certification for learners are undertaken regardless of their disabilities;
(h) Ensuring educational institutions are equipped with the teaching aids,
materials and equipment to support the education of students with
disabilities and their specific needs;
(i) Training education professionals, including persons with disabilities, on
how to educate and interact with children with specific learning needs; and
 Rights of Persons with Disabilities Protocol 91

(j) Facilitating respect, recognition, promotion, preservation and

development of sign languages.
4. The education of persons with disabilities shall be directed to:
(a) The full development of human potential, sense of dignity and self-
worth;
(b) The development by persons with disabilities of their personality,
talents, skills, professionalism and creativity, as well as their mental and
physical abilities, to their fullest potential;
(c) Educating persons with disabilities in a manner that promotes their
participation and inclusion in society; and
(d) The preservation and strengthening of positive African values.

Article 17: Right to health

1. Every person with a disability has the right to the highest attainable
standard of health.
2. States parties shall take appropriate and effective measures to ensure
persons with disabilities have, on an equal basis with others, access to health
services, including sexual and reproductive health, such as by:
(a) Providing persons with disabilities with the same range, quality and
standard of free or affordable health care and programmes as provided to
other persons;
(b) Providing those health services needed by persons with disabilities
specifically because of their disabilities or health services designed to
minimise or prevent further disability, the provision of medicines including
pain relieving drugs;
(c) Prohibiting discrimination against persons with disabilities by providers
of health services or providers of insurance;
(d) Ensuring that all health services are provided on the basis of free, prior
and informed consent;
(e) Providing persons with disabilities with health-care in the community;
(f) Ensuring that health-care services are provided using accessible formats
and that communication between service providers and persons with
disabilities is effective;
(g) Ensuring that persons with disabilities are provided with support in
making health decisions, when needed;
(h) Ensuring that health campaigns include disability specific needs, but in
a manner which does not stigmatise persons with disabilities, and designing
services to minimise and prevent further disability; and
(i) Ensuring that the training of health-care providers takes account of the
disability specific needs and rights of persons with disabilities, and ensuring
that formal and informal health services do not violate the rights of persons
with disabilities.

Article 18: Habilitation and rehabilitation

States parties shall take effective and appropriate measures, including peer
support, to enable persons with disabilities to attain and maintain maximum
independence, full physical, mental, social and vocational ability, and full
inclusion and participation in all aspects of life, including by:
(a) Organising, strengthening and extending comprehensive habilitation
and rehabilitation services and programmes, particularly in the areas of
health, employment, education and social services;
(b) Promoting the development of initial and continuing training for
professionals and staff working in habilitation and rehabilitation services;
(c) Promoting the availability, knowledge and use of appropriate, suitable
and affordable assistive devices and technologies;
92 Instruments of the AU

(d) Supporting the design, development, production, distribution and

servicing of assistive devices and equipment for persons with disabilities,
adapted to local conditions;
(e) Developing, adopting and implementing standards, including
regulations on accessibility and universal design, suitable to local conditions.

Article 19: Right to work

1. Every person with a disability has the right to decent work, to just and
favourable conditions of work, to protection against unemployment, to
protection against exploitation and to protection from forced or compulsory
labour.
2. States parties shall take effective and appropriate measures to
facilitate full enjoyment by persons with disabilities of this right on an equal
basis with others, including by:
(a) Prohibiting discrimination on the basis of disability with regard to all
matters concerning all forms of employment, including employment
opportunities, vocational training, conditions of recruitment, hiring and
employment, continuance of employment, promotion, career advancement,
and safe and healthy working conditions;
(b) Protecting the rights of persons with disabilities, on an equal basis with
others, to just and favourable conditions of work and the right by persons with
disabilities to exercise their labour and trade union rights;
(c) Promoting opportunities for persons with disabilities to initiate self
employment, entrepreneurship and to access financial services;
(d) Employing persons with disabilities in the public sector, including by
reserving and enforcing minimum job-quotas for employees with disabilities;
(e) Promoting the employment of persons with disabilities in the private
sector through appropriate policies and measures, including through the use
of specific measures such as tax incentives;
(f) Ensuring that reasonable accommodation is provided to persons with
disabilities in the workplace;
(g) Ensuring that employees with disabilities or those who become disabled
are not unfairly dismissed from employment on the basis of their disability.
3. States parties shall take legislative, administrative and budgetary
measures to ensure that the principle of equal pay for equal work is not used
to undermine the right to work for persons with disabilities.
4. States parties shall take appropriate measures to recognise the social
and cultural value of the work of persons with disabilities.

Article 20: Right to adequate standard of living

1. Persons with disabilities have the right to an adequate standard of living
for themselves and their families, including adequate food, access to safe
drinking water, housing, sanitation and clothing, to the continuous
improvement of living conditions and to social protection.
2. States parties shall take appropriate and effective measures to
facilitate full enjoyment by persons with disabilities of this right, on the basis
of equality, including by:
(a) Ensuring that persons with disabilities shall access appropriate and
affordable services, devices and other assistance for disability-related needs,
including accessible housing and other social amenities, mobility aids and
caregivers;
(b) Ensuring access by persons with disabilities to social protection
programmes;
(c) Putting financial measures in place to cover disability-related expenses,
including through the use of tax exemptions or concessions, cash-transfers,
duty waivers and other subsidies; and
 Rights of Persons with Disabilities Protocol 93

(d) Facilitating provision of assistance, including interpreters, guides,

auxiliary and augmentative supporters and caregivers, while respecting the
rights, will and preferences of persons with disabilities.

Article 21: Right to participate in political and public life

1. Every person with a disability has the right to participate in political and
public life.
2. States parties shall take all appropriate policy, legislative and other
measures to ensure this right, on the basis of equality, including through:
(a) Undertaking or facilitating systematic and comprehensive civic
education to encourage full participation of persons with disabilities in
democracy and development processes, including by ensuring civic and voter
education materials are availed in accessible formats;
(b) Encouraging the effective participation of persons with disabilities in
political and public life including as members of political parties, electors and
holders of political and public offices in accordance with national laws;
(c) Putting in place reasonable accommodation and other support measures
consistent with the secrecy of the ballot, including as appropriate, by
ensuring accessibility to polling stations and facilitating assisted voting, for
persons with disabilities to enable their effective participation in political and
public life in accordance with national laws;
(d) Realising increased and effective representation and participation of
persons with disabilities on an equitable basis as members of regional,
subregional, national and local legislative bodies;
(e) Repealing or amending laws that on the basis of disability restrict the
right of persons with disabilities to vote, stand for or remain in public office.

Article 22: Self-representation

States parties shall recognise and facilitate the right of persons with
disabilities to represent themselves in all spheres of life, including by
promoting an environment that enables persons with disabilities to:
(a) Form and participate in the activities of organisations of and for persons
with disabilities at national, regional and international levels;
(b) To build relationships and networks at national, regional and
international levels;
(c) Form and participate in the activities of nongovernmental organisations
and other associations;
(d) Effectively advocate for their rights and inclusion in their societies;
(e) Gain and enhance capacities, knowledge and skills for effectively
articulating and engaging in issues of disability, including through direct
collaboration with organisations for persons with disabilities and academic
institutions and other organisations;
(f) Be actively consulted and involved in the development and
implementation of all legislation, policies, programmes and budgets that
impact persons with disabilities.

Article 23: Right to freedom of expression and opinion

1. Every person with a disability has the right to freedom of expression and
opinion including the freedom to seek, receive and impart information and
ideas through all forms of communication of their choice.
2. States parties shall take policy, legislative, administrative and other
measures to ensure that persons with disabilities can exercise these rights, on
an equal basis with others.

Article 24: Access to information

1. Every person with a disability has the right to access information.
94 Instruments of the AU

2. States parties shall take policy, legislative, administrative and other

measures to ensure that persons with disabilities can exercise these rights, on
the basis of equality, including by:
(a) Providing information intended for the general public as well as
information required for official interactions to persons with disabilities in
accessible formats and technologies appropriate to different kinds of
disabilities in a timely manner, and without additional cost to persons with
disabilities;
(b) Requiring private entities that provide services to the general public,
including through print and electronic media, to provide information and
services in accessible and usable formats for persons with disabilities;
(c) Recognising and promoting the use of sign languages and deaf culture;
and
(d) Ensuring that persons with visual impairments or with other print
disabilities have effective access to published works including by using
information and communication technologies.

Article 25: Right to participate in sports, recreation and culture

1. Every person with a disability has the right to participate in sports,
recreation and cultural activities.
2. States parties shall take effective and appropriate policy, legislative,
budgetary, administrative and other measures to ensure this right, on the
basis of equality, including through:
(a) Ensuring that persons with disabilities have access to sports,
recreational and cultural services and facilities, including access to stadia and
other sporting facilities, theatres, monuments, entertainment
establishments, museums, libraries and other historical sites;
(b) Encouraging and promoting the participation, to the fullest extent
possible, of persons with disabilities in mainstream sporting activities at all
levels;
(c) Promoting disability-specific sporting and recreational activities and
ensuring provision of appropriate infrastructure;
(d) Facilitating funding, research and other measures aimed at promoting
the participation of persons with disabilities both in disability-specific and
mainstream sporting and recreational activities;
(e) Enabling children with disabilities to participate in play within the
learning environment;
(f) Facilitating access to audio, video, print and media technologies and
services including theatre, television, film and other cultural performances
and activities;
(g) Discouraging negative representations and stereotyping of persons with
disabilities in both traditional and modern cultural activities and through the
media;
(h) Encouraging and supporting creativity and talent among persons with
disabilities for their own and the society’s benefit;
(i) Putting in place measures to mitigate barriers that hinder access to
cultural materials in accessible formats; and
(j) Recognising and supporting the cultural and linguistic identities of
persons with disabilities, including deaf-blind and deaf culture, and sign
languages.

Article 26: Right to family

1. Everyone with a disability has a right to marry and form a family with
their full, prior and informed consent.
2. States parties shall take all necessary and appropriate measures to
eliminate discrimination against persons with disabilities including negative
 Rights of Persons with Disabilities Protocol 95

stereotypes in all matters with regard to family, marriage, parenthood,

guardianship, adoption and relationships, on an equal basis with others, in
order to ensure that:
(a) Persons with disabilities may decide on the number and spacing of their
children, and have access to family planning, and sexual and reproductive
health education and services;
(b) Persons with disabilities have the right to keep their children and not be
deprived of their children on account of their disability.

Article 27: Women and girls with disabilities

States parties shall ensure that women and girls with disabilities have full
enjoyment of human and people’s rights on an equal basis with other persons,
including by ensuring that:
(a) Women and girls with disabilities participate in social, economic and
political decision-making and activities;
(b) Barriers that hinder the participation of women with disabilities in
society are eliminated;
(c) Women with disabilities are included in mainstream women’s
organisations and programmes;
(d) Women and girls with disabilities are protected from discrimination
based on disability and enjoy the right to be treated with dignity;
(e) Women with disabilities access information, communication and
technology;
(f) Women with disabilities have access to employment and to professional
and vocational training;
(g) Programmes to overcome social and economic isolation and removing
systemic barriers in the labour market for women with disabilities are
developed;
(h) Women with disabilities have access to income generating opportunities
and credit facilities;
(i) Specific measures are developed and implemented to facilitate full and
equal participation for women and girls with disabilities in sports, culture and
technology;
(j) Women with disabilities are protected from sexual and gender based
violence and are provided with rehabilitation and psychosocial support
against sexual and gender based violence;
(k) The sexual and reproductive health rights of women with disabilities are
guaranteed, and women with disabilities have the right to retain and control
their fertility; and are not sterilised without their consent;
(l) Disability inclusive Gender perspectives are integrated in policies,
legislation, plans, programmes, budgets and activities in all spheres that
affect women with disabilities.

Article 28: Children with disabilities

1. States parties shall ensure that Children with disabilities have full
enjoyment of human and people’s rights on an equal basis with other
children.
2. States parties shall respect and promote the right of children with
disabilities, in particular, their right to preserve their identities and to enjoy
a full and decent life, in conditions which ensure dignity, promote self-
reliance and facilitate the child’s active participation in the community.
3. States parties shall ensure that the best interests of the child are the
primary consideration in all actions undertaken by any person or authority
concerning children with disabilities.
4. States parties shall ensure the rights and welfare of children with
disabilities by taking policy, legislative and other measures aimed at:
96 Instruments of the AU

(a) Ensuring children with disabilities have the right to express their views
freely on all matters affecting them, their views being given due weight in
accordance with their age and maturity, on an equal basis with other
children;
(b) Providing children with disabilities, disability, age and gender-
appropriate assistance to realise their rights;
(c) Ensuring the life, survival, protection and development of children with
disabilities;
(d) Ensuring children with disabilities have a name, a nationality and that
they are registered immediately after birth;
(e) Ensuring children with disabilities are not abducted, sold or trafficked
for any purpose or in any form for, sexual exploitation, child labour harvesting
organs;
(f) Ensuring that children with disabilities are protected from all forms of
sexual exploitation, abuse and forced labour;
(g) Protecting children from being separated from their parents, caregivers
and guardians merely on the basis that either the children or their parents
have a disability;
(h) Taking specific measures to protect children with disabilities who
require more intensive support;
(i) Ensuring children with disabilities have effective access to education,
training and recreational opportunities in settings most conducive for them to
achieve the fullest possible social inclusion, individual development and
cultural and moral development;
(j) Fostering in all children from an early age an attitude of respect for the
rights of persons with disabilities;
(k) Protecting children with disabilities from exploitation, violence and
abuse within family, institutional and other settings;
(l) Ensuring that under no circumstances may children on account of their
disabilities be sterilised.

Article 29: Youth with disabilities

1. States parties shall ensure that Youth with disabilities have full
enjoyment of human and peoples’ rights on an equal basis with other youth.
2. States parties shall take policy, legislative, administrative and other
measures to ensure that all the rights of youth with disabilities are fully
respected, including by:
(a) Promoting full, inclusive and accessible education for youth with
disabilities;
(b) Promoting the inclusion of youth with disabilities in mainstream youth
organisations, programmes, including training for leadership and governance
skills for their participation at national, regional and international levels;
(c) Removing barriers that hinder or discriminate against the participation
of youth with disabilities in society;
(d) Promoting training and access to information, communication and
technology for youth with disabilities;
(e) Developing programmes to overcome social and economic isolation, and
removing systemic barriers in the labour market for youth with disabilities;
(f) Ensuring access to credit facilities for youth with disabilities;
(g) Developing and implementing specific measures to facilitate full and
equal participation of youth with disabilities in sports, culture, science and
technology;
(h) Promoting sexual and reproductive health education for youth with
disabilities;
(i) Promoting the participation of youth with disabilities in political
decision making and activities.
 Rights of Persons with Disabilities Protocol 97

Article 30: Older persons with disabilities

1. State parties shall ensure that older persons with disabilities have full
enjoyment of human and peoples’ rights on an equal basis with other older
persons.
2. States parties shall ensure that all the rights of older persons with
disabilities are fully protected by taking policy, legislative and other
measures, including for:
(a) Ensuring that older persons with disabilities, on an equal basis with
others, access social protection programmes;
(b) Taking account of age and gender-related aspects of disability in
programming and resourcing in accordance with the present Protocol;
(c) Ensuring that older persons with disabilities exercise their legal capacity
on an equal basis with others, and that appropriate measures and safeguards
are put in place to provide older persons with all the support they may require
to exercise their legal capacity;
(d) Ensuring that older persons with disabilities have access to appropriate
services that respond to their needs within the community;
(e) Ensuring that older persons with disabilities are protected from neglect,
violence, including violence on the basis of accusations or perceptions of
witchcraft;
(f) Ensuring that older persons with disabilities have access to appropriate
sexual and reproductive health information and services.

Article 31: Duties of persons with disabilities

1. States parties shall recognise that persons with disabilities have duties
on an equal basis with other person as elaborated in the African Charter.
2. States parties shall ensure that persons with disabilities are rendered
the forms of assistance and support, including reasonable accommodations,
which they may require in performance of such duties.

Article 32: Statistics, data and other surveys

States parties shall ensure the systematic collection, analysis, storage and
dissemination of national statistics and data covering disability to facilitate
the protection and promotion of the rights of persons with disabilities.
Towards this end, States parties shall:
(a) Disaggregate statistics and data, as appropriate, on the basis of
disability, gender, age and other relevant variables, including by ensuring
that national population census and other survey captures data on disability;
(b) Disseminate statistics and data in forms accessible to all persons
including persons with disabilities;
(c) Ensure that the collection, analysis, storage and dissemination of
statistics and data on persons with disabilities comply with acceptable
ethical, confidentiality and privacy standards.
(d) Ensure effective involvement and participation of persons with
disabilities in the design, collection and dissemination of data.

Article 33: Cooperation

States parties shall:
(a) Cooperate at the international, continental, sub-regional and bilateral
levels on capacity-building on issues of persons with disabilities, including by
sharing research, technical, human and financial resources, information and
good practices to support implementation of this Protocol;
(b) Ensure that regional and sub-regional cooperation programmes and
institutions support the implementation of this Protocol and are accessible to
persons with disabilities;
98 Instruments of the AU

(c) Ensure full and effective participation of persons with disabilities in the
implementation and monitoring of this Protocol.
(d) Support the African Union Commission to set up an Advisory Council on
Disability [as an ad hoc] mechanism to facilitate the implementation and
follow up of the continental policies and plans on disability.

Article 34: Implementation

1. States parties shall ensure the implementation of this Protocol, and
shall indicate in their periodic reports submitted to the African Commission in
accordance with article 62 of the African Charter, the legislative and other
measures undertaken for the full realisation of the rights recognized in this
Protocol.
2. States parties shall establish or designate national mechanisms,
including independent national institutions, to monitor the implementation of
the rights of persons with disabilities.
3. In the implementation of this Protocol, the African Commission shall
have the mandate to interpret the provisions of the Protocol in accordance
with the African Charter.
4. The African Commission may refer matters of interpretation and
enforcement or any dispute arising from the application or implementation of
this Protocol to the African Court on Human and Peoples’ Rights.
5. In accordance with articles 5 and 34(6) of the Protocol Establishing the
Africa Court, the African Court on Human and Peoples’ Rights shall have the
mandate to hear disputes arising from the application or implementation of
this Protocol.

Article 35: Popularization of the Protocol

States parties shall take all appropriate measures to ensure the widest
possible dissemination of this Protocol in accordance with the relevant
provisions and procedures of their respective constitutions.

Article 36: Safeguard clause

1. No provision in this Protocol shall be interpreted as derogating from the
principles and values contained in other relevant instruments for the
realisation of the rights of persons with disabilities in Africa.
2. In the event of a contradiction between two or more provisions of this
Protocol, the interpretation which favours the rights of persons with
disabilities and protects their legitimate interests shall prevail.

Article 37: Signature, ratification and accession

1. This Protocol shall be open to member states of the Union for signature,
ratification or accession.
2. The instrument of ratification or accession to the present Protocol shall
be deposited with the Chairperson of the Commission who shall notify all
member states of the dates of the deposit of the instruments of ratification
or accession.

Article 38: Entry into force

1. This Protocol shall enter into force thirty (30) days after the deposit of
the fifteenth (15th) instrument of ratification by a member state.
2. The Chairperson of the Commission shall notify all members states of
the African Union of the entry into force of the present Protocol.
3. For any member state of the African Union acceding to the present
Protocol, the Protocol shall come into force in respect of that state on the
date of the deposit of its instrument of accession.
 Rights of Persons with Disabilities Protocol 99

Article 39: Reservations

1. A state party may, when, ratifying or acceding to this Protocol, submit
in writing a reservation with respect to any of the provisions of this Protocol.
Reservation shall not be incompatible with the object and purpose of this
Protocol.
2. Unless otherwise provided, a reservation may be withdrawn at any time.
3. The withdrawal of a reservation must be submitted in writing to the
Chairperson of the Commission who shall notify other states parties of the
withdrawal accordingly.

Article 40: Depository

This Protocol shall be deposited with the Chairperson of the African Union
Commission, who shall transmit a certified true copy of the Protocol to the
Government of each signatory state.

Article 41: Registration

The Chairperson of the Commission upon the entry into force of this Protocol
shall register this Protocol with the United Nations Secretary General in
conformity with article 102 of the Protocol of the United Nations.

Article 42: Withdrawal

1. At any time after three years from the date of entry into force of this
Protocol, a state party may withdraw by giving written notification to the
depository.
2. Withdrawal shall be effective one year after receipt of notification by
the depository, or on such later date as may be specified in the notification.
3. Withdrawal shall not affect any obligation of the withdrawing state
party prior to the withdrawal.

Article 43: Amendment and revision

1. Any state party may submit proposal(s) for the amendment or revision
of this Protocol. Such proposal(s) shall be adopted by the Assembly.
2. Proposals for amendment or revision shall be submitted to the
Chairperson of the Commission who shall transmit such proposals to the
Assembly at least six months before the meeting at which it shall be
considered for adoption.
3. Amendments or revisions shall be adopted by the Assembly by consensus
or, failing which, by a two-thirds majority.
4. The amendment or revision shall enter into force in accordance the
procedures outlined in article 26 of this Protocol.

Article 44: Authentic texts

This Protocol is drawn up in four (4) original texts, in Arabic, English, French
and Portuguese languages, all four (4) texts being equally authentic.

_____________________________________
100 Instruments of the AU

Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Citizens to Social
Protection and Social Security (2022)

Adopted by the AU Assembly in Addis Ababa, Ethiopia on 6 February 2022.

Preamble
We, the Heads of States and Government of the African Union:
Reaffirming that the right to social protection is a human right;
Considering that article 66 of the African Charter on Human and Peoples'
Rights (African Charter) provides that special protocols or agreements, if
necessary, may supplement the provisions of the African Charter;
Recalling Executive Council Decision EX.CL/Dec.876 (XXVII) adopted in
Johannesburg, South Africa, whereby the Executive Council requested the
African Union Commission in collaboration with the African Commission on
Human and Peoples' Rights, to develop an Additional Protocol to the African
Charter on Human and Peoples' Rights on the Rights of Citizens to Social
Protection and Social Security;
Taking into account the provisions of articles 5, 16, 17 and 18 of the African
Charter on Human and Peoples’ Rights, spelling out the rights of every
individual and the commitment made by Member States of the African Union
in article 1 of the African Charter on Human and Peoples’ Rights to recognise
the human and peoples' rights enshrined in the Charter and to adopt
legislative or other measures to give effect to them;
Recalling that the provisions of articles 60 and 61 of the African Charter on
Human and Peoples’ Rights recognise regional and international human rights
instruments and African practices consistent with international norms on
human and peoples' rights as being important reference points for its
application and interpretation;
Mindful of articles 5, 13, 16, 18 and 19 of the African Charter on the Rights
and Welfare of the Child, articles III, IV, X, XIII, XXII, XXIII, and XXIV of the
Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa; articles 8,15,16, 17, 18,19 and 20 of the Protocol to the
African Charter on Human and Peoples' Rights on the Rights of Persons with
Disabilities in Africa; articles 6, 7, 10, 11, 12, 13, 15,16 and 17 of the Protocol
to the African Charter on Human and Peoples' Rights on the Rights of Older
Persons in Africa, in relation to social protection; articles 3, 4 and 5 of the
African Union Convention for the Protection and Assistance of Internally
Displaced Persons in Africa; article 5 of the OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa; and article 2 of the African
Charter on Maritime Security and Safety and Development in Africa (Lomé
Charter), ratified by Member States;
Acknowledging the provisions of the Treaty Establishing the African Economic
Community, the Protocol to the Treaty Establishing the African Economic
Community Relating to Free Movement of Persons, Right of Residence and
Right of Establishment, and Aspiration 2 of the AU Agenda 2063 which calls
for ‘An integrated continent, politically united, based on the ideals of Pan
Africanism and the vision of Africa's Renaissance’, and the embedded
principle of an African citizenship;
Taking into account Aspiration 1 of the AU Agenda 2063 which projects “A
prosperous Africa, based on inclusive growth and social development”, and
 Rights of Citizens to Social Protection and Social Security Protocol 101

calls for “A high standard of living, quality of life and well-being for all
citizens” and envisages social security and social protection as a priority area;
Bearing in mind the Tunis Declaration of the Assembly of Heads of State and
Government on Social Development (1994); the African Common Position on
Human and Social Development in Africa (1994); the Livingstone Call for
Action (2006); the AU Social Policy Framework for Africa (2009); the Yaoundé
Tripartite Declaration on the Implementation of the Social Protection Floors
(2010); the Principles and Guidelines on the Interpretation of Economic,
Social and Cultural Rights in the African Charter on Human and Peoples’ Rights
(2010); and the revised Ouagadougou Plan of Action on Employment
Promotion and Poverty Alleviation (2014);
Having regard to the Universal Declaration of Human Rights, in particular
articles 22 and 25 and the International Covenant on Economic, Social and
Cultural Rights, in particular articles 9, 11 and 12; and the Convention on the
Rights of the Child (CRC) and its Optional Protocols, in particular CRC articles
26, 27 and 32;
In view of the ILO social security standards, in particular the Social Security
(Minimum Standards) Convention, 1952 (Number 102); the Recommendation
concerning National Floors of Social Protection Recommendation, 2012
(Number 202); and the Recommendation concerning The Transition from the
Informal to the Formal Economy, 2015 (Number 204);
Realising the pillars of the Decent Work Agenda which are: employment
creation, social protection, rights at work and social dialogue;
Recognising the virtues of African traditions, values and practices of social
and national solidarity which should inspire and characterise the provision of
mutual social and communal care and support;
Concerned that the vast majority of people in Africa are not appropriately
covered by formal social protection provisions;

HAVE AGREED AS FOLLOWS:

Article 1: Definitions
For the purpose of the present Protocol:
(a) ‘African Charter’ means the African Charter on Human and Peoples'
Rights;
(b) ‘African Commission’ means the African Commission on Human and
Peoples’ Rights;
(c) ‘African Court’ means the African Court on Human and Peoples' Rights;
(d) ‘Assembly’ means the Assembly of Heads of State and Government of
the African Union;
(e) ‘AU’ means the African Union;
(f) ‘Blue economy’ means sustainable economic development of oceans
that use such technique as regional development to integrate the use of seas
and oceans, coasts, lakes, rivers, and underground water for economic
purposes, including, but without being limited to fisheries, mining, energy,
aquaculture and maritime transport, while protecting the sea to improve
social well-being;
(g) ‘Citizen’ means any natural person who, in accordance with the laws of
an African Union Member State, is a national of that Member State;
(h) ‘Commission’ means the Secretariat of the African Union as provided by
the Constitutive Act;
(i) ‘Family’ means a unit that consists of a man, a woman or women and,
other persons who can be defined as such by national laws of States parties;
(j) ‘Individual’ means all natural persons in States parties, including non-
nationals;
102 Instruments of the AU

(k) ‘Informal economy’ means all economic activities by workers and

economic units that are – in law or in practice – not covered or insufficiently
covered by laws and policies;
(l) ‘Kafala system’ means a voluntary commitment made by a person
(kafeel), according to the national law of the State Party, to undertake
responsibility for the protection, upbringing and care of a child, in the same
way as a parent would do for his or her own child;
(m) ‘Member States’ means the Member States of the African Union;
(n) ‘Minimum package’ refers to social protection provisions that cover
essential basic benefits and services and which provide the platform for
broadening, extending social protection and creation of more fiscal space;
(o) ‘Social Assistance’ is a form of social security, funded from government
revenue, which provides assistance in cash or in kind to persons who lack the
means to support themselves and their dependants. It also includes payments
financed from government revenue which are granted to designated
categories deemed to have exceptional needs;
(p) ‘Social Allowances’ means universal payments financed from
government revenue which are granted to designated categories deemed to
have exceptional needs (such as children, older persons and persons with
disabilities). These benefits are not means tested;
(q) ‘Social Insurance’ refers to a contributory form of social security
designed to protect income earners and their dependants against a reduction
or loss of income as a result of exposure to risks;
(r) ‘Social Protection’ refers to public and private, or to mixed public and
private measures designed to protect individuals against life-cycle crises that
curtail their capacity to meet their needs, and includes all forms of social
security, and strategies and programmes aimed at supporting and ensuring a
minimum standard of livelihood and access to essential social services and
care for all people;
(s) ‘Social Security’ includes the social protection concept, social
assistance, social insurance and social allowances, public and private
measures, or mixed public and private measures, designed to protect
individuals and families against income insecurity caused by contingencies
such as unemployment, employment injury, maternity, sickness, poor health,
disability, old age, maintenance of children and death of a family member;
(t) ‘States parties’ means Member States of the African Union that have
ratified or acceded to this Protocol and deposited the instruments of
ratification or accession with the Chairperson of the African Union
Commission.

Article 2: Guiding Principles for social protection and state obligations

to guarantee right to social protection and social security
In accordance with the principles enshrined in this Protocol States parties
shall:
1. Ensure good governance and coordination among institutions
responsible for the delivery of social protection;
2. Protect the rights of individuals to human dignity and the special rights
of children to survival, development and protection, and subject to the
provisions of this Protocol, to equal treatment in relation to social protection;
3. Provide social protection benefits;
4. Develop policies, legislation and programmes that improve the standard
of life of individuals and address the needs of vulnerable groups, including but
not limited to children, persons with disabilities, women and older persons;
5. Ensure that social protection is human rights-based, follows a lifecycle
approach, addresses vulnerability and inequality, and is inclusive, leaving no
one behind;
 Rights of Citizens to Social Protection and Social Security Protocol 103

6. Ensure continual progress in relation to the realisation of the rights,

obligations and commitments contained in this Protocol, and take immediate
steps, within its means;
7. Adhere to the principle of non-discrimination, namely that every
individual shall be entitled to the enjoyment of the rights recognised and
guaranteed in this Protocol without distinction of any kind such as age,
disability, race, ethnic group, colour, sex, language, religion, political or any
other opinion, national and social origin, fortune, birth or other status;
8. Ensure that the provisions of this Protocol shall apply to all citizens and
comply with their international obligations in relation to social protection;
9. Develop an integrated and comprehensive social protection system,
which:
(a) Ensures meaningful coverage in terms of, among others, social
insurance schemes, social assistance measures and social services;
(b) Protects against special and collective risks, including political conflict,
climate change and natural disasters;
(c) Prevents poverty, deprivation and livelihood loss;
(d) Integrates and, when necessary, reintegrates persons, including workers
in the labour force and into society;
(e) Provides for social protection in national legislation in order to ensure
an appropriate mandate for government to act, and for clarity and certainty
of the rights, obligations and functions of all social protection stakeholders.

Article 3: Right to social protection and state obligations

1. Every citizen has the right to social protection;
2. States parties have the obligation to ensure that social protection is
available, accessible, adequate, affordable and transparent;
3. To comply with the obligation provided under sub-article 2, States
parties shall progressively:
(a) Develop, maintain and expand an appropriate regulatory, institutional
and operational framework for the provision of social protection and ensure
good and democratic governance of social protection schemes and
arrangements;
(b) Establish and maintain a system of social protection in accordance with
the provisions of this Protocol;
(c) Provide a minimum package of essential social protection, which should
at least cover the basic needs of all;
(d) Ensure that every citizen who has insufficient means of subsistence to
support themselves and their dependants is entitled to adequate social
assistance and other services provided by the state;
(e) Increase coverage of social protection and raise systems of social
protection to a higher level, in accordance with the provisions of this Protocol
and in accordance with the ratio of economic growth and the relevant
national laws;
(f) Encourage and regulate private and public sector participation, with
regard to the provision and management of social protection.

Article 4: Social insurance

States parties shall:
1. Review and adopt legislation that compels all employers to enrol all
employees into social insurance schemes;
2. Establish health insurance schemes that cover all sections of the
population;
3. Put in place measures that enable everyone, especially the youth, to
prepare for retirement, and that give expression to the need to contribute to
social insurance schemes;
104 Instruments of the AU

4. Carry out periodic reviews of social insurance benefits to ensure that

they are in line with inflation and prevailing economic conditions;
5. Adopt legislative and other measures to ensure that persons can benefit
from their contributions even when they move between similar schemes or to
other countries (portability of benefits);
6. Ensure the protection of social insurance benefits for those covered by
bilateral or multilateral agreements;
7. Adopt legislative and other measures to ensure the sound management
and administration of social insurance arrangements, the protection of social
insurance funds against mismanagement, diversion for other purposes,
cyclical fluctuations and market failure.

Article 5: Informal and rural economies

In order to regulate and provide sufficient social protection to the informal
and rural sectors, States parties shall:
1. Ensure the participation of representatives of the informal and rural
economy in the design, development and implementation of social protection
policies and programmes;
2. Adopt a regulatory framework promoting appropriate and adequate
social security of informal and rural workers, through the inclusion of these
workers in general social security schemes adapted to suit the context of
these workers, the provision or recognition of appropriate formal and
informal social insurance and micro-insurance mechanisms, social assistance
measures, and dedicated savings instruments;
3. Develop and implement social security contribution modalities,
qualifying conditions and benefits that are suited to the context of informal
and rural workers;
4. Ensure access to a minimum package of social protection to informal
and rural workers and their families;
5. Ensure that the special context of women is appropriately
accommodated in social protection systems and in particular that maternity
and health protection is extended to working mothers in the informal and
rural economies to enable a better conciliation of work, family and care
responsibilities;
6. Facilitate access to markets and credit for informal and rural workers to
sustain their livelihood support and income-generating potential;
7. Ensure progressive formalisation of the informal economy through
enabling a legal and regulatory environment for sustainable enterprises, skills
development, and progressive extension of labour and social protection;
8. Put in place measures to protect income earned from informal and rural
activities and encourage workers in those sectors to enrol in social protection
programmes.

Article 6: Unemployment and underemployment

States parties shall:
1. Adopt proactive policies and legislative measures to promote inclusive
economic and social development so as to eradicate poverty and absorb the
majority of the labour force into productive employment and income–
generating activities;
2. Progressively provide unemployment benefits for all citizens, in
particular by taking steps to establish unemployment insurance schemes, in
accordance with national laws;
3. Adopt measures to increase investment in education and training,
especially technical and vocational training, and stimulate and support job
creation initiatives;
 Rights of Citizens to Social Protection and Social Security Protocol 105

4. Introduce measures to engage those who can work but are not
employed, and shall consider for this purpose among others public
employment schemes and employment guarantee schemes;
5. Promote a culture of entrepreneurship to provide support structures,
innovative, sex-sensitive training and skills development programmes, such as
apprenticeship programmes, mentorship and business incubators;
6. Provide support structures to be set up to assist entrepreneurs in the
establishment and development of small- and medium-sized enterprises and
provide effective social protection coverage to workers in those enterprises;
7. Afford preferential employment opportunities to vulnerable groups,
especially the youth, women, older persons and persons with disabilities, in
accordance with national laws;
8. Significantly and progressively reduce the unemployment rate among,
and increase participation in gainful employment of, women, persons with
disabilities and young people, in accordance with national laws;
9. Take concrete steps to address the underemployment of workers, to
align skills demand with skills supply and to strengthen the links between
education, skills training and the labour market;
10. Formulate strategies to enhance productivity as key to the efforts to
reduce underemployment and poverty;
11. Ensure adequate protection against loss of employment, including
protection against arbitrary and/or unfair dismissal.

Article 7: Cross-border migrants and internally displaced persons

States parties shall:
1. Adopt legislative, administrative and other measures to ensure that
their citizens who are migrants including migrant workers are provided with
social protection benefits;
2. In according with their capacities and national laws, introduce measures
to facilitate the co-ordination and portability of social security entitlements
and benefits, especially through the adoption of appropriate bilateral and
multilateral agreements providing for equality of treatment between
individuals from countries of origin and countries of destination, aggregation
of insurance periods, maintenance of acquired rights and benefits, portability
of benefits, pro-rata sharing of financial liability, institutional cooperation,
and the avoidance of double taxation;
3. Develop mechanisms, services and effective financial products to
facilitate the affordable transfer of remittances by migrants;

Ensure that displaced persons are included in social protection schemes or

measures that are responsive to their needs and contexts.

Article 8: Women and girls

States parties shall:
1. Abolish all discriminatory laws, policies, customs and harmful
traditional practices based on sex in their respective social protection
systems and ensure that women and girls are also included in their own right
in social protection schemes targeting the formal, informal and rural sectors;
2. Provide social protection to vulnerable women and girls, including
those that are heads of families, from marginalised population groups and in
the blue economy, and provide an environment suitable to their condition and
their special physical, economic and social needs;
3. Adopt and promote policies that ensure that workers, particularly
female workers, are able to balance occupational and family obligations;
4. Promote equal access to employment, equal pay for work of equal value
and social protection;
106 Instruments of the AU

5. Provide social assistance to girls and protect them against early

marriages and other harmful practices;
6. Promote the provision of social protection schemes that support
the enrolment and retention of girls in schools and other training institutions
and the organisation of programmes for women and girls who leave school
prematurely;
7. Provide technical and financial assistance to women, as applicable,
who embark on agriculture and improve their access to land, credit,
including microfinance, training and invest in their financial empowerment;
8. Make available social protection to women and girls exposed to gender-
based violence.

States parties shall:

Article 9: Family
1. Ensure that the family, as a fundamental unit of society and the
natural environment for the growth and well-being of all its members
and particularly children, is appropriately assisted and protected. Member
States should promote the legal, economic and social protection of family
life;
2. Empower the family and enhance its capacity to enable it to meet its
socio- economic needs through appropriate social protection in interventions;
3. Ensure that social protection systems and programmes reflect the
reality and importance of the extended family, as understood in the
national context;
4. Develop, integrate and implement effective social policies,
programmes and strategies to address the social protection needs of
families in vulnerable and crisis situations;
5. Adopt measures to promote and support community associations
or networks which support families in times of need;
6. Provide a framework for the extension of appropriate family benefits;
Promote family reunification.

States parties shall:

Article 10: Older persons

1. Develop policies and legislation that ensure that older persons are
provided with adequate pensions and other forms of social security,
including post-retirement health cover and disability benefits;
2. Adopt mechanisms for the transfer of social assistance or social
security mechanisms in order to ensure security of income for older persons
who did not have the possibility of subscribing to a pension scheme;
3. Promote independent living and support institutional, residential,
family, community and home-based care for older persons;
4. Establish, operationalise and implement national long-term care
policies or strategies, including through appropriate complaint mechanisms
and redress for care recipients;
5. Promote policies to encourage productive and dignified ageing and
ensure that employment undertaken after retirement does not entail
discrimination against older workers in relation to labour standards,
conditions of employment and rates of remuneration;
6. Recognise and encourage the participation of organisations
representing older persons, and national consultative councils of older
persons according to relevant national laws.
 Rights of Citizens to Social Protection and Social Security Protocol 107

Article 11: Children, adolescents and youth

States parties shall:
1. Ensure that social protection programmes are sensitive to the needs
of children and contribute to the fulfilment of their right to registration at
birth, nationality and a standard of living adequate for the child’s
physical, mental, spiritual, moral and social development in accordance
with relevant national laws;
2. Provide social protection services and transfers in cash and in kind
to ensure that the basic needs of children are met;
3. Recognise the right for every child to benefit from social security,
including social insurance, taking into account the resources and the
circumstances of the child and persons having responsibility for the
maintenance of the child as appropriate;
4. Adopt measures to provide social protection schemes aimed at
protecting children in conflict situations, orphans, children of mothers in
prison and other vulnerable children;
5. Adopt specific protection measures in relation to the employment
of children, including minimum age for admission to employment, and
appropriate regulation of the hours and conditions of employment;
6. Support measures to protect, reintegrate and rehabilitate children
in conflict with the law;
7. Invest in social protection schemes that contribute to early
childhood development, including attention to adequate nutrition, good
health, safety and protection, opportunities for early learning and responsive
caregiving;
8. Put in place effective measures and provision for adequate care
of children, among others through kinship care, care under the kafala system,
foster-care and adoption arrangements in accordance with relevant
national laws;
9. Facilitate mentoring and support of child-headed households;
10. Ensure free primary and secondary education and institute clear steps
to progressively extend access to free education beyond primary and
secondary schooling, including pre-primary education;
11. Adopt social protection measures that contribute to ending child
labour, exploitation, neglect and violence, child marriages, trafficking in
persons, child trafficking, and child soldiering;
12. Ensure that children and the youth participate in developing social
protection programmes.

Article 12: Persons with disabilities

States parties shall:
1. Adopt legislative policy and other measures and implement measures
that will ensure the extension of social protection to all persons with
disabilities so that they enjoy an adequate standard of living for themselves
and their families, as well as care and support;
2. Ensure that social protection schemes provided to persons with
disabilities improve their social and professional inclusion, including
through measures such as habilitation, rehabilitation, vocational training,
accessibility and mobility, provision of assistive devices and technologies,
means of transport and housing and the appropriate organisation of work and
the working environment;
3. Ensure that social protection schemes guarantee equality of access and
coverage to and reasonable accommodation of persons with disabilities;
4. Mainstream access to social services for persons with disabilities;
5. Facilitate personal assistance to persons with disabilities to live
independently and participate in the community;
108 Instruments of the AU

6. Involve persons with disabilities, their families and their

representative organisations in the revision, planning and design of
national social protection strategies;
7. Initiate legal and policy reforms to promote adequate and
flexible combination of income and disability related support for
economic empowerment;
8. Raise awareness to persons with disabilities and their families on the
existence of social protection programmes to ensure their participation.

Article 13: Maternity and paternity

States parties shall:
1. Ensure that reproductive, maternity and paternity rights are protected
in all social protection programmes in accordance with national laws;
2. Provide social protection measures that protect women against
discrimination and dismissal in relation to maternity, and guarantee
adequate and paid pre- and post-natal maternity leave, of at least fourteen
weeks' duration, in both the private and public sectors;
3. Ensure that fathers are enabled to share responsibilities in pre- and
post-natal care, including the granting of appropriate paternity leave;
4. Establish and strengthen existing pre-natal, delivery and post-natal
health and nutritional services, including hospitalisation for women;
5. Ensure that, unless universal coverage and financing are provided for,
maternity and paternity benefits shall be financed through compulsory
social insurance paid by both the employer and the employees, without
distinction of gender, through social assistance or social allowances.

Appropriate provision shall be made for maternity benefits in the case of

those involved in the informal economy.

Article 14: Health care, protection and sickness benefits

States parties shall:
1. Develop social protection programmes that ensure that every citizen
has equal access to adequate, affordable and quality health care, including
comprehensive sexual and reproductive health services and facilities for
current, previous and future users of psychiatric services;
2. Put in place legislative policy and other measures to achieve
universal health coverage and financing, and shall ensure that every
citizen is covered by health insurance schemes;
3. Ensure that health care shall be preventive, curative, rehabilitative
and promotive, and shall include primary, secondary and tertiary health
care and provision of essential pharmaceutical supplies;
4. Put in place palliative care and support to the terminally ill;
5. Adopt measures to regulate sickness and invalidity cash benefits;
6. Ensure relevant social protection, to support the poorest families in
their efforts to mitigate the economic and social impacts of epidemics and
crises;
7. Put in place special measures to address the impact of the HIV/AIDS
pandemic, malaria, tuberculosis, and other diseases;
8. Adopt and develop social protection measures to support survivors of
rape and sexual abuse and harassment;
9. Reduce morbidity and end preventable mortality from communicable
and non-communicable diseases and other health conditions in Africa;
10. Facilitate access to free medical and rehabilitative services for
persons with disabilities;
 Rights of Citizens to Social Protection and Social Security Protocol 109

11. Facilitate access to free detoxification services, including

rehabilitation services, for persons in need of treatment for drug and
alcohol dependence;
12. Put in place a legislative policy and institutional framework for
the development and provision of safe traditional and other medicines.

Article 15: Occupational health, safety and employment injury

States parties shall:
1. Take measures towards achieving progressively a safe, secure and
healthy working environment;
2. Ensure that the organisation of occupational safety and health shall be
on the basis of cooperation involving all stakeholders at the national level;
3. Ensure that all workers are covered by employment injury benefit
schemes and arrangements;
4. Adopt measures in accordance with international labour standards
to ensure that workers shall be entitled to work-related illness and injury
prevention, detection and rehabilitation services, adequate health care, as
well as reasonable job security after illness and injury, and shall be entitled to
reasonable compensation.

Article 16: Death and survivor's benefits

States parties shall, in accordance with their capacities and national laws,
ensure that social protection schemes provide protection in the event of
death of a breadwinner so that non-discriminatory benefits become
payable to beneficiaries and survivors, including a death grant, funeral costs
and – subject to qualifying conditions — survivors' benefits, which should be
in the form of periodical payments, aimed at the upkeep of survivors.

Article 17: Care and support in other contexts

States parties shall, in accordance with their capacities and national laws:
1. Adopt social protection measures including special care services
for children and women exposed to violence and exploitation, in all its forms
and aftercare services to ex-prisoners as well as drug users and substance
abusers for their social reintegration;
2. Collectively and individually ensure that their social protection
systems adequately provide appropriate individual and collective
preventive measures within and across the borders of States parties, and
shall also provide for effective measures of relief, rehabilitation,
reconstruction, reintegration and revival for communities so affected;
3. Adopt measures, at regional and national levels, to provide
prevention, relief, reconstruction and rehabilitation in crisis and natural
disaster contexts;
4. Develop a framework for training and support of caregivers;
5. Develop and implement a framework to plan, develop and support
the workforce in the social service system.

Article 18: Education

States parties shall, in accordance with their capacities and national laws:
1. Adopt measures to progressively provide free and equitable access to
quality inclusive education;
2. Support access to free adult education for marginalised groups,
including indigenous persons, women, older persons and persons with
disabilities;
3. Ensure an education, training, life-long learning and skills
development system, supported by technology, that is sensitive to the
objective of rationalising admission requirements to education and training
110 Instruments of the AU

institutions and accreditation of qualifications, and which simultaneously

addresses the needs for employability and sustainable human development;
4. Where appropriate, provide age appropriate and culturally sensitive
comprehensive education on rights to sexual and reproductive health for
adolescents and youth while involving parents and communities;
5. Encourage the introduction of special training programmes for
teachers and instructors of persons with disabilities;
6. Develop and implement programmes that extend and expand:
(i) Early childhood education;
(ii) Primary health care to all school children; and
(iii) School feeding programmes to all primary school children.
7. Ensure the provision of education on the History of Africa focusing on its
past greatness and prosperity as an inspiration for social protection.

Article 19: Food and nutrition

States parties shall, in accordance with their capacities and national laws:
1. Provide social protection programmes that contribute to improved
nutrition;
2. Establish mechanisms for developing and retaining adequate technical
capacity in nutrition to implement effective nutrition programmes;
3. Support social protection programmes that boost agricultural
productivity such as input subsidy schemes and crop insurance schemes;
4. Enact and implement legislation to preserve land for food crops and
promote production of drought resistant crops, protection of intellectual
property in traditional food crops; commercial farming; crop diversification
for long-term food security; and marketing services;
5. Enhance the production, storage, transportation, availability,
accessibility, utilisation, safety and quality of food;
6. Improve the productivity of smallholder agriculture and livestock
through extension of technological support, small-scale irrigation schemes,
agri-business development, rural infrastructure, credit, subsidies and tax
exemptions;
7. Provide support to female farmers and improve women's access to
credit, including microfinance, and invest in training to ensure their
empowerment, including in their financial literacy;
8. Enhance food and nutrition information dissemination including
information on genetically modified foods through education and
communication activities with the participation of the public.

Article 20: Water, sanitation and hygiene

States parties shall, in accordance with their capacities and national laws:
1. Ensure universal, affordable and reliable access to clean and safe
drinking water in a sustainable manner;
2. Establish efficient and effective water management systems;
3. Put in place measures to ensure adequate and inclusive sanitation and
hygiene in all human dwellings.

Article 21: Housing, shelter and property

States parties shall, in accordance with their capacities and national laws:
1. Facilitate social protection measures that contribute to the
affordability of and access to adequate and inclusive housing and shelter;
2. Take all necessary legislative, administrative and other measures to
prohibit the evictions that are not in conformity with regional and
international human rights treaties ratified by States parties;
3. Ensure that the rights of any person to property are protected;
 Rights of Citizens to Social Protection and Social Security Protocol 111

4. Ensure that adequate and effective legal or other appropriate remedies

are available to any person whose property rights have been violated.

Article 22: Environment and climate change

States parties shall, in accordance with their capacities and national laws:
1. Support measures to mitigate the effects of climate change and
environmental degradation through social protection schemes;
2. Enhance investments for resilience building initiatives, including social
protection for rural workers and other vulnerable social groups, as well as
vulnerable ecosystems, including the blue economy;
3. Support initiatives to grow crops that adapt to climate change in order
to enhance food security.

Article 23: Governance and administration of national social protection

systems
States parties shall, in accordance with their capacities and national laws:
1. Take steps to include provisions in their constitutions and other national
laws, in accordance with this Protocol, to ensure that an adequate framework
for social protection is provided for;
2. Ensure inclusive and democratic governance of social protection
institutions;
3. Improve management and coordination of social protection at all levels
through a variety of methods, including the establishment of social registries
and other social protection management information systems and
frameworks;
4. Enhance the technical, infrastructural and institutional capacities of
Ministries responsible for social protection;
5. Create sound governance structures for all social protection
programmes, at local and national levels, as appropriate, to guarantee the
protection of beneficiaries;
6. Create appropriate legal and institutional frameworks for sound
investment, auditing and risk management;
7. Put in place mechanisms to ensure that delivery and payment systems
are efficient and effective;
8. Ensure the active participation of all stakeholders in the formulation of
social protection policies, programme design, implementation, and
monitoring and impact evaluation.

Article 24: Financing

States parties shall, in accordance with their capacities and national laws:
1. Conduct periodic actuarial assessments to ensure the adequate funding
of social protection systems through domestic financing by allocating specific
and transparent budget lines and taking into account contributory capacities
of different population groups;
2. Develop and operationalise costed national plans for social protection
to guarantee the provision of services and benefits;
3. Develop flexible feasibility, costing and sustainable funding strategies,
combining contributory and non-contributory funding modalities for
nationally defined programmes, to ensure sufficient funding for social
protection programmes;
4. Commit themselves to progressively allocate a minimum percentage of
public resources to social protection expenditure, in particular expenditure
that will ensure universal access;
5. Ensure coordination and strengthening of development partner support
for sustainable financing of social protection;
112 Instruments of the AU

6. Take measures to avoid excessive administrative costs, and prevent

fraud, illicit financial flows, tax evasion, non-payment of contributions and
misuse of social protection funds.

Article 25: Data management

States parties shall:
1. Adopt and implement mechanisms to collect, analyse, compile and
publish social protection disaggregated data, statistics and indicators, with
due regard to the need for data protection and individuals' right to privacy;
2. Ensure that social protection information/data is appropriately
disaggregated (also with reference to sex, age, disability and migration
status), collected and reported to facilitate planning and implementation.

Article 26: Complaint and appeal mechanisms

States parties shall:
1. Ensure that every claimant has the right to complain to the institution
that took a decision affecting the claimant and, should the claimant be
dissatisfied with the outcome of the complaint, the right to appeal to an
independent institution, with regard to any violations of the rights established
in this Protocol;
2. Develop and implement complaints and appeal mechanisms which
accommodate both individual and collective complaints, in all social
protection programmes;
3. Ensure that complaint and appeal mechanisms provide procedural
guarantees for a fair hearing, are impartial, transparent, effective, simple,
rapid, accessible and inexpensive, are completed within reasonable time
limits, and ensure timely feedback to affected parties;
4. Ensure access to internal review, and independent adjudication
institutions that have the power to finally determine social protection
disputes;
5. Ensure that domestic remedies are exhausted;
6. Ensure that final resolutions of disputes are binding and shall be
complied with;
7. Ensure that legal aid is available to any person whose rights have been
violated.

Article 27: Duties

Individuals have responsibilities towards their families, their communities,
the wider society and the state. In this regard they shall:
1. Participate in social protection schemes that are designed to protect
them and their families against risks;
2. Use the benefits derived as a result of this Protocol in a responsible
manner;
3. Provide support and protection to family members as required by the
State Party’s legal system.

Article 28: Implementation and monitoring

States parties shall:
1. Ensure the implementation of this Protocol, and shall indicate in their
periodic reports submitted to the African Commission in accordance with
article 62 of the African Charter, the legislative and other measures
undertaken for the full realisation of the rights recognised in this Protocol;
2. Establish or designate national mechanisms, including independent
national institutions, to monitor the implementation of the rights enshrined
in this Protocol;
 Rights of Citizens to Social Protection and Social Security Protocol 113

3. Monitor and review the uptake, design and impact of social protection
programmes for all vulnerable persons.

Article 29: Interpretation

1. The African Commission, shall be seized with matters of interpretation
arising from the implementation of this Protocol;
2. The African Court, shall be seized with matters of interpretation and
application of this Protocol only for the States parties to the Protocol to the
African Charter on Human and Peoples’ Rights on the Establishment of an
African Court on Human and Peoples’ Rights.

Article 30: Popularisation of the Protocol

States parties shall take all appropriate measures to ensure the widest
possible popularization of this Protocol in accordance with the relevant
national laws.

Article 31: Safeguard clause

1. No provision in this Protocol shall be interpreted as derogating from the
principles and values contained in other relevant instruments for the
realisation of the rights of persons covered under this Protocol;
2. In the event of seemingly contradictory provisions of this Protocol, the
interpretation which favours the rights of citizens and protects their
legitimate interests shall prevail.

Article 32: Signature, ratification and accession

1. This Protocol shall be open to Member States for signature, ratification
and accession;
2. The instruments of ratification or accession to the present Protocol shall
be deposited with the Chairperson of the Commission who shall notify all
Member States of the dates of the deposit of the instruments of ratification
or accession.

Article 33: Entry into force

1. This Protocol shall enter into force thirty (30) days after the deposit of
the fifteenth (15th) instrument of ratification or accession by a Member
State;
2. The Chairperson of the African Union Commission shall notify all
Member States of the entry into force of the present Protocol;
3. For any Member State ratifying or acceding to the present Protocol after
its entry into force the Protocol shall come into force in respect of that State
on the date of the deposit of its instrument of ratification or accession.

Article 34: Reservations

1. A State Party may, when, ratifying or acceding to this Protocol, submit
in writing a reservation with respect to any of the provisions of this Protocol;
2. Reservations should not be incompatible with the object of the present
Protocol;
3. Unless otherwise provided, a reservation may be withdrawn at any time;
4. The withdrawal of a reservation must be submitted in writing to the
Chairperson of the Commission who shall notify other States parties of the
withdrawal accordingly.

Article 35: Depositary

This Protocol shall be deposited with the Chairperson of the Commission, who
shall transmit a certified true copy of the Protocol to the Government of each
Member State.
114 Instruments of the AU

Article 36: Registration

The Chairperson of the Commission upon the entry into force of this Protocol
shall register this Protocol with the United Nations Secretary General in
conformity with article 102 of the Charter of the United Nations.

Article 37: Withdrawal

1. At any time after three (3) years from the date of entry into force of this
Protocol, a State Party may withdraw at any time by giving written
notification to the Custodian;
2. Withdrawal shall be effective one (1) year after receipt of notification
by the Depositary, or on such later date as may be specified in the
notification;
3. Withdrawal shall not affect any obligation of the withdrawing State
Party prior to the withdrawal.

Article 38: Amendment or revision

1. Any State Party may submit proposal(s) for the amendment or revision
of this Protocol. Such proposal(s) shall be adopted by the Assembly;
2. Proposals for amendment or revision shall be submitted, in writing, to
the Chairperson of the Commission who shall transmit such proposals to the
Assembly at least six (6) months before the meeting at which they shall be
considered for adoption;
3. Amendments or revisions shall be adopted by consensus or, failing
which, by a two-thirds majority;
4. The amendment or revision shall enter into force in accordance with the
procedures outlined in article 33 and 34 of this Protocol.

Article 39: Authentic texts

This Protocol is drawn up in five (5) original texts, in Arabic, English, French,
Portuguese, and Spanish languages, and all five (5) texts being equally
authentic.

_____________________________________

OAU Convention Governing the Specific Aspects of

Refugee Problems in Africa (1969/1974)

Adopted in Addis Ababa, Ethiopia, on 10 September 1969 and entered into force on
20 June 1974. The Convention is similar in many respects to the UN Refugee
Convention, although the definition of a refugee in article 1 of the African
Convention is broader than the definition included in the Convention of the UN.

Preamble

We, the Heads of State and Government, assembled in the city of Addis
Ababa, Ethiopia,
Noting with concern the constantly increasing numbers of refugees in Africa
and desirous of finding ways and means of alleviating their misery and
suffering as well as providing them with a better life and future;
Recognising the need for an essentially humanitarian approach towards
solving the problems of refugees;
 Refugee Convention 115

Aware, however, that refugee problems are a source of friction among many
member states, and desirous of eliminating the source of such discord;
Anxious to make a distinction between a refugee who seeks a peaceful and
normal life and a person fleeing his country for the sole purpose of fomenting
subversion from outside;
Determined that the activities of such subversive elements should be
discouraged, in accordance with the Declaration on the Problems of
Subversion and Resolution on the Problem of Refugees adopted at Accra in
1965;
Bearing in mind that the Charter of the United Nations and the Universal
Declaration of Human Rights have affirmed the principle that human beings
shall enjoy fundamental rights and freedoms without discrimination;
Recalling Resolution 2312 (XXII) of 14 December 1967 of the United Nations
General Assembly, relating to the Declaration on Territorial Asylum;
Convinced that all the problems of our continent must be solved in the spirit
of the Charter of the Organization of African Unity and in the African context;
Recognising that the United Nations Convention of 28 July 1951, as modified
by the Protocol of 31 January 1967, constitutes the basic and universal
instrument relating to the status of refugees and reflects the deep concern of
states for refugees and their desire to establish common standards for their
treatment;
Recalling Resolutions 26 and 104 of the OAU Assemblies of Heads of State and
Government, calling upon member states of the Organisation who had not
already done so to accede to the United Nations Convention of 1951 and to
the Protocol of 1967 relating to the Status of Refugees, and meanwhile to
apply their provisions to refugees in Africa;
Convinced that the efficiency of the measures recommended by the present
Convention to solve the problem of refugees in Africa necessitates close and
continuous collaboration between the Organization of African Unity and the
Office of the United Nations High Commissioner for Refugees;

HAVE AGREED as follows:

Article I: Definition of the term ‘refugee’

1. For the purposes of this Convention, the term ‘refugee’ shall mean
every person who, owing to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that
country, or who, not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it.
2. The term ‘refugee’ shall also apply to every person who, owing to
external aggression, occupation, foreign domination or events seriously
disturbing public order in either part or the whole of his country of origin or
nationality, is compelled to leave his place of habitual residence in order to
seek refuge in another place outside his country of origin or nationality.
3. In the case of a person who has several nationalities, the term ‘a country
of which he is a national’ shall mean each of the countries of which he is a
national, and a person shall not be deemed to be lacking the protection of the
country of which he is a national if, without any valid reason based on well-
founded fear, he has not availed himself of the protection of one of the
countries of which he is a national.
4. This Convention shall cease to apply to any refugee if:
(a) he has voluntarily re-availed himself of the protection of the country of
his nationality, or
116 Instruments of the AU

(b) having lost his nationality, he has voluntarily reacquired it, or

(c) he has acquired a new nationality, and enjoys the protection of the
country of his new nationality, or
(d) he has voluntarily re-established himself in the country which he left or
outside which he remained owing to fear of persecution, or
(e) he can no longer, because the circumstances in connection with which
he was recognised as a refugee have ceased to exist, continue to refuse to
avail himself of the protection of the country of his nationality, or
(f) he has committed a serious non-political crime outside his country of
refuge after his admission to that country as a refugee, or
(g) he has seriously infringed the purposes and objectives of this
Convention.
5. The provisions of this Convention shall not apply to any person with
respect to whom the country of asylum has serious reasons for considering
that:
(a) he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes,
(b) he committed a serious non-political crime outside the country of
refuge prior to his admission to that country as a refugee,
(c) he has been guilty of acts contrary to the purposes and principles of the
Organization of African Unity,
(d) he has been guilty of acts contrary to the purposes and principles of the
United Nations.
6. For the purposes of this Convention, the contracting state of asylum
shall determine whether an applicant is a refugee.

Article II: Asylum

1. Member states of the OAU shall use their best endeavours consistent
with their respective legislation to receive refugees and to secure the
settlement of those refugees who, for well-founded reasons, are unable or
unwilling to return to their country of origin or nationality.
2. The granting of asylum to refugees is a peaceful and humanitarian act
and shall not be regarded as an unfriendly act by any member state.
3. No person shall be subjected by a member state to measures such as
rejection at the frontier, return or expulsion, which would compel him to
return to or remain in a territory where his life, physical integrity or liberty
would be threatened for the reasons set out in article I, paragraphs 1 and 2.
4. Where a member state finds difficulty in continuing to grant asylum to
refugees, such member state may appeal directly to other member states and
through the OAU, and such other member states shall in the spirit of African
solidarity and international co-operation take appropriate measures to
lighten the burden of the member state granting asylum.
5. Where a refugee has not received the right to reside in any country of
asylum, he may be granted temporary residence in any country of asylum in
which he first presented himself as a refugee pending arrangement for his re-
settlement in accordance with the preceding paragraph.
6. For reasons of security, countries of asylum shall, as far as possible,
settle refugees at a reasonable distance from the frontier of their country of
origin.

Article III: Prohibition of subversive activities

1. Every refugee has duties to the country in which he finds himself, which
require in particular that he conforms with its laws and regulations as well as
with measures taken for the maintenance of public order. He shall also
abstain from any subversive activities against any member state of the OAU.
 Refugee Convention 117

2. Signatory states undertake to prohibit refugees residing in their

respective territories from attacking any state member of the OAU, by any
activity likely to cause tension between member states, and in particular by
use of arms, through the press, or by radio.

Article IV: Non-discrimination

Member states undertake to apply the provisions of this Convention to all
refugees without discrimination as to race, religion, nationality, membership
of a particular social group or political opinions.

Article V: Voluntary repatriation

1. The essentially voluntary character of repatriation shall be respected in
all cases and no refugee shall be repatriated against his will.
2. The country of asylum, in collaboration with the country of origin, shall
make adequate arrangements for the safe return of refugees who request
repatriation.
3. The country of origin, on receiving back refugees, shall facilitate their
re-settlement and grant them the full rights and privileges of nationals of the
country, and subject them to the same obligations.
4. Refugees who voluntarily return to their country shall in no way be
penalised for having left it for any of the reasons giving rise to refugee
situations. Whenever necessary, an appeal shall be made through national
information media and through the Administrative Secretary-General of the
OAU, inviting refugees to return home and giving assurance that the new
circumstances prevailing in their country of origin will enable them to return
without risk and to take up a normal and peaceful life without fear of being
disturbed or punished, and that the text of such appeal should be given to
refugees and clearly explained to them by their country of asylum.
5. Refugees who freely decide to return to their homeland, as a result of
such assurances or on their own initiative, shall be given every possible
assistance by the country of asylum, the country of origin, voluntary agencies
and international and intergovernmental organisations, to facilitate their
return.

Article VI: Travel documents

1. Subject to article III, member states shall issue to refugees lawfully
staying in their territories travel documents in accordance with the United
Nations Convention relating to the Status of Refugees and the Schedule and
Annex thereto, for the purpose of travel outside their territory, unless
compelling reasons of national security or public order otherwise require.
Member states may issue such a travel document to any other refugee in their
territory.
2. Where an African country of second asylum accepts a refugee from a
country of first asylum, the country of first asylum may be dispensed from
issuing a document with a return clause.
3. Travel documents issued to refugees under previous international
agreements by state parties thereto shall be recognised and treated by
member states in the same way as if they had been issued to refugees
pursuant to this article.

Article VII: Co-operation of the national authorities with the Organization

of African Unity
In order to enable the Administrative Secretary-General of the Organization
of African Unity to make reports to the competent organs of the Organization
of African Unity, member states undertake to provide the Secretariat in the
appropriate form with information and statistical data requested concerning:
118 Instruments of the AU

(a) the condition of refugees,

(b) the implementation of this Convention, and
(c) laws, regulations and decrees which are, or may hereafter be in force
relating to refugees.

Article VIII: Co-operation with the Office of the United Nations High
Commissioner for Refugees
1. Member states shall co-operate with the Office of the United Nations
High Commissioner for Refugees.
2. The present Convention shall be the effective regional complement in
Africa of the 1951 United Nations Convention on the Status of Refugees.

Article IX: Settlement of disputes

Any dispute between signatory states to this Convention, relating to its
interpretation or application, which cannot be settled by other means, shall
be referred to the Commission for Mediation, Conciliation and Arbitration of
the Organization of African Unity, at the request of any one of the parties to
the dispute.

Article X: Signature and ratification

1. This Convention is open for signature and accession by all member
states of the Organization of African Unity and shall be ratified by signatory
states in accordance with their respective constitutional processes. The
instruments of ratification shall be deposited with the Administrative
Secretary-General of the Organization of African Unity.
2. The original instrument, done if possible in African languages, and in
English and French, all texts being equally authentic, shall be deposited with
the Administrative Secretary-General of the Organization of African Unity.
3. Any independent African state, member of the Organization of African
Unity, may at any time notify the Administrative Secretary-General of the
Organization of African Unity of its accession to this Convention.

Article XI: Entry into force

This Convention shall come into force upon deposit of instruments of
ratification by one-third of the member states of the Organization of African
Unity.

Article XII: Amendment

This Convention may be amended or revised if any member state makes a
written request to the Administrative Secretary-General to that effect,
provided, however, that the proposed amendment shall not be submitted to
the Assembly of Heads of State and Government for consideration until all
member states have been duly notified of it and a period of one year has
elapsed. Such an amendment shall not be effective unless approved by at
least two-thirds of the member state parties to the present Convention.

Article XIII: Denunciation

1. Any member state party to this Convention may denounce its provisions
by a written notification to the Administrative Secretary-General.
2. At the end of one year from the date of such notification, if not
withdrawn, the Convention shall cease to apply with respect to the
denouncing state.
 African Children’s Charter 119

Article XIV: [Registration with the United Nations]

Upon entry into force of this Convention, the Administrative Secretary-
General of the OAU shall register it with the Secretary-General of the United
Nations, in accordance with article 102 of the Charter of the United Nations.

Article XV: Notifications by the Administrative Secretary-General of the

Organization of African Unity
The Administrative Secretary-General of the Organization of African Unity
shall inform all members of the Organization:
(a) of signatures, ratifications and accessions in accordance with article X;
(b) of entry into force, in accordance with article XI;
(c) of requests for amendments submitted under the terms of article XII;
(d) of denunciations, in accordance with article XIII.

_____________________________________

African Charter on the Rights and Welfare of the

Child (1990/1999)

Adopted in Addis Ababa, Ethiopia on 11 July 1990 and entered into force on 29
November 1999. The African Children’s Charter is similar to the UN Convention on
the Rights of the Child. However, persons under the age of 18 years are protected
to a higher level under the African Children’s Charter, which also provides an
individual complaint procedure. The African Children’s Charter has its own
monitoring body, the Committee on the Rights and Welfare of the Child, which held
its first meeting in 2002.

Preamble

The African member states of the Organization of African Unity, parties to the
present Charter entitled ‘African Charter on the Rights and Welfare of the
Child’,

Considering that the Charter of the Organization of African Unity recognised

the paramountcy of human rights and the African Charter on Human and
Peoples’ Rights proclaimed and agreed that everyone is entitled to all the
rights and freedoms recognised and guaranteed therein, without distinction
of any kind such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national and social origin, fortune, birth or
other status;
Recalling [that] the Declaration on the Rights and Welfare of the African Child
(AHG/ST 4 Rev. 1) adopted by the Assembly of Heads of State and Government
of the Organization of African Unity, at its sixteenth ordinary session in
Monrovia, Liberia, from 17 to 20 July 1979, recognised the need to take all
appropriate measures to promote and protect the rights and welfare of the
African Child;
Noting with concern that the situation of most African children remains
critical due to the unique factors of their socio-economic, cultural,
traditional and developmental circumstances, natural disasters, armed
conflicts, exploitation and hunger, and on account of the child’s physical and
mental immaturity he or she needs special safeguards and care;
120 Instruments of the AU

Recognising that the child occupies a unique and privileged position in the
African society and that for the full harmonious development of his
personality, the child should grow up in a family environment in an
atmosphere of happiness, love and understanding;
Recognising that the child, due to the needs of his physical and mental
development, requires particular care with regard to health, physical,
mental, moral and social development, and requires legal protection in
conditions of freedom, dignity and security;
Taking into consideration the virtues of their cultural heritage, historical
background and the values of the African civilisation which should inspire and
characterise their reflection on the concept of the rights and welfare of the
child;
Considering that the promotion and protection of the rights and welfare of
the child also implies the performance of duties on the part of everyone;
Reaffirming adherence to the principles of the rights and welfare of the child
contained in the declarations, conventions and other instruments of the
Organization of African Unity and of the United Nations and in particular the
United Nations Convention on the Rights of the Child, and the OAU Heads of
State and Government’s Declaration on the Rights and Welfare of the African
Child;

HAVE AGREED as follows:

PART I: RIGHTS AND DUTIES

CHAPTER ONE: Rights and Welfare of the Child

Article 1: Obligation of state parties

1. The member states of the Organization of African Unity parties to the
present Charter shall recognise the rights, freedoms and duties enshrined in
this Charter and shall undertake to take the necessary steps, in accordance
with their constitutional processes and with the provisions of the present
Charter, to adopt such legislative or other measures as may be necessary to
give effect to the provisions of this Charter.
2. Nothing in this Charter shall affect any provisions that are more
conducive to the realisation of the rights and welfare of the child contained
in the law of a state party or in any other international convention or
agreement in force in that state.
3. Any custom, tradition, cultural or religious practice that is inconsistent
with the rights, duties and obligations contained in the present Charter shall
to the extent of such inconsistency be discouraged.

Article 2: Definition of a child

For the purposes of this Charter, a child means every human being below the
age of 18 years.

Article 3: Non-discrimination
Every child shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in this Charter irrespective of the child’s or his or
her parents’ or legal guardians’ race, ethnic group, colour, sex, language,
relation, political or other opinion, national and social origin, fortune, birth
or other status.

Article 4: Best interests of the child

1. In all actions concerning the child undertaken by any person or
authority, the best interests of the child shall be the primary consideration.
 African Children’s Charter 121

2. In all judicial or administrative proceedings affecting a child who is

capable of communicating his or her own views, [an] opportunity shall be
provided for the views of the child to be heard either directly or through an
impartial representative as a party to the proceedings, and those views shall
be taken into consideration by the relevant authority in accordance with the
provisions of appropriate law.

Article 5: Survival and development

1. Every child has an inherent right to life. This right shall be protected by
law.
2. State parties to the present Charter shall ensure, to the maximum
extent possible, the survival, protection and development of the child.
3. Death sentence shall not be pronounced for crimes committed by
children.

Article 6: Name and nationality

1. Every child shall have the right from his birth to a name.
2. Every child shall be registered immediately after birth.
3. Every child has the right to acquire a nationality.
4. State parties to the present Charter shall undertake to ensure that their
constitutional legislations recognise the principles according to which a child
shall acquire the nationality of the state in the territory of which he or she
has been born if, at the time of the child’s birth, he or she is not granted
nationality by any other state in accordance with its laws.

Article 7: Freedom of expression

Every child who is capable of communicating his or her own views shall be
assured the right to express his opinions freely in all matters and to
disseminate his opinions subject to such restrictions as are prescribed by
laws.

Article 8: Freedom of association

Every child shall have the right to free association and freedom of peaceful
assembly in conformity with the law.

Article 9: Freedom of thought, conscience and religion

1. Every child shall have the right to freedom of thought, conscience and
religion.
2. Parents, and where applicable, legal guardians shall have a duty to
provide guidance and direction in the exercise of these rights having regard
to the evolving capacities, and best interests of the child.
3. State parties shall respect the duty of parents and, where applicable,
legal guardians to provide guidance and direction in the enjoyment of these
rights subject to the national laws and policies.

Article 10: Protection of privacy

No child shall be subject to arbitrary or unlawful interference with his
privacy, family, home or correspondence, or to attacks upon his honour or
reputation, provided that parents or legal guardians shall have the right to
exercise reasonable supervision over the conduct of their children. The child
has the right to the protection of the law against such interference or attacks.

Article 11: Education

1. Every child shall have the right to education.
2. The education of the child shall be directed to:
122 Instruments of the AU

(a) the promotion and development of the child’s personality, talents and
mental and physical abilities to their fullest potential;
(b) fostering respect for human rights and fundamental freedoms with
particular reference to those set out in the provisions of various African
instruments on human and peoples’ rights and international human rights
declarations and conventions;
(c) the preservation and strengthening of positive African morals,
traditional values and cultures;
(d) the preparation of the child for responsible life in a free society, in the
spirit of understanding, tolerance, dialogue, mutual respect and friendship
among all peoples[,] ethnic, tribal and religious groups;
(e) the preservation of national independence and territorial integrity;
(f) the promotion and achievement of African unity and solidarity;
(g) the development of respect for the environment and natural resources;
(h) the promotion of the child’s understanding of primary health care.
3. State parties to the present Charter shall take all appropriate measures
with a view to achieving the full realisation of this right and shall in
particular:
(a) provide free and compulsory basic education;
(b) encourage the development of secondary education in its different
forms and to progressively make it free and accessible to all;
(c) make higher education accessible to all on the basis of capacity and
ability by every appropriate means;
(d) take measures to encourage regular attendance at schools and the
reduction of drop-out rates;
(e) take special measures in respect of female, gifted and disadvantaged
children, to ensure equal access to education for all sections of the
community.
4. State parties to the present Charter shall respect the rights and duties
of parents and, where applicable, of legal guardians to choose for their
children schools, other than those established by public authorities, which
conform to such minimum standards [as] may be approved by the state, to
ensure the religious and moral education of the child in a manner [consistent]
with the evolving capacities of the child.
5. State parties to the present Charter shall take all appropriate measures
to ensure that a child who is subjected to school or parental discipline shall
be treated with humanity and with respect for the inherent dignity of the
child and in conformity with the present Charter.
6. State parties to the present Charter shall take all appropriate measures
to ensure that children who become pregnant before completing their
education shall have an opportunity to continue with their education on the
basis of their individual ability.
7. No part of this article shall be construed as to interfere with the liberty
of individuals and bodies to establish and direct educational institutions
subject to the observance of the principles set out in paragraph 1 of this
article and the requirement that the education given in such institutions shall
conform to such minimum standards as may be laid down by the states.

Article 12: Leisure, recreational and cultural activities

1. State parties recognise the right of the child to rest and leisure, to
engage in play and recreational activities appropriate to the age of the child
and to participate freely in cultural life and the arts.
2. State parties shall respect and promote the right of the child to fully
participate in cultural and artistic life and shall encourage the provision of
appropriate and equal opportunities for cultural, artistic, recreational and
leisure activity.
 African Children’s Charter 123

Article 13: Handicapped children

1. Every child who is mentally or physically disabled shall have the right to
special measures of protection in keeping with his physical and moral needs
and under conditions which ensure his dignity, promote his self-reliance and
active participation in the community.
2. State parties to the present Charter shall ensure, subject to available
resources, to a disabled child and to those responsible for his care, assistance
for which application is made and which is appropriate to the child’s condition
and in particular shall ensure that the disabled child has effective access to
training, preparation for employment and recreation opportunities in a
manner conducive to the child achieving the fullest possible social
integration, individual development and his cultural and moral development.
3. The state parties to the present Charter shall use their available
resources with a view to achieving progressively the full convenience of the
mentally and physically disabled person to movement and access to public
highways, buildings and other places to which the disabled may legitimately
want to have access to.

Article 14: Health and health services

1. Every child shall have the right to enjoy the best attainable state of
physical, mental and spiritual health.
2. State parties to the present Charter shall undertake to pursue the full
implementation of this right and in particular shall take measures:
(a) to reduce the infant and child mortality rate;
(b) to ensure the provision of necessary medical assistance and health care
to all children with emphasis on the development of primary health care;
(c) to ensure the provision of adequate nutrition and safe drinking water;
(d) to combat disease and malnutrition within the framework of primary
health care through the application of appropriate technology;
(e) to ensure appropriate health care for expectant and nursing mothers;
(f) to develop preventive health care and family life education and
provision of service;
(g) to integrate basic health service programmes in national development
plans;
(h) to ensure that all sectors of the society, in particular parents, children,
community leaders and community workers are informed and supported in the
use of basic knowledge of child health and nutrition, the advantages of
breastfeeding, hygiene and environmental sanitation and the prevention of
domestic and other accidents;
(i) to ensure the meaningful participation of non-governmental organi-
sations, local communities and the beneficiary population in the planning and
management of basic service programmes for children;
(j) to support through technical and financial means, the mobilisation of
local community resources in the development of primary health care for
children.

Article 15: Child labour

1. Every child shall be protected from all forms of economic exploitation
and from performing any work that is likely to be hazardous or to interfere
with the child’s physical, mental, spiritual, moral, or social development;
2. State parties to the present Charter shall take all appropriate legislative
and administrative measures to ensure the full implementation of this article
which covers both the formal and informal sectors of employment and having
regard to the relevant provisions of the International Labour Organization’s
instruments relating to children, state parties shall in particular:
124 Instruments of the AU

(a) provide through legislation, minimum ages for admission to every

employment;
(b) provide for appropriate regulation of hours and conditions of
employment;
(c) provide for appropriate penalties or other sanctions to ensure the
effective enforcement of this article;
(d) promote the dissemination of information on the hazards of child labour
to all sectors of the community.

Article 16: Protection against child abuse and torture

1. State parties to the present Charter shall take specific legislative,
administrative, social and educational measures to protect the child from all
forms of torture, inhuman or degrading treatment and especially physical or
mental injury or abuse, neglect or maltreatment including sexual abuse,
while in the care of a parent, legal guardian or school authority or any other
person who has the care of the child.
2. Protective measures under this article shall include effective
procedures for the establishment of special monitoring units to provide
necessary support for the child and for those who have the care of the child,
as well as other forms of prevention and for identification, reporting,
referral, investigation, treatment, and follow-up of instances of child abuse
and neglect.

Article 17: Administration of juvenile justice

1. Every child accused or found guilty of having infringed penal law shall
have the right to special treatment in a manner consistent with the child’s
sense of dignity and worth and which reinforces the child’s respect for human
rights and fundamental freedoms of others.
2. State parties to the present Charter shall in particular:
(a) ensure that no child who is detained or imprisoned or otherwise
deprived of his or her liberty is subjected to torture, inhuman or degrading
treatment or punishment;
(b) ensure that children are separated from adults in their place of
detention or imprisonment;
(c) ensure that every child accused of infringing the penal law:
(i) shall be presumed innocent until duly recognised guilty;
(ii) shall be informed promptly in a language that he understands and in
detail of the charge against him, and shall be entitled to the assistance of an
interpreter if he or she cannot understand the language used;
(iii) shall be afforded legal and other appropriate assistance in the
preparation and presentation of his defence;
(iv) shall have the matter determined as speedily as possible by an impartial
tribunal and if found guilty, be entitled to an appeal by a higher tribunal;
(d) prohibit the press and the public from trial.
3. The essential aim of treatment of every child during the trial and also if
found guilty of infringing the penal law shall be his or her reformation, re-
integration into his or her family and social rehabilitation.
4. There shall be a minimum age below which children shall be presumed
not to have the capacity to infringe the penal law.

Article 18: Protection of the family

1. The family shall be the natural unit and basis of society. It shall enjoy
the protection and support of the state for its establishment and
development.
2. State parties to the present Charter shall take appropriate steps to
ensure equality of rights and responsibilities of spouses with regard to
 African Children’s Charter 125

children during marriage and in the event of its dissolution. In case of

dissolution, provision shall be made for the necessary protection of the child.
3. No child shall be deprived of maintenance by reference to the parents’
marital status.

Article 19: Parental care and protection

1. Every child shall be entitled to the enjoyment of parental care and
protection and shall, whenever possible, have the right to reside with his or
her parents. No child shall be separated from his parents against his will,
except when a judicial authority determines in accordance with the
appropriate law, that such separation is in the best interest of the child.
2. Every child who is separated from one or both parents shall have the
right to maintain personal relations and direct contact with both parents on
a regular basis.
3. Where separation results from the action of a state party, the state
party shall provide the child, or if appropriate, another member of the family
with essential information concerning the whereabouts of the absent member
or members of the family. State parties shall also ensure that the submission
of such a request shall not entail any adverse consequences for the person or
persons in whose respect it is made.
4. Where a child is apprehended by a state party, his or her parents or
guardians shall, as soon as possible, be notified of such apprehension by that
state party.

Article 20: Parental responsibilities

1. Parents or other persons responsible for the child shall have the primary
responsibility for the upbringing and development of the child and shall have
the duty:
(a) to ensure that the best interests of the child are their basic concern at
all times;
(b) to secure, within their abilities and financial capacities, conditions of
living necessary to the child’s development; and
(c) to ensure that domestic discipline is administered with humanity and in
a manner consistent with the inherent dignity of the child.
2. State parties to the present Charter shall in accordance with their
means and national conditions take all appropriate measures:
(a) to assist parents and other persons responsible for the child and in case
of need provide material assistance and support programmes particularly with
regard to nutrition, health, education, clothing and housing;
(b) to assist parents and others responsible for the child in the performance
of child-rearing and ensure the development of institutions responsible for
providing care of children; and
(c) to ensure that the children of working parents are provided with care
services and facilities.

Article 21: Protection against harmful social and cultural practices

1. State parties to the present Charter shall take all appropriate measures
to eliminate harmful social and cultural practices affecting the welfare,
dignity, normal growth and development of the child and in particular:
(a) those customs and practices prejudicial to the health or life of the child;
and
(b) those customs and practices discriminatory to the child on the grounds
of sex or other status.
2. Child marriage and the betrothal of girls and boys shall be prohibited
and effective action, including legislation, shall be taken to specify the
126 Instruments of the AU

minimum age of marriage to be eighteen years and make registration of all

marriages in an official registry compulsory.

Article 22: Armed conflicts

1. State parties to this Charter shall undertake to respect and ensure
respect for rules of international humanitarian law applicable in armed
conflicts which affect the child.
2. State parties to the present Charter shall take all necessary measures to
ensure that no child shall take a direct part in hostilities and refrain, in
particular, from recruiting any child.
3. State parties to the present Charter shall, in accordance with their
obligations under international humanitarian law, protect the civilian
population in armed conflicts and shall take all feasible measures to ensure
the protection and care of children who are affected by armed conflicts. Such
rules shall also apply to children in situations of internal armed conflicts,
tension and strife.

Article 23: Refugee children

1. State parties to the present Charter shall take all appropriate measures
to ensure that a child who is seeking refugee status or who is considered a
refugee in accordance with applicable international or domestic law shall,
whether unaccompanied or accompanied by parents, legal guardians or close
relatives, receives appropriate protection and humanitarian assistance in the
enjoyment of the rights set out in this Charter and other international human
rights and humanitarian instruments to which the states are parties.
2. State parties shall undertake to co-operate with existing international
organisations which protect and assist refugees in their efforts to protect and
assist such a child and to trace the parents or other close relatives of an
unaccompanied refugee child in order to obtain information necessary for
reunification with the family.
3. Where no parents, legal guardians or close relatives can be found, the
child shall be accorded the same protection as any other child permanently
or temporarily deprived of his family environment for any reason.
4. The provisions of this article apply mutatis mutandis to internally
displaced children whether through natural disaster, internal armed conflicts,
civil strife, breakdown of economic and social order or howsoever caused.

Article 24: Adoption

State parties which recognise the system of adoption shall ensure that the
best interest of the child shall be the paramount consideration and they shall:
(a) establish competent authorities to determine matters of adoption and
ensure that the adoption is carried out in conformity with applicable laws and
procedures and on the basis of all relevant and reliable information, that the
adoption is permissible in view of the child’s status concerning parents,
relatives and guardians and that, if necessary, the appropriate persons
concerned have given their informed consent to the adoption on the basis of
appropriate counselling;
(b) recognise that inter-country adoption in those states who have ratified
or adhered to the International Convention on the Rights of the Child or this
Charter, may, as the last resort, be considered as an alternative means of
child’s care, if the child cannot be placed in a foster or an adoptive family or
cannot in any suitable manner be cared for in the child’s country of origin;
(c) ensure that the child affected by inter-country adoption enjoys
safeguards and standards equivalent to those existing in the case of national
adoption;
 African Children’s Charter 127

(d) take all appropriate measures to ensure that, in inter-country adoption,

the placement does not result in trafficking or improper financial gain for
those who try to adopt a child;
(e) promote, where appropriate, the objectives of this article by
concluding bilateral or multilateral arrangements or agreements, and
endeavour, within this framework, to ensure that the placement of the child
in another country is carried out by competent authorities or organs;
(f) establish a machinery to monitor the well-being of the adopted child.

Article 25: Separation from parents

1. Any child who is permanently or temporarily deprived of his family
environment for any reasons shall be entitled to special protection and
assistance;
2. State parties to the present Charter:
(a) shall ensure that a child who is parentless, or who is temporarily or
permanently deprived of his or her family environment, or who in his or her
best interest cannot be brought up or allowed to remain in that environment
shall be provided with alternative family care, which could include, among
others, foster placement, or placement in suitable institutions for the care of
children;
(b) shall take all necessary measures to trace and re-unite children with
parents or relatives where separation is caused by internal and external
displacement arising from armed conflicts or natural disasters.
3. When considering alternative family care of the child and the best
interests of the child, due regard shall be paid to the desirability of continuity
in a child’s upbringing and to the child’s ethnic, religious or linguistic
background.

Article 26: Protection against apartheid and discrimination

1. State parties to the present Charter shall individually and collectively
undertake to accord the highest priority to the special needs of children living
under apartheid and in states subject to military destabilisation by the
apartheid regime.
2. State parties to the present Charter shall individually and collectively
undertake to accord the highest priority to the special needs of children living
under regimes practising racial, ethnic, religious or other forms of
discrimination as well as in states subject to military destabilisation.
3. State parties shall undertake to provide, whenever possible, material
assistance to such children and to direct their efforts towards the elimination
of all forms of discrimination and apartheid on the African continent.

Article 27: Sexual exploitation

1. State parties to the present Charter shall undertake to protect the child
from all forms of sexual exploitation and sexual abuse and shall in particular
take measures to prevent:
(a) the inducement, coercion or encouragement of a child to engage in any
sexual activity;
(b) the use of children in prostitution or other sexual practices;
(c) the use of children in pornographic activities, performances and
materials.

Article 28: Drug abuse

State parties to the present Charter shall take all appropriate measures to
protect the child from the use of narcotics and illicit use of psychotropic
substances as defined in the relevant international treaties, and to prevent
the use of children in the production and trafficking of such substances.
128 Instruments of the AU

Article 29: Sale, trafficking and abduction

State parties to the present Charter shall take appropriate measures to
prevent:
(a) the abduction, the sale of, or traffic in children for any purpose or in
any form, by any person including parents or legal guardians of the child;
(b) the use of children in all forms of begging.

Article 30: Children of imprisoned mothers

State parties to the present Charter shall undertake to provide special
treatment to expectant mothers and to mothers of infants and young children
who have been accused or found guilty of infringing the penal law and shall
in particular:
(a) ensure that a non-custodial sentence will always be first considered
when sentencing such mothers;
(b) establish and promote measures alternative to institutional
confinement for the treatment of such mothers;
(c) establish special alternative institutions for holding such mothers;
(d) ensure that a mother shall not be imprisoned with her child;
(e) ensure that a death sentence shall not be imposed on such mothers;
(f) the essential aim of the penitentiary system will be the reformation, the
integration of the mother into the family and social rehabilitation.

Article 31: Responsibilities of the child

Every child shall have responsibilities towards his family and society, the state
and other legally recognised communities and the international community.
The child, subject to his age and ability, and such limitations as may be
contained in the present Charter, shall have the duty:
(a) to work for the cohesion of the family, to respect his parents, superiors
and elders at all times and to assist them in case of need;
(b) to serve his national community by placing his physical and intellectual
abilities at its service;
(c) to preserve and strengthen social and national solidarity;
(d) to preserve and strengthen African cultural values in his relations with
other members of the society, in the spirit of tolerance, dialogue and
consultation and to contribute to the moral well-being of society;
(e) to preserve and strengthen the independence and the integrity of his
country;
(f) to contribute to the best of his abilities, at all times and at all levels, to
the promotion and achievement of African unity.

PART II: COMMITTEE ON THE RIGHTS AND WELFARE OF THE CHILD

CHAPTER TWO: Establishment and Organisation of the Committee

on the Rights and Welfare of the Child

Article 32: The Committee

An African Committee of Experts on the Rights and Welfare of the Child,
hereinafter called ‘the Committee’, shall be established within the
Organization of African Unity to promote and protect the rights and welfare
of the child.

Article 33: Composition

1. The Committee shall consist of 11 members of high moral standing,
integrity, impartiality and competence in matters of the rights and welfare of
the child;
 African Children’s Charter 129

2. The members of the Committee shall serve in their personal capacity;

3. The Committee shall not include more than one national of the same
state.

Article 34: Election

As soon as this Charter shall enter into force the members of the Committee
shall be elected by secret ballot by the Assembly of Heads of State and
Government from a list of persons nominated by the state parties to the
present Charter.

Article 35: Candidates

Each state party to the present Charter may nominate not more than two
candidates. The candidates must have one of the nationalities of the state
parties to the present Charter. When two candidates are nominated by a
state, one of them shall not be a national of that state.

Article 36: [Nomination procedure]

1. The Secretary-General of the Organization of African Unity shall invite
state parties to the present Charter to nominate candidates at least six
months before the elections.
2. The Secretary-General of the Organization of African Unity shall draw
up, in alphabetical order, a list of persons nominated and communicate it to
the Heads of State and Government at least two months before the elections.

Article 37: Term of office

1. The members of the Committee shall be elected for a term of five years
and may be re-elected only once. However, the term of four of the members
elected at the first election shall expire after two years and the term of six
others, after four years.
2. Immediately after the first election, the Chairman of the Assembly of
Heads of State and Government of the Organization of African Unity shall
draw lots to determine the names of those members referred to in sub-
paragraph 1 of this article.
3. The Secretary-General of the Organization of African Unity shall
convene the first meeting of the Committee at the Headquarters of the
Organisation within six months of the election of the members of the
Committee, and thereafter the Committee shall be convened by its Chairman,
whenever necessary, at least once a year.

Article 38: Bureau

1. The Committee shall establish its own Rules of Procedure.
2. The Committee shall elect its officers for a period of two years.
3. Seven Committee members shall form the quorum.
4. In case of an equality of votes, the Chairman shall have a casting vote.
5. The working languages of the Committee shall be the official languages
of the OAU.

Article 39: Vacancy

If a member of the Committee vacates his or her office for any reason other
than the normal expiration of a term, the state which nominated that
member shall appoint another member from among its nationals to serve for
the remainder of the term - subject to the approval of the Assembly.
130 Instruments of the AU

Article 40: Secretariat

The Secretary-General of the Organization of African Unity shall appoint a
Secretary for the Committee.

Article 41: Privileges and immunities

In discharging their duties, members of the Committee shall enjoy the
privileges and immunities provided for in the General Convention on the
Privileges and Immunities of the Organization of African Unity.

CHAPTER THREE: Mandate and Procedure of the Committee

Article 42: Mandate

The functions of the Committee shall be:
(a) To promote and protect the rights enshrined in this Charter and in
particular to:
(i) collect and document information, commission inter-disciplinary
assessment of situations on African problems in the fields of the rights and
welfare of the child, organise meetings, encourage national and local
institutions concerned with the rights and welfare of the child, and where
necessary give its views and make recommendations to governments;
(ii) formulate and lay down principles and rules aimed at protecting the
rights and welfare of children in Africa;
(iii) co-operate with other African, international and regional institutions
and organisations concerned with the promotion and protection of the rights
and welfare of the child;
(b) To monitor the implementation and ensure protection of the rights
enshrined in this Charter;
(c) To interpret the provisions of the present Charter at the request of a
state party, an institution of the Organization of African Unity or any other
person or institution recognised by the Organization of African Unity, or any
state party;
(d) Perform such other tasks as may be entrusted to it by the Assembly of
Heads of State and Government, Secretary-General of the OAU and any other
organs of the OAU, or the United Nations.

Article 43: Reporting procedure

1. Every state party to the present Charter shall undertake to submit to the
Committee through the Secretary-General of the Organization of African
Unity, reports on the measures they have adopted which give effect to the
provisions of this Charter and on the progress made in the enjoyment of these
rights:
(a) within 2 years of the entry into force of the Charter for the state party
concerned; and
(b) thereafter, every 3 years.
2. Every report made under this article shall:
(a) contain sufficient information on the implementation of the present
Charter to provide the Committee with a comprehensive understanding of the
implementation of the Charter in the relevant country; and
(b) shall indicate factors and difficulties, if any, affecting the fulfilment of
the obligations contained in the Charter.
3. A state party which has submitted a comprehensive first report to the
Committee need not, in its subsequent reports submitted in accordance with
paragraph 1(a) of this article, repeat the basic information previously
provided.
 African Children’s Charter 131

Article 44: Communications

1. The Committee may receive communications from any person, group or
non-governmental organisation recognised by the Organization of African
Unity, by a member state, or the United Nations relating to any matter
covered by this Charter.
2. Every communication to the Committee shall contain the name and
address of the author and shall be treated in confidence.

Article 45: Investigations by the Committees

1. The Committee may resort to any appropriate method of investigating
any matter falling within the ambit of the present Charter, request from the
state parties any information relevant to the implementation of the Charter
and may also resort to any appropriate method of investigating the measures
a state party has adopted to implement the Charter.
2. The Committee shall submit to each ordinary session of the Assembly of
Heads of State and Government every two years, a report on its activities and
on any communication made under article 44 of this Charter.
3. The Committee shall publish its report after it has been considered by
the Assembly of Heads of State and Government.
4. State parties shall make the Committee’s report widely available to the
public in their own countries.

CHAPTER FOUR: Miscellaneous Provisions

Article 46: Sources of inspiration

The Committee shall draw inspiration from international law on human rights,
particularly from the provisions of the African Charter on Human and Peoples’
Rights, the Charter of the Organization of African Unity, the Universal
Declaration of Human Rights, the International Convention on the Rights of
the Child, and other instruments adopted by the United Nations and by
African countries in the field of human rights, and from African values and
traditions.

Article 47: Signature, ratification or adherence

1. The present Charter shall be open to signature by all the member states
of the Organization of African Unity.
2. The present Charter shall be subject to ratification or adherence by
member states of the Organization of African Unity. The instruments of
ratification or adherence to the present Charter shall be deposited with the
Secretary-General of the Organization of African Unity.
3. The present Charter shall come into force 30 days after the reception
by the Secretary-General of the Organization of African Unity of the
instruments of ratification or adherence of 15 member states of the
Organization of African Unity.

Article 48: Amendment and revision of the Charter

1. The present Charter may be amended or revised if any state party makes
a written request to that effect to the Secretary-General of the Organization
of African Unity, provided that the proposed amendment is not submitted to
the Assembly of Heads of State and Government for consideration until all the
state parties have been duly notified of it and the Committee has given its
opinion on the amendment.
2. An amendment shall be approved by a simple majority of the state
parties.
132 Instruments of the AU

OAU Convention on the Prevention and Combating

of Terrorism (1999/2002)

Adopted in Algiers, Algeria on 14 July 1999 and entered into force on 6 December
2002. Full text available at www.au.int

Excerpts

The member states of the Organization of African Unity,

Considering the purposes and principles enshrined in the Charter of the

Organization of African Unity, in particular its clauses relating to the security,
stability, development of friendly relations and co-operation among its
member states;
Recalling the previsions of the Declaration on the Code of Conduct for Inter-
African Relations, adopted by the thirtieth ordinary session of the Assembly
of Heads of State and Government of the Organization of African Unity, held
in Tunis, Tunisia, from 13 to 15 June 1994;
Aware of the need to promote human and moral values based on tolerance
and rejection of all forms of terrorism irrespective of their motivations;
Believing in the principles of international law, the provisions of the Charters
of the Organization of Africa Unity and of the United Nations and the latter’s
relevant resolutions on measures aimed at combating international terrorism
and, in particular, Resolution 49/60 of the General Assembly of 9 December
1994 together with the annexed Declaration on Measures to Eliminate
International Terrorism as well as Resolution 51/210 of the General Assembly
of 17 December 1996 and the Declaration to Supplement the 1994 Declaration
on Measures to Eliminate International Terrorism, annexed thereto;
Deeply concerned over the scope and seriousness of the phenomenon of
terrorism and the dangers it poses to the stability and security of states;
Desirous of strengthening co-operation among member states in order to
forestall and combat terrorism;
Reaffirming the legitimate right of peoples for self-determination and
independence pursuant to the principles of international law and the
provisions of the Charters of the Organization of African United Nations as
well as the African Charter on Human and Peoples’ Rights;
Concerned that the lives of innocent women and children are most adversely
affected by terrorism;
Convinced that terrorism constitutes a serious violation of human rights and,
in particular, the rights to physical integrity, life, freedom and security, and
impedes socio-economic development through destabilisation of states;
Convinced further that terrorism cannot be justified under any circumstances
and, consequently, should be combated in all its forms and manifestations,
including those in which states are involved directly or indirectly, without
regard to its origin, causes and objectives;
Aware of the growing links between terrorism and organised crime, including
the illicit traffic of arms, drugs and money laundering;
Determined to eliminate terrorism in all its forms and manifestations;

HAVE AGREED as follows:

 OAU Convention on the Prevention and Combating of Terrorism 133

PART I: SCOPE OF APPLICATION

Article 1
For the purposes of this Convention:
1. ‘Convention’ means the OAU Convention on the Prevention and
Combating of Terrorism.
2. ‘State party’ means any member state of the Organization of African
Unity which has ratified or acceded to this Convention and has deposited its
instrument of ratification or accession with the Secretary-General of the
Organization of African Unity.
3. ‘Terrorist act’ means:
(a) any act which is a violation of the criminal laws of a state party and
which may endanger the life, physical integrity or freedom of, or cause
serious injury or death to, any person, any number or group of persons or
causes or may cause damage to public or private property, natural resources,
environmental or cultural heritage and is calculated or intended to:
(i) intimidate, put in fear, force, coerce or induce any government, body,
institution, the general public or any segment thereof, to do or abstain from
doing any act, or to adopt or abandon a particular standpoint, or to act
according to certain principles; or
(ii) disrupt any public service, the delivery of any essential service to the
public or to create a public emergency; or
(iii) create general insurrection in a state.
(b) any promotion, sponsoring, contribution to, command, aid, incitement,
encouragement, attempt, threat, conspiracy, organising, or procurement of
any person, with the intent to commit any act referred to in paragraph (a)(i)
to (iii).

Article 2
States parties undertake to:
(a) review their national laws and establish criminal offences for terrorist
acts as defined in this Convention and make such acts punishable by
appropriate penalties that take into account the grave nature of such
offences;
...
Article 3
1. Notwithstanding the provisions of article 1, the struggle waged by
peoples in accordance with the principles of international law for their
liberation or self-determination, including armed struggle against
colonialism, occupation, aggression and domination by foreign forces shall
not be considered as terrorist acts.
2. Political, philosophical, ideological, racial, ethnic, religious or other
motives shall not be a justifiable defence against a terrorist act.

PART II: AREAS OF CO-OPERATION

Article 4
1. State parties undertake to refrain from any acts aimed at organising,
supporting, financing, committing or inciting to commit terrorist acts, or
providing havens for terrorists, directly or indirectly, including the provision
of weapons and their stockpiling in their countries and the issuing of visas and
travel documents.
2. States parties shall adopt any legitimate measures aimed at preventing
and combating terrorists acts in accordance with the provisions of this
Convention and their respective national legislation, in particular, they shall
do the following:
134 Instruments of the AU

(a) prevent their territories from being used as a base for the planning,
organisation or execution of terrorists acts or for the participation or
collaboration in these acts in any form whatsoever;
(b) develop and strengthen methods of monitoring and detecting plans or
activities aimed at the illegal cross-border transportation, importation,
export, stockpiling and use of arms, ammunition and explosives and other
materials and means of committing terrorist acts;
(c) develop and strengthen methods or controlling and monitoring land, sea
and air borders and customs and immigration check points in order to pre-
empt any infiltration by individuals or groups involved in the planning,
organisation and execution or terrorist acts;
(d) strengthen the protection and security of persons, diplomatic and
consular missions, premises or regional and international organisations
accredited to a state party, in accordance with the relevant conventions and
rules or international law;
(e) promote the exchange of information and expertise on terrorist acts and
establish data bases for the collection and analysis of information and data on
terrorist elements, groups, movements and organisations;
(f) take all necessary measures to prevent the establishment of terrorist
support networks in any form whatsoever;
(g) ascertain, when granting asylum, that the asylum seeker is not involved
in any terrorist act;
(h) arrest the perpetrators of terrorist acts and try them in accordance with
national legislation, or extradite them in accordance with the provisions of
this Convention or extradition treaties concluded between the requesting
state and the requested state and, in the absence of a treaty, consider
facilitating the extradition of persons suspected of having committed terrorist
acts; and
(i) establish effective co-operation between relevant domestic security
officials and services and the citizens of the states parties in a bid to enhance
public awareness of the scourge of terrorist acts and the need to combat such
acts, by providing guarantees and incentives that will encourage the
population to give information on terrorist acts or other acts which may help
to uncover such acts and arrest their perpetrators.
...

_____________________________________

Protocol to the OAU Convention on the Prevention

and Combating of Terrorism (2004/2014)

Adopted in Addis Ababa, Ethiopia on 8 July 2004. The Protocol entered into force
on 2 July 2014. Full text available at www.au.int

Excerpts

We, the Heads of State and Government of the member states of the African
Union;
 Protocol on the Prevention and Combating of Terrorism 135

Gravely concerned at the increasing incidence of terrorist acts worldwide,

including in Africa, and the growing risks of linkages between terrorism and
mercenarism, weapons of mass destruction, drug trafficking, corruption,
transnational organised crimes, money laundering, and the illicit proliferation
of small arms;
Determined to combat terrorism in all its forms and manifestations and any
support thereto in Africa;
Aware of the capabilities of the perpetrators of terrorist acts to use
sophisticated technology and communication systems for organising and
carrying out their terrorist acts;
Bearing in mind that the root causes of terrorism are complex and need to be
addressed in a comprehensive manner;
Convinced that acts of terrorism cannot be justified under any circumstances;
Determined to ensure Africa’s active participation, co-operation and co-
ordination with the international community in its determined efforts to
combat and eradicate terrorism;
Guided by the principles and regulations enshrined in international
conventions and the relevant decisions of the United Nations (UN) to prevent
and combat terrorism, including resolution 1373 adopted by the Security
Council on 28 September 2001, and the relevant General Assembly
resolutions;
Reaffirming our commitment to the OAU Convention for the Elimination of
Mercenarism in Africa, adopted in Libreville, Gabon, in July 1977;
Reaffirming our commitment to the Code of Conduct for Inter-African
Relations adopted by the thirtieth ordinary session of the Assembly of Heads
of State and Government of the Organization of African Unity (OAU) held in
Tunis, Tunisia, from 13 to 15 June 1994;
Reaffirming our commitment to the OAU Convention on the Prevention and
Combating of Terrorism adopted by the 35th OAU Summit in Algiers, Algeria,
in July 1999;
Recalling the Dakar Declaration against terrorism adopted by the African
Summit meeting, held in Dakar, Senegal, in October 2001;
Further recalling the Plan of Action for the Prevention and Combating of
Terrorism adopted by the Intergovernmental High Level meeting of member
states of the African Union, held in Algiers, Algeria, in September 2002;
Considering the Constitutive Act of the African Union, as well as the Protocol
Relating to the Establishment of the Peace and Security Council of the African
Union adopted by the Inaugural Summit of the Union in Durban, South Africa,
in July 2002;
Reiterating our conviction that terrorism constitutes a serious violation of
human rights and a threat to peace, security, development, and democracy;
Stressing the imperative for all member states of the African Union to take all
necessary measures to protect their populations from acts of terrorism and to
implement all relevant continental and international humanitarian and
human rights instruments; and
Desirous of ensuring the effective implementation of the OAU Convention on
the Prevention and Combating of Terrorism.

HEREBY AGREE as follows:

...
Article 3: Commitments by states parties
1. States parties commit themselves to implement fully the provisions of
the Convention. They also undertake, among other things, to:
(a) take all necessary measures to protect the fundamental human rights of
their populations against all acts of terrorism;
136 Instruments of the AU

(b) prevent the entry into, and the training of terrorist groups on their
territories;
(c) identify, detect, confiscate and freeze or seize any funds and any other
assets used or allocated for the purpose of committing a terrorist act, and to
establish a mechanism to use such funds to compensate victims of terrorist
acts or their families;
(d) establish national contact points in order to facilitate the timely
exchange and sharing of information on terrorist groups and activities at the
regional, continental and international levels, including the co-operation of
States for suppressing the financing of terrorism;
(e) take appropriate actions against the perpetrators of mercenarism as
defined in the OAU Convention for the Elimination of Mercenarism in Africa,
adopted in Libreville, in 1977, and other relevant applicable international
instruments;
(f) strengthen national and regional measures in conformity with relevant
continental and international conventions and treaties, to prevent the
perpetrators of terrorist acts from acquiring weapons of mass destruction;
(g) co-operate with the international community in the implementation of
continental and international instruments related to weapons of mass
destruction;
(h) submit reports to the PSC on an annual basis, or at such regular intervals
as shall be determined by the PSC, on measures taken to prevent and combat
terrorism as provided for in the Convention, the AU Plan of Action and in this
Protocol;
(i) report to the PSC all terrorist activities in their countries as soon as they
occur;
(j) become parties to all continental and international instruments on the
prevention and combating of terrorism; and
(k) outlaw torture and other degrading and inhumane treatment, including
discriminatory and racist treatment of terrorist suspects, which are
inconsistent with international law.
2. States parties shall implement the provisions of paragraph 1 above on
the basis of all relevant African and international conventions and treaties, in
conformity with article 22 of the Convention.

Article 4: Mechanism for implementation

The Peace and Security Council (PSC) shall be responsible for harmonising and
coordinating continental efforts in the prevention and combating of
terrorism. In pursuing this endeavour, the PSC shall:
(a) establish operating procedures for information gathering, processing
and dissemination;
(b) establish mechanisms to facilitate the exchange of information among
states parties on patterns and trends in terrorist acts and the activities of
terrorist groups and on successful practices on combating terrorism;
(c) present an annual report to the Assembly of the Union on the situation
of terrorism on the Continent;
(d) monitor, evaluate and make recommendations on the implementation
of the Plan of Action and programmes adopted by the African Union;
(e) examine all reports submitted by states parties on the implementation
of the provisions of this Protocol; and
(f) establish an information network with national, regional and inter-
national focal points on terrorism.
...
 Convention on the Conservation of Nature 137

African Convention on the Conservation of Nature

and Natural Resources (Revised) (2003/)

In September 1968, the OAU adopted the Convention on the Conservation of Nature
and Natural Resources which entered into force in June 1969. On 11 July 2003 in
Maputo, Mozambique, the AU adopted an amended version of the Convention. The
amended Convention, reprinted here, sets out a framework for the protection of
the environment and the sustainable use of natural resources. Article 3(1) of the
Convention echoes article 24 of the African Charter dealing with environmental
rights. The revised Convention entered into force on 23 July 2016.
On the protection of the environment, see also the Bamako Convention on the Ban
of Import into Africa and the Control of Transboundary Movement and Management
of Hazardous Waste within Africa adopted in January 1991 and entered into force
in April 1998. Full text available at www.au.int

Excerpts

Preamble

We, the Heads of State and Government of the member states of the African
Union (AU),

Conscious that the natural environment of Africa and the natural resources
with which Africa is endowed are an irreplaceable part of the African heritage
and constitute a capital of vital importance to the continent and humankind
as a whole,
Confirming, as we accepted upon declaring our adherence to the Charter of
the Organization of African Unity, that it is our duty ‘to harness the natural
and human resources of our continent for the total advancement of our
peoples in all spheres of human endeavour’,
...
Re-affirming that states have, in accordance with the Charter of the United
Nations and the principles of international law, a sovereign right to exploit
their own resources pursuant to their environmental and developmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other
states or of areas beyond the limits of national jurisdiction,
Re-affirming further that states are responsible for protecting and conserving
their environment and natural resources and for using them in a sustainable
manner with the aim to satisfy human needs according to the carrying
capacity of the environment,
...
Desirous of undertaking individual and joint action for the conservation,
utilisation and development of these assets by establishing and maintaining
their sustainable use,
Recalling the Lagos Plan of Action for the Economic Development of Africa
and the Final Act of Lagos as well as the African Charter on Human and
Peoples’ Rights,
Taking note of the Charter of Economic Rights and Duties of States and of the
World Charter for Nature adopted by the General Assembly of the United
Nations,
...
HAVE AGREED as follows:
...
138 Instruments of the AU

Article 2: Objectives
The objectives of this Convention are:
1. to enhance environmental protection;
2. to foster the conservation and sustainable use of natural resources; and
3. to harmonise and co-ordinate policies in these fields with a view to
achieving ecologically rational, economically sound and socially acceptable
development policies and programmes.

Article 3: Principles
In taking action to achieve the objectives of this Convention and implement
its provisions, the parties shall be guided by the following:
1. the right of all peoples to a satisfactory environment favourable to their
development;
2. the duty of states, individually and collectively to ensure the enjoyment
of the right to development;
3. the duty of states to ensure that developmental and environmental
needs are met in a sustainable, fair and equitable manner.

Article 4: Fundamental obligation

The parties shall adopt and implement all measures necessary to achieve the
objectives of this Convention, in particular through preventive measures and
the application of the precautionary principle, and with due regard to ethical
and traditional values as well as scientific knowledge in the interest of
present and future generations.
...
Article 6: Land and soil
1. The parties shall take effective measures to prevent land degradation,
and to that effect shall develop long-term integrated strategies for the
conservation and sustainable management of land resources, including soil,
vegetation and related hydrological processes.
...
4. Parties shall develop and implement land tenure policies able to
facilitate the above measures, inter alia by taking into account the rights of
local communities.

Article 7: Water
1. The parties shall manage their water resources so as to maintain them
at the highest possible quantitative and qualitative levels. They shall, to that
effect, take measures designed to:
(a) maintain water-based essential ecological processes as well as to
protect human health against pollutants and water-borne diseases;
(b) prevent damage that could affect human health or natural resource in
another state by the discharge of pollutants; and
(c) prevent excessive abstraction, to the benefit of downstream
communities and states.
...
Article 8: Vegetation cover
1. The parties shall take all necessary measures for the protection,
conservation, sustainable use and rehabilitation of vegetation cover.
...
Article 9: Species and genetic diversity
1. The parties shall maintain and enhance species and genetic diversity of
plants and animals whether terrestrial, fresh-water or marine. They shall, for
that purpose, establish and implement policies for the conservation and
sustainable use of such resources; particular attention shall be paid to
socially, economically and ecologically valuable species, which are
 AU Convention on Preventing and Combating Corruption 139

threatened and species which are only represented in areas under the
jurisdiction of one party.
2. The parties shall ensure the conservation of species and their habitats
within the framework of land-use planning and of sustainable development.
...
Article 14: Sustainable development and natural resources
1. The parties shall ensure that:
(a) conservation and management of natural resources are treated as an
integral part of national and/or local development plans;
(b) in the formulation of all development plans, full consideration is given
to ecological, as well as to economic, cultural and social factors in order to
promote sustainable development.
...
Article 16: Procedural rights
1. The parties shall adopt legislative and regulatory measures necessary to
ensure timely and appropriate:
(a) dissemination of environmental information;
(b) access of the public to environmental information;
(c) participation of the public in decision-making with a potentially
significant environmental impact; and
(d) access to justice in matters related to protection of environment and
natural resources.
...
Article 17: Traditional rights of local communities and indigenous
knowledge
1. The parties shall take legislative and other measures to ensure that
traditional rights and intellectual property rights of local communities
including farmers’ rights are respected in accordance with the provisions of
this Convention.
2. The parties shall require that access to indigenous knowledge and its use
be subject to the prior informed consent of the concerned communities and
to specific regulations recognising their rights to, and appropriate economic
value of, such knowledge.
3. The parties shall take the measures necessary to enable active
participation by the local communities in the process of planning and
management of natural resources upon which such communities depend with
a view to creating local incentives for the conservation and sustainable use of
such resources.
...

_____________________________________

African Union Convention on Preventing and

Combating Corruption (2003/2006)

Adopted in Maputo, Mozambique on 11 July 2003 and entered into force on 5

August 2006. The Advisory Board on Corruption established in terms of article 22
of the Convention held its first meeting in May 2009.
140 Instruments of the AU

Preamble

The member states of the African Union;

Considering that the Constitutive Act of the African Union recognises that
freedom, equality, justice, peace and dignity are essential objectives for the
achievement of the legitimate aspiration of the African peoples;
Further considering that article 3 of the said Constitutive Act enjoins member
states to co-ordinate and intensify their co-operation, unity, cohesion and
efforts to achieve a better life for the peoples of Africa;
Cognisant of the fact that the Constitutive Act of the African Union, inter
alia, calls for the need to promote and protect human and peoples’ rights,
consolidate democratic institutions and foster a culture of democracy and
ensure good governance and the rule of law;
Aware of the need to respect human dignity and to foster the promotion of
economic, social, and political rights in conformity with the provisions of the
African Charter on Human and Peoples’ Rights and other relevant human
rights instruments;
Bearing in mind the 1990 Declaration on the Fundamental Changes Taking
Place in the World and their Implications for Africa; the 1994 Cairo Agenda for
Action Relaunching Africa’s Socio-economic Transformation; and the Plan of
Action Against Impunity adopted by the nineteenth ordinary session of the
African Commission on Human and Peoples’ Rights in 1996 as subsequently
endorsed by the sixty-fourth ordinary session of the Council of Ministers held
in Yaounde, Cameroon in 1996 which, among others, underlined the need to
observe principles of good governance, the primacy of law, human rights,
democratisation and popular participation by the African peoples in the
processes of governance.
Concerned about the negative effects of corruption and impunity on the
political, economic, social and cultural stability of African states and its
devastating effects on the economic and social development of the African
peoples;
Acknowledging that corruption undermines accountability and transparency
in the management of public affairs as well as socio-economic development
on the continent;
Recognising the need to address the root causes of corruption on the
continent;
Convinced of the need to formulate and pursue, as a matter of priority, a
common penal policy aimed at protecting the society against corruption,
including the adoption of appropriate legislative and adequate preventive
measures;
Determined to build partnerships between governments and all segments of
civil society, in particular, women, youth, media and the private sector in
order to fight the scourge of corruption;
Recalling Resolution AHG-Dec 126(XXXIV) adopted by the thirty–fourth
ordinary session of the Assembly of Heads of State and Government in June
1998 in Ouagadougou, Burkina Faso, requesting the Secretary-General to
convene, in co-operation with the African Commission on Human and Peoples’
Rights, a high level meeting of experts to consider ways and means of
removing obstacles to the enjoyment of economic, social and cultural rights,
including the fight against corruption and impunity and propose appropriate
legislative and other measures;
Further recalling the decision of the 37th ordinary session of the Assembly of
Heads of State and Government of the OAU held in Lusaka, Zambia, in July
2001 as well as the Declaration adopted by the first session of the Assembly
of the Union held in Durban, South Africa in July 2002, relating to the New
 AU Convention on Preventing and Combating Corruption 141

Partnership for Africa’s Development (NEPAD) which calls for the setting up
of a co-ordinated mechanism to combat corruption effectively.

HAVE AGREED as follows:

Article 1: Definitions
1. For the purposes of this Convention;
‘Chairperson of the Commission’ means Chairperson of the Commission of the
African Union;
‘Confiscation’ means any penalty or measure resulting in a final deprivation
of property, proceeds or instrumentalities ordered by a court of law following
proceedings in relation to a criminal offence or offences connected with or
related to corruption;
‘Corruption’ means the acts and practices including related offences
proscribed in this Convention;
‘Court of Law’ means a court duly established by a domestic law;
‘Executive Council’ means the Executive Council of the African Union;
‘Illicit enrichment’ means the significant increase in the assets of a public
official or any other person which he or she cannot reasonably explain in
relation to his or her income;
‘Private sector’ means the sector of a national economy under private
ownership in which the allocation of productive resources is controlled by
market forces, rather than public authorities and other sectors of the
economy not under the public sector or government;
‘Proceeds of corruption’ means assets of any kind corporeal or incorporeal,
movable or immovable, tangible or intangible and any document or legal
instrument evidencing title to or interests in such assets acquired as a result
of an act of corruption;
‘Public official’ means any official or employee of the state or its agencies
including those who have been selected, appointed or elected to perform
activities or functions in the name of the state or in the service of the state
at any level of its hierarchy;
‘Requested state party’ means a state party requested to extradite or to
provide assistance under this Convention;
‘Requesting state party’ means a state party making a request for extradition
or assistance in terms of t his Convention;
‘State party’ means any member state of the African Union which has ratified
or acceded to this Convention and has deposited its instruments of ratification
or accession with the Chairperson of the Commission of the African Union.
2. In this Convention, the singular shall include the plural and vice versa.

Article 2: Objectives
The objectives of this Convention are to:
1. Promote and strengthen the development in Africa by each state party,
of mechanisms required to prevent, detect, punish and eradicate corruption
and related offences in the public and private sectors;
2. Promote, facilitate and regulate co-operation among the state parties
to ensure the effectiveness of measures and actions to prevent, detect,
punish and eradicate corruption and related offences in Africa;
3. Co-ordinate and harmonise the policies and legislation between state
parties for the purposes of prevention, detection, punishment and
eradication of corruption on the continent;
4. Promote socio-economic development by removing obstacles to the
enjoyment of economic, social and cultural rights as well as civil and political
rights;
142 Instruments of the AU

5. Establish the necessary conditions to foster transparency and

accountability in the management of public affairs.

Article 3: Principles
The state parties to this Convention undertake to abide by the following
principles:
1. Respect for democratic principles and institutions, popular
participation, the rule of law and good governance;
2. Respect for human and peoples’ rights in accordance with the African
Charter on Human and Peoples’ Rights and other relevant human rights
instruments;
3. Transparency and accountability in the management of public affairs;
4. Promotion of social justice to ensure balanced socio-economic
development;
5. Condemnation and rejection of acts of corruption, related offences and
impunity.

Article 4: Scope of application

1. This Convention is applicable to the following acts of corruption and
related offences:
(a) the solicitation or acceptance, directly or indirectly, by a public official
or any other person, of any goods of monetary value, or other benefit, such
as a gift, favour, promise or advantage for himself or herself or for another
person or entity, in exchange for any act or omission in the performance of
his or her public functions;
(b) the offering or granting, directly or indirectly, to a public official or any
other person, of any goods of monetary value, or other benefit, such as a gift,
favour, promise or advantage for himself or herself or for another person or
entity, in exchange for any act or omission in the performance of his or her
public functions;
(c) any act or omission in the discharge of his or her duties by a public
official or any other person for the purpose of illicitly obtaining benefits for
himself or herself or for a third party;
(d) the diversion by a public official or any other person, for purposes
unrelated to those for which they were intended, for his or her own benefit
or that of a third party, of any property belonging to the state or its agencies,
to an independent agency, or to an individual, that such official has received
by virtue of his or her position;
(e) the offering or giving, promising, solicitation or acceptance, directly or
indirectly, of any undue advantage to or by any person who directs or works
for, in any capacity, a private sector entity, for himself or herself or for
anyone else, for him or her to act, or refrain from acting, in breach of his or
her duties;
(f) the offering, giving, solicitation or acceptance directly or indirectly, or
promising of any undue advantage to or by any person who asserts or confirms
that he or she is able to exert any improper influence over the decision
making of any person performing functions in the public or private sector in
consideration thereof, whether the undue advantage is for himself or herself
or for anyone else, as well as the request, receipt or the acceptance of the
offer or the promise of such an advantage, in consideration of that influence,
whether or not the influence is exerted or whether or not the supposed
influence leads to the intended result;
(g) illicit enrichment;
(h) the use or concealment of proceeds derived from any of the acts
referred to in this article; and
 AU Convention on Preventing and Combating Corruption 143

(i) participation as a principal, co-principal, agent, instigator, accomplice

or accessory after the fact, or on any other manner in the commission or
attempted commission of, in any collaboration or conspiracy to commit, any
of the acts referred to in this article.
2. This Convention shall also be applicable by mutual agreement between
or among two or more state parties with respect to any other act or practice
of corruption and related offences not described in this Convention.

Article 5: Legislative and other measures

For the purposes set-forth in article 2 of this Convention, state parties
undertake to:
1. Adopt legislative and other measures that are required to establish as
offences, the acts mentioned in article 4 paragraph 1 of the present
Convention;
2. Strengthen national control measures to ensure that the setting up and
operations of foreign companies in the territory of a state party shall be
subject to the respect of the national legislation in force;
3. Establish, maintain and strengthen independent national anticorruption
authorities or agencies;
4. Adopt legislative and other measures to create, maintain and
strengthen internal accounting, auditing and follow-up systems, in particular,
in the public income, custom and tax receipts, expenditures and procedures
for hiring, procurement and management of public goods and services;
5. Adopt legislative and other measures to protect informants and
witnesses in corruption and related offences, including protection of their
identities;
6. Adopt measures that ensure citizens report instances of corruption
without fear of consequent reprisals;
7. Adopt national legislative measures in order to punish those who make
false and malicious reports against innocent persons in corruption and related
offences;
8. Adopt and strengthen mechanisms for promoting the education of
populations to respect the public good and public interest, and awareness in
the fight against corruption and related offences, including school
educational programmes and sensitisation of the media, and the promotion of
an enabling environment for the respect of ethics.

Article 6: Laundering of the proceeds of corruption

States parties shall adopt such legislative and other measures as may be
necessary to establish as criminal offences:
(a) The conversion, transfer or disposal of property, knowing that such
property is the proceeds of corruption or related offences for the purpose of
concealing or disguising the illicit origin of the property or of helping any
person who is involved in the commission of the offence to evade the legal
consequences of his or her action;
(b) The concealment or disguise of the true nature, source, location,
disposition, movement or ownership of or rights with respect to property
which is the proceeds of corruption or related offences;
(c) The acquisition, possession or use of property with the knowledge at the
time of receipt, that such property is the proceeds of corruption or related
offences.

Article 7: Fight against corruption and related offences in the public

service
In order to combat corruption and related offences in the public service, state
parties commit themselves to:
144 Instruments of the AU

1. Require all or designated public officials to declare their assets at the

time of assumption of office during and after their term of office in the public
service;
2. Create an internal committee or a similar body mandated to establish a
code of conduct and to monitor its implementation, and sensitise and train
public officials on matters of ethics;
3. Develop disciplinary measures and investigation procedures in
corruption and related offences with a view to keeping up with technology
and increase the efficiency of those responsible in this regard;
4. Ensure transparency, equity and efficiency in the management of
tendering and hiring procedures in the public service;
5. Subject to the provisions of domestic legislation, any immunity granted
to public officials shall not be an obstacle to the investigation of allegations
against and the prosecution of such officials.

Article 8: Illicit enrichment

1. Subject to the provisions of their domestic law, state parties undertake
to adopt necessary measures to establish under their laws an offence of illicit
enrichment.
2. For state parties that have established illicit enrichment as an offence
under their domestic law, such offence shall be considered an act of
corruption or a related offence for the purposes of this Convention.
3. Any state party that has not established illicit enrichment as an offence
shall, in so far as its laws permit, provide assistance and co-operation to the
requesting state with respect to the offence as provided in this Convention.

Article 9: Access to information

Each state party shall adopt such legislative and other measures to give effect
to the right of access to any information that is required to assist in the fight
against corruption and related offences.

Article 10: Funding of political parties

Each state party shall adopt legislative and other measures to:
(a) Proscribe the use of funds acquired through illegal and corrupt practices
to finance political parties; and
(b) Incorporate the principle of transparency into funding of political
parties.

Article 11: Private sector

State parties undertake to:
1. Adopt legislative and other measures to prevent and combat acts of
corruption and related offences committed in and by agents of the private
sector;
2. Establish mechanisms to encourage participation by the private sector
in the fight against unfair competition, respect of the tender procedures and
property rights;
3. Adopt such other measures as may be necessary to prevent companies
from paying bribes to win tenders.

Article 12: Civil Society and media

State parties undertake to:
1. Be fully engaged in the fight against corruption and related offences and
the popularisation of this convention with the full participation of the media
and civil society at large;
 AU Convention on Preventing and Combating Corruption 145

2. Create an enabling environment that will enable civil society and the
media to hold governments to the highest levels of transparency and
accountability in the management of public affairs;
3. Ensure and provide for the participation of civil society in the
monitoring process and consult civil society in the implementation of this
Convention;
4. Ensure that the media is given access to information in cases of
corruption and related offences on condition that the dissemination of such
information does not adversely affect the investigation process and the right
to a fair trial.

Article 13: Jurisdiction

1. Each state party has jurisdiction over acts of corruption and related
offences when:
(a) the breach is committed wholly or partially inside its territory;
(b) the offence is committed by one of its nationals outside its territory or
by a person who resides in its territory; and
(c) the alleged criminal is present in its territory and it does not extradite
such person to another country.
(d) when the offence, although committed outside its jurisdiction, affects,
in the view of the state concerned, its vital interests or the deleterious or
harmful consequences or effects of such offences impact on the state party.
2. This Convention does not exclude any criminal jurisdiction exercised by
a state party in accordance with its domestic law.
3. Notwithstanding the provision of paragraph I of this article, a person
shall not be tried twice for the same offence.

Article 14: Minimum guarantees of a fair trial

Subject to domestic law, any person alleged to have committed acts of
corruption and related offences shall receive a fair trial in criminal
proceedings in accordance with the minimum guarantees contained in the
African Charter on Human and Peoples’ Rights and any other relevant
international human rights instrument recognised by the concerned states
parties.

Article 15: Extradition

1. This article shall apply to the offences established by the state parties
in accordance with this Convention.
2. Offences falling within the jurisdiction of this Convention shall be
deemed to be included in the internal laws of state parties as crimes requiring
extradition. State parties shall include such offences as extraditable offences
in extradition treaties existing between or among them.
3. If a state party that makes extradition conditional on the existence of a
treaty receives a request for extradition from a state party with which it does
not have such treaty, it shall consider this Convention as a legal basis for all
offences covered by this Convention.
4. A state party that does not make extradition conditional on the
existence of a treaty shall recognise offences to which this Convention applies
as extraditable offences among themselves.
5. Each state party undertakes to extradite any person charged with or
convicted of offences of corruption and related offences, carried out on the
territory of another state party and whose extradition is requested by that
state party, in conformity with their domestic law, any applicable extradition
treaties, or extradition agreements or arrangements existing between or
among the state parties.
146 Instruments of the AU

6. Where a state party in whose territory any person charged with or

convicted of offences is present and has refused to extradite that person on
the basis that it has jurisdiction over offences, the requested state party shall
be obliged to submit the case without undue delay to its competent
authorities for the purpose of prosecution, unless otherwise agreed with the
requesting state party, and shall report the final outcome to the requesting
state party.
7. Subject to the provisions of its domestic law and any applicable
extradition treaties, a requested state party may, upon being satisfied that
the circumstances so warrant and are urgent and at the request of the
requesting state party, take into custody a person whose extradition is sought
and who is present in its territory, or take other appropriate measures to
ensure that the person is present at the extradition proceedings.

Article 16: Confiscation and seizure of the proceeds and

instrumentalities of corruption
1. Each state party shall adopt such legislative measures as may be
necessary to enable:
(a) its competent authorities to search, identify, trace, administer and
freeze or seize the instrumentalities and proceeds of corruption pending a
final judgement;
(b) confiscation of proceeds or property, the value of which corresponds to
that of such proceeds, derived, from offences established in accordance with
this convention;
(c) repatriation of proceeds of corruption.
2. The requested state party shall, in so far as its law permits and at the
request of the requesting state party, seize and remit any object:
(a) which may be required as evidence of the offence in question; or
(b) which has been acquired as a result of the offence for which extradition
is requested and which, at the time of arrest is found in possession of the
persons claimed or is discovered subsequently.
3. The objects referred to in clause 2 of this article may, if the requesting
state so requests, be handed over to that state even if the extradition is
refused or cannot be carried out due to death, disappearance or escape of the
person sought.
4. When the said object is liable for seizure or confiscation in the territory
of the requested state party the latter may, in connection with pending or
ongoing criminal proceedings, temporarily retain it or hand it over to the
requesting state party, on condition that it is returned to the requested state
party.

Article 17: Bank secrecy

1. Each state party shall adopt such measures necessary to empower its
courts or other competent authorities to order the confiscation or seizure of
banking, financial or commercial documents with a view to implementing this
Convention.
2. The requesting state shall not use any information received that is
protected by bank secrecy for any purpose other than the proceedings for
which that information was requested, unless with the consent of the
requested state party.
3. State parties shall not invoke banking secrecy to justify their refusal to
co-operate with regard to acts of corruption and related offences by virtue of
this Convention.
4. State parties commit themselves to enter into bilateral agreements to
waive banking secrecy on doubtful accounts and allow competent authorities
 AU Convention on Preventing and Combating Corruption 147

the right to obtain from banks and financial institutions, under judicial cover,
any evidence in their possession.

Article 18: Co-operation and mutual legal assistance

1. In accordance with their domestic laws and applicable treaties, state
parties shall provide each other with the greatest possible technical co-
operation and assistance in dealing immediately with requests from
authorities that are empowered by virtue of their national laws to prevent,
detect, investigate and punish acts of corruption and related offences.
2. If two or several state parties have established relations on the basis of
uniform legislation or a particular regime, they may have the option to
regulate such mutual relations without prejudice to the provisions of this
Convention.
3. State parties shall co-operate among themselves in conducting and
exchanging studies and researches on how to combat corruption and related
offences and to exchange expertise relating to preventing and combating
corruption and related offences.
4. State parties shall co-operate among themselves, where possible, in
providing any available technical assistance in drawing up programmes, codes
of ethics or organising, where necessary and for the benefit of their
personnel, joint training courses involving one or several states in the area of
combating corruption and related offences.
5. The provisions of this article shall not affect the obligations under any
other bilateral or multilateral treaty which governs, in whole or in part,
mutual legal assistance in criminal matters.
6. Nothing in this article shall prevent state parties from according one
another more favourable forms of mutual legal assistance allowed under their
respective domestic law.

Article 19: International co-operation

In the spirit of international co-operation, state parties shall:
1. Collaborate with countries of origin of multi-nationals to criminalise and
punish the practice of secret commissions and other forms of corrupt
practices during international trade transactions;
2. Foster regional, continental and international co-operation to prevent
corrupt practices in international trade transactions;
3. Encourage all countries to take legislative measures to prevent corrupt
public officials from enjoying ill-acquired assets by freezing their foreign
accounts and facilitating the repatriation of stolen or illegally acquired
monies to the countries of origin;
4. Work closely with international, regional and sub regional financial
organisations to eradicate corruption in development aid and co-operation
programmes by defining strict regulations for eligibility and good governance
of candidates within the general framework of their development policy;
5. Co-operate in conformity with relevant international instruments on
international co-operation on criminal matters for purposes of investigations
and procedures in offences within the jurisdiction of this Convention.

Article 20: National authorities

1. For the purposes of co-operation and mutual legal assistance provided
under this Convention, each state party shall communicate to the Chairperson
of the Commission at the time of signing or depositing its instrument of
ratification, the designation of a national authority or agency in application
of offences established under article 4(1) of this Convention.
148 Instruments of the AU

2. The national authorities or agencies shall be responsible for making and

receiving the requests for assistance and co-operation referred to in this
Convention.
3. The national authorities or agencies shall communicate with each other
directly for the purposes of this Convention.
4. The national authorities or agencies shall be allowed the necessary
independence and autonomy, to be able to carry out their duties effectively.
5. State parties undertake to adopt necessary measures to ensure that
national authorities or agencies are specialised in combating corruption and
related offences by, among others, ensuring that the staff are trained and
motivated to effectively carry out their duties.

Article 21: Relationship with other agreements

Subject to the provisions of article 4 paragraph 2, this Convention shall in
respect to those state parties to which it applies, supersede the provisions of
any treaty or bilateral agreement governing corruption and related offences
between any two or more state parties.

Article 22: Follow up mechanism

1. There shall be an Advisory Board on Corruption within the African Union.
2. The Board shall comprise 11 members elected by the Executive Council
from among a list of experts of the highest integrity, impartiality, and
recognised competence in matters relating to preventing and combating
corruption and related offences, proposed by the state parties. In the election
of the members of the board, the Executive Council shall ensure adequate
gender representation, and equitable geographical representation.
3. The members of the Board shall serve in their personal capacity.
4. Members of the Board shall be appointed for a period of two years,
renewable once.
5. The functions of the Board shall be to:
(a) promote and encourage adoption and application of anticorruption
measures on the continent;
(b) collect and document information on the nature and scope of corruption
and related offences in Africa;
(c) develop methodologies for analysing the nature and extent of
corruption in Africa, and disseminate information and sensitise the public on
the negative effects of corruption and related offences;
(d) advise governments on how to deal with the scourge of corruption and
related offences in their domestic jurisdictions;
(e) collect information and analyse the conduct and behaviour of multi-
national corporations operating in Africa and disseminate such information to
national authorities designated under article 18(1) hereof;
(f) develop and promote the adoption of harmonised codes of conduct of
public officials;
(g) build partnerships with the African Commission on Human and Peoples’
Rights, African civil society, governmental. Intergovernmental and non-
governmental organisations to facilitate dialogue in the fight against
corruption and related offences;
(h) submit a report to the Executive Council on a regular basis on the
progress made by each state party in complying with the provisions of this
Convention;
(i) perform any other task relating to corruption and related offences that
may be assigned to it by the policy organs of the African Union.
6. The Board shall adopt its own rules of procedure.
7. States parties shall communicate to the Board within a year after the
coming into force of the instrument, on the progress made in the
 AU Convention on Preventing and Combating Corruption 149

implementation of this Convention. Thereafter, each state party, through

their relevant procedures, shall ensure that the national anticorruption
authorities or agencies report to the Board at least once a year before the
ordinary sessions of the policy organs of the AU.

FINAL CLAUSES
Article 23: Signature, ratification, accession and entry into force
1. The present Convention shall be open for signature, ratification or
accession by the member states of the African Union.
2. The Convention shall enter into force thirty (30) days after the date of
the deposit of the fifteenth instrument of ratification or accession.
3. For each state party ratifying or acceding to the Convention after the
date of the deposit of the fifteenth instrument of ratification, the Convention
shall enter into force thirty (30) days after the date of the deposit by that
state of its instrument of ratification or accession.

Article 24: Reservations

1. Any state party may, at the time of adoption, signature, ratification or
accession, make reservation to this Convention provided that each
reservation concerns one or more specific provisions and is not incompatible
with the object and purposes of this Convention.
2. Any state party which has made any reservation shall withdraw it as
soon as circumstances permit. Such withdrawal shall be made by notification
to the Chairperson of the Commission.

Article 25: Amendment

1. This Convention may be amended if any state party makes a written
request to the Chairperson of the Commission.
2. The Chairperson of the Commission shall circulate the proposed
amendments to all state parties. The proposed amendments shall not be
considered by the state parties until a period of six (6) months from the date
of circulation of the amendment has elapsed.
3. The amendments shall enter into force when approved by a two-thirds
majority of the member states of the AU.

Article 26: Denunciation

1. Any state party may denounce the present Convention by sending
notification to the Chairperson of the Commission. This denunciation shall
take effect six (6) months following the date of receipt of notification by the
Chairperson of the Commission.
2. After denunciation, co-operation shall continue between state parties
and the state party that has withdrawn on all requests for assistance or
extradition made before the effective date of withdrawal.

Article 27: Depository

1. The Chairperson of the Commission shall be the depository of this
Convention and the amendments thereto.
2. The Chairperson of the Commission shall inform all state parties of the
signatures, ratifications, accessions, entry into force, requests for
amendments submitted by states and approvals thereof and denunciations.
3. Upon entry into force of this Convention, the Chairperson of the
Commission shall register it with the Secretary-General of the United Nations
in accordance with article 102 of the Charter of the United Nations.
150 Instruments of the AU

Article 28: Authentic texts

The original of this Convention, of which the Arabic, English, French and
Portuguese texts are equally authentic, shall be deposited with the
Chairperson of the Commission.

_____________________________________

African Union Non-Aggression and Common

Defence Pact (2005/2009)

Adopted in Abuja, Nigeria, on 31 January 2005. The Pact entered into force on 18
December 2009. Full text available at www.au.int

Excerpts
...
Obligations
Article 3
(a) State parties undertake, pursuant to the provisions of the Constitutive
Act, to resolve any differences by peaceful means, in order to avoid
endangering peace and security; to refrain from the use of force or threat to
use force in their relations with each other and in any manner whatsoever,
incompatible with the United Nations Charter. Consequently, no
consideration whatsoever, be it political, economic, military, religious or
racial shall justify aggression.
(b) State parties undertake to develop and strengthen the friendly and
peaceful relations among them in accordance with the fundamental principles
of the Union.
(c) State parties undertake to promote such sustainable development
policies as are appropriate to enhance the well being of the African people,
including the dignity and fundamental rights of every human being in the
context of a democratic society as stipulated in the Lomé Declaration. In
particular, state parties shall ensure freedom of worship, respect of the
cultural identity of peoples and the rights of minorities.
(d) State parties undertake to prohibit and prevent genocide, other forms
of mass murder as well as crimes against humanity.

Article 4
(a) State parties undertake to provide mutual assistance towards their
common defence and security vis-à-vis any aggression or threats of
aggression.
(b) State parties undertake, individually and collectively, to respond by all
available means to aggression or threats of aggression against any member
state.
(c) State parties undertake not to recognise any territorial acquisition or
special advantage, resulting from the use of aggression.
(d) As part of the vision of building a strong and united Africa, state parties
undertake to establish an African Army at the final stage of the political and
economic integration of the Continent. In the meantime, state parties will
make best efforts to address the challenges of common defence and security
through the effective implementation of the Common African Defence and
 African Youth Charter 151

Security Policy, including the early establishment and operationalisation of

the African Standby Force.
...
Article 6
(a) State parties undertake to extend mutual legal and all other assistance
in the event of threats of terrorist attack or other organised international
crimes.
(b) State parties undertake to arrest and prosecute any irregular armed
group(s), mercenaries or terrorist(s) that pose a threat to any member state.
...
African Centre for the Study and Research on Terrorism
Article 13
(a) The African Centre for the Study and Research on Terrorism (ACSRT)
shall serve to centralise, collect and disseminate information, studies and
analysis on terrorism and terrorist groups, and shall provide training programs
by organising, with the assistance of international partners meetings, and
symposia, in order to prevent and combat terrorist acts in Africa.
(b) The Centre shall assist member states develop the expertise and
strategies for the prevention and combating of terrorism, particularly with
respect to the implementation of the 1999 OAU Convention and its Protocol
thereto on the Prevention and Combating of Terrorism, as well as the Plan of
Action on the Prevention and Combating of Terrorism in Africa and other
relevant decisions adopted by the policy Organs of the Union.
(c) State parties undertake to support fully and take active part in the
activities of the Centre.
...

_____________________________________

African Youth Charter

(2006/2009)

Adopted in Banjul, The Gambia on 2 July 2006. The Charter entered into force on
8 August 2009.

Preamble

Guided by the Constitutive Act of the African Union, the states parties to the
present ‘African Youth Charter’,
Guided by the vision, hopes and aspirations of the African Union, inclusive of
Africa’s integration, the inherent dignity and inalienable rights afforded to all
members of the human family as set out in the United Nations Universal
Declaration of Human Rights (1948), the International Covenant of Civil and
Political Rights (1976) and the International Covenant on Economic, Social
and Cultural Rights (1976), and articulated for the African peoples through
the African Charter on Human and Peoples’ Rights (1986);
Recalling the resolution of the Heads of State and government during the 1999
Algiers Summit for the development of the Pan-African Charter;
Fully attached to the virtues and values of African historical tradition and
civilization which form the foundation for our concept of people’s rights;
152 Instruments of the AU

Recalling the historic injustices imposed on Africa such as slavery,

colonisation, depletion of natural resources and taking into account the firm
will of African peoples for self-determination and the economic integration of
Africa;
Convinced that Africa’s greatest resource is its youthful population and that
through their active and full participation, Africans can surmount the
difficulties that lie ahead;
Bearing in mind the international Convention on the Elimination of All Forms
of Discrimination Against Women (1979) and the Protocol to the African
Charter on Human and Peoples’ Rights relating to the Rights of Women in
Africa (2003) and the progress achieved in eliminating gender discrimination,
but ever cognisant of the obstacles that still prevent girls and women from
fully participating in African society;
Reaffirming the need to take appropriate measures to promote and protect
the rights and welfare of children as outlined in the Convention of the Rights
of the Child (1989) and through the African Charter on the Rights and Welfare
of the Child (1999),
Acknowledging the commitments already made towards the United Nations
Millennium Development Goals (MDGs) and inviting the partners to reaffirm
their support to advance the well-being of youth;
Recognising the efforts made by states parties and civil societies to address
the economic, social, educational, cultural and spiritual needs of youth;
Noting with concern the situation of African youth, many of whom are
marginalised from mainstream society through inequalities in income, wealth
and power, unemployment and underemployment, infected and affected by
the HIV/AIDS pandemic, living in situations of poverty and hunger,
experiencing illiteracy and poor quality educational systems, restricted
access to health services and to information, exposure to violence including
gender violence, engaging in armed conflicts and experiencing various forms
of discrimination;
Recalling the United Nations World Programme of Action for Youth to the Year
2000 and beyond and the ten priority areas identified for youth (education,
employment, hunger and poverty, health, environment, drug abuse, juvenile
delinquency, leisure-time activities, girls and young women and youth
participating in decision-making), and the five additional areas (HIV/AIDS,
ICT, intergenerational dialogue, [mixed impact of globalisation and active
involvement in armed conflict]) adopted at the 2005 UN General assembly;
Recognising that youth are partners, assets and a prerequisite for sustainable
development and for the peace and prosperity of Africa with a unique
contribution to make to the present and to future development;
Considering the role that youth have played in the process of decolonisation,
the struggle against apartheid and more recently in its efforts to encourage
the development and to promote the democratic processes on the African
continent;
Reaffirming that the continuous cultural development of Africa rests with its
youth and therefore requires their active and enlightened participation as
espoused in the Cultural Charter for Africa;
Guided by the New Partnership for Africa’s Development Strategic Framework
for Youth Programme of 2004 that is working towards youth empowerment
and development;
Acknowledging the increasing calls and the enthusiasm of youth to actively
participate at local, national, regional and international levels to determine
their own development and the advancement of society at large;
Acknowledging also the call in Bamako (2005) by the youth organisations
across Africa to empower youth by building their capacity, leadership,
 African Youth Charter 153

responsibilities and provide access to information such that they can take up
their rightful place as active agents in decision-making and governance;
Taking into consideration the inter-relatedness of the challenges facing youth
and the need for cross-sectoral policies and programmes that attend to the
needs of youth in a holistic manner;
Considering that the promotion and protection of the rights of youth also
implies the performance of duties by youth as by all other actors in society;
Taking into consideration the needs and aspirations of young displaced
persons, refugees and youth with special needs;

HAVE AGREED as follows:

DEFINITIONS
‘Chairperson’ shall mean the Chairperson of the African Union Commission;
‘Charter’ shall mean the African Youth Charter;
‘Commission’ shall mean the Commission of African Union
‘Diaspora’ shall mean peoples of African descent and heritage living outside
the continent, irrespective of their citizenship and who remain committed to
contribute to the development of the continent and the building of the
African Union (DOC.EX.CL/164(VII))
‘Member states’ shall mean member states of the African Union
‘Minors’ shall mean young people aged 15 to 17 years subject to each
country’s laws
‘States parties’ shall mean member states, which have ratified or acceded to
the present Charter;
‘Union’ shall mean the African Union
‘Youth’ For the purposes of this Charter, youth or young people shall refer to
every person between the ages of 15 and 35 years.

PART 1: RIGHTS AND DUTIES

Article 1: Obligation of state parties

1. States parties of the African Union to the present Charter shall recognise
the rights, freedoms and duties enshrined in this Charter.
2. State parties shall undertake the necessary steps, in accordance with
their Constitutional processes and with the provisions of the present Charter,
to adopt such legislative or other measures that may be necessary to give
effect to the provisions of the Charter.

Article 2: Non-discrimination
1. Every young person shall be entitled to the enjoyments of the rights and
freedoms recognised and guaranteed in this Charter irrespective of their race,
ethnic group, colour, sex, language, religion, political or other opinion,
national and social origin, fortune, birth or other status.
2. States parties shall take appropriate measures to ensure that youth are
protected against all forms of discrimination on the basis of status, activities,
expressed opinions or beliefs.
3. State parties shall recognise the rights of young people from ethnic,
religious and linguistic marginalised groups or youth of indigenous origin, to
enjoy their own culture, freely practice their own religion or to use their own
language in community with other members of their group.

Article 3: Freedom of movement

1. Every young person has the right to leave any country, including his or
her own, and to return to his or her country.
154 Instruments of the AU

Article 4: Freedom of expression

1. Every young person shall be assured the right to express his or her ideas and
opinions freely in all matters and to disseminate his or her ideas and opinions
subject to the restrictions as are prescribed by laws.
2. Every young person shall have the freedom to seek, receive and
disseminate information and ideas of all kinds, either orally, in writing, in
print, in the form of art or through any media of the young person’s choice
subject to the restrictions as are prescribed by laws.

Article 5: Freedom of association

1. Every young person shall have the right to free association and freedom
of peaceful assembly in conformity with the law.
2. Young people shall not be compelled to belong to an association.

Article 6: Freedom of thought, conscience and religion

Every young person shall have the right to freedom of thought, conscience and
religion.

Article 7: Protection of private life

No young person shall be subject to the arbitrary or unlawful interference
with his/her privacy, residence or correspondence, or to attacks upon his/her
honour or reputation.

Article 8: Protection of the family

1. The family, as the most basic social institution, shall enjoy the full
protection and support of states parties for its establishment and
development noting that the structure and form of families varies in different
social and cultural contexts.
2. Young men and women of full age who enter into marriage shall do so
based on their free consent and shall enjoy equal rights and responsibilities.

Article 9: Property
1. Every young person shall have the right to own and to inherit property.
2. States parties shall ensure that young men and young women enjoy
equal rights to own property.
3. States parties shall ensure that youth are not arbitrarily deprived of
their property including inherited property.

Article 10: Development

1. Every young person shall have the right to social, economic, political
and cultural development with due regard to their freedom and identity and
in equal enjoyment of the common heritage of mankind.
2. States parties shall encourage youth organisations to lead youth
programmes and to ensure the exercise of the right to development.
3. States parties shall:
(a) Encourage the media to disseminate information that will be of
economic, political, social and cultural benefit to youth;
(b) Promote the development of youth media for the dissemination of
information to young people;
(c) Encourage international co-operation in the production, exchange and
dissemination of information from both national and international sources
that are of economic, social and cultural value to youth;
(d) Provide access to information and education and training for young
people to learn their rights and responsibilities, to be schooled in democratic
processes, citizenship, decision-making, governance and leadership such that
 African Youth Charter 155

they develop the technical skills and confidence to participate in these

processes.

Article 11: Youth participation

1. Every young person shall have the right to participate in all spheres of
society.
2. States parties shall take the following measures to promote active youth
participation in society:
They shall:
(a) Guarantee the participation of youth in parliament and other
decisionmaking bodies in accordance with the prescribed laws;
(b) Facilitate the creation or strengthening of platforms for youth
participation in decision-making at local, national, regional, and continental
levels of governance;
(c) Ensure equal access to young men and young women to participate in
decision-making and in fulfilling civic duties;
(d) Give priority to policies and programmes including youth advocacy and
peer-to-peer programmes for marginalised youth, such as out-of-school and
out-of-work youth, to offer them the opportunity and motivation to re-
integrate into mainstream society;
(e) Provide access to information such that young people become aware of
their rights and of opportunities to participate in decision-making and civic
life;
(f) Institute measures to professionalise youth work and introduce relevant
training programmes in higher education and other such training institutions;
(g) Provide technical and financial support to build the institutional
capacity of youth organisations;
(h) Institute policy and programmes of youth voluntarism at local, national,
regional and international levels as an important form of youth participation
and as a means of peer-to-peer training.
(i) Provide access to information and services that will empower youth to
become aware of their rights and responsibilities,
(j) Include youth representatives as part of delegations to ordinary sessions
and other relevant meetings to broaden channels of communication and
enhance the discussion of youth related issues.

Article 12: National youth policy

1. Every state party shall develop a comprehensive and coherent national
youth policy.
(a) The policy shall be cross-sectoral in nature considering the
interrelatedness of the challenges facing young people;
(b) The development of a national youth policy shall be informed by
extensive consultation with young people and cater for their active
participation in decision-making at all levels of governance in issues
concerning youth and society as a whole;
(c) A youth perspective shall be integrated and mainstreamed into all
planning and decision-making as well as programme development. The
appointment of youth focal points in government structures shall enable this
process;
(d) Mechanisms to address these youth challenges shall be framed within
the national development framework of the country;
(e) The policy shall provide guidelines on the definition of youth adopted
and specify subgroups that shall be targeted for development;
(f) The policy shall advocate equal opportunities for young men and for
young women;
156 Instruments of the AU

(g) A baseline evaluation or situation analysis shall inform the policy on the
priority issues for youth development;
(h) The policy shall be adopted by parliament and enacted into law;
(i) A national youth coordinating mechanism shall be set up and shall
provide a platform as well as serve as a linking agent for youth organisations
to participate in youth policy development as well as the implementation,
monitoring and evaluation of related programmes;
(j) National programmes of action shall be developed that are time bound
and that are connected to an implementation and evaluation strategy for
which indicators shall be outlined;
(k) Such a programme of action shall be accompanied by adequate and
sustained budgetary allocation.

Article 13: Education and skills development

1. Every young person shall have the right to education of good quality.
2. The value of multiple forms of education, including formal, non-formal,
informal, distance learning and life-long learning, to meet the diverse needs
of young people shall be embraced.
3. The education of young people shall be directed to:
(a) The promotion and holistic development of the young person’s cognitive
and creative and emotional abilities to their full potential;
(b) Fostering respect for human rights and fundamental freedoms as set out
in the provisions of the various African human and people’s rights and
international human rights declarations and conventions;
(c) Preparing young people for responsible lives in free societies that
promote peace, understanding, tolerance, dialogue, mutual respect and
friendship among all nations and across all groupings of people;
(d) The preservation and strengthening of positive African morals,
traditional values and cultures and the development of national and African
identity and pride;
(e) The development of respect for the environment and natural resources;
(f) The development of life skills to function effectively in society and
include issues such as HIV/AIDS, reproductive health, substance abuse
prevention and cultural practices that are harmful to the health of young girls
and women as part of the education curricula;
4. States parties shall take all appropriate measures with a view to
achieving full realisation of this right and shall, in particular:
(a) Provide free and compulsory basic education and take steps to minimise
the indirect costs of education;
(b) Make all forms of secondary education more readily available and
accessible by all possible means including progressively free;
(c) Take steps to encourage regular school attendance and reduce drop-out
rates;
(d) Strengthen participation in and the quality of training in science and
technology;
(e) Revitalise vocational education and training relevant to current and
prospective employment opportunities and expand access by developing
centres in rural and remote areas;
(f) Make higher education equally accessible to all including establishing
distance learning centres of excellence;
(g) Avail multiple access points for education and skills development
including opportunities outside of mainstream educational institutions e.g.,
workplace skills development, distance learning, adult literacy and national
youth service programmes;
 African Youth Charter 157

(h) Ensure, where applicable, that girls and young women who become
pregnant or married before completing their education shall have the
opportunity to continue their education;
(i) Allocate resources to upgrade the quality of education delivered and
ensure that it is relevant to the needs of contemporary society and engenders
critical thinking rather than rote learning;
(j) Adopt pedagogy that incorporates the benefits of and trains young
people in the use of modern information and communication technology such
that youth are better prepared for the world of work;
(k) Encourage youth participation in community work as part of education
to build a sense of civic duty;
(l) Introduce scholarship and bursary programmes to encourage entry into
post-primary school education and into higher education outstanding youth
from disadvantaged communities, especially young girls;
(m) Establish and encourage participation of all young men and young
women in sport, cultural and recreational activities as part of holistic
development;
(n) Promote culturally appropriate, age specific sexuality and responsible
parenthood education;
(o) Promote the equivalence of degrees between African educational
institutions to enable the youth to study and work in state parties;
(p) Adopt preferential recruitment policies for African youth with
specialised skills amongst states parties.
5. Youth are determined to transform the continent in the fields of science
and technology. Therefore they are committed to:
(a) Promoting and using science and technology in Africa;
(b) Conducting research towards science and technology.
6. State parties should encourage youth to conduct research. In this
regard, an African discoveries day should be established along with
mechanism of awarding prizes at the continental level.
7. Enterprises that are located in Africa should establish partnerships with
training institutions to contribute to technology transfer for the benefit of
African students and researchers.

Article 14: Poverty eradication and socio-economic integration of youth

1. States parties shall: Recognise the right of young people to a standard
of living adequate for their holistic development.
2. Recognise the right of young people to be free from hunger and shall
take individual or collective measures to:
(a) Enhance the attractiveness of rural areas to young people by improving
access to services and facilities such as educational and cultural services;
(b) Train young people to take up agricultural, mineral, commercial and
industrial production using contemporary systems and promote the benefits
of modern information and communication technology to gain access to
existing and new markets;
(c) Provide grants of land to youth and youth organisations for
socioeconomic development purposes;
(d) Facilitate access to credit to promote youth participation in agricultural
and other sustainable livelihood projects;
(e) Facilitate the participation of young people in the design,
implementation, monitoring and evaluation of national development plans,
policies and poverty reduction strategies.
3. Recognise the right of every young person to benefit from social
security, including social insurance. In this regard, states parties shall take
the necessary measures to achieve the full realisation of these rights in
158 Instruments of the AU

accordance with their national law especially when the security of food
tenure, clothing, housing and other basic needs are compromised.

Article 15: Sustainable livelihoods and youth employment

1. Every young person shall have the right to gainful employment.
2. Every young person shall have the right to be protected from economic
exploitation and from performing work that is likely to be hazardous to or
interfere with the young person’s education, or to be harmful to the young
person’s health or holistic development.
3. States parties shall address and ensure the availability of accurate data
on youth employment, unemployment and underemployment so as to
facilitate the prioritisation of the issue in national development programmes
complemented by clear programmes to address unemployment;
4. States parties shall take all appropriate measures with a view to
achieving full realisation of this right to gainful employment and shall in
particular:
(a) Ensure equal access to employment and equal pay for equal work or
equal value of work and offer protection against discrimination regardless of
ethnicity, race, gender, disability, religion, political, social, cultural or
economic background;
(b) Develop macroeconomic policies that focus on job creation particularly
for youth and for young women;
(c) Develop measures to regulate the informal economy to prevent unfair
labour practices where the majority of youth work;
(d) Foster greater linkages between the labour market and the education
and training system to ensure that curricula are aligned to the needs of the
labour market and that youth are being trained in fields where employment
opportunities are available or are growing;
(e) Implement appropriately-timed career guidance for youth as part of the
schooling and post-schooling education system;
(f) Promote youth entrepreneurship by including entrepreneurship training
in the school curricula, providing access to credit, business development skills
training, mentorship opportunities and better information on market
opportunities;
(g) Institute incentive schemes for employers to invest in the skills
development of employed and unemployed youth;
(h) Institute national youth service programmes to engender community
participation and skills development for entry into the labour market.

Article 16: Health

1. Every young person shall have the right to enjoy the best attainable
state of physical, mental and spiritual health.
2. States parties shall undertake to pursue the full implementation of this
right and in particular shall take measures to:
(a) Make available equitable and ready access to medical assistance and
health care especially in rural and poor urban areas with an emphasis on the
development of primary health care;
(b) Secure the full involvement of youth in identifying their reproductive
and health needs and designing programmes that respond to these needs with
special attention to vulnerable and disadvantaged youth;
(c) Provide access to youth friendly reproductive health services including
contraceptives, antenatal and post natal services;
(d) Institute programmes to address health pandemics in Africa such as HIV/
AIDS, tuberculosis and malaria;
(e) Institute comprehensive programmes to prevent the transmission of
sexually transmitted infections and HIV/AIDS by providing education,
 African Youth Charter 159

information, communication and awareness creation as well as making

protective measures and reproductive health services available;
(f) Expand the availability and encourage the uptake of voluntary
counselling and confidential testing for HIV/AIDS;
(g) Provide timely access to treatment for young people infected with HIV/
AIDS including prevention of mother to child transmission, post rape
prophylaxis, and anti-retroviral therapy and creation of health services
specific for young people;
(h) Provide food security for people living with HIV/AIDS;
(i) Institute comprehensive programmes including legislative steps to
prevent unsafe abortions;
(j) Take legislative steps such as banning advertising and increasing price
in addition to instituting comprehensive preventative and curative
programmes to control the consumption of tobacco, exposure to
environmental tobacco smoke and alcohol abuse;
(k) Raise awareness amongst youth on the dangers of drug abuse through
partnerships with youth, youth organisations and the community;
(l) Strengthen local, national, regional and international partnerships to
eradicate the demand, supply and trafficking of drugs including using youth
to traffic drugs;
(m) Provide rehabilitation for young people abusing drugs such that they can
be re-integrated into social and economic life;
(n) Provide technical and financial support to build the institutional
capacity of youth organisations to address public health concerns including
issues concerning youth with disabilities and young people married at an early
age.

Article 17: Peace and security

In view of the important role of youth in promoting peace and non-violence
and the lasting physical and psychological scars that result from involvement
in violence, armed conflict and war, states parties shall:
(a) Strengthen the capacity of young people and youth organisations in
peace building, conflict prevention and conflict resolution through the
promotion of intercultural learning, civic education, tolerance, human rights
education and democracy, mutual respect for cultural, ethnic and religious
diversity, the importance of dialogue and co-operation, responsibility,
solidarity and international co-operation;
(b) Institute mechanisms to promote a culture of peace and tolerance
amongst young people that discourages their participation in acts of violence,
terrorism, xenophobia, racial discrimination, gender-based discrimination,
foreign occupation and trafficking in arms and drugs;
(c) Institute education to promote a culture of peace and dialogue in all
schools and training centres at all levels;
(d) Condemn armed conflict and prevent the participation, involvement,
recruitment and sexual slavery of young people in armed conflict;
(e) Take all feasible measures to protect the civilian population, including
youth, who are affected and displaced by armed conflict;
(f) Mobilise youth for the reconstruction of areas devastated by war,
bringing help to refugees and war victims and promoting peace, reconciliation
and rehabilitation activities;
(g) Take appropriate measures to promote physical and psychological
recovery and social reintegration of young victims of armed conflict and war
by providing access to education and skills development such as vocational
training to resume social and economic life.
160 Instruments of the AU

Article 18: Law enforcement

1. Every young person accused or found guilty of having infringed the penal
law shall have the right to be treated with humanity and with respect for the
inherent dignity of the human person.
2. States parties shall in particular:
(a) Ensure that youth who are detained or imprisoned or in rehabilitation
centres are not subjected to torture, inhumane or degrading treatment or
punishment;
(b) Ensure that accused minors shall be segregated from convicted persons
and shall be subject to separate treatment appropriate to their status;
(c) Build rehabilitation facilities for accused and imprisoned youth who are
still minors and house them separately from adults;
(d) Provide induction programmes for imprisoned youth that are based on
reformation, social rehabilitation and re-integration into family life;
(e) Make provisions for the continued education and skills development of
imprisoned young people as part of the restorative justice process.
(f) Ensure that accused and convicted young people are entitled to a
lawyer.

Article 19: Sustainable development and protection of the environment

1. States parties shall ensure the use of sustainable methods to improve
the lives of young people such that measures instituted do not jeopardise
opportunities for future generations.
2. States parties shall recognise the vested interest of young people in
protecting the natural environment as the inheritors of the environment. In
this regard, they shall:
(a) Encourage the media, youth organisations, in partnership with national
and international organisations, to produce, exchange and disseminate
information on environmental preservation and best practices to protect the
environment;
(b) Train youth in the use of technologies that protect and conserve the
environment;
(c) Support youth organisations in instituting programmes that encourage
environmental preservation such as waste reduction, recycling and tree
planting programmes;
(d) Facilitate youth participation in the design, implementation and
evaluation of environmental policies including the conservation of African
natural resources at local, national, regional and international levels;
(e) Develop realistic and flexible strategies for the regeneration of forests;
(f) Initiate intensive actions to prevent the expansion of deserts.

Article 20: Youth and culture

1. States parties shall take the following steps to promote and protect the
morals and traditional values recognised by the community:
(a) Eliminate all traditional practices that undermine the physical integrity
and dignity of women;
(b) Recognise and value beliefs and traditional practices that contribute to
development;
(c) Establish institutions and programmes for the development, documen-
tation, preservation and dissemination of culture;
(d) Work with educational institutions, youth organisations, the media and
other partners to raise awareness of and teach and inform young people about
African culture, values and indigenous knowledge;
(e) Harness the creativity of youth to promote local cultural values and
traditions by representing them in a format acceptable to youth and in a
language and in forms to which youth are able to relate;
 African Youth Charter 161

(f) Introduce and intensify teaching in African languages in all forms of

education as a means to accelerate economic, social, political and cultural
development;
(g) Promote inter-cultural awareness by organising exchange programmes
between young people and youth organisations within and across states
parties.
2. States parties recognise that the shift towards a knowledge-based
economy is dependent on information and communication technology which
in turn has contributed towards a dynamic youth culture and global
consciousness. In this regard, they shall:
(a) Promote widespread access to information and communication
technology as a means for education, employment creation, interacting
effectively with the world and building understanding, tolerance and
appreciation of other youth cultures;
(b) Encourage the local production of and access to information and
communication technology content;
(c) Engage young people and youth organisations to understand the nexus
between contemporary youth culture and traditional African culture, and
enable them to express this fusion through drama, art, writing, music and
other cultural and artistic forms;
(d) Help young people to use positive elements of globalisation such as
science and technology and information and communication technology to
promote new cultural forms that link the past to the future.

Article 21: Youth in the diaspora

States parties shall recognise the right of young people to live anywhere in
the world. In this regard, they shall:
(a) Promote the equivalence of degrees between African educational
institutions to enable the youth to study and work in state parties;
(b) Promote the recruitment of African youth with specialised skills, in the
spirit of African solutions for African problems, according to national policies
and priorities;
(c) Facilitate youth organisations to liaise and collaborate with the African
youth diaspora;
(d) Establish structures that encourage and assist the youth in the diaspora
to return to and fully re-integrate into the social and economic life in Africa;
(e) Promote and protect the rights of young people living in the diaspora;
(f) Encourage young people in the diaspora to engage themselves in
development activities in their country of origin.

Article 22: Leisure, recreation, sportive and cultural activities

1. Young people shall have the right to rest and leisure and to engage in
play and recreational activities that are part of a health lifestyle as well as to
participate freely in sport, physical education drama, the arts, music and
other forms of cultural life. In this regard, states parties shall:
(a) Make provision for equal access for young men and young women to
sport, physical education, cultural, artistic, recreational and leisure
activities;
(b) Put in place adequate infrastructure and services in rural and urban
areas for youth to participate in sport, physical education, cultural, artistic,
recreational and leisure activities.

Article 23: Girls and young women

1. States parties acknowledge the need to eliminate discrimination against
girls and young women according to obligations stipulated in various
international, regional and national human rights conventions and
162 Instruments of the AU

instruments designed to protect and promote women’s rights. In this regard,

they shall:
(a) Introduce legislative measures that eliminate all forms of discrimination
against girls and young women and ensure their human rights and
fundamental freedoms;
(b) Ensure that girls and young women are able to participate actively,
equally and effectively with boys at all levels of social, educational,
economic, political, cultural, civic life and leadership as well as scientific
endeavours;
(c) Institute programmes to make girls and young women aware of their
rights and of opportunities to participate as equal members of society;
(d) Guarantee universal and equal access to and completion of a minimum
of nine years of formal education;
(e) Guarantee equal access to and completion of vocational, secondary and
higher education in order to effectively address the existing imbalance
between young men and women in certain professions;
(f) Ensure that education material and teaching practices are gender
sensitive and encourage girls and young women to undertake studies in the
sciences;
(g) Provide educational systems that do not impede girls and young women,
including married and/or pregnant young women, from attending;
(h) Take steps to provide equal access to health care services and nutrition
for girls and young women;
(i) Protect girls and young women from economic exploitation and from
performing work that is hazardous, takes them away from education or that
is harmful to their mental or physical health;
(j) Offer equal access to young women to employment and promote their
participation in all sectors of employment;
(k) Introduce special legislation and programmes of action that make
available opportunities to girls and young women including access to
education as a prerequisite and a priority for rapid social and economic
development;
(l) Enact and enforce legislation that protect girls and young women from
all forms of violence, genital mutilation, incest, rape, sexual abuse, sexual
exploitation, trafficking, prostitution and pornography;
(m) Develop programmes of action that provide legal, physical and
psychological support to girls and young women who have been subjected to
violence and abuse such that they can fully re-integrate into social and
economic life;
(n) Secure the right for young women to maternity leave.

Article 24: Mentally and physically challenged youth

1. States parties recognise the right of mentally and physically challenged
youth to special care and shall ensure that they have equal and effective
access to education, training, health care services, employment, sport,
physical education and cultural and recreational activities.
2. State parties shall work towards eliminating any obstacles that may
have negative implications for the full integration of mentally and physically
challenged youth into society including the provision of appropriate
infrastructure and services to facilitate easy mobility.

Article 25: Elimination of harmful social and cultural practices

State parties shall take all appropriate steps to eliminate harmful social and
cultural practices that affect the welfare and dignity of youth, in particular;
(a) Customs and practices that harm the health, life or dignity of the youth;
 African Youth Charter 163

(b) Customs and practices discriminatory to youth on the basis of gender,

age or other status.

Article 26: Responsibilities of youth

Every young person shall have responsibilities towards his family and society,
the state, and the international community. Youth shall have the duty to:
(a) Become the custodians of their own development;
(b) Protect and work for family life and cohesion;
(c) Have full respect for parents and elders and assist them anytime in cases
of need in the context of positive African values;
(d) Partake fully in citizenship duties including voting, decision making and
governance;
(e) Engage in peer-to-peer education to promote youth development in
areas such as literacy, use of information and communication technology,
HIV/AIDS prevention, violence prevention and peace building;
(f) Contribute to the promotion of the economic development of states
parties and Africa by placing their physical and intellectual abilities at its
service;
(g) Espouse an honest work ethic and reject and expose corruption;
(h) Work towards a society free from substance abuse, violence, coercion,
crime, degradation, exploitation and intimidation;
(i) Promote tolerance, understanding, dialogue, consultation and respect
for others regardless of age, race, ethnicity, colour, gender, ability, religion,
status or political affiliation;
(j) Defend democracy, the rule of law and all human rights and
fundamental freedoms;
(k) Encourage a culture of voluntarism and human rights protection as well
as participation in civil society activities;
(l) Promote patriotism towards and unity and cohesion of Africa;
(m) Promote, preserve and respect African traditions and cultural heritage
and pass on this legacy to future generations;
(n) Become the vanguard of re-presenting cultural heritage in languages
and in forms to which youth are able to relate;
(o) Protect the environment and conserve nature.

Article 27: Popularisation of the Charter

States parties shall have the duty to promote and ensure through teaching,
education and publication, the respect of rights, responsibilities and
freedoms contained in the present Charter and to see to it that these
freedoms, rights and responsibilities as well as corresponding obligations and
duties are understood.

Article 28: Duties of the African Union Commission

The African Union Commission shall ensure that states parties respect the
commitments made and fulfil the duties outlined in the present Charter by:
(a) Collaborating with governmental, non-governmental institutions and
developmental partners to identify best practices on youth policy formulation
and implementation and encouraging the adaptation of principles and
experiences among states parties;
(b) Inviting states parties to include youth representatives as part of their
delegations to the ordinary sessions of the African Union and other relevant
meetings of the policy organs to broaden the channels of communication and
enhance the discussion of youth-related issues;
(c) Instituting measures to create awareness of its activities and make
information on its activities more readily available and accessible to youth;
164 Instruments of the AU

(d) Facilitating exchange and co-operation between youth organisations

across national borders in order to develop regional youth solidarity, political
consciousness and democratic participation in collaboration with develop-
ment partners.

PART 2: FINAL PROVISIONS

Article 29: Savings clause

Nothing in this Charter shall be taken as minimising higher standards and
values contained in other relevant human rights instruments ratified by states
concerned or national law or policies.

Article 30: Signature, ratification or adherence

1. The present Charter shall be open to signature by all the member states.
The present Charter shall be subject to ratification or accession by member
states. The instrument of ratification or accession to the present Charter shall
be deposited with the Chairperson of the Commission.
2. The present Charter shall come into force thirty (30) days after the
deposit with the Chairperson of the Commission of the instruments of
ratification of fifteen (15) member states.

Article 31: Amendment and revision of the Charter

1. The present Charter may be amended or revised if any member state
makes a written request to that effect to the Chairperson of the Commission,
provided that the proposed amendment is not submitted to the Assembly of
the Union for consideration until all member states have been duly notified
of it.
2. An amendment shall be approved by a simple majority of the member
states. Such amendment shall come into force for each member states that
has ratified or acceded to it on the date of the deposit of its instrument of
ratification.

_____________________________________

African Charter on Democracy, Elections and

Governance (2007/2012)

Adopted in Addis Ababa, Ethiopia, on 30 January 2007 and entered into force on
15 February 2012.

Preamble

We, the member states of the African Union (AU);

Inspired by the objectives and principles enshrined in the Constitutive Act of
the African Union, particularly articles 3 and 4, which emphasise the
significance of good governance, popular participation, the rule of law and
human rights;
Recognising the contributions of the African Union and Regional Economic
Communities to the promotion, nurturing, strengthening and consolidation of
democracy and governance;
 African Charter on Democracy, Elections and Governance 165

Reaffirming our collective will to work relentlessly to deepen and consolidate

the rule of law, peace, security and development in our countries;
Guided by our common mission to strengthen and consolidate institutions for
good governance, continental unity and solidarity;
Committed to promote the universal values and principles of democracy,
good governance, human rights and the right to development;
Cognizant of the historical and cultural conditions in Africa;
Seeking to entrench in the continent a political culture of change of power
based on the holding of regular, free, fair and transparent elections
conducted by competent, independent and impartial national electoral
bodies;
Concerned about the unconstitutional changes of governments that are one of
the essential causes of insecurity, instability and violent conflict in Africa;
Determined to promote and strengthen good governance through the
institutionalisation of transparency, accountability and participatory
democracy;
Convinced of the need to enhance the election observation missions in the
role they play, particularly as they are an important contributory factor to
ensuring the regularity, transparency and credibility of elections;
Desirous to enhance the relevant declarations and decisions of the OAU/AU
(including the 1990 Declaration on the political and socio-economic situation
in Africa and the fundamental changes taking place in the world, the 1995
Cairo Agenda for the Re-launch of Africa’s Economic and Social Development,
the 1999 Algiers Declaration on Unconstitutional Changes of Government, the
2000 Lomé Declaration for an OAU Response to Unconstitutional Changes of
Government, the 2002 OAU/AU Declaration on Principles Governing
Democratic Elections in Africa, the 2003 Protocol Relating to the
Establishment of the Peace and Security Council of the African Union);
Committed to implementing Decision EX.CL/Dec.31(III) adopted in Maputo,
Mozambique, in July 2003 and Decision EX.CL/124(V) adopted in Addis Ababa,
Ethiopia, in May 2004 respectively, by the adoption of an African Charter on
Democracy, Elections and Governance;

HAVE AGREED as follows:

CHAPTER 1: Definitions

Article 1
In this Charter, unless otherwise stated, the following expressions shall have
the following meaning:
‘AU’ means the African Union;
‘African Human Rights Commission’ means the African Commission on Human
and Peoples’ Rights;
‘African Peer Review Mechanism’ APRM means the African Peer Review
Mechanism;
‘Assembly’ means the Assembly of Heads of State and Government of the
African Union;
‘Commission’ means the Commission of the Union;
‘Constitutive Act’ means the Constitutive Act of the Union;
‘Charter’ means the African Charter on Democracy, Elections and
Governance;
‘Member states’ means the member states of the African Union;
‘National Electoral Body’ means a competent authority, established by the
relevant legal instruments of a state party, responsible for organising and
supervising elections;
‘NEPAD’ means the New Partnership for Africa’s Development;
166 Instruments of the AU

‘Peace and Security Council’ means the Peace and Security Council of the
African Union;
‘Regional Economic Communities’ means the regional integration blocs of the
African Union;
‘State party’ means any member state of the African Union which has ratified
or acceded to this Charter and deposited the instruments for ratification or
accession with the Chairperson of the African Union Commission;
‘Union’ means the African Union.

CHAPTER 2: Objectives

Article 2
The objectives of this Charter are to:
1. Promote adherence, by each state party, to the universal values and
principles of democracy and respect for human rights;
2. Promote and enhance adherence to the principle of the rule of law
premised upon the respect for, and the supremacy of, the Constitution and
constitutional order in the political arrangements of the state parties;
3. Promote the holding of regular free and fair elections to institutionalise
legitimate authority of representative government as well as democratic
change of governments;
4. Prohibit, reject and condemn unconstitutional change of government in
any member state as a serious threat to stability, peace, security and
development;
5. Promote and protect the independence of the judiciary;
6. Nurture, support and consolidate good governance by promoting
democratic culture and practice, building and strengthening governance
institutions and inculcating political pluralism and tolerance;
7. Encourage effective coordination and harmonisation of governance
policies amongst state parties with the aim of promoting regional and
continental integration;
8. Promote state parties’ sustainable development and human security;
9. Promote the fight against corruption in conformity with the provisions
of the AU Convention on Preventing and Combating Corruption adopted in
Maputo, Mozambique in July 2003;
10. Promote the establishment of the necessary conditions to foster citizen
participation, transparency, access to information, freedom of the press and
accountability in the management of public affairs;
11. Promote gender balance and equality in the governance and
development processes;
12. Enhance co-operation between the Union, Regional Economic
Communities and the International Community on democracy, elections and
governance; and
13. Promote best practices in the management of elections for purposes of
political stability and good governance.

CHAPTER 3: Principles

Article 3
State parties shall implement this Charter in accordance with the following
principles:
1. Respect for human rights and democratic principles;
2. Access to and exercise of state power in accordance with the
constitution of the state party and the principle of the rule of law;
3. Promotion of a system of government that is representative;
4. Holding of regular, transparent, free and fair elections;
 African Charter on Democracy, Elections and Governance 167

5. Separation of powers;
6. Promotion of gender equality in public and private institutions;
7. Effective participation of citizens in democratic and development
processes and in governance of public affairs;
8. Transparency and fairness in the management of public affairs;
9. Condemnation and rejection of acts of corruption, related offenses and
impunity;
10. Condemnation and total rejection of unconstitutional changes of
government;
11. Strengthening political pluralism and recognising the role, rights and
responsibilities of legally constituted political parties, including opposition
political parties, which should be given a status under national law.

CHAPTER 4: Democracy, Rule of Law and Human Rights

Article 4
1. State parties shall commit themselves to promote democracy, the
principle of the rule of law and human rights.
2. State parties shall recognise popular participation through universal
suffrage as the inalienable right of the people.

Article 5
State parties shall take all appropriate measures to ensure constitutional
rule, particularly constitutional transfer of power.

Article 6
State parties shall ensure that citizens enjoy fundamental freedoms and
human rights taking into account their universality, interdependence and
indivisibility.

Article 7
State parties shall take all necessary measures to strengthen the organs of the
Union that are mandated to promote and protect human rights and to fight
impunity and endow them with the necessary resources.

Article 8
1. State parties shall eliminate all forms of discrimination, especially those
based on political opinion, gender, ethnic, religious and racial grounds as well
as any other form of intolerance.
2. State parties shall adopt legislative and administrative measures to
guarantee the rights of women, ethnic minorities, migrants, people with
disabilities, refugees and displaced persons and other marginalised and
vulnerable social groups.
3. State parties shall respect ethnic, cultural and religious diversity, which
contributes to strengthening democracy and citizen participation.

Article 9
State parties undertake to design and implement social and economic policies
and programmes that promote sustainable development and human security.

Article 10
1. State parties shall entrench the principle of the supremacy of the
constitution in the political organisation of the state.
2. State parties shall ensure that the process of amendment or revision of
their constitution reposes on national consensus, obtained if need be, through
referendum.
168 Instruments of the AU

3. State parties shall protect the right to equality before the law and equal
protection by the law as a fundamental precondition for a just and democratic
society.

CHAPTER 5: The Culture of Democracy and Peace

Article 11
The state parties undertake to develop the necessary legislative and policy
frameworks to establish and strengthen a culture of democracy and peace.

Article 12
State parties undertake to implement programmes and carry out activities
designed to promote democratic principles and practices as well as
consolidate a culture of democracy and peace.
To this end, state parties shall:
1. Promote good governance by ensuring transparent and accountable
administration.
2. Strengthen political institutions to entrench a culture of democracy and
peace.
3. Create conducive conditions for civil society organisations to exist and
operate within the law.
4. Integrate civic education in their educational curricula and develop
appropriate programmes and activities.

Article 13
State parties shall take measures to ensure and maintain political and social
dialogue, as well as public trust and transparency between political leaders
and the people, in order to consolidate democracy and peace.

CHAPTER 6: Democratic Institutions

Article 14
1. State parties shall strengthen and institutionalise constitutional civilian
control over the armed and security forces to ensure the consolidation of
democracy and constitutional order.
2. State parties shall take legislative and regulatory measures to ensure
that those who attempt to remove an elected government through
unconstitutional means are dealt with in accordance with the law.
3. State parties shall co-operate with each other to ensure that those who
attempt to remove an elected government through unconstitutional means
are dealt with in accordance with the law.

Article 15
1. State parties shall establish public institutions that promote and support
democracy and constitutional order.
2. State parties shall ensure that the independence or autonomy of the
said institutions is guaranteed by the constitution.
3. State parties shall ensure that these institutions are accountable to
competent national organs.
4. State parties shall provide the above-mentioned institutions with
resources to perform their assigned missions efficiently and effectively.

Article 16
State parties shall co-operate at regional and continental levels in building
and consolidating democracy through exchange of experiences.
 African Charter on Democracy, Elections and Governance 169

CHAPTER 7: Democratic Elections

Article 17
State parties re-affirm their commitment to regularly holding transparent,
free and fair elections in accordance with the Union’s Declaration on the
Principles Governing Democratic Elections in Africa:
To this end, state parties shall:
1. Establish and strengthen independent and impartial national electoral
bodies responsible for the management of elections;
2. Establish and strengthen national mechanisms that redress election-
related disputes in a timely manner;
3. Ensure fair and equitable access by contesting parties and candidates to
state controlled media during elections;
4. Ensure that there is a binding code of conduct governing legally
recognised political stakeholders, government and other political actors
prior, during and after elections. The code shall include a commitment by
political stakeholders to accept the results of the election or challenge them
in through exclusively legal channels.

Article 18
1. State parties may request the Commission, through the Democracy and
Electoral Assistance Unit and the Democracy and Electoral Assistance Fund,
to provide advisory services or assistance for strengthening and developing
their electoral institutions and processes.
2. The Commission may at any time, in consultation with the state party
concerned, send special advisory missions to provide assistance to that state
party for strengthening its electoral institutions and processes.

Article 19
1. Each state party shall inform the Commission of scheduled elections and
invite it to send an electoral observer mission.
2. Each state party shall guarantee conditions of security, free access to
information, non-interference, freedom of movement and full co-operation
with the electoral observer mission.

Article 20

The Chairperson of the Commission shall first send an exploratory mission

during the period prior to elections. This mission shall obtain any useful
information and documentation, and brief the Chairperson, stating whether
the necessary conditions have been established and if the environment is
conducive to the holding of transparent, free and fair elections in conformity
with the principles of the Union governing democratic elections.

Article 21
1. The Commission shall ensure that these missions are independent and
shall provide them with the necessary resources for that purpose.
2. Electoral observer missions shall be conducted by appropriate and
competent experts in the area of election monitoring, drawn from continental
and national institutions such as, but not limited to, the Pan-African
Parliament, national electoral bodies, national legislatures and eminent
persons taking due cognizance of the principles of regional representation and
gender equality.
3. Electoral observer missions shall be conducted in an objective,
impartial and transparent manner.
170 Instruments of the AU

4. All electoral observer missions shall present the report of their activities
to the Chairperson of the Commission within a reasonable time.
5. A copy of the report shall be submitted to the state party concerned
within a reasonable time.

Article 22
State parties shall create a conducive environment for independent and
impartial national monitoring or observation mechanisms.

CHAPTER 8: Sanctions in Cases of Unconstitutional Changes of

Government

Article 23
State parties agree that the use of, inter alia, the following illegal means of
accessing or maintaining power constitute an unconstitutional change of
government and shall draw appropriate sanctions by the Union:
1. Any putsch or coup d’état against a democratically elected government;
2. Any intervention by mercenaries to replace a democratically elected
government;
3. Any replacement of a democratically elected government by armed
dissidents or rebels;
4. Any refusal by an incumbent government to relinquish power to the
winning party or candidate after free, fair and regular elections;
5. Any amendment or revision of the constitution or legal instruments,
which is an infringement on the principles of democratic change of
government.

Article 24
When a situation arises in a state party that may affect its democratic
political institutional arrangements or the legitimate exercise of power, the
Peace and Security Council shall exercise its responsibilities in order to
maintain the constitutional order in accordance with relevant provisions of
the Protocol Relating to the Establishment of the Peace and Security Council
of the African Union, hereinafter referred to as the Protocol.

Article 25
1. When the Peace and Security Council observes that there has been an
unconstitutional change of government in a state party, and that diplomatic
initiatives have failed, it shall suspend the said state party from the exercise
of its right to participate in the activities of the Union in accordance with the
provisions of articles 30 of the Constitutive Act and 7(g) of the Protocol. The
suspension shall take effect immediately.
2. However, the suspended state party shall continue to fulfill its
obligations to the Union, in particular with regard to those relating to respect
of human rights.
3. Notwithstanding the suspension of the state party, the Union shall
maintain diplomatic contacts and take any initiatives to restore democracy in
that state party.
4. The perpetrators of unconstitutional change of government shall not be
allowed to participate in elections held to restore the democratic order or
hold any position of responsibility in political institutions of their state.
5. Perpetrators of unconstitutional change of government may also be
tried before the competent court of the Union.
6. The Assembly shall impose sanctions on any member state that is proved
to have instigated or supported unconstitutional change of government in
another state in conformity with article 23 of the Constitutive Act.
 African Charter on Democracy, Elections and Governance 171

7. The Assembly may decide to apply other forms of sanctions on

perpetrators of unconstitutional change of government including punitive
economic measures.
8. State parties shall not harbour or give sanctuary to perpetrators of
unconstitutional changes of government.
9. State parties shall bring to justice the perpetrators of unconstitutional
changes of government or take necessary steps to effect their extradition.
10. State parties shall encourage conclusion of bilateral extradition
agreements as well as the adoption of legal instruments on extradition and
mutual legal assistance.

Article 26
The Peace and Security Council shall lift sanctions once the situation that led
to the suspension is resolved.

CHAPTER 9: Political, Economic and Social Governance

Article 27
In order to advance political, economic and social governance, state parties
shall commit themselves to:
1. Strengthening the capacity of parliaments and legally recognised
political parties to perform their core functions;
2. Fostering popular participation and partnership with civil society
organisations;
3. Undertaking regular reforms of the legal and justice systems;
4. Improving public sector management;
5. Improving efficiency and effectiveness of public services and combating
corruption;
6. Promoting the development of the private sector through, inter alia,
enabling legislative and regulatory framework;
7. Development and utilisation of information and communication
technologies;
8. Promoting freedom of expression, in particular freedom of the press and
fostering a professional media;
9. Harnessing the democratic values of the traditional institutions; and
10. Preventing the spread and combating the impact of diseases such as
malaria, tuberculosis, HIV/AIDS, ebola fever, and avian flu.

Article 28
State parties shall ensure and promote strong partnerships and dialogue
between government, civil society and private sector.

Article 29
1. State parties shall recognise the crucial role of women in development
and strengthening of democracy.
2. State parties shall create the necessary conditions for full and active
participation of women in the decision-making processes and structures at all
levels as a fundamental element in the promotion and exercise of a
democratic culture.
3. State parties shall take all possible measures to encourage the full and
active participation of women in the electoral process and ensure gender
parity in representation at all levels, including legislatures.

Article 30
State parties shall promote citizen participation in the development process
through appropriate structures.
172 Instruments of the AU

Article 31
1. State parties shall promote participation of social groups with special
needs, including the youth and people with disabilities, in the governance
process.
2. State parties shall ensure systematic and comprehensive civic education
in order to encourage full participation of social groups with special needs in
democracy and development processes.

Article 32
State parties shall strive to institutionalise good political governance through:
1. Accountable, efficient and effective public administration;
2. Strengthening the functioning and effectiveness of parliaments;
3. An independent judiciary;
4. Relevant reforms of public institutions including the security sector;
5. Harmonious relationships in society including civil-military relations;
6. Consolidating sustainable multiparty political systems;
7. Organising regular, free and fair elections; and
8. Entrenching and respecting the principle of the rule of law.

Article 33
State parties shall institutionalise good economic and corporate governance
through, inter alia:
1. Effective and efficient public sector management;
2. Promoting transparency in public finance management;
3. Preventing and combating corruption and related offences;
4. Efficient management of public debt;
5. Prudent and sustainable utilisation of public resources;
6. Equitable allocation of the nation’s wealth and natural resources;
7. Poverty alleviation;
8. Enabling legislative and regulatory framework for private sector
development;
9. Providing a conducive environment for foreign capital inflows;
10. Developing tax policies that encourage investment;
11. Preventing and combating crime;
12. Elaborating and implementing economic development strategies
including private-public sector partnerships;
13. An efficient and effective tax system premised upon transparency and
accountability.

Article 34
State parties shall decentralise power to democratically elected local
authorities as provided in national laws.

Article 35
Given the enduring and vital role of traditional authorities, particularly in
rural communities, the state parties shall strive to find appropriate ways and
means to increase their integration and effectiveness within the larger
democratic system.

Article 36
State parties shall promote and deepen democratic governance by
implementing the principles and core values of the NEPAD Declaration on
Democracy, Political, Economic and Corporate Governance and, where
applicable, the African Peer Review Mechanism (APRM).
 African Charter on Democracy, Elections and Governance 173

Article 37
State parties shall pursue sustainable development and human security
through achievement of NEPAD objectives and the United Nations Millennium
Development Goals (MDGs).

Article 38
1. State parties shall promote peace, security and stability in their
respective countries, regions and in the continent by fostering participatory
political systems with well-functioning and, if need be, inclusive institutions;
2. State parties shall promote solidarity amongst member states and
support the conflict prevention and resolution initiatives that the Union may
undertake in conformity with the Protocol establishing the Peace and Security
Council.

Article 39
State parties shall promote a culture of respect, compromise, consensus and
tolerance as a means to mitigate conflicts, promote political stability and
security, and to harness the creative energies of the African peoples.

Article 40
State parties shall adopt and implement policies, strategies and programmes
required to generate productive employment, mitigate the impact of diseases
and alleviate poverty and eradicate extreme poverty and illiteracy.

Article 41
State parties shall undertake to provide and enable access to basic social
services to the people.

Article 42
State parties shall implement policies and strategies to protect the
environment to achieve sustainable development for the benefit of the
present and future generations. In this regard, state parties are encouraged
to accede to the relevant treaties and other international legal instruments.

Article 43
1. State parties shall endeavour to provide free and compulsory basic
education to all, especially girls, rural inhabitants, minorities, people with
disabilities and other marginalised social groups.
2. In addition, state parties shall ensure the literacy of citizens above
compulsory school age, particularly women, rural inhabitants, minorities,
people with disabilities, and other marginalised social groups.

CHAPTER 10: Mechanisms for Application

Article 44
To give effect to the commitments contained in this Charter:
1. Individual state party level:
State parties commit themselves to implement the objectives, apply the
principles and respect the commitments enshrined in this Charter as follows:
(a) State parties shall initiate appropriate measures including legislative,
executive and administrative actions to bring state parties’ national laws and
regulations into conformity with this Charter;
(b) State parties shall take all necessary measures in accordance with
constitutional provisions and procedures to ensure the wider dissemination of
174 Instruments of the AU

the Charter and all relevant legislation as may be necessary for the
implementation of its fundamental principles;
(c) State parties shall promote political will as a necessary condition for the
attainment of the goals set forth in this Charter;
(d) State parties shall incorporate the commitments and principles of the
Charter in their national policies and strategies.
2. Commission Level:
A. At Continental Level
(a) The Commission shall develop benchmarks for implementation of the
commitments and principles of this Charter and evaluate compliance by state
parties;
(b) The Commission shall promote the creation of favourable conditions for
democratic governance in the African continent, in particular by facilitating
the harmonisation of policies and laws of state parties;
(c) The Commission shall take the necessary measures to ensure that the
Democracy and Electoral Assistance Unit and the Democracy and Electoral
Assistance Fund provide the needed assistance and resources to state parties
in support of electoral processes;
(d) The Commission shall ensure that effect is given to the decisions of the
Union in regard to unconstitutional change of government on the Continent.
B. At Regional Level
The Commission shall establish a framework for co-operation with Regional
Economic Communities on the implementation of the principles of the
Charter. In this regard, it shall commit the Regional Economic Communities
(RECs) to:
(a) Encourage member states to ratify or adhere to this Charter;
(b) Designate focal points for coordination, evaluation and monitoring of
the implementation of the commitments and principles enshrined in this
Charter in order to ensure massive participation of stakeholders, particularly
civil society organisations, in the process.

Article 45
The Commission shall:
(a) Act as the central coordinating structure for the implementation of this
Charter;
(b) Assist state parties in implementing the Charter;
(c) Coordinate evaluation on implementation of the Charter with other key
organs of the Union including the Pan-African Parliament, the Peace and
Security Council, the African Human Rights Commission, the African Court of
Justice and Human Rights, the Economic, Social and Cultural Council, the
Regional Economic Communities and appropriate national-level structures.

CHAPTER 11: Final Clauses

Article 46
In conformity with applicable provisions of the Constitutive Act and the
Protocol Relating to the Establishment of the Peace and Security Council of
the African Union, the Assembly and the Peace and Security Council shall
determine the appropriate measures to be imposed on any state party that
violates this Charter.

Article 47
1. This Charter shall be open for signature, ratification and accession by
member states of the Union in accordance with their respective constitutional
procedures.
 African Charter on Democracy, Elections and Governance 175

2. The instruments of ratification or accession shall be deposited with the

Chairperson of the Commission.

Article 48
This Charter shall enter into force thirty (30) days after the deposit of fifteen
(15) instruments of ratification.

Article 49
1. State parties shall submit every two years, from the date the Charter
comes into force, a report to the Commission on the legislative or other
relevant measures taken with a view to giving effect to the principles and
commitments of the Charter;
2. A copy of the report shall be submitted to the relevant organs of the
Union for appropriate action within their respective mandates;
3. The Commission shall prepare and submit to the Assembly, through the
Executive Council, a synthesised report on the implementation of the
Charter;
4. The Assembly shall take appropriate measures aimed at addressing
issues raised in the report.

Article 50
1. Any state party may submit proposals for the amendment or revision of
this Charter;
2. Proposals for amendment or revision shall be submitted to the
Chairperson of the Commission who shall transmit same to state parties within
thirty (30) days of receipt thereof;
3. The Assembly, upon the advice of the Executive Council, shall examine
these proposals at its session following notification, provided all state parties
have been notified at least three (3) months before the beginning of the
session;
4. The Assembly shall adopt amendments or revisions by consensus or
failing which, by two-thirds majority;
5. The amendments or revisions shall enter into force when approved by
two-thirds majority of state parties.

Article 51
1. The Chairperson of the Commission shall be the depository of this
Charter;
2. The Chairperson of the Commission shall inform all member states of
the signature, ratification, accession, entry into force, reservations, requests
for amendments and approvals thereof;
3. Upon entry into force of this Charter, the Chairperson of the Commission
shall register it with the Secretary General of the United Nations in
accordance with article 102 of the Charter of the United Nations.

Article 52
None of the provisions of the present Charter shall affect more favourable
provisions relating to democracy, elections and governance contained in the
national legislation of state parties or in any other regional, continental or
international conventions or agreements applicable in these state parties.

Article 53
This Charter, drawn up in four (4) original texts, in Arabic, English, French and
Portuguese languages, all four (4) being equally authentic, shall be deposited
with the Chairperson of the Commission who shall transmit certified copies of
same to all member states and the United Nations General Secretariat.
176 Instruments of the AU

African Union Convention for the Protection and

Assistance of Internally Displaced Persons in Africa
(2009/2012)

Adopted by a special summit of the African Union in Kampala, Uganda on 23

October 2009. The Convention is the first international treaty on internally
displaced persons. The Convention entered into force on 6 December 2012.

Preamble

We, the Heads of State and Government of the member states of the African
Union;
Conscious of the gravity of the situation of internally displaced persons as a
source of continuing instability and tension for African states;
Also conscious of the suffering and specific vulnerability of internally
displaced persons;
Reiterating the inherent African custom and tradition of hospitality by local
host communities for persons in distress and support for such communities;
Committed to sharing our common vision of providing durable solutions to
situations of internally displaced persons by establishing an appropriate legal
framework for their protection and assistance;
Determined to adopt measures aimed at preventing and putting an end to the
phenomenon of internal displacement by eradicating the root causes,
especially persistent and recurrent conflicts as well as addressing
displacement caused by natural disasters, which have a devastating impact on
human life, peace, stability, security, and development;
Considering the 2000 Constitutive Act of the African Union and the 1945
Charter of the United Nations;
Reaffirming the principle of the respect of the sovereign equality of states
parties, their territorial integrity and political independence as stipulated in
the Constitutive Act of the African Union and the United Nations Charter;
Recalling the 1948 Universal Declaration of Human Rights, the 1948
Convention on the Prevention and Punishment of the Crime of Genocide, the
1949 Geneva Conventions and the 1977 Additional Protocols to the Geneva
Conventions, the 1951 United Nations Convention Relating to the Status of
Refugees and the 1967 Protocol Relating to the Status of Refugees, the 1969
OAU Convention Governing the Specific Aspects of Refugee Problems in
Africa, the 1979 Convention on the Elimination of All Forms of Discrimination
Against Women, the 1981 African Charter on Human and Peoples’ Rights and
the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa, the 1990 African Charter on the Rights and Welfare
of the Child, the 1994 Addis Ababa Document on Refugees and Forced
Population Displacement in Africa, and other relevant United Nations and
African Union human rights instruments, and relevant Security Council
resolutions;
Mindful that member states of the African Union have adopted democratic
practices and adhere to the principles of non-discrimination, equality and
equal protection of the law under the 1981 African Charter on Human and
Peoples’ Rights, as well as under other regional and international human
rights law instruments;
Recognising the inherent rights of internally displaced persons as provided for
and protected in international human rights and humanitarian law and as set
AU Convention for the Protection and Assistance of Internally Displaced Persons 177

out in the 1998 United Nations Guiding Principles on Internal Displacement,

which are recognised as an important international framework for the
protection of internally displaced persons;
Affirming our primary responsibility and commitment to respect, protect and
fulfil the rights to which internally displaced persons are entitled, without
discrimination of any kind;
Noting the specific roles of international organisations and agencies within
the framework of the United Nations inter-agency collaborative approach to
internally displaced persons, especially the protection expertise of the Office
of the United Nations High Commissioner for Refugees (UNHCR) and the
invitation extended to it by the Executive Council of the African Union in
Decision EX/CL.413 (XIII) of July 2008 at Sharm El Sheikh, Egypt, to continue
and reinforce its role in the protection of and assistance to internally
displaced persons, within the United Nations coordination mechanism; and
noting also the mandate of the International Committee of the Red Cross to
protect and assist persons affected by armed conflict and other situations of
violence, as well as the work of civil society organisations, in conformity with
the laws of the country in which they exercise such roles and mandates;
Recalling the lack of a binding African and international legal and institutional
framework specifically, for the prevention of internal displacement and the
protection of and assistance to internally displaced persons;
Reaffirming the historical commitment of the AU member states to the
protection of and assistance to refugees and displaced persons and, in
particular, the implementation of Executive Council decisions EX.CL/Dec.129
(V) and EX.CL/127 (V) of July 2004 in Addis Ababa, to the effect that that the
specific needs of internally displaced persons (IDPs) such as protection and
assistance should be addressed through a separate legal instrument, and to
collaborate with relevant cooperating partners and other stakeholders to
ensure that internally displaced persons are provided with an appropriate
legal framework to ensure their adequate protection and assistance as well
as with durable solutions, respectively;
Convinced that the present Convention for the Protection and Assistance of
Internally Displaced Persons presents such a legal framework;

HAVE AGREED AS FOLLOWS:

Article 1: Definitions
For the purpose of the present Convention:
(a) ‘African Charter’ means the African Charter on Human and Peoples’
Rights;
(b) ‘African Commission’ means the African Commission on Human and
Peoples’ Rights;
(c) ‘African Court of Justice and Human Rights’ means the African Court of
Justice and Human Rights;
(d) ‘Arbitrary displacement’ means arbitrary displacement as referred to in
article 4(4)(a) to (h);
(e) ‘Armed groups’ means dissident armed forces or other organised armed
groups that are distinct from the armed forces of the state;
(f) ‘AU’ means the African Union;
(g) ‘AU Commission’ means the Secretariat of the African Union, which is
the depository of the regional instruments;
(h) ‘Child’ means every human being below the age of 18 years;
(i) ‘Constitutive Act’ means the Constitutive Act of the African Union;
(j) ‘Harmful practices’ means all behaviour, attitudes and/or practices
which negatively affect the fundamental rights of persons, such as but not
178 Instruments of the AU

limited to their right to life, health, dignity, education, mental and physical
integrity and education;
(k) ‘Internally displaced persons’ means persons or groups of persons who
have been forced or obliged to flee or to leave their homes or places of
habitual residence, in particular as a result of or in order to avoid the effects
of armed conflict, situations of generalised violence, violations of human
rights or natural or human-made disasters, and who have not crossed an
internationally recognised state border;
(l) ‘Internal displacement’ means the involuntary or forced movement,
evacuation or’ relocation of persons or groups of persons within
internationally recognised state borders;
(m) ‘Member state’ means a member state of the African Union;
(n) ‘Non-state actors’ means private actors who are not public officials of
the state, including other armed groups not referred to in article 1(e) above,
and whose acts cannot be officially attributed to the state;
(o) ‘OAU’ means the Organization of African Unity;
(p) ‘Women’ mean persons of the female gender, including girls;
(q) ‘Sphere standards’ mean standards for monitoring and evaluating the
effectiveness and impact of humanitarian assistance; and
(r) ‘States parties’ means African states which have ratified or acceded to
this Convention.

Article 2: Objectives
The objectives of this Convention are to:
(a) Promote and strengthen regional and national measures to prevent or
mitigate, prohibit and eliminate root causes of internal displacement as well
as provide for durable solutions;
(b) Establish a legal framework for preventing internal displacement, and
protecting and assisting internally displaced persons in Africa;
(c) Establish a legal framework for solidarity, cooperation, promotion of
durable solutions and mutual support between the states parties in order to
combat displacement and address its consequences;
(d) Provide for the obligations and responsibilities of states parties, with
respect to the prevention of internal displacement and protection of, and
assistance, to internally displaced persons;
(e) Provide for the respective obligations, responsibilities and roles of
armed groups, non-state actors and other relevant actors, including civil
society organisations, with respect to the prevention of internal displacement
and protection of, and assistance to, internally displaced persons.

Article 3: General obligations relating to states parties

1. States parties undertake to respect and ensure respect for the present
Convention. In particular, states parties shall:
(a) Refrain from, prohibit and prevent arbitrary displacement of
populations;
(b) Prevent political, social, cultural and economic exclusion and
marginalisation, that are likely to cause displacement of populations or
persons by virtue of their social identity, religion or political opinion;
(c) Respect and ensure respect for the principles of humanity and human
dignity of internally displaced persons;
(d) Respect and ensure respect and protection of the human rights of
internally displaced persons, including humane treatment, non-
discrimination, equality and equal protection of law;
(e) Respect and ensure respect for international humanitarian law
regarding the protection of internally displaced persons;
AU Convention for the Protection and Assistance of Internally Displaced Persons 179

(f) Respect and ensure respect for the humanitarian and civilian character
of the protection of and assistance to internally displaced persons, including
ensuring that such persons do not engage in subversive activities;
(g) Ensure individual responsibility for acts of arbitrary displacement, in
accordance with applicable domestic and international criminal law;
(h) Ensure the accountability of non-state actors concerned, including
multinational companies and private military or security companies, for acts
of arbitrary displacement or complicity in such acts;
(i) Ensure the accountability of non-state actors involved in the exploration
and exploitation of economic and natural resources leading to displacement;
(j) Ensure assistance to internally displaced persons by meeting their basic
needs as well as allowing and facilitating rapid and unimpeded access by
humanitarian organisations and personnel;
(k) Promote self-reliance and sustainable livelihoods amongst internally
displaced persons, provided that such measures shall not be used as a basis
for neglecting the protection of and assistance to internally displaced
persons, without prejudice to other means of assistance;
2. States parties shall:
(a) Incorporate their obligations under this Convention into domestic law by
enacting or amending relevant legislation on the protection of, and assistance
to, internally displaced persons in conformity with their obligations under
international law;
(b) Designate an authority or body, where needed, responsible for
coordinating activities aimed at protecting and assisting internally displaced
persons and assign responsibilities to appropriate organs for protection and
assistance, and for cooperating with relevant international organisations or
agencies, and civil society organisations, where no such authority or body
exists;
(c) Adopt other measures as appropriate, including strategies and policies
on internal displacement at national and local levels, taking into account the
needs of host communities;
(d) Provide, to the extent possible, the necessary funds for protection and
assistance without prejudice to receiving international support;
(e) Endeavour to incorporate the relevant principles contained in this
Convention into peace negotiations and agreements for the purpose of finding
sustainable solutions to the problem of internal displacement.

Article 4: Obligations of states parties relating to protection from

internal displacement
1. States parties shall respect and ensure respect for their obligations
under international law, including human rights and humanitarian law, so as
to prevent and avoid conditions that might lead to the arbitrary displacement
of persons;
2. States parties shall devise early warning systems, in the context of the
continental early warning system, in areas of potential displacement,
establish and implement disaster risk reduction strategies, emergency and
disaster preparedness and management measures and, where necessary,
provide immediate protection and assistance to internally displaced persons;
3. States parties may seek the cooperation of international organisations
or humanitarian agencies, civil society organisations and other relevant
actors;
4. All persons have a right to be protected against arbitrary displacement.
The prohibited categories of arbitrary displacement include but are not
limited to:
180 Instruments of the AU

(a) Displacement based on policies of racial discrimination or other similar

practices aimed at/or resulting in altering the ethnic, religious or racial
composition of the population;
(b) Individual or mass displacement of civilians in situations of armed
conflict, unless the security of the civilians involved or imperative military
reasons so demand, in accordance with international humanitarian law;
(c) Displacement intentionally used as a method of warfare or due to other
violations of international humanitarian law in situations of armed conflict;
(d) Displacement caused by generalised violence or violations of human
rights;
(e) Displacement as a result of harmful practices;
(f) Forced evacuations in cases of natural or human made disasters or other
causes if the evacuations are not required by the safety and health of those
affected;
(g) Displacement used as a collective punishment;
(h) Displacement caused by any act, event, factor, or phenomenon of
comparable gravity to all of the above and which is not justified under
international law, including human rights and international humanitarian law.
5. States parties shall endeavour to protect communities with special
attachment to, and dependency, on land due to their particular culture and
spiritual values from being displaced from such lands, except for compelling
and overriding public interests;
6. States parties shall declare as offences punishable by law acts of
arbitrary displacement that amount to genocide, war crimes or crimes against
humanity.

Article 5: Obligations of states parties relating to protection and

assistance
1. States parties shall bear the primary duty and responsibility for
providing protection of and humanitarian assistance to internally displaced
persons within their territory or jurisdiction without discrimination of any
kind.
2. States parties shall cooperate with each other upon the request of the
concerned state party or the conference of state parties in protecting and
assisting internally displaced persons.
3. States parties shall respect the mandates of the African Union and the
United Nations, as well as the roles of international humanitarian
organisations in providing protection and assistance to internally displaced
persons, in accordance with international law.
4. States parties shall take measures to protect and assist persons who
have been internally displaced due to natural or human made disasters,
including climate change.
5. States parties shall assess or facilitate the assessment of the needs and
vulnerabilities of internally displaced persons and of host communities, in
cooperation with international organisations or agencies.
6. States parties shall provide sufficient protection and assistance to
internally displaced persons, and where available resources are inadequate to
enable them to do so, they shall cooperate in seeking the assistance of
international organisations and humanitarian agencies, civil society
organisations and other relevant actors. Such organisations may offer their
services to all those in need.
7. States parties shall take necessary steps to effectively organise relief
action that is humanitarian and impartial in character, and guarantee
security. States parties shall allow rapid and unimpeded passage of all relief
consignments, equipment and personnel to internally displaced persons.
States parties shall also enable and facilitate the role of local and
AU Convention for the Protection and Assistance of Internally Displaced Persons 181

international organisations and humanitarian agencies, civil society

organisations and other relevant actors, to provide protection and assistance
to internally displaced persons. States parties shall have the right to prescribe
the technical arrangements under which such passage is permitted.
8. States parties shall uphold and ensure respect for the humanitarian
principles of humanity, neutrality, impartiality and independence of
humanitarian actors.
9. States parties shall respect the right of internally displaced persons to
peacefully request or seek protection and assistance, in accordance with
relevant national and international laws, a right for which they shall not be
persecuted, prosecuted or punished.
10. States parties shall respect, protect and not attack or otherwise harm
humanitarian personnel and resources or other materials deployed for the
assistance or benefit of internally displaced persons.
11. States parties shall take measures aimed at ensuring that armed groups
act in conformity with their obligations under article 7.
12. Nothing in this article shall prejudice the principles of sovereignty and
territorial integrity of states.

Article 6: Obligations relating to international organisations and

humanitarian agencies
1. International organisations and humanitarian agencies shall discharge
their obligations under this Convention in conformity with international law
and the laws of the country in which they operate.
2. In providing protection and assistance to internally displaced persons,
international organisations and humanitarian agencies shall respect the rights
of such persons in accordance with international law.
3. International organisations and humanitarian agencies shall be bound by
the principles of humanity, neutrality, impartiality and independence of
humanitarian actors, and ensure respect for relevant international standards
and codes of conduct.

Article 7: Protection and assistance to internally displaced persons in

situations of armed conflict
1. The provisions of this article shall not, in any way whatsoever, be
construed as affording legal status or legitimising or recognising armed groups
and are without prejudice to the individual criminal responsibility of the
members of such groups under domestic or international criminal law.
2. Nothing in this Convention shall be invoked for the purpose of affecting
the sovereignty of a state or the responsibility of the government, by all
legitimate means, to maintain or re-establish law and order in the state or to
defend the national unity and territorial integrity of the state.
3. The protection and assistance to internally displaced persons under this
article shall be governed by international law and in particular international
humanitarian law.
4. Members of armed groups shall be held criminally responsible for their
acts which violate the rights of internally displaced persons under
international law and national law.
5. Members of armed groups shall be prohibited from:
(a) Carrying out arbitrary displacement;
(b) Hampering the provision of protection and assistance to internally
displaced persons under any circumstances;
(c) Denying internally displaced persons the right to live in satisfactory
conditions of dignity, security, sanitation, food, water, health and shelter;
and separating members of the same family;
182 Instruments of the AU

(d) Restricting the freedom of movement of internally displaced persons

within and outside their areas of residence;
(e) Recruiting children or requiring or permitting them to take part in
hostilities under any circumstances;
(f) Forcibly recruiting persons, kidnapping, abduction or hostage taking,
engaging in sexual slavery and trafficking in persons especially women and
children;
(g) Impeding humanitarian assistance and passage of all relief
consignments, equipment and personnel to internally displaced persons;
(h) Attacking or otherwise harming humanitarian personnel and resources
or other materials deployed for the assistance or benefit of internally
displaced persons and shall not destroy, confiscate or divert such materials;
and
(i) Violating the civilian and humanitarian character of the places where
internally displaced persons are sheltered and shall not infiltrate such places.

Article 8: Obligations relating to the African Union

1. The African Union shall have the right to intervene in a member state
pursuant to a decision of the Assembly in accordance with article 4(h) of the
Constitutive Act in respect of grave circumstances, namely: war crimes,
genocide, and crimes against humanity;
2. The African Union shall respect the right of states parties to request
intervention from the Union in order to restore peace and security in
accordance with article 4(j) of the Constitutive Act and thus contribute to the
creation of favourable conditions for finding durable solutions to the problem
of internal displacement;
3. The African Union shall support the efforts of the states parties to
protect and assist internally displaced persons under this Convention. In
particular, the Union shall:
(a) Strengthen the institutional framework and capacity of the African
Union with respect to protection and assistance to internally displaced
persons;
(b) Coordinate the mobilisation of resources for protection and assistance
to internally displaced persons;
(c) Collaborate with international organisations and humanitarian agencies,
civil society organisations and other relevant actors in accordance with their
mandates, to support measures taken by states parties to protect and assist
internally displaced persons;
(d) Cooperate directly with African states and international organisations
and humanitarian agencies, civil society organisations and other relevant
actors, with respect to appropriate measures to be taken in relation to the
protection of and assistance to internally displaced persons;
(e) Share information with the African Commission on Human and Peoples’
Rights on the situation of displacement, and the protection and assistance
accorded to internally displaced persons in Africa; and
(f) Cooperate with the Special Rapporteur of the African Commission on
Human and Peoples’ Rights for Refugees, Returnees, IDPs and Asylum Seekers
in addressing issues of internally displaced persons.

Article 9: Obligations of states parties relating to protection and

assistance during internal displacement
1. States parties shall protect the rights of internally displaced persons
regardless of the cause of displacement by refraining from, and preventing,
the following acts, amongst others:
(a) Discrimination against such persons in the enjoyment of any rights or
freedoms on the grounds that they are internally displaced persons;
AU Convention for the Protection and Assistance of Internally Displaced Persons 183

(b) Genocide, crimes against humanity, war crimes and other violations of
international humanitarian law against internally displaced persons;
(c) Arbitrary killing, summary execution, arbitrary detention, abduction,
enforced disappearance or torture and other forms of cruel, inhuman or
degrading treatment or punishment;
(d) Sexual and gender based violence in all its forms, notably rape,
enforced prostitution, sexual exploitation and harmful practices, slavery,
recruitment of children and their use in hostilities, forced labour and human
trafficking and smuggling; and
(e) Starvation.
2. States parties shall:
(a) Take necessary measures to ensure that internally displaced persons are
received, without discrimination of any kind and live in satisfactory
conditions of safety, dignity and security;
(b) Provide internally displaced persons to the fullest extent practicable
and with the least possible delay, with adequate humanitarian assistance,
which shall include food, water, shelter, medical care and other health
services, sanitation, education, and any other necessary social services, and
where appropriate, extend such assistance to local and host communities;
(c) Provide special protection for and assistance to internally displaced
persons with special needs, including separated and unaccompanied children,
female heads of households, expectant mothers, mothers with young
children, the elderly, and persons with disabilities or with communicable
diseases;
(d) Take special measures to protect and provide for the reproductive and
sexual health of internally displaced women as well as appropriate psycho-
social support for victims of sexual and other related abuses;
(e) Respect and ensure the right to seek safety in another part of the state
and to be protected against forcible return to or resettlement in any place
where their life, safety, liberty and/or health would be at risk;
(f) Guarantee the freedom of movement and choice of residence of
internally displaced persons, except where restrictions on such movement
and residence are necessary, justified and proportionate to the requirements
of ensuring security for internally displaced persons or maintaining public
security, public order and public health;
(g) Respect and maintain the civilian and humanitarian character of the
places where internally displaced persons are sheltered and safeguard such
locations against infiltration by armed groups or elements and disarm and
separate such groups or elements from internally displaced persons;
(h) Take necessary measures, including the establishment of specialised
mechanisms, to trace and reunify families separated during displacement and
otherwise facilitate the re-establishment of family ties;
(i) Take necessary measures to protect individual, collective and cultural
property left behind by displaced persons as well as in areas where internally
displaced persons are located, either within the jurisdiction of the state
parties, or in areas under their effective control;
(j) Take necessary measures to safeguard against environmental
degradation in areas where internally displaced persons are located, either
within the jurisdiction of the state parties, or in areas under their effective
control;
(k) States parties shall consult internally displaced persons and allow them
to participate in decisions relating to their protection and assistance;
(l) Take necessary measures to ensure that internally displaced persons
who are citizens in their country of nationality can enjoy their civic and
political rights, particularly public participation, the right to vote and to be
elected to public office; and
184 Instruments of the AU

(m) Put in place measures for monitoring and evaluating the effectiveness
and impact of the humanitarian assistance delivered to internally displaced
persons in accordance with relevant practice, including the Sphere Standards.
3. States parties shall discharge these obligations, where appropriate,
with assistance from international organisations and humanitarian agencies,
civil society organisations, and other relevant actors.

Article 10: Displacement induced by projects

1. States parties, as much as possible, shall prevent displacement caused
by projects carried out by public or private actors;
2. States parties shall ensure that the stakeholders concerned will explore
feasible alternatives, with full information and consultation of persons likely
to be displaced by projects;
3. States parties shall carry out a socio-economic and environmental
impact assessment of a proposed development project prior to undertaking
such a project.

Article 11: Obligations of states parties relating to sustainable return,

local integration or relocation
1. States parties shall seek lasting solutions to the problem of
displacement by promoting and creating satisfactory conditions for voluntary
return, local integration or relocation on a sustainable basis and in
circumstances of safety and dignity.
2. States parties shall enable internally displaced persons to make a free
and informed choice on whether to return, integrate locally or relocate by
consulting them on these and other options and ensuring their participation
in finding sustainable solutions.
3. States parties shall cooperate, where appropriate, with the African
Union and international organisations or humanitarian agencies and civil
society organisations, in providing protection and assistance in the course of
finding and implementing solutions for sustainable return, local integration or
relocation and long-term reconstruction.
4. States parties shall establish appropriate mechanisms providing for
simplified procedures where necessary, for resolving disputes relating to the
property of internally displaced persons.
5. States parties shall take all appropriate measures, whenever possible,
to restore the lands of communities with special dependency and attachment
to such lands upon the communities’ return, reintegration, and reinsertion.

Article 12: Compensation

1. States parties shall provide persons affected by displacement with
effective remedies.
2. States parties shall establish an effective legal framework to provide
just and fair compensation and other forms of reparations, where
appropriate, to internally displaced persons for damage incurred as a result
of displacement, in accordance with international standards.
3. A state party shall be liable to make reparation to internally displaced
persons for damage when such a state party refrains from protecting and
assisting internally displaced persons in the event of natural disasters.

Article 13: Registration and personal documentation

1. States parties shall create and maintain an up-dated register of all
internally displaced persons within their jurisdiction or effective control. In
doing so, states parties may collaborate with international organisations or
humanitarian agencies or civil society organisations.
AU Convention for the Protection and Assistance of Internally Displaced Persons 185

2. States parties shall ensure that internally displaced persons shall be

issued with relevant documents necessary for the enjoyment and exercise of
their rights, such as passports, personal identification documents, civil
certificates, birth certificates and marriage certificates.
3. States parties shall facilitate the issuance of new documents or the
replacement of documents lost or destroyed in the course of displacement,
without imposing unreasonable conditions, such as requiring return to one’s
area of habitual residence in order to obtain these or other required
documents. The failure to issue internally displaced persons with such
documents shall not in any way impair the exercise or enjoyment of their
human rights.
4. Women and men as well as separated and unaccompanied children shall
have equal rights to obtain such necessary identity documents and shall have
the right to have such documentation issued in their own names.

Article 14: Monitoring compliance

1. States parties agree to establish a Conference of states parties to this
Convention to monitor and review the implementation of the objectives of
this Convention.
2. States parties shall enhance their capacity for cooperation and mutual
support under the auspices of the Conference of the states parties.
3. States parties agree that the Conference of the states parties shall be
convened regularly and facilitated by the African Union.
4. States parties shall, when presenting their reports under article 62 of
the African Charter on Human and Peoples’ Rights as well as, where
applicable, under the African Peer Review Mechanism indicate the legislative
and other measures that have been taken to give effect to this Convention.

FINAL PROVISIONS

Article 15: Application

1. States parties agree that except where expressly stated in this
Convention, its provisions apply to all situations of internal displacement
regardless of its causes.
2. States parties agree that nothing in this Convention shall be construed
as affording legal status or legitimising or recognising armed groups and that
its provisions are without prejudice to the individual criminal responsibility of
their members under domestic or international criminal law.

Article 16: Signature, ratification and membership

1. This Convention shall be open to signature, ratification or accession by
member states of the AU in accordance with their respective constitutional
procedures.
2. The instruments of ratification or accession shall be deposited with the
Chairperson of the African Union Commission.

Article 17: Entry into force

1. This Convention shall enter into force thirty (30) days after the deposit
of the instruments of ratification or accession by fifteen (15) member states.
2. The Chairperson of the AU Commission shall notify member states of the
coming into force of this Convention.

Article 18: Amendment and revision

1. States parties may submit proposals for the amendment or revision of
this Convention.
186 Instruments of the AU

2. Proposals for amendment or revision shall be submitted, in writing, to

the Chairperson of the Commission of the AU who shall transmit the same to
the states parties within thirty (30) days of receipt thereof.
3. The Conference of states parties, upon advice of the Executive Council,
shall examine these proposals within a period of one (1) year following
notification of states parties, in accordance with the provisions of paragraph
2 of this article.
4. Amendments or revision shall be adopted by the Conference of states
parties by a simple majority of the states parties present and voting.
5. Amendments shall come into force thirty (30) days following the
depositing of the fifteenth (15) instrument of ratification by the states parties
with the Chairperson of the AU Commission.

Article 19: Denunciation

1. A state party may denounce this Convention by sending a written
notification addressed to the Chairperson of the AU Commission, while
indicating the reasons for such a denunciation.
2. The denunciation shall take effect one (1) year from the date when the
notification was received by the Chairperson of the AU Commission, unless a
subsequent date has been specified.

Article 20: Saving clause

1. No provision in this Convention shall be interpreted as affecting or
undermining the right of internally displaced persons to seek and be granted
asylum within the framework of the African Charter on Human and Peoples’
Rights, and to seek protection, as a refugee, within the purview of the 1969
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
or the 1951 UN Convention Relating to the Status of Refugees as well as the
1967 Protocol Relating to the Status of Refugees.
2. This Convention shall be without prejudice to the human rights of
internally displaced persons under the African Charter on Human and Peoples’
Rights and other applicable instruments of international human rights law or
international humanitarian law. Similarly, it shall in no way be understood,
construed or interpreted as restricting, modifying or impeding existing
protection under any of the instruments mentioned herein.
3. The right of internally displaced persons to lodge a complaint with the
African Commission on Human and Peoples’ Rights or the African Court of
Justice and Human Rights, or any other competent international body shall in
no way be affected by this Convention.
4. The provisions of this Convention shall be without prejudice to the
individual criminal responsibility of internally displaced persons, within the
framework of national or international criminal law and their duties by virtue
of the African Charter on Human and Peoples’ Rights.

Article 21: Reservations

States parties shall not make or enter reservations to this Convention that are
incompatible with the object and purpose of this Convention.

Article 22: Settlement of disputes

1. Any dispute or differences arising between the states parties with
regard to the interpretation or application of this Convention shall be settled
amicably through direct consultations between the states parties concerned.
In the event of failure to settle the dispute or differences, either state may
refer the dispute to the African Court of Justice and Human Rights.
2. Until such time as and when the latter shall have been established, the
dispute or differences shall be submitted to the Conference of the states
 Grand Bay Declaration 187

parties, which will decide by consensus or, failing which, by a two-third (2/3)
majority of the states parties present and voting.

Article 23: Depository

1. This Convention shall be deposited with the Chairperson of the AU
Commission, who shall transmit a certified true copy of the Convention to the
government of each signatory state.
2. The Chairperson of the AU Commission shall register this Convention
with the United-Nations Secretary-General as soon as it comes into force.
3. This Convention is drawn up in four (4) original texts; in the Arabic,
English, French and Portuguese languages, all four (4) being equally
authentic.

_____________________________________

Grand Bay (Mauritius) Declaration and Plan of

Action (1999)

This influential document was adopted by the First OAU Ministerial Conference on
Human Rights, held in April 1999 in Grand Bay, Mauritius.

The First OAU Ministerial Conference on Human Rights, meeting from 12 to 16

April 1999 in Grand Bay, Mauritius;
Considering that the promotion and protection of human rights is a matter of
priority for Africa, and that the Conference provides a unique opportunity to
carry out a comprehensive analysis and reflection on the mechanisms for the
protection of human rights to guarantee human rights for accelerated
development of the continent;
Recalling the Declaration on the Political and Socio-Economic Situation in
Africa and the Fundamental Changes Taking Place in the World adopted by the
Assembly of Heads of State and Government of the OAU in 1990, as well as
the Declaration establishing within the OAU, a Mechanism for Conflict
Prevention, Management and Resolution adopted by the Assembly of Heads of
State and Government of the OAU in Cairo, Egypt in June 1993;
Acknowledging that observance of human rights is a key tool for promoting
collective security, durable peace and sustainable development as
enunciated in the Cairo Agenda for Action on re-launching Africa’s socio-
economic transformation adopted by the extra-ordinary session of the Council
of Ministers held in Cairo, Egypt, from 25 to 28 March 1995;
Taking note of the growing recognition that violations of human rights may
constitute a burden for the international community;
Reaffirming its commitment to the purposes and principles contained in the
OAU Charter, UN Charter, the Universal Declaration of Human Rights as well
as the African Charter on Human and Peoples’ Rights;
Deeply concerned by acts of genocide and other crimes against humanity
perpetuated in certain parts of Africa;
Emphasising that respect for human rights is indispensable for the
maintenance of regional and international peace and security and elimination
of conflicts, and that it constitutes one of the fundamental bedrocks on which
development efforts should be realised;
188 Instruments of the AU

Considering the democratisation processes taking place on the Continent and

the expressed desires of African peoples to live in a state of law which secures
the full enjoyment of human rights and fundamental freedoms for all peoples,
regardless of their gender, race, place of origin, religion, social status, ethic
background, political opinions or language;
Further considering the importance of the right to develop, the right to
international peace and security and the principles of solidarity and friendly
relations between states provided for in the African Charter on Human and
Peoples’ Rights;
Recalling the determination of the collective leadership in Africa to establish
conditions which will ensure social justice and progress and thus enable
African peoples to enjoy better standards of living in greater freedom and in
the spirit of tolerance towards all;
Reiterating the need to constructively examine human rights issues in a spirit
of justice, impartiality and non-selectivity, avoiding their use for political
purposes;
Recognising the progress achieved by African states in the domain of human
rights and the significant contribution of the African continent to the
universalisation of these rights;
Further recognising the contribution made by African NGOs to the promotion
and protection of human rights in Africa;
Recalling the recommendations made by the Second Conference of National
Human Rights Institutions held in Durban in 1998;
Determined to consolidate the gains made in Africa in the promotion and
protection of human and peoples’ rights;

Solemnly adopts:

1. The Ministerial Conference affirms the principle that human rights are
universal, indivisible, interdependent and inter-related and urges
governments, in their policies, to give priority to economic, social and
cultural rights as well as civil and political rights.
2. The Conference also affirms that the right to development, the right to
a generally satisfactory healthy environment and the right to national and
international peace and security are universal and inalienable rights which
form an integral part of fundamental human rights;
3. The Conference further affirms the interdependence of the principles of
good governance, the rule of law, democracy and development.
4. The Conference recognises that the development of the rule of law,
democracy and human rights calls for an independent, open, accessible and
impartial judiciary, which can deliver justice promptly and at an affordable
cost. To this end, such a system requires a body of professional and
competent judges enjoying conducive conditions.
5. The Conference recognises that the core values on which human rights
are founded, particularly (a) respect for the sanctity of life and human
dignity, (b) tolerance of differences, and (c) desire for liberty, order,
fairness, prosperity and stability, are shared across all cultures. In this
connection, integrating positive traditional and cultural values of Africa into
the human rights debate will be useful in ensuring their transmission to future
generations.
6. The Conference notes that women and children’s rights issues remain of
concern to all. Therefore it welcomes the decision to elaborate a Protocol to
the African Charter for the more effective protection of women’s rights and
calls on the OAU to convene a meeting of government experts to examine the
instrument. It urges all African states to work assiduously towards the
elimination of discrimination against women and the abolition of cultural
 Grand Bay Declaration 189

practices which dehumanise or demean women and children. The Conference

also recommends that states take the necessary measures to stop the practice
of child-soldiers and to reinforce the protection of civilian populations,
particularly children in conflict situations. The Conference further
recommends that states adopt measures to eradicate violence against women
and children, child labour, sexual exploitation of children, trafficking in
children and to protect children in conflict with the law as well as refugee
children.
7. The Conference notes that the rights of people with disability and
people living with HIV/AIDS, in particular women and children, are not always
observed and urges all African states to work towards ensuring the full respect
of these rights.
8. The Conference is aware that violations of human rights in Africa are
caused among others by:
(a) Contemporary forms of slavery;
(b) Neo-colonialism, racism and religious intolerance;
(c) Poverty, disease, ignorance and illiteracy;
(d) Conflicts leading to refugee outflows and internal population
displacement;
(e) Social dislocations which may arise from the implementation of certain
aspects of structural adjustment programmes;
(f) The debt problem;
(g) Mismanagement, bad governance and corruption;
(h) Lack of accountability in the management of public affairs;
(i) Monopoly in the exercise of power;
(j) Harmful traditional practices;
(k) Lack of independent human rights institutions;
(l) Lack of independence of the judiciary;
(m) Lack of freedom of the press and associations;
(n) Environment degradation;
(o) Non-compliance with the provisions of the OAU Charter on territorial
integrity [and inviolability of colonial borders and the right to self-
determination];
(p) Unconstitutional changes of government;
(q) Terrorism;
(r) Nepotism; and
(s) Exploitation of ethnicity.
There is, therefore, the need to adopt a multi-faceted approach to the task
of eliminating the cause of human rights violations in Africa.
9. While welcoming the improvements which have taken place in
addressing the refugee problem, the Conference believes that the high
number of refugees, displaced persons and returnees in Africa constitutes an
impediment to development. It recognises the link between human rights
violations and population displacement and calls for redoubled and concerted
efforts by states and the OAU to address the problem.
10. The conference recognises that the development and energisation of
the civil society, the strengthening of the family unit as the basis of human
society, the removal of harmful traditional practices and consultation with
community leaders should all be seen as building blocs in the process of
creating an environment conducive to human rights in Africa and as tools for
fostering solidarity among her peoples.
11. Deeply concerned about the acts of genocide, crimes against humanity
and other war crimes being perpetuated in certain part of Africa, the
Conference appeals to African states to ensure that such acts are definitively
eradicated on the continent and recommends that these serious acts of
violation be adequately dealt with.
190 Instruments of the AU

12. Also concerned by the scourge of terrorism as a source of serious human

rights violation, especially the most basic of such rights, namely the right to
life, the Conference urges African countries to formulate and implement an
African convention for co-operation in combating this scourge.
13. The Conference reaffirms the commitment of Africa to the promotion,
protection and observance of human rights obligations. In this framework, the
Conference requests those states which have not yet done so to give
consideration to the ratification of all major OAU human rights conventions,
in particular:
(a) The African Charter on Human and Peoples’ Rights;
(b) The African Charter on the Rights and Welfare of the Child;
(c) The Convention Governing Specific Aspects of Refugee Problems in
Africa;
(d) The Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Rights;
(e) International Covenant on Economic, Social and Cultural Rights;
(f) International Covenant on Civil and Political Rights;
(g) United Nations Convention on the Rights of the Child;
(h) United Nations Convention relating to the status of Refugees and its
Protocol;
(i) Convention on the Elimination of All Forms of Discrimination Against
Women;
(j) The Four Geneva Conventions of 1949 as well as the two Additional
Protocols;
(k) UN Convention Against Torture;
(l) UN Convention on the Elimination of All Forms of Racial Discrimination;
and
(m) The Statute of the International Criminal Court.
14. The Conference recognises the necessity for states to give effect to the
African Charter on Human and Peoples’ Rights, international humanitarian
law and other major international human rights instruments which they have
ratified, in their national legislations for wider effect throughout Africa.
15. The Conference reiterates the fact that the primary responsibility for
the promotion and protection of human rights lies with the state. It therefore
urges states to establish national human rights institutions and to provide
them with adequate financial resources and ensure their independence.
16. The Conference recognises that the reporting of states parties under the
African Charter on Human and Peoples’ Rights provides an important
mechanism and an opportunity for African governments to engage in a process
of continuous dialogue with the African Commission on Human and Peoples’
Rights. Accordingly, the Conference recommends that states parties take
appropriate measures to meet their reporting obligations under the Charter.
17. The Conference recognises the importance of promoting an African civil
society, particulary NGOs, rooted in the realities of the African continent and
calls on African governments to offer their constructive assistance with the
aim of consolidating democracy and durable development.
18. The Conference calls upon all international organisations — govern-
mental, inter-governmental and non-governmental — to co-operate and
harmonise their initiatives with the OAU and its relevant organs as well as the
various sub-regional bodies within Africa for a more co-ordinated approach to
the implementation of human rights in Africa and for maximum effect of such
programmes and initiatives.
19. The Conference notes that the adoption of the UN Declaration on the
Protection of Human Rights Defenders by the 54th session of the UN
Commission on Human Rights marks a significant turning point, and calls on
 Grand Bay Declaration 191

African governments to take appropriate steps to implement the Declaration

in Africa.
20. The Conference appeals to the Secretary-General of the OAU and the
African Commission on Human and Peoples’ Rights to develop appropriate
strategies and take measures to sensitise and raise the awareness of African
peoples about human rights and international humanitarian law through
formal and non-formal educational processes comprising, among others, a
special module in school curricula.
21. The Conference recognises that the media are important actors for
building bridges between governments and peoples; it, therefore, urges
states to guarantee a free and independent press within their national borders
to enable it to play a role in the promotion of human rights in Africa. To this
end, the Conference appeals to the Secretary-General of the OAU to look into
the possibility of providing assistance to media organisations on the
continent.
22. To ensure that human rights considerations are integrated into all OAU
activities, the Conference recognises the need for human rights to be
reflected in the programmes of the Organization.
23. The Conference, noting that the working of the African Commission on
Human and Peoples’ Rights is critical to the due observance of human rights
in Africa, believes that there is a need to evaluate the structure and
functioning of the Commission and to ascertain the extent to which it is
implementing the Mauritius Plan of Action during the period 1996 - 2001, and
to assist it to remove all obstacles to the effective discharge of its functions.
There is also an urgent need to provide the Commission with adequate human,
material and financial resources.
24. The Conference notes that, under the African Charter on Human and
Peoples’ Rights, it is the Assembly of Heads of State and Government that is
authorised to take decisive action on the activity reports of the African
Commission on Human and Peoples’ Rights and expresses the hope that the
Assembly would consider delegating this task to the Council of Ministers.
25. The Conference underscores the fact that co-operation between the
African Commission and national human rights institutions will greatly
enhance respect for human rights in Africa. In that regard, the Conference
welcomes the decision by the African Commission on Human and Peoples’
Rights to grant affiliated status to national human rights institutions.
26. Concerned by the fact that the external debt burden is crippling the
development efforts of Africa and undermining the fostering and sustenance
of respect for human rights, the Conference appeals to the international
community, especially multilateral financial agencies, to alleviate the
external debt and take all steps necessary to reduce this burden on states to
enable them to fully realise the economic emancipation of their peoples and
enhance the maximum enjoyment of human rights by African peoples.
27. The Conference requests the Secretary-General of the OAU to submit
this Declaration to the Assembly of Heads of State and Government, all
member states, the African Commission on Human and Peoples’ Rights, the
UN High Commissioner for Human Rights and other relevant UN organs and
agencies and to examine the feasibility of making this Conference a regular
feature of OAU activities.
28. The Conference recommends to states to formulate and adopt national
action plans for the promotion and protection of human rights.
29. Finally, the Conference requests the Secretary-General of the OAU to
submit a report to the next session of the Council of Ministers on the outcome
of this Conference.
192 Instruments of the AU

Kigali Declaration (2003)

Adopted by the AU Ministerial Conference on Human Rights in Africa, May 2003 in

Kigali, Rwanda.

Reaffirming its commitment to the objectives and principles contained in the

Constitutive Act of the African Union, Lomé, Togo 2000, the African Charter
on Human and Peoples’ Rights, Nairobi, Kenya, 1981, the Solemn Declaration
of the Conference on Security, Stability, Development and co-operation in
Africa (CSSDCA), Lome, Togo, 2000, the New Partnership for Africa’s
Development (NEPAD) of the AU, Lusaka, Zambia, 2001, the Declaration on
the Code of Conduct on Relations between states adopted in Tunis, Tunisia,
in June 1994, all relevant AU Declarations and Decisions as well as the UN
Charter 1948 and the Universal Declaration of Human Rights and the Vienna
Declarations of 1989 and 1993.
Recalling the Grand Bay Declaration and Plan of Action adopted by the OAU
Ministerial Conference on Human Rights in Africa held in Grand Bay, Mauritius,
from 12 to 16 April 1999, and reaffirming its commitment to the purposes and
principles therein;
Reaffirming that respect for human rights is indispensable for the
maintenance of national, regional and international peace and security and
that it constitutes the fundamental bedrock for sustainable development;
Reaffirming further the principles enshrined in the Constitutive Act of the
African Union, in particular, the prohibition of genocide, war crimes and
crimes against humanity; and determined to fight the ideology of genocide
and all its manifestations;
Recalling the report of the International Panel of Eminent Persons (IPEP)
entitled ‘The Preventable Genocide’ endorsed by the 36th ordinary session of
the Assembly of Heads of State and Government of the OAU held in Lomé,
Togo, in July 2000 and the decision of the Assembly requesting the Secretary-
General to actively pursue the implementation of the recommendations
contained in the Report;
Deeply concerned by the continuing discrimination against women and girls,
as well as harmful traditional practices in some parts of Africa that endanger
the life or health of women and children;
Deeply concerned that in spite of the progress made in resolving conflicts on
the Continent, the continuing armed and civil conflicts in some parts of Africa
lead to gross violations of human rights and international humanitarian law,
and create massive movements of refugee populations and internally
displaced persons.

The Conference:

1. Reaffirms the principle that all human rights are universal, indivisible,
inter-dependent and inter-related.
2. Notes with satisfaction the achievements made by member states in the
promotion and protection of human and peoples’ rights, especially since the
adoption of the Grand Bay Declaration and Plan of Action, and recognises the
need for member states to build upon these achievements for the benefit and
welfare of all African peoples.
3. Reaffirms the right to development, and calls upon the international
community to support member states in their continuing efforts to realise this
right.
 Kigali Declaration 193

4. Urges member states and regional institutions to accord the same

importance to economic, social and cultural rights and civil and political
rights, and apply, at all levels, a rights-based approach to policy, programme
planning, implementation and evaluations.
5. Calls upon member states to guarantee genuine independence,
accessibility, affordability and due process of the justice systems on the
continent, as a prerequisite to the entrenchment of the rule of law and
democracy.
6. Reiterates the rejection of impunity and reaffirms the commitment to
prosecute those responsible for genocide, war crimes and crimes against
humanity, and appeals to all member states to fully co-operate with and
provide political and financial support to the International Criminal Tribunal
for Rwanda, particularly, as regards the arrest of suspects or accused, the
protection of witnesses or victims, the enforcement of sentences and the
compensation of victims and their beneficiaries.
7. Welcomes the Decision of the 2nd ordinary session of the Executive
Council of the AU held in N’Djamena, Chad, in March 2003 that 7 April 2004,
the 10th Anniversary of the Rwandan Genocide, be commemorated by the AU
as a day of remembrance of the victims of genocide in Rwanda, and
reaffirmation of Africa’s resolve to prevent and fight genocide on the
continent.
8. Reiterates the recommendation of the Executive Council to the United
Nations, the international community at large and civil society to com-
memorate 7 April as a day of reflection on the Rwandan Genocide and of a
renewed commitment to the prevention of genocide in the world.
9. Expresses its concern about the scourge of terrorism as a source of
serious violations of human rights, particularly the right to life and to
security, and urges the member states to implement the Convention on the
Prevention and Combating of Terrorism adopted by the 35th ordinary session
of the Assembly of Heads of State and Government of the OAU held in Algiers
in July 1999.
10. Notes the important contribution made by the Durban World Conference
Against Racism, Xenophobia and Related Intolerance and calls on all member
states to strengthen their efforts to combat the scourge of racism,
xenophobia and related intolerance and discrimination.
11. Takes note with satisfaction of the on-going efforts to address the plight
of refugees, asylum seekers and internally displaced persons, and calls upon
member states to recognise forced displacement as a grave violation of
fundamental rights to peace, security and dignity, and to take all necessary
measures to address the problem.
12. Further calls upon all member states to implement all the relevant
international and African instruments relating to the protection of refugees,
internally displaced persons and returnees, and in particular to discharge
their obligations under the AU Convention Governing the Specific Aspects of
Refugee Problems in Africa.
13. Calls upon the member states that have not yet ratified the AU
Convention Governing the Specific Aspects of Refugee Problems in Africa and
any of the relevant international treaties to do so as soon as possible.
14. Requests the relevant organs of the AU, in the exercise of their peace
building and conflict resolution functions, to ensure the inclusion of human
rights, humanitarian principles and other legal protection measures in peace
agreements, in order to facilitate the voluntary repatriation and reintegration
of refugees, returnees and former combatants in their countries of origin.
15. Welcomes the signing of a Memorandum of Understanding between the
African Commission on Human and Peoples’ Rights and the United Nations
High Commissioner for Refugees (UNHCR), and calls upon the international
194 Instruments of the AU

community and other stakeholders to support the efforts of the African

continent to address the problems of refugees, returnees and internally
displaced persons in a spirit of international solidarity and burden sharing.
16. Notes with great concern that the rights of women and children in spite
of the progress achieved, remain insufficiently protected in many African
countries; welcomes the progress made towards the adoption of the Draft
Protocol on the Rights of Women in Africa, and calls upon member states to
take all necessary measures for its early adoption, signature and ratification,
and upon coming into force, its timely implementation by state parties to it.
17. Calls upon member states to fulfil their obligations under international
law and, in particular, to take the necessary measures to put an end to the
practice of child-soldiers and to ensure the protection of civilian populations,
particularly children, women, elderly persons and persons with disability in
situations of armed conflict.
18. Calls upon member states that have not yet ratified the African Charter
on the Rights and Welfare of the Child to do so as soon as possible, and further
calls upon the AU policy organs to provide an adequate Secretariat and the
necessary financial and material resources to the African Committee of
Experts on the Rights and Welfare of the Child to enable it to carry out its
mandate effectively.
19. Notes also with great concern the plight of the vulnerable groups
including persons with disability in general and calls upon member states to
provide adequate support to the African Rehabilitation Institute (ARI) in
Harare, Zimbabwe.
20. Further calls upon member states to develop a Protocol on the
protection of the rights of people with disabilities and the elderly.
21. Notes also with great concern the alarming rate at which HIV/AIDS is
spreading as well as the persistent prevalence of Malaria, Tuberculosis and
other related infectious diseases in Africa, and urges member states to take
measures to reinforce prevention programmes relating thereto and to
promote and protect the rights of people living with HIV/AIDS.
22. Encourages member states to exert more efforts jointly with the
international community, particularly the World Health Organization (WHO)
to eradicate HIV/AIDS, Malaria, Tuberculosis and other related infectious
diseases which constitute an impediment to the socio-economic development
of the continent and an obstacle to the enjoyment of economic, social and
cultural rights.
23. Notes with satisfaction that the African Charter on Human and Peoples’
Rights has been ratified by all member states, and calls upon the AU policy
organs to provide the African Commission with suitable headquarters, an
appropriate structure and adequate human and financial resources for its
proper functioning, including the establishment of a fund to be financed
through voluntary contributions from member states, international and
regional institutions.
24. Calls upon the AU policy organs to review the operation and composition
of the African Commission on Peoples’ Rights with a view to strengthening its
independence and operational integrity and ensuring appropriate gender
representativity and to report on the progress made to the appropriate AU
organs as soon as possible.
25. Urges member states which have not yet done so to incorporate in their
domestic legislation, provisions of the African Charter on Human and Peoples’
Rights, its protocols, international humanitarian law in particular the four (4)
Geneva Conventions (1949) and their Additional Protocols (1977) and other
major international human rights instruments, which they have ratified, and
to honour their obligations thereon, including reporting, where applicable.
 Kigali Declaration 195

26. Notes with concern that the Protocol to the African Charter on the
Establishment of an African Court on Human and Peoples’ Rights which
requires fifteen (15) ratifications to come into force, has been ratified by nine
(9) member states only, and, therefore, appeals to those member states that
have not yet done so, to sign and/or ratify the Protocol to enable it to come
into force by July 2003 as required by Dec. AHG/Dec.171 (XXXVIII).
27. Reiterates that the primary responsibility for the promotion and
protection of human rights rests with member states and, therefore, urges
those member states which have not yet done so, to establish independent
national human rights institutions, provide them with adequate financial and
other resources for their proper functioning, and guarantee their
independence.
28. Recognises the important role of civil society organisations (CSOs) in
general and human rights defenders in particular, in the promotion and
protection of human rights in Africa, calls upon member states and regional
institutions to protect them and encourage the participation of CSOs in
decision-making processes with the aim of consolidating participatory
democracy and sustainable development, and underscores the need for CSOs
to be independent and transparent.
29. Recognises the media as an important vehicle for the realisation of the
right to information, and therefore, urges member states to guarantee,
through appropriate legislative and policy measures, a free and independent
press.
30. Mindful of the fact that the legal norms contained in the international
and regional human rights conventions and the establishment of human rights
protection and promotion mechanisms cannot by themselves guarantee
entrenchment of the principles of human rights and their observance by all,
and appeals to member states to make the teaching of human rights a
permanent feature in their school curricula, especially for law enforcement
agents. To this end, it calls upon member states to step up their efforts with
a view to a better and wider dissemination of the human rights culture, and
urges them to popularise the international and regional conventions.
31. Calls for African solidarity with the peoples whose fundamental rights
are grossly violated.
32. Welcomes the creation by the AU Assembly in Durban, South Africa in
July 2002, of a Portfolio within the AU Commission responsible for the issues
of democracy, human rights, governance and civil society that would
contribute to spearheading efforts aimed at promoting human rights on the
continent.
33. Recognises that implementation, monitoring and evaluation are critical
to the effective realisation of the Grand Bay and this Declaration, requests
the Chairperson of the AU Commission to co-ordinate the follow up of the
implementation of these declarations and urges members states to submit
reports on implementation to the AU Commission.
34. Expresses its satisfaction at the holding of this Conference, requests the
Chairperson of the AU Commission to submit a report to the next ordinary
session of the Executive Council on the outcome of this Conference, and
recommends that the Ministerial Conference on Human Rights be held at
intervals of not more than four years.
196 Instruments of the AU

Solemn Declaration on Gender Equality in Africa

(2004)

Adopted by the AU Assembly of Heads of State and Government in Addis Ababa,

Ethiopia in July 2004.

We, the Heads of State and Government of member states of the African
Union, meeting in the third ordinary session of our Assembly in Addis Ababa,
Ethiopia, from 6 - 8 July 2004:
Reaffirming our commitment to the principle of gender equality as enshrined
in article 4(l) of the Constitutive Act of the African Union, as well as other
existing commitments, principles, goals and actions set out in the various
regional, continental and international instruments on human and women’s
rights, including the Dakar Platform for Action (1994), the Beijing Platform for
Action (1995), the Convention on the Elimination of All Forms of Discrimi-
nation Against Women (CEDAW) (1979), the African Plan of Action to Accele-
rate the Implementation of the Dakar and Beijing Platforms for Action for the
Advancement of Women (1999); the Outcome Document of the Twenty-third
Special Session of the United Nations General Assembly Special Session on the
Implementation of the Beijing Platform for Action (2000); UN Resolution 1325
on Women, Peace and Security (2000); and the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa (2003);
Standing by our Decision on gender parity taken at the inaugural session of
the AU Assembly of Heads of State and Government in July 2002 in Durban,
South Africa, implemented during the second ordinary session of the Assembly
in Maputo, Mozambique, 2003, through the election of five female and five
male commissioners;
Noting with satisfaction that our decision on gender parity is a historic
achievement that does not yet exist in any other continent or regional
organisations;
Re-affirming our commitment to continue, expand and accelerate efforts to
promote gender equality at all levels;
Determined to build on the progress that we have achieved in addressing
issues of major concern to the women of Africa;
Taking cognisance of the landmark decision to adopt the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa during the second ordinary session of the Assembly in Maputo,
Mozambique, 2003;
Noting the decision of the Chairperson of the African Union Commission to
transform the African Women’s Committee on Peace and Development
(AWCPD) into the African Union Women’s Committee (AUWC), which will be
located in the Gender Directorate and serve as an advisory body to the
Chairperson on Gender and Development;
Recognising that major challenges and obstacles to gender equality still
remain and require concerted and collective leadership and efforts from all
of us including networks working on gender and development;
Deeply concerned about the status of women and the negative impacts on
women of issues such the high incidence of HIV/AIDS among girls and women,
conflict, poverty, harmful traditional practices, high population of refugee
women and internally displaced women, violence against women, women’s
exclusion from politics and decision-making, illiteracy and limited access of
girls to education;
 Solemn Declaration on Gender Equality in Africa 197

Aware of the policies and programmes we have put in place to curb the spread
of the HIV/AIDS pandemic as well as the current challenges in this campaign;
Concerned that, while women and children bear the brunt of conflicts and
internal displacement, including rapes and killings, they are largely excluded
from conflict prevention, peace-negotiation, and peace-building processes in
spite of African women’s experience in peace-building;
Aware of the fact that low levels of women’s representation in social,
economic and political decision-making structures and feminisation of
poverty impact negatively on women’s ability to derive full benefit from the
economies of their countries and the democratisation process;
Aware of the digital divide between the North and the South and men and
women and the role of information telecommunication technologies (ICTS) in
the advancement of the gender issue as stated in the e-gender Forum
Declaration of Tunis, May 2004 in preparation for the World Summit on
Information Society (WSIS) 2005;

HEREBY AGREE to:

1. Accelerate the implementation of gender specific economic, social, and

legal measures aimed at combating the HIV/AIDS pandemic and effectively
implement both Abuja and Maputo Declarations on Malaria, HIV/AIDS,
Tuberculosis and Other Related Infectious Disease. More specifically we will
ensure that treatment and social services are available to women at the local
level making it more responsive to the needs of families that are providing
care; enact legislation to end discrimination against women living with HIV/
AIDS and for the protection and care for people living with HIV/AIDS,
particularly women; increase budgetary allocations in these sectors so as to
alleviate women’s burden of care;
2. Ensure the full and effective participation and representation of women
in peace process including the prevention, resolution, management of
conflicts and post-conflict reconstruction in Africa as stipulated in UN
Resolution 1325 (2000) and to also appoint women as Special Envoys and
Special Representatives of the African Union;
3. Launch, within the next year, a campaign for systematic prohibition of
the recruitment of child soldiers and abuse of girl children as wives and sex
slaves in violation of their rights as enshrined in the African Charter on Rights
of the Child;
4. Initiate, launch and engage within two years sustained public campaigns
against gender based violence as well as the problem of trafficking in women
and girls; Reinforce legal mechanisms that will protect women at the national
level and end impunity of crimes committed against women in a manner that
will change and positively alter the attitude and behaviour of the African
society;
5. Expand and promote the gender parity principle that we have adopted
regarding the Commission of the African Union to all the other organs of the
African Union, including its NEPAD programme, to the Regional Economic
Communities, and to the national and local levels in collaboration with
political parties and the national parliaments in our countries;
6. Ensure the active promotion and protection of all human rights for
women and girls including the right to development by raising awareness or
by legislation where necessary;
7. Actively promote the implementation of legislation to guarantee
women’s land, property and inheritance rights including their rights to
housing;
198 Instruments of the AU

8. Take specific measures to ensure the education of girls and literacy of

women, especially in the rural areas, to achieve the goal of ‘Education for All’
(EFA);
9. Undertake to sign and ratify the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa by the end of
2004 and to support the launching of public campaigns aimed at ensuring its
entry into force by 2005 and usher in an era of domesticating and implemen-
ting the Protocol as well as other national, regional and international
instruments on gender equality by all states parties;
10. Establish AIDS Watch Africa as a unit within the Office of the
Chairperson of the Commission who should render annual reports on the HIV/
AIDS situation in the continent during annual Summits; and promote the local
production of anti-retroviral drugs in our countries;
11. Accept to establish an African Trust Fund for Women for the purpose of
building the capacity of African women and further request the African Union
Commission to work out the modalities for the operationalisation of the Fund
with special focus on women in both urban and rural areas;
12. Commit ourselves to report annually on progress made in terms of
gender mainstreaming and to support and champion all issues raised in this
Declaration, both at the national and regional levels, and regularly provide
each other with updates on progress made during our ordinary sessions;
13. We request the chairperson of the African Union Commission to submit,
for our consideration, an annual report, during our ordinary sessions, on
measures taken to implement the principle of gender equality and gender
mainstreaming, and all issues raised in this Declaration both at the national
and regional levels.

_____________________________________

Guidelines for African Union Electoral Observation

and Monitoring Missions (2004)

These Guidelines were contained in the Report of the Meeting of Experts on

Elections, Democracy and Governance in Africa in Addis Ababa in May 2004 and
approved by the Executive Council of the AU in July 2004. Full text available at
www.au.int

Excerpts
...
2.2 Electoral observation and monitoring have become an integral part of
the democratic and electoral processes in Africa. International, regional and
national observers have come to play important roles in enhancing the
transparency and credibility of elections and democratic governance in Africa
and the acceptance of election results throughout the continent. Electoral
observation and monitoring missions can also play key roles in diminishing
conflicts before, during and after elections.
2.3 The African continent has made significant progress in institutionalising
electoral democracy over the course of the past decade. This is reflected in
a number of successful multiparty elections in most member states.
Notwithstanding these achievements, however, major challenges remain.
These include the prevalence of conflict in some countries of the continent,
 Electoral Observation 199

and violence and instability resulting from disputed elections. The major
challenge is the need to improve the integrity of electoral processes. One way
of improving the integrity of electoral processes is by involving local and
international observers and monitors.
2.4 The following guidelines are proposed in the spirit of strengthening the
democratisation and governance processes underway in Africa with a view to
guiding the involvement of the AU in the observation and monitoring of
elections in member states.
2.5 The following guidelines are proposed to cover all the three stages of
the electoral process, namely: The pre-election, the election and the post-
election phases.
...
4. Criteria for determining the nature and scope of AU electoral
observation and monitoring
4.1 In performing their obligations, the election observers or monitors shall
be guided by detailed guidelines prepared by the Commission drawing
inspiration from the essential thrust of the OAU Declaration of Principles
Governing Democratic Elections (‘the Principles’). The specific mandates and
terms of reference shall be determined by the particular case in question as
well as the wider legal framework of the country staging elections.
4.2 In preparing for its election observation and monitoring roles, the
Commission must maintain an up-to-date calendar of all future elections on
the continent.
4.3 Formal invitation to the AU, in terms of paragraphs V (1) and V (3) of the
OAU Declaration on the Principles Governing Democratic Elections in Africa
(2002), is to be made by the country organising the elections, either through
the National Electoral Commission (NEC), or electoral authority, or the said
government, in accordance with the democratic legal framework of the
country, as necessary elements for mounting observations.
4.4 The AU, after receiving the invitation to observe an election, must
ensure:
• Adequate lead-time for preparations;
• Availability of essential planning information;
• Availability of professional expertise; and
• Financial and other resources.
4.5 The AU should expeditiously dispatch an Election Assessment Team to
the country planning for an election.
4.6 The existence of a ‘level playing field’, which determines the conditions
for electoral competition, is an important aspect that needs evaluation when
determining the likely character of the electoral process. In advance of the
election date, the Head of the AU Election Mission should advise the AU
Commission whether the necessary conditions and environment for a free and
fair election as agreed in the AU principles governing democratic elections,
have been satisfied. Whatever the advice received by the Commission should
be confirmed in a public statement by the Chairperson of the Commission.
The assessment team will establish whether or not conditions for organising
credible, legitimate, free and fair elections in accordance with the Durban
Declaration are in place in the country. The African Union should explore the
possibility of observing elections outside the Continent. Issues to consider in
the assessment will include the following:
4.6.1 Does the constitution and legal framework guarantee fundamental
freedoms and human rights?
4.6.2 Is the electoral system premised on the right to freedom of
association, and enables people to advance this right through the formation
of political parties for the purposes of electoral competition?
200 Instruments of the AU

4.6.3 Is the Electoral Commission independent and impartial, and exercise

its powers and perform its functions without fear, favour or prejudice?
4.6.4 Are the rights of observers guaranteed?
4.6.5 Is it likely that the security forces will maintain a neutral role in the
provision of election security?
4.6.6 Is the situation in the country generally peaceful or is there political
violence? If so will the government’s security measures provide an
environment for a free election campaign or are there substantial restrictions
on the freedom of expression, association and assembly?
4.6.7 Are there clearly articulated rules for political party funding to be
respected by all parties and candidates?
4.6.8 Is the voter education that should be provided non-partisan,
independent and co-ordinated throughout the country?
4.6.9 Will there be equitable use or access to public resources for election
campaigning?
4.6.10 Is the registration of voters undertaken without prejudice or
discrimination on the basis of gender, race, religion, region or ethnicity?
4.6.11 Does an Independent Media Authority responsible for monitoring and
regulating the media to allow equitable access to the public media of all
contesting parties and candidates function?
4.7 The decision about dispatching an observer and monitoring mission in a
member country holding elections must be informed by a preliminary
assessment of the country’s social, economic, political and constitutional
arrangements.
4.8 African states differ in terms of their organisational capacity, financial
and human resources, infrastructural development — notably road,
telecommunication and technological infrastructure — which have an impact
on the way elections are organised across the continent. However, these
factors should not compromise the conduct of free, fair and transparent
elections.
4.9 The Electoral Assessment Team should advise the AU Electoral
Assistance Unit on whether or not to undertake an AU mission. In both cases
there are a number of options, which the AU could consider.
4.10 If the decision is to send an observation or monitoring mission, the
Assessment Team must advise the AU on the nature of the mission —
observation, technical assistance, monitoring or supervision — that should be
undertaken. A combination of some of these options could also be envisaged.
However the recommended mix of mandate should ensure there is no conflict
of interest.
4.11 If the decision is not to send an observation or monitoring mission
because of the prevailing unsatisfactory conditions in the country, two
intermediate responses could be envisaged. First, if the host country is
prepared to accept assistance from the AU to remedy the situation, a
technical team or supervisory team could be considered to work with the
Election Commission. Second, if the unsatisfactory conditions deteriorate,
and the host country is not prepared to accept outside assistance, the AU
could consider not sending a mission at all, and this could include referring
the matter further within the organs of the Union.
4.12 The AU assessment team will not only assess the conditions prevailing in
a particular country at a particular time, but also the direction in which
events are developing: different responses may be appropriate to different
situations.
4.13 There should be prior understanding between the AU and the country
organising elections that the AU reserves the right not to send or to withdraw
observers in certain circumstances when conditions in the country do not
meet the AU guiding principles for organising free and fair elections.
 Banjul Declaration 201

4.14 Regional Economic Communities (RECs) should be involved actively in

elections observation and monitoring. In this way, the RECs should thus
compliment continental electoral assistance efforts of the African Union and
ensure mutual sharing of experience and resources.
...

_____________________________________

Banjul Declaration on the 25th Anniversary of the

African Charter on Human and Peoples’ Rights
(2006)

We the Heads of State and Government of the African Union meeting in the
7th ordinary session of the Assembly, held in Banjul, The Gambia from 1 – 2
July 2006;
Noting the fact that this year marks the twenty-fifth anniversary of the
adoption of the African Charter on Human and Peoples’ Rights (the African
Charter) by the eighteenth Assembly of Heads of State and Government, in
June 1981 in Nairobi, Kenya, and the twentieth year since it entered into
force in 1986.
Recalling the firm conviction of the member states of the Organization of
African Unity in their duty to protect human rights and freedoms and taking
into account the importance traditionally attached to these rights and
freedoms in Africa, against the backdrop of their efforts to achieve the total
liberation of Africa, the peoples of which were still struggling for their dignity
and genuine independence, undertaking to eliminate colonialism, neo-
colonialism, apartheid, Zionism and to dismantle aggressive foreign military
bases and all forms of discrimination on basis namely of race, ethnic group,
color, sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or other status.
Considering the contribution of the adoption of the African Charter to the
promotion and protection of human and people’s rights in Africa.
Bearing in mind that today the wisdom of having taken this decision continues
to demonstrate itself in view of the fact that the African Charter has provided
a legal framework for the promotion and protection of human and peoples’
rights on our continent and development of the jurisprudence of the African
Commission on Human and People’s Rights (ACHPR) attests to this
achievement.
Also recalling the decisions of the African Union whereby we expressed the
need for the ACHPR to be provided with adequate human, material and
financial resources to enable it effectively fulfil its mandate under the
Charter.
Further recalling the decisions at our Assembly to review the operation and
composition of the ACHPR with a view to strengthening its independence and
operational integrity and ensuring appropriate gender representation.
Noting that the African Charter has contributed to the development of human
rights norms on the continent, including the adoption of supplementary
instruments such as the African Charter on the Rights and Welfare of the Child
and the Protocols on the establishment of the African Court on Human and
Peoples’ Rights and on the Rights of Women.
202 Instruments of the AU

Recognising that all member states have ratified the African Charter which
makes us all parties to the African Charter.
Expressing our appreciation to the ACHPR, which also commemorates its
twentieth anniversary this year, for the laudable role it has played, in
collaboration with its partners, particularly civil society organisations and
national human rights institutions; in ensuring the promotion and protection
of human and peoples’ rights in Africa, in accordance with the African
Charter.
Cognisant of the fact that poverty and human rights violations are among the
root causes of conflicts on our continent, and wishing to seize the opportunity
of the occasion of this anniversary of the African Charter to re-dedicate
ourselves to the promotion and protection of human and peoples’ rights on
the Continent:
1. Express great satisfaction at the positive contributions made by the
African Charter towards the promotion and protection of human rights in
Africa.
2. Reiterate our unflinching determination to promote and protect human
and people’s rights and all basic freedoms in Africa as well as our full support
to the work of the ACHPR and all human rights treaty bodies established on
the continent.
3. Commit ourselves to undertake the necessary measures to respect and
guarantee the independence of the ACHPR, as well as to provide it with the
necessary human and financial resources, in order to enable it effectively
discharge its functions.
4. Urge member states to take the necessary steps to fulfil their
obligations under the African Charter and other human rights instruments to
which they are parties, in particular, the implementation of decisions and
recommendations of human rights treaty-bodies.
5. Welcome and express our full support to the newly established African
Court on Human and Peoples’ Rights whose role is to complement ACHPR in
its human rights protective mandate and commit ourselves to provide the
necessary human and financial resources to allow the new Court to discharge
its functions effectively and efficiently as well as to fully cooperate with and
render all the necessary assistance to the Court.
6. Take note of the recent developments of the ongoing process of the
merger of the Court of Justice of the African Union and the African Court on
Human and Peoples’ Rights in order to rationalise our institutions, ensure cost
effectiveness and avoid unnecessary duplications.
7. Rededicate ourselves to ensuring respect for human and peoples’ rights
as a pre-requisite for the attainment of our common vision of a united and
prosperous Africa, and reaffirm our confidence in the ACHPR.
 Declaration by the Assembly 203

Declaration by the Assembly on the theme of

year 2016

We, the Heads of State and Government of the African Union (AU), meeting
at the 27th Ordinary Session of the Assembly of the Union in Kigali, Rwanda,
from 17 to 18 July 2016, and after having debated the theme of the year,
namely, ‘The African Year of Human Rights with Particular Focus on the Rights
of Women’;
…
Now, hereby:
1. AFFIRM that Human Rights and the rights of women in particular are a
Collective Responsibility of all in Africa;
2. COMMIT ourselves to enhancing efforts aimed at entrenching and
reinforcing deeper understanding of the culture of human and peoples’ rights,
in particular the rights of women, and their promotion and popularization
amongst the African peoples by declaring the next ten years as “the Human
and Peoples’ Rights Decade in Africa” and it’s [sic] Action Plan;
3. RE-COMMIT ourselves to expedite the ratification, domestication and
implementation of all human and peoples’ rights instruments, in particular
the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in African (Maputo Protocol), and call upon the African Union
Commission (AUC) to put in place measures and modalities to support Member
States to establish the required capacities and processes for monitoring and
review of the domestication efforts;
4. REITERATE our unflinching determination to promote and protect
human and people’s rights and all basic freedoms in Africa and the need for
the consolidation and the full implementation of human and peoples’ rights
instruments and relevant national laws and policies as well as decisions and
recommendations made by the AU Organs with a human rights mandate;
5. UPHOLD firmly the principles of universality, objectivity and non-
selectivity in the consideration of human rights and elimination of double
standards and politicisation;
6. ALSO UPHOLD our common position that the promotion and protection
of human rights should be based on the principle of cooperation and genuine
dialogue aimed at strengthening the capacity of Member States to comply
with their human rights obligations;
7. CALL UPON the Commission to ensure the independence and integrity of
AU organs with human rights mandate by providing adequate financing and
shielding them from undue external influence;
8. ALSO REITERATE our commitment to eliminate violence and all forms of
every discrimination against women and to ensure the protection of the rights
of women as stipulated in the Maputo Protocol and the international
declarations and conventions as well as empowering women by granting their
full rights;
9. FURTHER REITERATE our commitment to promote the right to
development (including the right to water and sanitation, health, shelter and
education) as an inalienable human and peoples’ right by virtue of which
every human person and all peoples are entitled to participate in, contribute
to, and enjoy economic, social, cultural and political development, in which
all human rights and fundamental freedoms can be fully realized;
10. EXPRESS great satisfaction at the positive contributions made by the
AUC and AU Organs with a human rights mandate and REQUEST them to ensure
greater synergy between the African Governance Architecture and the African
Peace and Security Architecture in order to ensure that the developments in
204 Instruments of the AU

the terrain of human rights feature prominently on the agenda of the Peace
and Security Council;
11. ENCOURAGE the Commission and AU Organs with a human rights
mandate to strengthen the African system for the promotion and protection
of human and peoples’ rights through wider communication and information
sharing, coupled with direct support of Member States, by ensuring the
strengthening of human rights institutions and putting in place all the
necessary measures so that success is documented and challenges noted to
ensure that there is on-going review of progress in the implementation of
adopted human rights instruments;
12. CALL UPON the RECs to work closely with the Commission and other AU
Organs with a human rights mandate in harmonizing their instruments and
further urge them to collectively promote and protect human and peoples’
rights on the Continent;
13. ALSO CALL ON the Commission and AU Organs with a human rights
mandate to identify modalities for the participation of African Research
Institutes, Universities, Civil Society and the Media in promoting the culture
of human rights in Africa including the protection and promotion of the rights
of women;
14. FURTHER CALL ON the Commission and AU Organs with a human rights
mandate to identify the obstacles that have hindered implementation of
human and peoples’ rights instruments and our previous commitments
relating to human rights with special focus on the rights of women and to
propose modalities for addressing them;
15. NOTE WITH APPRECIATION the support provided by our bilateral and
multilateral partners and call on them to continue working closely with us to
build and enhance the capacity of the AU and its Member States to promote
and protect human and peoples’ rights;
16. REQUEST the Commission and AU organs with a human rights mandate
to take necessary steps to establish the Pan-African Human Rights Institute
(PAHRI) and to encourage Member States to commit to host it;
17. ALSO REQUEST the Commission to report regularly on the
implementation of this Declaration.
 AFRICAN
COMMISSION ON
HUMAN AND
PEOPLES’ RIGHTS
206 African Commission on Human and Peoples’ Rights

Rules of Procedure of the African Commission

(2020)

The African Commission on Human and Peoples’ Rights was established under the
African Charter on Human and Peoples’ Rights in 1987. The Commission consists of
11 part-time commissioners and is based in Banjul, The Gambia. The Commission
meets twice a year for up to two weeks at a time in regular sessions, either in The
Gambia or in other African countries. The Rules of Procedure reprinted here were
adopted in 2020 and include provisions on the relationship with the African Court.
The Commission’s earlier Rules of Procedure, dated 2010, were reprinted in earlier
editions of this Compendium.

PART ONE: GENERAL RULES

Chapter I: Preliminary provisions

Rule 1: Objective
1. These rules regulate the organisation and establish the procedure of the
African Commission on Human and Peoples’ Rights in accordance with article
42(2) of the African Charter on Human and Peoples’ Rights.
2. In the absence of a provision in these rules or in case of doubt as to their
interpretation, the Commission shall decide.

Rule 2: Definitions
For the purpose of these rules:
‘African Charter’ or ‘Charter’ refers to the African Charter on Human and
Peoples’ Rights.
‘African Commission’ or ‘Commission’ refers to the African Commission on
Human and Peoples’ Rights.
‘African Court Protocol’ refers to the Protocol to the African Charter on
Human and Peoples’ Rights on the Establishment of an African Court on
Human and Peoples’ Rights.
‘African Court’ refers to the African Court on Human and Peoples’ Rights.
‘Amendment to a proposed motion’ is an addition to, deletion from or revision
of part of that motion.
‘Amicus curiae’ refers to a third party having no interest in the outcome of a
Communication, and potentially able to assist the Commission in determining
a factual or legal issue arising in a Communication.
‘Assembly’ refers to the Assembly of Heads of State and Government of the
African Union.
‘Bureau’ refers to the Chairperson and Vice-Chairperson.
‘Chairperson’ refers to the Chairperson of the African Commission on Human
and Peoples’ Rights.
‘Commissioner’ refers to a member of the African Commission on Human and
Peoples’ Rights.
‘Day’ shall be understood to be a 24-hour day as denoted on the
calendar.
‘Executive Council’ refers to the Executive Council of the African Union.
‘Peace and Security Council’ refers to the Peace and Security Council of the
African Union as established by the Protocol Relating to the Establishment of
the Peace and Security Council of the African Union.
‘Secretary’ refers to the Secretary to the African Commission on Human and
Peoples’ Rights.
 Rules of Procedure 207

‘Serious or massive violations’ refers to grave human rights violations as

distinguished by their scale and importance.
‘Session’ refers to a statutory meeting of the Commission. This includes
ordinary or extraordinary sessions.
‘Specialized Agencies’ refers to specialized agencies put in place by the
African Union, the United Nations or any other organisation recognized by the
African Union.
‘State party’ refers to an African state that has ratified the African Charter
on Human and Peoples’ Rights.
‘Subsidiary mechanism’ refers to any mechanism established in accordance
with Rule 25 of these rules.
‘Third party’ refers to any party other than the complainant or respondent.
‘Third party with a direct interest’ refers to any party other than the
complainant or respondent who may benefit directly or suffer loss from the
outcome of a communication.
‘Vice-Chairperson’ refers to the Vice-Chairperson of the African Commission.
‘Working languages’ refers to the working languages of the African Union.

Chapter II: Status and composition

Rule 3: Mandate and status
1. In accordance with articles 30 and 45 of the African Charter, the African
Commission is an autonomous treaty organ with the mandate of promoting
human and peoples’ rights and ensuring the protection of human and peoples’
rights in Africa.
2. In accordance with AU Assembly/AU/Dec.200 (XI), the African
Commission is an organ of the African Union.
3. In pursuing its mission, the Commission shall be competent to interpret
the African Charter, including in response to a request for an advisory opinion
pursuant to article 45(3) of the Charter.
4. The Commission shall be competent to interpret its own decisions.
5. The Commission shall lay down its Rules of Procedure pursuant to article
42(2) of the Charter.
6. The Commission shall have the competence to ensure the efficient and
technical organisation and operation of the Secretariat.
7. The Commission shall perform any other tasks which the Assembly may
entrust to it pursuant to article 45(4) of the Charter.

Rule 4: Composition
1. In conformity with article 31 of the African Charter, the Commission
shall consist of eleven (11) members chosen from amongst African
personalities of the highest reputation, known for their high morality,
integrity, impartiality and competence in matters of human and peoples’
rights, particular consideration being given to persons having legal
experience.
2. The members of the Commission shall serve in their personal capacity.

Chapter III: Membership

Rule 5: Term of office
1. Members of the Commission are elected for six years and shall be
eligible for re-election in accordance with article 36 of the African Charter.
2. If a member of the Commission is re-elected at the expiry of his or her
term of office, or elected to replace a member whose term of office has
expired or will expire, the term of office shall begin from that expiry date.
3. In conformity with article 39(3) of the African Charter, the member of
the Commission elected to replace a member whose term has not expired,
208 African Commission on Human and Peoples’ Rights

shall complete the term of his or her predecessor. However, if the remaining
term of office is less than six months, there shall be no replacement.

Rule 6: Order of precedence

1. In the discharge of their duties, members of the Commission shall
follow the Chairperson and the Vice-Chairperson according to their seniority
in office. When there are two or more members of the Commission with equal
seniority, precedence shall be given to the oldest.
2. A member of the Commission who is re-elected to a new term of office
which is continuous with his or her previous term shall retain his or her
precedence.

Rule 7: Functions of members of the Commission

In the implementation of the Commission's mandate as provided for in article
45 of the Charter, the functions of members of the Commission shall include
to:
(a) Attend and participate in sessions and meetings of the Commission;
(b) Carry out activities for the promotion and protection of human and
peoples' rights, including promotion missions, fact-finding missions,
information missions and advocacy visits in states parties;
(c) Participate in the consideration and adoption of Communications and to
act as rapporteurs for this purpose as may be decided by the Commission;
(d) Propose to the Commission studies, research and resolutions on human
rights issues on the continent or in a state party;
(e) Propose General Comments for the clarification, understanding or
facilitation of the implementation of a provision of the Charter or its
Protocols; and
(f) Carry out any other tasks assigned to them by the Commission.

Rule 8: Incompatibility
1. The position of member of the Commission is incompatible with any
activity that might interfere with the independence or impartiality of such a
member or with the demands of his or her office such as being a member of
government, a Minister or under-secretary of State, a diplomatic
representative, a director of a ministry or one of his or her subordinates, or
the legal adviser to a foreign office, holding any other political function or
participating in any activity of such nature as to compromise his or her
independence and impartiality.
2. The Commission shall decide by simple majority whether a situation of
incompatibility exists pursuant to paragraph 1 and in accordance with articles
31(1), (2) and 39(2) of the African Charter.
3. The Commission, prior to taking a decision, shall hear the member
whose activities are claimed to be incompatible.
4. In the case of incompatibility, the Chairperson of the Commission shall
inform the Chairperson of the African Union Commission.

Rule 9: Cessation of function

1. If in the unanimous opinion of the other members of the Commission, a
member has stopped discharging his or her duties for any reason other than
temporary absence, the Chairperson of the Commission shall inform the
Chairperson of the African Union Commission, who shall declare the seat
vacant.
2. A member of the Commission may resign from his or her position at any
time. He or she shall do so through a written notification addressed to the
Chairperson of the Commission who shall transmit it to the Chairperson of the
African Union Commission.
 Rules of Procedure 209

3. The resignation shall take effect ninety (90) days from the date of
submission of the letter of resignation.
4. The Chairperson of the African Union Commission shall upon receipt of
the notification, declare the seat vacant. The vacancy shall be effective from
the date the resignation takes effect.
5. In the case of death of a member of the Commission, the Chairperson
shall immediately inform the Chairperson of the African Union Commission
who shall declare the seat vacant from the date of the death.
6. Every seat declared vacant in conformity with the present rule shall be
filled in accordance with article 39(3) of the African Charter.

Rule 10: Solemn declaration

In conformity with article 38 of the African Charter, before assuming office,
every member of the Commission shall make the following solemn declaration
at a public sitting of the Commission: ‘I solemnly undertake to carry out my
duties well and faithfully in all impartiality.’

Rule 11: Code of conduct

1. Without prejudice to the independence of the Commission, members of
the Commission shall observe the principles and codes of conduct stipulated
in these rules as governing the terms and conditions of their service including
the principles relating to recusal and confidentiality, as well as relevant
provisions of the African Union Staff Rules and Regulations, the African Union
Code of Ethics and Conduct and the African Union Harassment Policy.
2. In case of a conflict, the specific rules as applicable under these rules
shall take precedence.

Rule 12: Diplomatic immunities

Members of the Commission shall in the discharge of their duties, enjoy
diplomatic privileges and immunities in accordance with article 43 of the
African Charter.

Chapter IV: Bureau of the Commission

Rule 13: Composition of the Bureau

The Bureau of the Commission shall be composed of a Chairperson and a Vice-
Chairperson who shall perform the functions set forth in the African Charter
and in these Rules of Procedure.

Rule 14: Election of the Bureau

1. The Commission shall elect from among its members a Chairperson and
a Vice-Chairperson.
2. Election shall be held by secret ballot. Only members present shall vote.
A member who obtains a simple majority of the votes of the members of the
Commission present and voting shall be elected.

Rule 15: Duration of the term of the members of the Bureau

The Bureau of the Commission shall be elected for a period of two years.
Members shall be eligible for re-election only once.

Rule 16: Powers and functions of the Bureau

1. The Bureau shall coordinate the promotion and protection activities of
the members of the Commission.
2. The Bureau shall supervise the work of the Secretary.
210 African Commission on Human and Peoples’ Rights

3. The Bureau shall annually evaluate the performance of the Secretary in

consultation with the other members of the Commission.

Rule 17: Functions of the Chairperson

1. The Chairperson shall carry out the functions assigned to him or her by
the Charter, the Rules of Procedure and the decisions of the Commission and
the Assembly. In the exercise of his or her functions the Chairperson shall be
under the authority of the Commission.
2. The Chairperson shall:
(a) Represent and direct the work of the Commission;
(b) Preside over the meetings of the Commission;
(c) Submit the evaluation report referred to in rule 16(2) to the Chairperson
of the African Union Commission;
(d) Supervise the preparation of the budget by the Secretary and its
adoption by the Commission;
(e) Present and defend the budget before the relevant African Union
bodies;
(f) Present a report to the Assembly and to the Commission on the activities
carried out during the intersession;
(g) Perform any other functions that may be conferred upon him or her in
the Rules of Procedure or other tasks entrusted to him or her by the
Commission or the Assembly; and
(h) Delegate, when necessary, to the Vice-Chairperson or, if the Vice-
Chairperson is not available, to another Commissioner, the abovementioned
functions.
3. After transmitting the report on the evaluation of the performance of
the Secretary in accordance with rule 16(2) and 17(2) (c)) the Chairperson
may request the Chairperson of the African Union Commission to invite the
Bureau of the African Commission for consultations.

Rule 18: Functions of the Vice-Chairperson

1. If the Chairperson is temporarily unable to perform his or her functions,
the Vice-Chairperson, shall perform the duties of the Chairperson.
2. The Vice-Chairperson, acting in the capacity of the Chairperson, has the
same functions as the Chairperson.
3. The Vice-Chairperson shall perform any other function delegated to him
or her by the Commission or the Chairperson of the Commission.
4. If both the Chairperson and the Vice-Chairperson are unable to carry out
their functions at the same time, the duties of the Chairperson shall be
carried out by another Commissioner according to the order of precedence
laid down in rule 6.

Rule 19: Resignation, vacancy and replacement

If a member of the Bureau of the Commission resigns from his or her position
or ceases to be a member of the Commission, the remaining member shall
represent the Bureau until the next session, when the Commission shall fill
the position for the remainder of the term of office.

Chapter V: Secretariat of the Commission

Rule 20: Composition, structure and status of the Secretariat

1. Without prejudice to article 41 of the African Charter, the Commission
shall seek the African Union’s approval of the organisational structure of its
Secretariat, specifying the staff and services necessary for the effective
discharge of the Commission’s duties.
 Rules of Procedure 211

2. The Secretariat of the Commission is composed of the Secretary and the

Commission’s professional, technical and administrative staff.
3. The Secretary shall be appointed by the Chairperson of the African
Union Commission pursuant to article 41 of the African Charter and in
consultation with the Chairperson of the African Commission.
4. The Bureau of the Commission shall consult the African Union
Commission prior to the appointment of any other staff of the Commission’s
Secretariat.
5. The status of the Secretary and the staff is governed by the African
Union Staff Rules and Regulations as well as by the present Rules of Procedure
in so far as applicable.

Rule 21: Functions of the Secretary to the Commission

The Secretary of the Commission shall be responsible for the activities of the
Secretariat under the supervision of the Chairperson. The Secretary shall
specifically:
(a) Assist the Chairperson, the Bureau of the Commission and other
members of the Commission in the exercise of their functions;
(b) Supervise and co-ordinate the work of the staff of the Secretariat;
(c) Maintain the archives of the Commission, which must be properly
organized for easy reference;
(d) Ensure confidentiality of the Commission’s records where appropriate;
(e) Submit to the Chairperson and the members of the Commission all items
that will be considered by the Commission;
(f) Prepare:
(i) A draft agenda for each session;
(ii) The Commission’s strategic plan, annual work plan and annual budget;
(iii) Guidelines and any other documents proposed for adoption by the
Commission;
(h) Present a written report to the Commission at the beginning of each
session on the activities of the Secretariat since the preceding session;
(i) Implement the decisions entrusted to him or her by the Commission or
the Bureau;
(j) Make available to the general public documents which are not
confidential, including State Reports, by ensuring that they are posted on the
website of the Commission;
(k) Ensure the maintenance and regular updating of the website of the
Commission;
(l) Evaluate the performance of the staff of the Commission; and
(m) Carry out any other functions assigned to the Secretary.

Rule 22: Financial responsibility and rules

In accordance with articles 41 and 44 of the Charter, and without prejudice
to the mandate of the African Commission, the expenses of the Commission,
the emoluments and allowances for Commissioners as well as the budget of
the Secretariat shall be borne by the African Union in consultation with the
Commission and in application of the African Union’s financial rules.

Rule 23: Estimate of expenses

When the Commission considers a proposal entailing expenses, the Secretary
shall prepare and present to the members of the Commission, as soon as
possible, a report outlining the financial implications of the proposal without
prejudice to the mandate of the African Commission.
212 African Commission on Human and Peoples’ Rights

Rule 24: Confidentiality of the work of the Commission

1. The Commission shall ensure the confidentiality of all case files,
including pleadings. Notwithstanding this provision, pleadings may be
exchanged between the parties to a Communication and the Secretariat may
provide such parties with updates on the status of a pending Communication.
2. The staff of the Secretariat shall observe the principle of confidentiality
in all matters that the Commission considers confidential as stipulated under
the Charter and these rules.

Chapter VI: Subsidiary mechanisms

Rule 25: Special Rapporteurs, Committees and Working Groups

1. The Commission may create subsidiary mechanisms such as special
rapporteurs, Committees and working groups.
2. The creation and membership of such subsidiary mechanisms may be
determined by consensus, failing which, the decision shall be taken by voting.
3. The Commission shall determine the mandate and the terms of
reference of each subsidiary mechanism. Each subsidiary mechanism shall
present a report on its work to the Commission at each ordinary session of the
Commission.

Rule 26: Applicable rules

The Rules of Procedure of the Commission shall apply mutatis mutandis to the
proceedings of its subsidiary mechanisms.

Chapter VII: Sessions

Rule 27: General principles

1. The Commission shall hold ordinary and extraordinary sessions, to
enable it to satisfactorily carry out its functions in conformity with the African
Charter.
2. Sessions of the Commission shall be held in public unless the Commission
decides otherwise or if it appears from these rules or the relevant provisions
of the Charter that the session should be held in private.
3. Whenever possible, session proceedings may be made available to the
public through live transmission.
4. The Commission shall adopt a communiqué for the public at the end of
a session.

Rule 28: Ordinary sessions

1. The Commission shall hold four (4) ordinary sessions per year, the venue
and duration of which shall be determined by the Commission.
2. Two (2) of the sessions shall include both public and private
proceedings.
3. The ordinary sessions shall be convened on a date fixed by the
Chairperson in consultation with the other members of the Commission.
4. In exceptional circumstances, the Chairperson of the African Union
Commission may change the opening date of a session, in consultation with
the Chairperson of the Commission.

Rule 29: Extraordinary sessions

1. The Commission may also hold extraordinary sessions.
2. The Chairperson of the Commission shall convene extraordinary
sessions:
(a) At the request of the majority of the members of the Commission; or
 Rules of Procedure 213

(b) At the request of the Chairperson of the African Union Commission.

3. extraordinary sessions shall be convened on a date fixed by the
Chairperson, in consultation with the other members of the Commission.

Rule 30: Venue of sessions

1. The sessions of the Commission shall be held at its headquarters, or in
the territory of any other state party which invites the Commission.
2. In the event that a state party invites the Commission to hold a session
in its country, that State Party shall sign an agreement with the Commission
to host the session of the Commission, which agreement shall vest the state
party with the responsibility for all additional expenses incurred by the
Commission as a result of the session being held outside its headquarters, in
conformity with the relevant rules of the African Union.
3. A state party agreeing to host a session shall conform to the host
agreement with the Commission and guarantee the unfettered participation
of all individuals attending the session.
4. Any state party wishing to host a session shall commit itself to meet its
obligations under article 62 of the Charter and any supplementary legal
instruments by which it is bound.
5. A state party offering to host a session of the Commission shall not be
under any suspension of the African Union.
6. The Commission may, in consultation with the Chairperson of the
African Union Commission, hold a session at the headquarters of the African
Union. The sharing of costs for such a session shall be as agreed with the
African Union Commission.
7. The Commission may hold joint sessions in consultation with the African
Court on Human and Peoples’ Rights, the Committee of Experts on the Rights
and Welfare of the Child, or any other African regional human rights organ.

Rule 31: Notification of the opening date of a session

1. The Secretary shall notify members of the Commission of the date and
venue of each session. This notice shall be sent, in the case of an ordinary
session, at least forty-five (45) days before the session unless exceptional
circumstances require otherwise.
2. In the case of an extraordinary session, the notice shall be sent as soon
as practicable.

Rule 32: Private sessions

1. Private sessions of the Commission shall be held in private and
deliberations shall remain confidential.
2. During a private session, the Secretary to the Commission, members of
the Secretariat and persons providing technical assistance to the Commission
shall be present unless the Commission decides otherwise.
3. The Chairperson of the Commission may communicate to the public
general information on deliberations in private sessions, subject to the
exigencies of article 59 of the Charter and any special directions by the
Commission.

Chapter VIII: Session agenda

Rule 33: Provisional agenda for an ordinary session

1. The provisional agenda for each ordinary session shall be drawn up by
the Secretary in consultation with the Bureau of the Commission and in
accordance with the provisions of the Charter and the present Rules of
Procedure.
214 African Commission on Human and Peoples’ Rights

2. The provisional agenda shall include, items on ‘communications from

states’ and ‘other communications’ in conformity with the provisions of
articles 48, 49, and 55 of the Charter.
3. Pursuant to paragraph 1 of this rule, the provisional agenda may also
include items proposed by:
(a) The Commission at a previous session;
(b) The Chairperson of the Commission or a member of the Commission;
(c) A state party to the African Charter;
(d) Any African Union organ;
(e) An organisation recognized by the African Union, a national or
specialised human rights institution with affiliate status or a non-
governmental organisation with observer status; and
(f) A specialized institution of the United Nations of which the states
parties to the African Charter are members.
4. The items to be included in the provisional agenda under subparagraphs
d, e and f of paragraph 3 above shall be communicated to the Secretary,
accompanied by supporting documents, not later than forty-five (45) days
before the opening of the Session at which these items are to be discussed.
5. The decision to include an item on the provisional agenda shall be taken
by the Bureau of the Commission. If the request is accepted, the Secretary
shall include the item on the provisional agenda of the session and inform the
requesting party of this decision within fourteen (14) days before the opening
of an ordinary session.

Rule 34: Transmission and distribution of the provisional agenda

1. The Secretary shall distribute the provisional agenda and the relevant
working documents to the members of the Commission at least fourteen (14)
days before the opening of an ordinary session.
2. The Secretary shall transmit the provisional agenda and essential
documents of the session as may be applicable to states parties, the
Chairperson of the African Union Commission, affiliate institutions and
observers at least seven (7) days before the opening of an ordinary session of
the Commission.
3. The Secretary, in consultation with the members of the Commission,
may distribute the provisional agenda and essential documents relating to
certain items on the agenda seven (7) days prior to the opening of an ordinary
session.
4. The Secretary shall transmit, by all appropriate means, including
posting on the website of the Commission, the provisional agenda of the
session to states parties, the Chairperson of the African Union Commission,
affiliate institutions and observers at least seven (7) days before the opening
of an ordinary session of the Commission.

Rule 35: Provisional agenda for an extraordinary session

The provisional agenda for an extraordinary session shall comprise only the
item(s) stated in the notification issued by the Chairperson in accordance with
rule 29(2) of the present rules.

Rule 36: Adoption of the agenda

1. At the beginning of each session, the Commission shall adopt the agenda
of the session.
2. Proposals shall be included in the agenda of the session if a majority of
the members present so decide.

Rule 37: Revision of the agenda

The Commission may, during the Session, revise its agenda.
 Rules of Procedure 215

Chapter IX: Languages

Rule 38: Working languages

1. The working languages of the Commission and all its subsidiary
mechanisms are those of the African Union.
2. The proceedings of the Commission shall be conducted in any of the
working languages of the African Union.
3. Subject to rules 101(5) and 103(2), anyone intending to address the
Commission in a language other than one of its working languages shall ensure
translation and/or interpretation into one of the working languages. The
latter shall be considered the source language for any translation or
interpretation into the other working languages of the Commission.

Chapter X: Records and reports

Rule 39: Records and reports of sessions and other proceedings

1. The Secretary shall keep records and minutes of the proceedings of the
sessions of the Commission.
2. The Secretary shall prepare a report of the proceedings of each session
as well as of any meeting of a subsidiary mechanism.
3. The Secretary shall submit to the Commission a summary of the
decisions taken during the session which shall be considered by the
Commission for adoption.

Rule 40: Publication of session and other proceedings

1. The Secretary shall publish on the Commission’s website, the
communiqué of the proceedings of each session as well as any related
information to which the public should have access.
2. The Secretary shall also make public, as appropriate, information
relating to meetings of subsidiary mechanisms or any other Commission
activity.

Chapter XI: Conduct of business

Rule 41: Quorum

Seven members of the Commission shall constitute the quorum, as specified
in article 42(3) of the Charter.

Rule 42: Additional powers of the Chairperson

The Chairperson shall open and close each session, direct the discussions,
ensure observance of the present Rules of Procedure, accord the right to
speak, put questions to the vote and announce decisions.

Rule 43: Points of order

1. During a debate on any matter a member of the Commission may, at any
time, raise a point of order and the Chairperson of the Commission, in
accordance with the Rules of Procedure, shall immediately rule on the point
of order. If a member of the Commission contests the ruling, it shall
immediately be put to a vote. If the majority of the members of the
Commission present uphold the Chairperson’s ruling, it shall be maintained.
2. A member of the Commission raising a point of order cannot, in his or
her comments, deal with the substance of the matter under discussion.
216 African Commission on Human and Peoples’ Rights

Rule 44: Adjournment of debates

During the discussion on any matter, a member of the Commission may move
for the adjournment of the debate. In addition to the proposer of the motion,
one member of the Commission may speak in favour of and one against the
motion after which the motion shall be immediately put to a vote.

Rule 45: Time limit accorded to speakers

The Chairperson of the Commission may limit the time accorded to each
speaker on any matter. When a speaker exceeds his or her allotted time, the
Chairperson of the Commission shall call him or her to order.

Rule 46: Closing the list of speakers

1. The Chairperson of the Commission may, before the beginning of a
debate, read out the list of speakers and with the consent of the Commission,
declare the list closed.
2. The Chairperson of the Commission may, however, accord the right of
reply to any speaker if a statement delivered after the list has been closed
makes this desirable.

Rule 47: Closure of debate

1. A member of the Commission may, at any time during a debate, move
for the closure of the debate on the item under discussion, even if the other
members of the Commission or representatives have expressed the desire to
take the floor. The authorization to take the floor on the closure of the
debate shall be given only to two speakers for and against the closure, after
which the motion shall immediately be put to a vote.
2. When the debate on an item is concluded, the Chairperson of the
Commission shall declare the debate closed.

Rule 48: Adjournment or closure of sitting

During the discussion on any matter, a member of the Commission may move
for the adjournment or closure of the sitting. No discussion on any such
motion shall be permitted and it shall be immediately put to a vote.

Rule 49: Order of the motions

The following motions shall have precedence in the following order over all
the other proposals or motions before the Commission:
(a) Competence of the Commission;
(b) Point of order;
(c) Recusal of a member of the Commission;
(d) Adjournment of the sitting;
(e) Adjournment of debate on the item under discussion; and
(f) Closure of debate on the item under discussion.

Rule 50: Submission of motion and amendment of substance

Unless the Commission decides otherwise, the motions or amendments to
motions on substantive matters made by members of the Commission shall be
submitted in writing to the Secretary with supporting documents.

Rule 51: Withdrawal and re-submission of a motion

The sponsor of a motion may withdraw it before it is put to vote, provided
that it has not been amended. Another member of the Commission may re-
submit a motion thus withdrawn. When a member of the Commission moves
for the re-submission of a motion, only one member of the Commission may
speak in favour of and one against the motion, after which it shall
immediately be put to a vote.
 Rules of Procedure 217

Rule 52: Oral interventions

1. No one shall take the floor at a meeting of the Commission without the
authorization of the Chairperson of the Commission. The Chairperson of the
Commission shall grant the floor to speakers in the order requested, unless he
or she prefers to consolidate interventions on a particular aspect of a matter
under discussion.
2. Oral intervention shall deal solely with the matter under discussion by
the Commission and the Chairperson of the Commission shall call to order any
speaker whose remarks are irrelevant.
3. The Chairperson of the Commission may limit the time accorded to
speakers as well as the number of interventions in accordance with the
present Rules of Procedure. The time limit for each speaker shall be
determined by the Chairperson.

Rule 53: Right of reply

1. A right of reply shall be granted by the Chairperson of the Commission
to any member of the Commission or representative of a state party who
requests it.
2. A member of the Commission or representative of a state party must,
while exercising this right, respect the time limit fixed by the Chairperson for
reply and take the floor preferably at the end of the sitting at which this right
has been requested.
3. The right of reply shall be limited to one reply per party and all parties
shall have the same length of time to reply.

Chapter XII: Voting

Rule 54: Right to vote

1. Decisions of the Commission may be taken by consensus, failing which
the decision shall be taken by voting.
2. However, at the request of a member any proposal or point of order
shall be put to a vote.
3. Each member of the Commission shall have one vote. In the case of a tie
in votes, the Chairperson of the Commission shall have a casting vote.

Rule 55: Required majority

Except as otherwise provided by the African Charter or the present rules,
decisions of the Commission shall be taken by a simple majority of the
members present and voting.

Rule 56: Method of voting

1. Subject to the provisions of rule 58 of the present rules, the
Commission, unless it otherwise decides, shall vote by show of hands, but any
member may request a roll-call.
2. In all the votes by roll-call each member shall reply “yes” or “no” or
“abstention”. The vote of each member participating in the ballot shall be
recorded in the minutes.
3. The Commission may decide to hold a secret ballot.

Rule 57: Explanation of vote

Members may make brief statements only for the purpose of explaining their
vote, before the beginning of the vote or once the vote has been taken.

Rule 58: Rules to be observed while voting

A vote shall not be interrupted except if a member raises a point of order
related to the manner in which the voting is being done.
218 African Commission on Human and Peoples’ Rights

Rule 59: Elections

Elections shall be held by secret ballot unless the election is for a post for
which only one candidate has been proposed and that candidate has been
agreed upon by the members of the Commission.

Chapter XIII: Proposals and motions

Rule 60: Division of proposals

Proposals in a motion may be separated if a member so requests. The parts of
proposals or amendments that have been adopted shall later be put to a vote
as a whole. If all the operative parts of a motion have been rejected, the
motion shall be considered to have been rejected as a whole.

Rule 61: Order of voting on proposals

1. If two or more proposals are made on the same matter, the Commission,
unless it decides otherwise, shall vote on these proposals in the order in which
they were submitted.
2. After each vote, the Commission may decide whether it shall put the
next proposal to a vote.
3. However, motions which are not on the substance of a proposal shall be
voted upon before the said proposal.

Rule 62: Repeat votes on the same issue

The Commission may not vote more than once on the same issue during the
same session, unless compelling reasons so require.

Chapter XIV: Reports of the Commission and its members

Rule 63: Activity reports of the Commission

1. The Commission shall submit an Activity Report of its promotion,
protection and other activities to each ordinary session of the Assembly.
2. The content of the Activity Report of the Commission to be presented
to the Assembly by its Chairperson or his or her representative shall be
determined by the Commission, provided that the Commission shall annex to
the report any written concerns raised by state parties on the Activity Report.
3. Once the Activity Report has been considered by the Assembly, the
Secretary shall publish it on the website of the Commission and transmit it to
states parties, African Union organs, national and specialized human rights
institutions and civil society organisations.

Rule 64: Activity reports of individual Commissioners

Every member of the Commission shall submit a written report on the
activities undertaken in the period between two such sessions at each
ordinary session with public proceedings.

Rule 65: Mission reports of the Commission

1. Upon completion of a mission, the Secretary shall, within thirty (30)
days, draft the mission report in conformity with the Commission’s Guidelines
on Mission Reports for the time being in force.
2. The Secretary shall send the draft mission report to all the members of
the Commission’s delegation who shall submit their comments within thirty
(30) days.
3. In the case of a mission for promotion activities, the Secretary shall,
after the mission report has been commented upon by the members of the
delegation referred to in paragraph 2 of the present rule, submit the report
 Rules of Procedure 219

incorporating the observations of the members to the Commission for

consideration and adoption at its next session.
4. The adopted mission report shall be sent to the state party concerned
for its comments, to be given within sixty (60) days from the day of receipt of
the report. After sixty (60) days, the report shall be published with the
comments of the state party, if any.
5. In the case of a mission for protection activities, the mission report shall
be sent to the members of the delegation referred to in paragraph 2 of this
rule, as well as to other concerned parties, including any party to a
Communication that was a subject of the mission. The Commission shall
consider the comments of these parties when finalising the report, especially
with regard to any proposal for amicable settlement.
6. The report of any protection mission as well as the comments from the
state party concerned and other concerned parties, where applicable, shall
be annexed to the Activity Report of the Commission.

Rule 66: Distribution of reports and other official documents

1. Reports, decisions, session documents and all other official documents
of the Commission and its subsidiary mechanisms shall be for general
distribution unless the Commission decides otherwise.
2. Reports and additional information submitted by states parties under
article 62 of the African Charter shall be for general distribution in the
working languages of the African Union and shall be posted on the
Commission’s website as soon as they are received at the Secretariat of the
Commission.

Chapter XV: Relationships with states parties, intergovernmental

institutions, national and specialized human rights institutions,
non- governmental organisations, and other partners

Rule 67: General principle

The Commission may invite any state party, institution, organisation or person
capable of enlightening it to participate in its sessions without voting rights.

Rule 68: Discussions on human rights situations

1. In conformity with rule 33(3) of the present Rules of Procedure, any
state party, African Union organ, specialized agency or body of the United
Nations or other organisation recognized by the African Union, national or
specialized human rights institution with affiliate status, or non-
governmental organisation with observer status, may request that the
Commission include in its agenda for an ordinary session a discussion on any
human rights issue. Such a request shall be made forty-five (45) days in
advance of the session at which the discussion is to take place.
2. Where the discussion requires the presence of other partners and
parties, the requesting party shall so indicate in the documents that it
presents to the Commission pursuant to rule 33(4) of the present rules. If the
Bureau of the Commission decides that the participation of additional
partners and parties is necessary, it shall invite them to attend and transmit
to them all relevant documentation and information on the proposed
discussion from the requesting party.

Rule 69: Participation of states parties

1. The Commission or its subsidiary mechanisms may invite any state party
to participate in the discussion of any issue that shall be of particular interest
to that state.
220 African Commission on Human and Peoples’ Rights

2. A state thus invited shall have no voting right, but may submit proposals
which may be put to a vote at the request of any member of the Commission
or of the subsidiary mechanism concerned.
3. The Commission shall interact with states parties through their
respective designated department and official(s) acting as the Government
Focal Point and Agent(s) responsible for processing correspondence and other
communications from the Commission as well as for responding on behalf of
the state. In specific circumstances additional or alternative channels of
interaction may be used as the most effective means of communication.

Rule 70: Participation of specialized agencies, intergovernmental

organisations and United Nations bodies
1. Specialized agencies, intergovernmental organisations and United
Nations bodies may take part in the public sessions of the Commission.
2. The Commission may permit representatives of these bodies to make
oral or submit written statements during its session.
3. Pursuant to articles 45(1) and 46 of the African Charter, the Commission
may invite these bodies to submit reports on the implementation of the
African Charter in areas of common concern.
4. The Commission may take part in the activities of specialized agencies,
intergovernmental organisations and United Nations bodies and agree through
a Memorandum of Understanding on areas of common concern.

Rule 71: National and specialized human rights institutions

1. In accordance with the Commission’s Resolution on the Granting of
Affiliate Status to National Human Rights Institutions and specialized human
rights institutions in Africa, such institutions, established by states sarties and
functioning according to internationally and regionally recognized norms and
standards, may be granted affiliate status with the Commission.
2. Institutions having affiliate status with the Commission shall enjoy the
rights and perform the duties stipulated in its aforementioned Resolution.
3. The Commission may invite other national or specialized human rights
institutions that do not meet the criteria provided in paragraphs 1 and 2 of
the present rule to attend its sessions as observers.

Rule 72: Non-governmental organisations

1. In accordance with the Commission’s Resolution on the Criteria for
Granting and Maintaining Observer Status to non-governmental organisations
working on Human and Peoples’ Rights in Africa, such organisations may be
granted observer status with the Commission.
2. Non-governmental organisations having observer status with the
Commission shall enjoy the rights and perform the duties stipulated in its
aforementioned Resolution.
3. The Commission may decide to take measures against an observer that
no longer fulfils the criteria or defaults on its obligations, as set out in the
aforementioned Resolution. The observer shall be notified and, whenever
deemed necessary, invited to express its views before any such decision is
taken.

Rule 73: Funding partners

1. Subject to article 41 of the Charter, the Commission may negotiate
agreements with funding partners. Such agreements shall be signed by the
Chairperson on behalf of the Commission after approval by the Commission.
The Chairperson may authorise the Secretary to sign a specific agreement.
Original copies of such agreements shall be kept at the Secretariat of the
Commission.
 Rules of Procedure 221

2. The Commission shall inform the African Union Commission of any

proposal to accept funds from any partner, including details of the amount of
money to be provided, the project or projects for which the funds are sought
and any condition of receipt of such funding.
3. Such agreements shall specify expected outcomes, and the monitoring
and evaluation of the project funded by the partner.
4. The Secretary shall prepare and submit reports on the implementation
of the agreement to the Commission at each Session.
5. Partners may be invited to attend sessions of the Commission.

Rule 74: Protection from reprisals

1. State parties shall ensure that no reprisal of any kind is taken against
any person or entity that provides the Commission with information,
testimony or evidence in order to assist it in fulfilling its mandate under
article 45 of the Charter.
2. State parties shall ensure that no reprisal of any kind is taken against
any member of the Commission or its staff by reason of, or in connection with,
the performance of his or her duties.

PART TWO: PROMOTION ACTIVITIES

Chapter I: Promotion missions and related activities

Rule 75: Programme of promotion activities

The Commission shall adopt and carry out a programme of promotion
activities to give effect to its mandate under the African Charter, in
accordance with article 45(1).

Rule 76: Promotion missions

1. The Commission shall, from time to time, carry out promotion missions
to states parties.
2. States parties shall facilitate the undertaking of promotion missions,
including by responding promptly to any request for authorisation to
undertake such a mission. States parties may issue the Commission with an
open invitation for such missions. They shall also facilitate promotion missions
by taking the measures set out in rule 87 in relation to protection missions.
3. Promotion missions shall be governed by the Commission’s Guidelines
for Missions as well as by the Format for Pre-mission Reports, for the time
being in force.
4. For each promotion mission, the Commission shall develop terms of
reference, bearing in mind the human rights situation in the country.
5. A member of the Commission who is a national of the State concerned
may be present during the Commission’s mission. He or she shall not however
take part in the Commission’s consideration of the mission report.

Rule 77: Other promotion activities

1. The Commission shall also undertake other promotion activities,
including seminars, conferences and symposia. These activities shall be
organized either on the Commission’s own initiative or in collaboration with
partners.
2. Where the Commission receives an invitation to participate in any
promotion activity referred to in the present rule, the Secretary shall inform
the Bureau immediately, and the latter shall decide on the course of action.
222 African Commission on Human and Peoples’ Rights

Chapter II: The state reporting procedure under article 62 of the

Charter

Rule 78: Contents of state reports

1. Pursuant to article 62 of the African Charter and any supplementary
legal instruments entrusting the Commission with a supervision mandate,
states parties shall submit reports in accordance with relevant Guidelines of
the Commission, on the measures they have taken to give effect to the
provisions of the African Charter and those other instruments as well as on the
progress they have made. Reports shall indicate the challenges, if any,
affecting the implementation of the African Charter and those other
instruments.
2. The Secretary to the Commission shall provide states parties with all
relevant Guidelines for time being in force.

Rule 79: Transmission of state reports and related contributions

1. The Chairperson of the Commission shall, through the Secretary and no
later than one hundred and eighty (180) days before the ordinary session at
which a state party’s report is due to be considered, request confirmation of
the state’s intention to submit such a report.
2. An unscanned electronic version of the report should be received by the
Commission no later than one hundred and twenty (120) days before the
session at which it is due to be considered. Upon receipt the Secretary shall
promptly publish it on the Commission’s website and indicate when the report
will be examined by the Commission.
3. Institutions, organisations or any interested party wishing to contribute
to the examination of the report on the human rights situation in the country
concerned, shall send their contributions, including shadow reports, to the
Secretary at least thirty (30) days prior to the examination of the report. Such
contributions should follow the Commission’s Guidelines on shadow reports,
as applicable, and speak to the actual report.
4. The Secretary may also invite specific institutions to submit information
relating to the state report within a time limit that he or she may specify.
5. The contributions from interested parties and invited institutions may
be published on the Commission’s website.

Rule 80: Consideration of reports

1. States parties shall be represented in the sessions of the Commission at
which their reports are to be considered.
2. Representatives of states parties shall respond to the questions
prepared by the Commission, as well as to questions from the members of the
Commission and provide, when necessary, any other information requested
before, during or after the session. Should such questions or requests be
formulated before the session states parties may be requested to reply in
writing within a period expiring before that session.
3. If a state party fails to send a representative to the session of the
Commission at which its report is to be examined, consideration of the report
shall be rescheduled for the next session. If, at the said session, the
concerned state party, after due notification, fails to send a representative,
the Commission may consider the state report.
4. During the consideration of the report submitted by a state party in
accordance with article 62 of the Charter, the Commission shall explore all
the pertinent information relating to the human rights situation in the state
concerned, including reports by international, regional and national human
rights organs as well as statements and shadow reports from National Human
Rights Institutions and non-governmental organisations.
 Rules of Procedure 223

5. A member of the Commission who is a national of the state concerned

may be present but shall not take part in the Commission’s consideration of
the state report.

Rule 81: Non-submission of reports

1. The Commission shall, at the beginning of each year, inform the states
parties which are not up to date with their obligations under article 62 of the
deadlines of their submission of their reports and the date at which they are
expected to comply.
2. At the beginning of each ordinary session, the Secretary shall inform the
Commission of all cases of non-submission of reports or of additional
information requested by the Commission. In such cases, the Chairperson of
the Commission may send a reminder, through the Secretary, to the state
party concerned, indicating the date by which it’s report or the requested
information should be received.
3. The Activity Report of the Commission shall point out the status of
initial and periodic reports of states parties.

Rule 82: Concluding observations on state reports

1. The Commission shall formulate concluding observations after
consideration of the report of a state party. Concluding observations should
be adopted at the ordinary session following the consideration of the state
report. However, the adoption of such report shall under no circumstances
exceed two sessions from consideration of the state report.
2. The concluding observations of the Commission shall comply with the
Guidelines of the Commission on Concluding Observations.
3. The concluding observations shall be transmitted to the state party
concerned within thirty (30) days after the session at which the Observations
were adopted. They shall be published on the Commission’s website, once
transmitted to the state party.
4. Where the National Human Rights Institution of the relevant state
enjoys affiliate status with the Commission in accordance with rule 71, the
Secretary shall transmit the concluding observations to that institution within
thirty (30) days from the session at which they were adopted.

Rule 83: Follow-up of implementation of concluding observations

1. In the concluding observations, the Commission shall specify, if
necessary, the issues that require particular attention on the part of the state
party. The date of the presentation of the next periodic report by the state
party shall be included in the concluding observations.
2. The members of the Commission shall ensure the follow-up on the
implementation of the recommendations from the concluding observations
within the framework of their promotion activities to the states parties
concerned. Members may request or take into account contributions by
interested parties or invited institutions, on the extent to which those
recommendations have been implemented.
3. The Commission shall reference any concluding observations in its
Activity Reports to the Assembly pursuant to rule 63(1) of the present rules.

PART THREE: PROTECTION ACTIVITIES

Chapter I Matters of emergency

Rule 84: Decision on matters of emergency

1. The Commission shall treat a situation as a matter of emergency under
article 58(3) of the African Charter, when:
(a) It is one of serious or massive human rights violations; and
224 African Commission on Human and Peoples’ Rights

(b) It presents a risk of irreparable damage or requires urgent action to

avoid irreparable harm.
2. 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.
3. When a situation arises during the Commission’s inter-session period,
the decision to treat it as a matter of emergency shall be taken either by the
Bureau, the competent subsidiary mechanism(s) or the member responsible
for the State Party concerned, the latter two on having informed the Bureau.
4. Any decision pursuant to paragraph 3 and a report on the situation
thereof shall be presented at the next session of the Commission.

Rule 85: Action on matters of emergency

1. When the Commission has decided to treat a situation as one of
emergency, it shall:
(a) 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;
(b) Draw the attention of the African Union Peace and Security Council to
the matter in accordance with article 19 of the Protocol relating to the
establishment of the Peace and Security Council of the African Union;
(c) Inform the Executive Council; and Inform the Chairperson of the African
Union Commission of the matter.
2. The Commission, as well as its subsidiary mechanisms under the Charter
and the present rules, shall also take any appropriate action, including urgent
appeals.

Chapter II: Protection missions

Rule 86: General provisions

1. The Commission may, if necessary, carry out a protection mission to a
state party either of its motion or at the request of any other African Union
organ.
2. Any protection mission agreed upon between the Commission and a
state party shall be conducted in accordance with the Commission’s
Guidelines for Missions for the time being in force and rule 101 of the present
rules in so far as applicable.
3. Any mission undertaken at the request of another African Union organ
shall be facilitated by that organ.
4. The Commission may authorise one or more of its members to take part
in a protection mission to be conducted by another African or international
organ intending to conduct such a mission.

Rule 87: State party’s obligations

During a protection mission of the Commission the state party concerned
shall:
(a) Guarantee the free movement of the members of the mission
throughout the territory of the country, and in this regard, provide
corresponding facilities, including any necessary internal authorisation;
(b) Provide the mission with any document that the Commission may
consider necessary for the preparation of its reports; and
(c) Take the necessary security measures to protect the members of the
delegation and also to guarantee the smooth running of the mission.
 Rules of Procedure 225

Chapter III: Consideration of communications

Section 1: General provisions
Rule 88: Register of communications under articles 47, 48, 49 and 55
of the Charter
1. The Commission shall receive and note, as the case may be,
communications or notifications under articles 47, 48, 49 and 55 of the
Charter.
2. The Secretary shall register each communication, with a reference
number, the names of the parties, the date of registration or notification, and
the date of decision or closure of each communication.

Rule 89: Language of submissions

All communications, notifications and related submissions shall be addressed
to the Commission in at least one of its working languages.

Rule 90: Confidentiality of proceedings

The Commission shall deliberate on communications in private and all aspects
of the discussions shall be confidential.

Rule 91: Representation

1. States parties shall be represented before the Commission by their
representatives.
2. Natural or legal persons may either act and appear in person or mandate
one or more representatives to do so on their behalf.

Rule 92: Duty to cooperate with the Commission

The parties to a communication have a duty to cooperate fully in the conduct
of the proceedings before the Commission and, in particular, to take such
action within their power as the Commission considers necessary for the
proper administration of justice.

Rule 93: Working groups and rapporteurs on communications

1. The Commission shall appoint a rapporteur for each communication
from among its members.
2. The Commission may also establish a working group to consider
questions of seizure and admissibility of any communication(s) and to make
recommendations to the Commission.
3. The Commission shall consider the recommendations of the rapporteur
and/or the working Group and make a decision.

Rule 94: Recusal of a member of the Commission from taking part in

the examination of a communication
1. A member of the Commission shall not be present and take part in the
consideration of a communication if he or she:
(a) Is a national of the state party concerned;
(b) Has any personal interest in the case;
(c) Is engaged in any political or administrative activity or any professional
activity that is incompatible with his or her independence or impartiality;
(d) Has participated in any capacity in any decision at the national level in
relation to the communication;
(e) Has expressed publicly opinions that are objectively capable of
adversely affecting his or her impartiality with respect to the communication;
or
(f) Finds, for any other reason, that his or her impartiality is capable of
being adversely affected.
226 African Commission on Human and Peoples’ Rights

2. Any party to a communication may request the recusal of a member of

the Commission for the reasons specified in paragraph 1.
3. Any question that may arise under paragraphs 1 and 2 shall be decided
by the Commission after hearing the member concerned and without his or
her participation.

Rule 95 Withdrawal of a member

If, for any reason, a member of the Commission considers that he or she
should not take part or continue to take part in the consideration of a
communication, he or she shall inform the Chairperson of his or her decision
to withdraw.

Rule 96: Order of consideration of communications

Unless otherwise decided, the Commission shall consider communications in
the order in which they have been received by the Secretary.

Rule 97: Joinder and disjoinder of communications

1. Where the Commission has been seized of two or more communications
against the same state party, addressing similar facts or alleging similar rights
violations, the Commission may join them and consider them together as a
single communication.
2. Where in accordance with paragraph 1 of the present rule, the
Commission decides to join two or more communications, it may
subsequently, where it deems appropriate, decide to disjoin the
communications.

Rule 98: Extension of time

1. Prior to the expiry of a time-limit fixed for a particular submission,
either party may apply to the Commission for extension of the period
stipulated.
2. The Commission may grant an extension which shall not exceed thirty
(30) days, and shall not grant more than one extension per party for any given
submission. Where the nature of the communication(s) so requires, the
Commission may exceptionally extend the time-limit further.
3. The Commission may decide that any submissions filed or other action
taken after the expiration of a time-limit fixed thereof shall be considered as
valid, if the requesting party shows cogent reasons for having failed to act in
time and provided exceptional circumstances and interests of justice require
that the request be granted.

Rule 99: Situation of serious or massive violation of human rights

When the Commission considers that one or more communications apparently
relate to special cases which reveal the existence of a series of serious or
massive violations of human and peoples’ rights, it shall bring the matter to
the attention of the Assembly and the Peace and Security Council of the
African Union, in accordance with article 58 of the Charter and article 19 of
the Protocol on the Peace and Security Council.

Rule 100: Provisional measures

1. At any time after receiving a communication and before determining its
merits, the Commission may, on its initiative or at the request of a party to
the communication, issue provisional measures to be adopted by the state
concerned in order to prevent irreparable harm to the victim or victims of the
alleged violation as urgently as the situation demands.
2. If the communication has been submitted under article 55 of the
Charter, provisional measures shall be considered only after the Commission
 Rules of Procedure 227

has been seized of the communication in pursuance of rule 115 of the present
rules.
3. If the Commission is not in session at the time of receiving a request for
provisional measures, the Chairperson shall consult the working group on
communications, decide on the Commission’s behalf and inform the other
members of his or her decision.
4. The parties to the communication shall be informed of any provisional
measures issued.
5. The state party concerned shall report back on the implementation of
the Provisional Measures within fifteen (15) days of receipt.
6. The Commission’s grant of provisional measures and their adoption by
the state party concerned shall not constitute a prejudgment on the merits of
a communication.

Rule 101: Investigative measures

1. The Commission may, of its own initiative, or at the request of a party,
adopt any investigative measures which it considers capable of clarifying the
facts of the case. It may decide to hear as a witness or expert or in any other
capacity any person whose written or oral evidence or opinion appears likely
to assist it in its examination of a communication.
2. The Commission may also request any person, organisation or institution
of its choice to make available any relevant documentation and other
materials in its possession.
3. The Commission may, at any time during its examination of a
communication, assign one or more of its members to conduct an enquiry,
carry out a visit to the scene or take evidence in any other manner.
4. The Commission may delegate the investigative powers specified in
paragraphs 1, 2 or 3 to a person or body which shall be designated to conduct
on-site investigations.
5. Any witness, expert or other person making written observations to the
Commission or appearing at an oral hearing before it, or before a delegation
of members of the Commission, may use his or her own language if he or she
does not have sufficient knowledge of one of the Commission’s working
languages. In that event the Secretary shall make the necessary arrangements
for translation or interpretation into one of the working languages.
6. The Secretary to the Commission shall issue an invitation to any witness,
expert or other person whom the Commission decides to hear in writing or
orally.
7. The Commission shall take the necessary measures to protect the
identity of experts, witnesses or other persons if it believes that they require
such protection and in instances where anonymity is specifically requested by
such expert or witness.
8. The Commission shall decide on any objection to a witness or expert.
9. The Chairperson shall fix the procedure for the taking of written or oral
evidence, including in respect of any item of evidence proposed by the
parties.
10. Witnesses and experts to be heard in accordance with this rule shall
submit a written undertaking or take an oath, as set out in rule 103(2) ab.

Rule 102: Procedure for oral hearings on communications

1. At the initiative of the Commission or at the request of one of the
parties, an oral hearing may be held on the admissibility and/or merits of a
communication of which the Commission has been seized.
2. A party requesting a hearing shall indicate the facts and/or legal issues
which would be addressed orally. The request shall be made at least ninety
228 African Commission on Human and Peoples’ Rights

(90) days before the beginning of the session in which the communication is
going to be considered.
3. The Bureau of the Commission shall decide on the request after having
informed the other party thereof and after consulting the working group on
communications.
4. The Secretary shall inform both parties of the decision on the granting
of a hearing within fifteen (15) days of the decision referred to under
paragraph 3 of the present rule.
5. If the request for a hearing is accepted, the notification of the hearing
shall include the dates and venue of the session, and indicate the period of
the session during which the hearing is likely to take place.
6. Hearings on communications before the Commission shall be held in
private. Unless the Commission decides otherwise, no person shall be
admitted, other than:
(a) parties to the communication and/or their legal representatives duly
mandated; and
(b) any person being heard by the Commission as a witness, expert, third
party or in any other capacity.
7. Those admitted to attend part or all of a hearing shall undertake not to
reveal publicly any information relating to or transpiring from the oral
proceedings, in accordance with article 59 of the Charter and rule 90 of the
present rules.
8. When it considers it in the interest of the proper conduct of a hearing,
the Commission may limit the number of parties’ representatives or advisers
who may appear.
9. The parties shall inform the Commission at least ten (10) days before
the date of the opening of the hearing of the names and functions of the
persons who will appear on their behalf at the hearing.
10. The Chairperson or his or her representative shall preside over the
hearing, and shall verify the identity of any persons before he or she is heard.
11. During hearings, the Commission shall permit oral presentations by the
parties on new or additional facts or arguments or in answer to any questions
that it may have concerning all issues relating to the admissibility and/or
merits of the communication.
12. During a hearing on a communication or at any stage prior to the
conclusion of the matter, the following may be considered:
(a) The verification of the facts; Initiation of a friendly settlement;
(b) Consideration of the admissibility and/or merits; or
(c) Any other matter pertinent to the communication.
13. Any member of the Commission may put questions to the parties or to
the persons heard with the permission of the Chairperson.
14. Parties to the communication or their representatives may, with the
permission of the Chairperson, put questions to any person heard.
15. The Secretary is responsible for the production of verbatim records of
hearings before the Commission. Such records are internal working
documents of the Commission. If a party to the communication so requests,
the Commission may provide a copy of such records

Rule 103: Procedure for hearing witnesses and experts orally

1. The Commission shall determine, at its own initiative, or at the request
of one of the parties, when to call witnesses or experts whom it considers
necessary to hear orally in a given case. The invitation to the hearing shall
indicate:
(a) The parties to the communication; and
(b) A summary of the facts or issues in relation to which the Commission
desires to hear the witness or expert.
 Rules of Procedure 229

2. After establishing the identity of the witnesses or experts, the

Chairperson of the Commission shall request them to take the following oath:
(a) For witnesses, ‘I swear/affirm that I will speak the truth, the whole
truth and nothing but the truth. I also undertake not to reveal any
information relating to or transpiring from this hearing.’
(b) For experts, ‘I swear/affirm that my statement will be in accordance
with my knowledge, findings and sincere belief. I also undertake not to reveal
any information relating to or transpiring from this hearing.’
3. The Commission shall ensure that state parties grant the necessary
guarantees to all persons who attend a hearing or who in the course of a
hearing provide information, testimony or evidence of any type to the
Commission.

Rule 104: Intervention by amicus curiae

1. At any moment after the respondent state has been requested to make
its submissions on a communication the Commission may decide to invite or
grant leave to an amicus curiae to intervene in the case by making written or
oral submissions in order to assist the Commission in determining a factual or
legal issue.
2. Any third party may submit a request to intervene as amicus curiae in
any communication before the African Commission.
3. Requests to intervene as amicus curiae addressed to the Commission
shall:
(a) Be submitted in writing to the Secretariat of the African Commission;
(b) Indicate the authors of the request, contact details, the
communication(s) to which the amicus relates, and the contribution the
proposed amicus submission can make in assisting the African Commission;
and
(c) Be no longer than 10 pages.

Rule 105: Procedure for intervention of an amicus curiae

1. The procedure governing the intervention of an amicus curiae shall be
as set out in this rule.
2. The African Commission, bearing in mind the views of the parties to a
communication, shall consider if the application for an amicus intervention
should be granted.
3. The Commission shall communicate its decision to the parties to a
communication and the applicant seeking to intervene as amicus curiae.
4. If the application to become amicus curiae is granted, the African
Commission shall:
(a) Share the parties’ pleadings with the amicus curiae;
(b) Require the amicus curiae to file an amicus brief within thirty (30) days;
and
(c) Share the amicus brief with the parties and require them to file their
responses within thirty (30) days.
5. The amicus curiae shall respect the confidentiality of the parties’
pleadings in accordance with article 59 of the African Charter.
6. During the hearing of a communication in which an amicus curiae brief
has been filed, the Commission, may permit the author of the brief to address
the Commission.
7. Amicus briefs admitted by the African Commission may be published on
its website.

Rule 106: Intervention by a third party with a direct interest in the case
1. The Commission may, at any moment after a communication has been
introduced, decide to allow submissions from a third party with a direct
230 African Commission on Human and Peoples’ Rights

interest in the case. In so deciding the Commission shall consider, among

other matters, whether the procedure would be unduly disrupted or
prolonged by admitting such submissions and transmitting them to the parties
for submissions in reply.
2. In accordance with paragraph 1:
(a) The third party shall demonstrate that he or she will benefit directly or
suffer a loss from the outcome of a communication;
(b) The third party may only submit an application to intervene prior to the
merits stage of the communication under consideration;
(c) Where the request is dismissed, the Commission shall notify the third
party in writing and outline the reasons thereof; and
(d) The dismissal decision may be reviewed by the Commission at the
request of the third party.

Rule 107: Protection from reprisals

In accordance with rule 74 state parties shall ensure that no reprisal of any
kind is taken against a victim or complainant having lodged a communication
under article 55, against his or her family or representative or against any
witness, expert, other person or entity because of their statements or
intervention before the Commission or for having provided it with information
relating to a communication under articles 48, 49 and 55 of the Charter.

Section 2: Consideration of communications received in

conformity with article 47 of the Charter: Communications-
negotiations of states parties

Rule 108: Submission of a communication

1. A communication under article 47 of the Charter shall be submitted to
the Chairperson, through the Secretary of the Commission.
2. The communication shall be in writing and shall contain a
comprehensive statement of the facts as well as the provisions of the African
Charter alleged to have been violated.
3. The communication shall be notified to the State Party concerned, the
Chairperson of the African Union Commission and the Chairperson of the
Commission through the most practical and reliable means.
4. The Secretary to the Commission shall, on behalf of the Chairperson,
acknowledge receipt, by note verbale, of the communication and request the
parties to keep the Commission informed of developments which could arise
within the framework of ongoing negotiations.

Section 3: Consideration of communications received under

articles 48 & 49 of the Charter: Communications - complaints of
states parties

Rule 109: Seizure of the Commission

1. Any communication under articles 48 and 49 of the Charter may be
submitted to the Chairperson of the Commission through the Secretary by an
interested state party.
2. The communication shall contain information on the following or be
accompanied particularly by:
(a) Measures taken to resolve the issue pursuant to article 47 of the African
Charter, including the text of the initial communication and any subsequent
written explanation from the interested states parties relating to the issue;
(b) Measures taken to exhaust regional or international procedures of
settlement or good offices; and
 Rules of Procedure 231

(c) Any other procedure of international investigation or international

settlement to which the interested states parties have resorted.

Rule 110: Consideration of the communication

1. Where, pursuant to articles 48 and 49 of the African Charter, a
communication is brought before the Commission by a state party, the
Chairperson of the Commission, through the Secretary, shall give notice of
such communication to the state party against which the complaint is made
and shall invite it to make its written submissions on the admissibility of the
communication within ninety (90) days. The submissions so received shall be
immediately communicated to the complaining state party, which shall
respond within ninety (90) days of receipt of the submissions.
2. The Commission shall designate one or more of its members as
rapporteur(s) for the communication.
3. The Commission may:
(a) Request relevant information on matters connected with the
communication from the states parties concerned. Such information shall be
provided by both parties within ninety (90) days of receipt of such request;
and
(b) Transmit any information obtained from one party to the other for
comments. The parties shall be given ninety (90) days to respond to the
submissions by the other party.
4. Before deciding on the admissibility of the communication, the
Commission may invite the parties to make further written submissions within
ninety (90) days. Such submissions shall be transmitted to the opposing party.
The Commission may also allow the parties to make additional submissions
orally.

Rule 111: Decision on admissibility

1. Once it has considered the submissions of the parties the Commission
shall adopt a decision on the admissibility of the communication, having
regard to the requirement of admissibility under article 50 of the Charter.
2. Where no submissions on the admissibility have been received from the
respondent state within the time-limit fixed, the Commission shall proceed to
adopt a decision by default based on the information before it.
3. The Commission shall give reasons for its decision on admissibility and
notify the parties thereof.
4. The decision shall be signed by the Chairperson and the Secretary.

Rule 112: Amicable settlement

1. When the Commission decides that a communication is admissible, it
shall place its good offices at the disposal of the interested states parties with
the objective of reaching an amicable settlement under the terms of the
African Charter.
2. For the purpose of the Commission’s good offices, the Bureau of the
Commission shall establish contact with the relevant authorities of the states
parties.
3. The Commission shall thereafter decide on the appropriate action to
take, which may include the following:
(a) Appointing a rapporteur;
(b) Convening, in consultation with the states parties concerned, meetings
with the aim of achieving an amicable settlement of the dispute;
(c) Facilitating the drafting of a Memorandum of Understanding, when the
parties accept the principle of an amicable settlement, containing the terms
of settlement being proposed having regard to the progress made.
232 African Commission on Human and Peoples’ Rights

4. In the case of acceptance of the draft Memorandum of Understanding,

the states parties concerned shall sign the agreement under the auspices of
the Commission.
5. Where the Commission is satisfied that the requirements of an amicable
settlement have been complied with, it shall prepare a decision which shall
contain a brief statement of the facts and a description of the settlement
reached.
6. The decision shall be sent to the parties and communicated to the
Assembly.
7. The Commission’s confirmation of a settlement shall be regarded as a
decision requiring implementation and related follow-up for the purposes of
these rules.
8. The settlement negotiations shall be confidential and without prejudice
to the parties’ arguments on the admissibility of the communication.

Rule 113: Proceedings regarding the merits

1. If the amicable settlement of the dispute fails, the Commission shall
request the states parties concerned to provide, within a period of thirty (30)
days, their written submissions on the merits of the communication.
2. The Commission shall communicate any submissions and information
obtained from one party to the other for comments. The states parties
concerned shall be given thirty (30) days to respond.
3. Before adopting its decision on the merits, the Commission may request
the parties to make supplementary written submissions or convene a hearing
at which it may allow the parties to make additional oral submissions.

Rule 114: Decision on the merits

1. The Commission shall, after deliberation on the submissions of the
parties, adopt a decision on the merits of the communication.
2. Where no submissions on the merits have been received from the
respondent state within the time-limit fixed, the Commission shall proceed to
adopting a decision by default based on the information before it.
3. The Commission shall give reasons for its decision on the merits and may
make any recommendations it deems useful, pursuant to article 53 of the
African Charter.
4. The decision shall be signed by the Chairperson and the Secretary.
5. The decision shall be communicated to the states parties and the
Assembly.
6. The rapporteur for the communication, or any other member of the
Commission designated for this purpose, shall monitor the measures taken by
the relevant state party to give effect to the Commission’s decision. For the
purposes of monitoring such implementation, the measures in rule 125(5) to
(10) shall be applicable.

Section 4: Consideration of communications received in

conformity with article 55 of the African Charter: Other
communications

Rule 115: Seizure of the Commission

1. A communication submitted under article 55 of the African Charter may
be addressed to the Chairperson of the Commission through the Secretary by
any natural or legal person.
2. The Secretary shall ensure that communications addressed to the
Commission contain the following information:
 Rules of Procedure 233

(a) The name, nationality and signature of the person or persons filing it;
or in cases where the complainant is a non-governmental entity, the name
and signature of its legal representative(s);
(b) Whether the complainant wishes that his or her identity be withheld;
(c) The address for receiving correspondence from the Commission and, if
available, a telephone number, facsimile number, and email address;
(d) An account of the act or situation complained of, specifying the place,
date and nature of the alleged violations;
(e) The name of the victim, in a case where he or she is not the
complainant, together with sufficient proof that the victim consents to being
represented by the complainant or justification why proof of representation
cannot be obtained; Any public authority that has taken cognisance of the
fact or situation alleged; and
(f) The name of the state(s) alleged to be responsible for the violation of
the African Charter, even if no specific reference is made to the article(s)
alleged to have been violated.
3. In cases where the victim has not asked for anonymity and is
represented, the victim shall be the complainant of record and the
representation shall be recognized.
4. Where a communication does not contain some of the information listed
in paragraphs 2 (a) to (g) of the present rule, the Secretary shall request the
complainant to furnish this in order to obtain a determination of whether the
Commission shall be seized of the case.
5. When the Secretary is satisfied that all necessary information has been
furnished, he or she shall, on behalf of the Commission, consider it seized of
the communication.
6. Where the information is manifestly lacking, the Secretary shall invite
the complainant to comply with the requirements in paragraph 2, in which
case the prescribed period under paragraph 8 shall begin to run from the time
of completion of the complaint file.
7. In case of doubt as to whether the requirements for seizure have been
met the Commission shall decide.
8. The Secretary shall within sixty (60) days from receipt of the complaint
communicate in writing the decision on seizure to the parties.
9. At each session the Secretary shall inform the Commission of all new
communications of which it was seized during the inter-session period.
10. Pursuant to article 55 of the African Charter the Commission shall
decide, by absolute majority, whether to be seized of any Communication
where seizure was declined during the inter-session period as well as of any
other communication referred by the Secretary.
11. The Commission shall designate one or more of its members as
Rapporteur(s) for any communication of which it has been seized.

Rule 116: Written submissions on the admissibility and merits

1. Where the Commission has been seized of a communication pursuant to
article 55 of the Charter and the present rules, the Secretary shall request the
complainant to submit arguments and evidence on the admissibility and
merits of the case within sixty (60) days of receipt.
2. Upon receipt of the complainant’s submissions the Secretary shall
transmit, within 14 days, a copy of the communication and those submissions
to the respondent state for a reply within sixty (60) days of receipt. The
state’s submissions shall be forwarded to the complainant within 14 days for
a possible rejoinder within thirty (30) days from receipt. No new issues shall
be introduced in the rejoinder which the Commission shall forward to the
respondent State for information only.
234 African Commission on Human and Peoples’ Rights

3. The Commission may ask the parties to provide supplementary written

submissions within a fixed time-limit.
4. At any stage of the proceedings the Secretary may request a party to
submit, within a fixed time-limit, any information, documents or material
relevant to the examination of the communication. The Secretary shall
transmit a copy of any such information, documents or material to the other
party for information.

Rule 117: Preliminary objection

1. A party who intends to raise a preliminary objection at the stage of
admissibility or before the Commission takes a decision on the merits of the
communication, shall do so not later than thirty (30) days after being
requested to make its submissions on the admissibility and merits. The
Commission shall communicate the objection to the other party within fifteen
(15) days.
2. A party who intends to respond to a preliminary objection raised by the
other party shall submit a written response not later than thirty (30) days
after the Secretary to the Commission has transmitted the objection to that
party.
3. If no response to a preliminary objection is received within the
stipulated period, the Commission shall proceed with the consideration of the
preliminary objection on the basis of the available information.
4. When the Commission receives a preliminary objection, it shall first of
all determine this objection before any other question relating to the
communication.

Rule 118: Decision on admissibility

1. Once it has considered the submissions of the parties the Commission
shall adopt a decision on the admissibility or inadmissibility of the
communication, having regard to the requirements of admissibility under
article 56 of the Charter.
2. Where no submissions on the admissibility have been received from the
respondent State within the time-limit fixed, the Commission shall proceed
to adopt a decision by default based on the information before it.
3. If a communication has been declared admissible the Commission shall
defer its consideration of the merits. It may request the parties to make
supplementary submissions prior to such consideration.
4. The Commission’s decision on the admissibility of a communication shall
be notified to the parties who shall be under an obligation, pursuant to article
59 of the Charter, to respect confidentiality until the Commission’s activity
report referencing the decision has been considered by the Assembly. The
decision shall be signed by the Chairperson and the Secretary.

Rule 119: Review of a decision on admissibility

1. A decision declaring a communication inadmissible may be reviewed
upon the complainant’s submission of a new fact. Review shall be requested
within one hundred and eighty (180) days of the discovery of the new fact and
no later than three years from the date when the decision was transmitted to
the complainant.
2. A decision declaring a communication admissible may be reviewed upon
the respondent state’s submission of a new fact. Review shall be requested
within sixty (60) days from the date when the decision was transmitted to the
parties.
3. In determining whether to review a decision on admissibility the
Commission shall satisfy itself that the request is based upon the discovery of
 Rules of Procedure 235

a decisive fact which was not known to the party seeking the review, provided
that such lack of knowledge was not due to negligence.
4. A respondent state which has failed to make submissions on the
admissibility of a Communication within the time-limit fixed shall be
considered to have forfeited its right to seek review of a decision declaring
the case admissible. The Commission may nevertheless consider a request for
review if the state shows cogent reasons for having failed to make submissions
in time and provided exceptional circumstances and interests of justice
require that the request be considered.

Rule 120: Decision on the merits

1. The Commission shall, after deliberation on the submissions of both
parties, adopt a decision on the merits of the communication.
2. Where no submissions on the merits have been received from the
respondent state within the time-limit fixed, the Commission shall proceed to
adopt a decision by default based on the information before it.
3. The Commission shall decide on a communication within one (1) year
from the time the communication becomes ripe for a decision on the merits.
4. The Commission’s decision shall remain confidential and not be
transmitted to the parties until the Commission’s Activity Report referencing
the decision has been considered by the Assembly in accordance with article
59 of the African Charter and subject to rule 63(2).
5. The Secretary shall ensure that the decision of the Commission is
transmitted to the parties within thirty (30) days from the date when its
activity report referencing the decision was considered by the Assembly.
6. The decision shall be published within thirty (30) days from the date
when the decision was transmitted to the parties.
7. The decision shall be signed by the Chairperson and the Secretary.

Rule 121: Decision on reparations and costs

In deciding on the merits of a communication the Commission may decide to
defer examining a question of reparations and costs. To that end it may invite
the parties to make additional written submissions or to hold a separate oral
hearing.

Rule 122: Review of a decision on the merits

1. A decision on the merits of a communication may be reviewed upon the
submission of a decisive new fact by either party.
2. In determining whether to review a decision on the merits the
Commission shall satisfy itself of the criterion set out in rule 119(3)
concerning review of a decision on admissibility.
3. A party relying on a new fact shall seek a review within one hundred and
eighty (180) days of the discovery of the new fact and no later than three
years from the date when the decision was transmitted to the parties.
4. A respondent state which has failed to make submissions on the merits
of a communication within the time-limit fixed shall be considered to have
forfeited its right to seek review of the decision on the merits. The
Commission may nevertheless consider a request for review if the state shows
cogent reasons for having failed to make submissions in time and provided
exceptional circumstances and interests of justice require that the request be
considered.

Rule 123: Amicable settlement

1. At any stage of the examination of a communication, the Commission,
on its own initiative or at the request of any of the parties concerned, may
236 African Commission on Human and Peoples’ Rights

offer its good offices for facilitating an amicable settlement between the
parties.
2. The amicable settlement procedure shall be initiated, and may only
continue, with the consent of the parties.
3. If it deems it necessary, the Commission may entrust to one or more of
its members the task of facilitating an amicable settlement between the
parties.
4. The Commission may terminate its intervention in the amicable
settlement procedure if it finds that the matter is not susceptible to such a
resolution or that one of the parties no longer consents to its continuation or
does not display the willingness to reach a settlement in compliance with the
terms of paragraph 5.
5. When the Commission receives information from parties that an
amicable settlement has been reached, the Commission shall ensure that such
settlement:
(a) Has been signed by the parties or their representative(s) and filed with
the Commission;
(b) Complies with or respects the human rights and fundamental freedoms
enshrined in the African Charter and other applicable instruments;
(c) Indicates that the victim of the alleged human rights violation or, his or
her successors, as the case may be, have consented to the terms of the
settlement and are satisfied with the conditions; and
(d) Includes an undertaking by the parties to implement the terms of the
settlement.
6. Where the Commission is satisfied that the requirements of paragraph 5
have been complied with, it shall prepare a decision which shall contain a
brief statement of the facts and a description of the settlement reached.
7. The Commission’s confirmation of a settlement shall be regarded as a
decision requiring implementation and related follow-up for the purposes of
rule 125.
8. Where the Commission concludes that no amicable settlement has been
reached or that its terms do not comply with the requirements under
paragraph 5, the Commission shall continue to process the Communication in
accordance with the relevant provisions of the Charter and these rules.
9. The settlement negotiations shall be confidential and without prejudice
to the parties’ arguments on the admissibility and merits of the
communication.

Rule 124: Withdrawal, strike-out and relisting

1. Where a complainant or victim withdraws the communication, the
Commission shall take note thereof, inform the parties and close the file. In
the event where only some of the victims or complainants request
withdrawal, the Commission will take note of their withdrawal and proceed
with consideration of the remaining complaints.
2. Where a complainant fails to pursue the communication or otherwise to
show proper diligence or where the Commission, for any other reason,
concludes that it is no longer justified to continue the examination of the
communication, it may at any stage of the proceedings decide to strike out
the communication.
3. The Commission may continue examination of the communication or
relist it at the complainant’s or the victim’s request if cogent reasons are
provided and exceptional circumstances and interests of justice so require.
 Rules of Procedure 237

Rule 125: Follow-up on decisions on the merits requesting the

respondent state to take specific measures
1. In the event of a decision on the merits requesting the respondent state
to take specific measures, the parties shall inform the Commission in writing,
within one hundred and eighty (180) days from the date when the decision
was transmitted to them, of all action taken or being taken by the state party
to implement the decision of the Commission. The Secretary shall forward
such information to the other party for comments within sixty (60) days from
the date of their transmission.
2. The Commission may request a national or specialized human rights
institution with affiliate status to inform it of any action it has taken to
monitor or facilitate the implementation of the Commission’s decision.
3. Within ninety (90) days of receipt of the state’s written response, the
Commission may invite the state concerned to submit further information on
the measures it has taken in response to its decision.
4. If no response is received from the state, the Commission may send a
reminder to the state party concerned to submit its information within ninety
(90) days from the date of the reminder.
5. The rapporteur for the Communication, or any other member of the
Commission designated for this purpose, shall monitor the measures taken by
the state party to give effect to the Commission’s decision.
6. The rapporteur may make such contacts and take such action as may be
appropriate to fulfil his or her assignment, including recommendations for
further action by the Commission as may be necessary. He or she may at any
stage of the follow-up proceedings request or take into account information
from interested parties regarding the extent to which the state has complied
with the Commission’s decision.
7. At each ordinary session the Commission shall report in a public sitting
on the implementation of its decisions.
8. Where the Commission finds that the state party’s conduct may raise
issues of non-compliance with its decision, it may refer the matter to the
attention of the competent policy organs of the African Union as provided in
rule 137. The Commission shall indicate in its Activity Report the status of
implementation of its decisions, including by highlighting any issues of
possible non-compliance by a state party.
9. All information received by the Commission in relation to the state’s
compliance with a decision of this nature shall be consolidated in the
Commission's bi-annual Activity Report and published on the Commission’s
website.

Rule 126: Legal aid

1. The Commission may facilitate access to free legal representation for
the complainant or victim, including from the Legal Aid Fund of the Human
Rights organs of the African Union.
2. Free legal aid shall only be facilitated where the Commission is
convinced:
(a) That it is essential for the proper discharge of the Commission’s duties
and to ensure equality of the parties before it, having regard to interests of
justice; and
(b) That the author of the communication has no sufficient means to meet
all or part of the costs involved.
238 African Commission on Human and Peoples’ Rights

PART FOUR: INTERPRETATION AND ADVISORY OPINIONS

Rule 127: Interpretation of the Charter

1. Where the Commission receives an interpretation request pursuant to
article 45(3) of the Charter it shall transmit a copy thereof to states parties,
the Court and any other interested entity.
2. The Commission shall notify states parties, the Court and any other
interested entity of its decision or advisory opinion in response to the
aforementioned request.

PART FIVE:RELATIONSHIP WITH THE AFRICAN COURT

Rule 128: Complementarity with the African Court

1. Pursuant to article 2 of the African Court Protocol, the protective
mandate of the Commission, as provided for in articles 30 and 45(2) of the
African Charter, shall be complemented by the Court.
2. The complementarity relationship between the Commission and the
Court is set out in articles 2, 5(1) (a), 6, 29(1) and 33 of the African Court
Protocol.

Rule 129: Consultations with the Court

1. In pursuance of article 2 of the African Court Protocol, the Commission
shall meet with the Court, at least once a year and whenever necessary, to
consider issues of mutual interest.
2. The Bureau of the Commission may meet the Bureau of the Court as
often as necessary to undertake any functions assigned to them by the two
institutions.
3. Any meetings and other activities undertaken with the Court shall be
recorded in the Commission’s Activity Report.
4. The Commission shall consult the Court, as appropriate, on any
amendment of the present rules.

Rule 130: Seizure of the Court

1. The Commission may, before deciding on the admissibility of a
communication submitted under articles 48, 49 or 55 of the Charter, decide
that the communication should be referred to the Court, provided that the
respondent state has ratified the African Court Protocol.
2. The Commission shall obtain the complainant’s consent to any referral
to the Court.
3. Pursuant to article 5(1) (a) of the African Court Protocol the
Commission, in referring the communication, shall become the applicant to
the proceedings before the Court.
4. The Commission shall not consider any communication which is
essentially identical to one already decided by the Court.

Rule 131: Admissibility under article 6 of the African Court Protocol

1. Where, pursuant to article 6(1) of the African Court Protocol, the
Commission is requested to give its opinion on the admissibility of a case
pending before the Court it shall consider the matter expeditiously.
2. Where the Court has transferred a case to the Commission pursuant to
article 6(3) of the African Court Protocol, it shall examine the communication
in conformity with the Charter and the present Rules.
 Rules of Procedure 239

Rule 132: Representation of the Commission before the Court

1. When the Commission decides to submit a communication to the Court,
pursuant to article 5(1)(a) of the African Court Protocol and rule 130 of the
present rules, it may appoint one or more Commissioners to represent it
before the Court. The Commissioner(s) so designated shall be assisted by one
or more legal officer(s) of the Commission’s Secretariat and/or experts who
shall be designated or appointed by the Commission.
2. Once a communication has been referred to the Court all Commission
correspondence and submissions relating to the case shall be signed by the
Commissioner rapporteur(s) and the Secretary.
3. Unless the Commission decides otherwise, the Commissioner
rapporteur(s) shall take all necessary decisions in prosecuting a case referred
to the Court.
4. Once a communication has been referred to the Court in accordance
with paragraph 1, the Commission shall no longer be seized of the complaint.

Rule 133: Content of the application and file to the Court

1. When, in pursuance of article 5(1)(a) of the African Court Protocol and
rule 130 of the present rules, the Commission decides to bring a
communication before the Court, it shall submit an application seizing the
Court in accordance with the Court rules, accompanied by a summary of the
communication and the communication file.
2. The summary shall include the names of the representatives of the
Commission, the date when the Commission was seized of the
communication, the parties to the proceedings, the facts of the
communication as well as the provisions of the African Charter alleged to have
been violated.
3. The case file along with the summary to be transmitted to the Court
shall contain the communication, the Commission’s and the parties’
submissions on the admissibility and merits thereof, together with all other
evidence, documents or information concerning the communication.

Rule 134: Transmission of cases to the Court and notification of the

parties
1. The Secretary of the Commission shall transmit to the Court the
application signed by the Chairperson, the case file and the summary referred
to in rule 133 of the present rules, in conformity with the Rules of Procedure
of the Court. At the request of the Court, the Commission shall transmit the
original of the case file.
2. The Secretary shall also notify the parties to the proceedings before the
Commission about the referral of the case to the Court and shall provide them
with a copy of the case file and the summary thereof.

Rule 135: Pending cases

The Commission shall not consider any communication already pending
before the Court, unless that case is formally withdrawn.

PART SIX: RELATIONSHIP WITH OTHER AFRICAN UNION ORGANS

AND INSTITUTIONS

Rule 136: General rule

1. The Commission, in fulfilling its mandate, shall establish formal
relations of cooperation as necessary with all African Union organs and
institutions that have a human rights mandate.
240 African Commission on Human and Peoples’ Rights

2. The Bureau of the Commission may, in addition, meet with the bureaux
of these organs and institutions as often as required

Rule 137: Relationship with the African Committee of Experts on the

Rights and Welfare of the Child
In accordance with article 45(1)(c) of the African Charter, the African
Commission shall cooperate with the African Committee of Experts in the
execution of their mandate of promoting and ensuring the protection of
human and peoples’ rights in Africa.

Rule 138: Relationship with the policy organs of the African Union
In accordance with article 54 of the Charter the Commission shall submit an
Activity Report to the competent policy organs of the African Union for each
Conference. It may request those organs to take the necessary measures for
the implementation of its decisions.

PART SEVEN: FINAL PROVISIONS

Rule 139: Amendment of the Rules of Procedure

The present Rules of Procedure may be amended by the Commission.

Rule 140: Practice directions

The Commission may issue practice directions on specific matters.

Rule 141: Transitional provisions

1. The present Rules of Procedure shall become applicable upon their
entry into force pursuant to the provisions of rule 145.
2. Notwithstanding the provisions of paragraph 1, any recourse exercised
against a decision or other measure taken pursuant to the previous rules shall
be determined in accordance with the applicable provisions of those rules.
3. Upon the entry into force of the Protocol on the Statute of the African
Court of Justice and Human Rights, all references in the present rules to
provisions of the African Court Protocol or the African Court shall be deemed,
where applicable, to refer to the relevant provisions of the Protocol on the
Statute of the African Court of Justice and Human Rights or to the African
Court of Justice and Human Rights, respectively.

Rule 142: Non-retroactivity

The present Rules of Procedure shall have no retroactive effect.

Rule 143: Suspension

The Commission may suspend temporarily, the application of any rule of the
present Rules of Procedure, on condition that such a suspension shall not be
incompatible with any applicable decision of the Commission or the Assembly
or with any relevant provision of the Charter.

Rule 144: Adoption

The present Rules of Procedure shall be adopted by a simple majority of
members of the Commission present and voting at a session where the rules
are scheduled to be considered.

Rule 145: Entry into force

The present Rules of Procedure shall enter into force ninety (90) days after
their adoption.
 Guidelines for Reports 241

Guidelines for National Periodic Reports under the

African Charter (1998)

The general guidelines (adopted in 1989) for the reports for the reports that the
state parties are required to submit every two years (per article 62 of the Charter)
and that are considered by the African Commission are reprinted in Human Rights
Law in Africa 2004 p 569 and further, and are also available on www.chr.up.ac.za.
The African Commission adopted the simplified guidelines reprinted below as a
supplement to the initial guidelines in 1998. The Commission has also adopted
guidelines on reports on socio-economic rights. These guidelines are available at
www.achpr.org

...
1. An initial report (the first report) should contain a brief history of the
state, its form of government, the legal system and the relationship between
the arms of government.
2. The initial report should also include the basic documents — the
constitution, the criminal code and procedure and landmark decisions on
human rights.
3. The major human rights instruments to which the state is a party and
the steps taken to internalise them.
4. How is the state party implementing the following rights protected by
the Charter:
(a) civil and political rights;
(b) economic, social and cultural rights; and
(c) group rights?
5. What is the state doing to improve the condition of the following groups
mentioned in the Charter:
(a) women;
(b) children; and
(c) the disabled?
6. What steps are being taken to protect the family and encourage its
cohesion?
7. What is being done to ensure that individual duties are observed?
8. What are the problems encountered in implementing the Charter with
regard to the political, economic or social circumstances of the state?
9. How is the state carrying out its obligations under article 25 of the
Charter — on human rights education?
10. How is the state, as an interested party, using the Charter in its
international relations, particularly in ensuring respect for it?
11. Any other information relevant to the implementation and promotion of
the Charter.
242 African Commission on Human and Peoples’ Rights

Guidelines for state reporting under the Protocol

to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa (2010)

These guidelines developed by a gender experts meeting in Pretoria, South Africa

in August 2009, were adopted by the Commission in May 2010.

Pursuant to article 26 of the Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Women in Africa (the Protocol), read together
with article 62 of the African Charter on Human and Peoples’ Rights (the
African Charter), each state party to the Protocol has agreed to submit every
two years, from the day the Protocol comes into force, a report on the
legislative, judicial, administrative and other measures taken with a view to
ensure full realisation of the rights and freedoms contained in the Protocol.
A state party to the African Charter and the Protocol must submit its report
in two parts: Part A, dealing with the rights in the African Charter, and Part
B, dealing with the rights in the Protocol. A state’s first report under Part B
must, preferably, not exceed 50 pages and subsequent reports should not
exceed 30 pages. In the preparation of Part B, state parties should follow the
following guidelines:

Initial reports
When states report for the first time under the Protocol, they must provide
the following:

i. Process of preparation
To what extent was civil society, in particular individuals and organisations
working on gender issues, involved in the preparation of the report?

ii. Background information

• A brief description of the state’s overall legal framework as it relates to
women’s rights (such as the Constitution, other laws, policies and
programmes).
• An explanation as to whether the Protocol is directly applicable before
national courts or if it has to be incorporated into domestic law.
Information on whether in practice the provisions of the Protocol have
been invoked before national courts and tribunals (with some examples
of the most important cases).
• If the State has entered any reservations to the Protocol, it should
provide an explanation indicating the effect of the reservations (if any)
on the enjoyment of the rights protected by the Protocol. The State
should indicate how much time is needed before it can lift its
reservations or give an estimate of the time.
• A brief description of state institutions, if any, relevant to the Protocol
and information on their budgetary allocation.
• General information on gender budgeting.
• Information on gender mainstreaming, including any policy and capacity-building
efforts.
• Information on any gender audit of laws or legal reform efforts undertaken from
a gender perspective (attach relevant documents).
 Guidelines for Reporting on Women’s Protocol 243

iii. Specific provisions of the Protocol

In respect of each of the provisions of the Protocol (which have been
thematically structured below), states should explain the measures of
implementation that they have undertaken with regard to the following:
(a) Legislation (What legislative measures has the state taken to give effect
to the particular rights guaranteed in the Protocol?)
(b) Administrative measures (What administrative measures, including
budgetary allocations, has the state taken to give effect to the particular
rights guaranteed in the Protocol?)
(c) Institutions (What institutional mechanisms are in place to ensure that
the particular rights guaranteed in the Protocol are given effect?)
(d) Policies and programmes (What policies and programmes has the state
adopted in order to give effect to the rights in question?)
(e) Public education (What public education and awareness-raising
activities has the state undertaken with respect to the rights in question?)
(f) Any other measures (What other general measures, which are not
covered in the points above, has state adopted to ensure the protection of the
particular rights in question?)
(g) Remedies (judicial and administrative (extra-judicial)) (What are the
available avenues for redress in the event of a breach of the particular rights
provided in the Protocol? Have any cases been decided in respect to each of
the rights; and if so, have these decisions been implemented?)
(h) Challenges experienced (What are the challenges that the state has
faced in the implementation of the particular rights, and what steps have
been taken to overcome these challenges?)
(i) Accessibility (Are the particular rights accessible to all women,
especially rural/impoverished women?)
(j) Disaggregated statistics (Where relevant, the state should provide
relevant data and statistics disaggregated by gender in so far as the right in
question is concerned.)

iv. With reference to the measures of implementation above,

states must report on all the provisions of the Protocol,
preferably as grouped under the following eight (8) themes:
1. Equality/Non-discrimination
1.1 Elimination of discrimination (article 2)
1.2 Access to justice, including legal aid and the training of law
enforcement officials (article 8)
1.3 Political participation and decision-making (article 9)
1.4 Education (article 12)
2. Protection of women from violence
2.1 Bodily integrity and dignity, including sexual violence, trafficking of
women and medical and scientific experimentation (article 3 & 4)
2.2 Practices harmful to women, including female genital mutilation
(article 5).
2.3 Female stereotypes (article 4(2)(c))
2.4 Sexual harassment
2.5 Domestic violence (article 4(2)(a))
2.6 Support to victims of violence, including heath services and
psychological counselling (article 5(c))
3. Rights relating to marriage (articles 6-7)
3.1 Marriage and its effect on property relations, nationality, name (article
6(e) to (j))
3.2 Minimum age of marriage (article 6(b))
3.3 Registration of marriages (article 6(d))
3.4 Protection of women in polygamous marriages (article 6(c))
244 African Commission on Human and Peoples’ Rights

3.5 Protection of women during separation, divorce or annulment of

marriage (article 7)
3.6 Protection of children in the family (article 6(i) &(j))
4. Health and reproductive rights
4.1 Access to health services (article 14(2)(a))
4.2 Reproductive health services, including the reduction of maternal
mortality (article 14(1)(a) & (b))
4.3 Provision for abortion (article 14(2)(c))
4.4 HIV/AIDS (article 14(1)(d))
4.5 Sex education (article 14(1)(g))
5 Economic, social and cultural rights
5.1 Economic and welfare rights (article 13)
5.2 Right to food security (article 15)
5.3 Right to adequate housing (article 16)
5.4 Right to positive cultural context (article 17)
5.5 Right to a healthy and sustainable environment (article 18)
5.6 Right to sustainable development, including the right to property;
access to land and credit (article 19)
6 Right to peace (article 10)
6.1 Women’s participation in peace and conflict prevention and
management (article 10(1)) and in all aspects of post-conflict reconstruction
and rehabilitation (article 10(2)(e))
6.2 Reduction of military expenditures in favour of social spending (article
10(3))
7 Protection of women in armed conflicts (article 11)
7.1 Indicate measures of protection for asylum seekers, refugees, internally
displaced women and ensure the punishment of all violators of such
protection (article 11(1) – (3)).
7.2 Protection that no child especially girls take a direct part in hostilities
and no child is recruited as a solider (article 11(4))
8 Rights of specially protected women’s groups
8.1 Widows, including their inheritance rights (articles 20 & 21)
8.2 Elderly women (article 22)
8.3 Women with disabilities (article 23)
8.4 Women in distress (article 24)

Periodic reports
Subsequent reports should cover the following:
• Measures taken to implement recommendations in the concluding
observations of the Commission emanating from the examination of the
previous report.
• Measures taken to publicise and disseminate the concluding observations
adopted after the examination of the previous report.
• Progress made in the implementation of the Protocol since the last
report.
• The challenges faced in the implementation of the Protocol since the
last report, and steps taken to address these challenges.
• Future plans in regard to the implementation of the Protocol.
• Include measures that have been taken to implement recommendations
made during country visits by the Special mechanism on women’s rights.
 Concluding Observations 245

Concluding Observations and Recommendations on

the Initial Periodic Report of the Republic of
Botswana (2009)

The concluding observations reprinted here were adopted by the African

Commission after consideration of the initial state report submitted by Botswana
under article 62 of the African Charter. These concluding observations were
adopted in November 2009. Source: Secretariat of the African Commission

Part I: Introduction
1. The Republic of Botswana is a state party to the African Charter on
Human and Peoples’ Rights (the African Charter) having ratified the Charter
on 17 July 1986.
2. The periodic report was the first ever since the Republic of Botswana
ratified the African Charter.
3. The present concluding observations follow the presentation and
examination of the initial periodic reports of Botswana at the 46th ordinary
session of the African Commission. The report covers human rights
development in the country since independence (1966).
4. The report was presented to the African Commission by the Minister for
Defence, Justice and Security, Honourable Dikgakgamatso Seretse. It
highlights the developments that have taken place in the areas of human and
peoples’ rights and measures put in place with a view to implement the
country’s obligations under the African Charter.
5. The present concluding observations give an account of the constructive
and positive aspects, and concerns identified in the report. The comments,
remarks and observations during the examination of the report, enhanced the
recommendations formulated after the dialogue.

Part II: The positive factors

The African Commission:
6. Welcomes the presentation of the initial periodic report of Botswana in
accordance with article 62 of the African Charter and the fact that both the
format and presentation of the report are in conformity with the African
Commission’s Guidelines on state reporting.
7. Appreciates the quality and candidness of the report and the
constructive dialogue the Commission had with the delegation of Botswana.
The Commission welcomes the positive reactions to the suggestions and
recommendations made during the discussion.
8. Welcomes the additional information and answers to the questions
provided by the delegation of Botswana during the examination of the report,
and further welcomes the undertaking made by the delegation to provide as
soon as possible to the African Commission, answers to questions and
additional information which were not immediately available, as well as to
include such information in its next periodic report to the African
Commission.
9. Commends Botswana for the successive and consistent high economic
growth rate it has achieved through the years and for becoming one of the
few middle income countries in Africa.
10. Welcomes the establishment of the Office of the Ombudsman and also
appreciates the work done by it in fighting maladministration and injustice in
the public sector.
246 African Commission on Human and Peoples’ Rights

11. Commends Botswana for having a dynamic and independent judiciary

which is playing an important role in the protection of human rights and
fundamental freedoms.
12. Notes that since its independence in 1966 the Republic of Botswana had
conducted successive elections which have been deemed to be free and fair,
making the country a model for a functioning multiparty democracy, whose
foundations are based on the promotion and protection of human rights.
13. Particularly congratulates Botswana for conducting peaceful elections
in October 2009 which were declared free and fair by national and
international observers.
14. Commends Botswana for ratifying major international and regional
human rights instruments.
15. Welcomes the establishment of an Inter-Ministerial Committee on
Treaties, Conventions and Protocols in 2002 to ensure the existence of laws
and effective mechanisms for the enforcement and assertions of human
rights.
16. Commends Botswana for making education free up to the tertiary level
and for having a special scheme that ensures that children in need attend
school.
17. Commends Botswana for its social security programs for older people
and World War II veterans.
18. Commends Botswana for amending and enacting the following
legislations which contribute to the economic, social and political
empowerment of women:
• The amendment of the Deeds Registry Act of 1996 which among others
enable women to execute deeds and other required documents and to
be registered in the deeds registry without their husbands’ consent and
allow for immovable property to be transferred or ceded to a woman
married in a community of property and allow the woman to have her
own separate estate.
• The amendment of the Abolition of Marital Power Act in 2004 which
provides for equality between men and women in marriage in
community of property.
• The amendment of the Criminal Procedure and Evidence Act to provide
for the mandatory hearing of rape and related offences in closed
proceedings.
• The amendment of Sections 141 and 142 of the Penal Code which
brought about gender neutrality in relation to rape by moving it away
from being phallus-specific.
• The amendment of Public Service Act to recognise sexual harassment as
misconduct.
• The enactment of the Domestic Violence Act in 2007 which provides for
the protection of survivors of domestic violence and for matters related
therewith.
• The amendment of the Citizenship Act in 1995 following court ruling in
the Unity Dow case.
19. Further commends Botswana for acceding to the Convention for the
Elimination of All Forms of Discrimination against Women and for ratifying the
Optional Protocol to the Convention.
20. Notes the extensive consultations made with the people and various
stakeholders that eventually led to the enactment of the Bogosi Act to amend
sections 77, 78 and 79 of the Constitution to make them tribally neutral.
21. Appreciates the social safety net programs put in place like the
Destitute Program, the Orphan Care Program, the Community Home Based
Care Program and Remote Area Development Program for vulnerable
members of the society.
 Concluding Observations 247

22. Commends the efforts made by Botswana to contain the spread of HIV/
AIDS by making Anti-Retroviral Treatment and Prevention of Mother to Child
Transmission Programs widely available for people living with HIV/AIDS and
through HIV/AIDS awareness campaigns.
23. Notes and appreciates the National Strategy for Poverty Reduction
programme that tries to foster sustainable livelihoods, expand employment
opportunities and improve access to social investment.
24. Commends Botswana for the progress made in ensuring the availability,
accessibility and affordability of health care programs and facilities to the
population.
25. Notes the human rights program introduced by the Botswana Police
College.

PART III: Areas of concerns

26. While recognising the efforts of Botswana to promote and protect
human rights and to promote awareness of the principles and provisions of the
African Charter, the African Commission remains concerned that:
27. Non-governmental organisations working in the field of human rights
like the Botswana Centre for Human Rights (Ditshwanelo) did not have an
input into the preparation of the report.
28. The report does not address environmental issues and concerns.
29. Nothing has been mentioned in the report about the measures taken by
the state as to how it is fulfilling its obligations laid out in articles 27 to 29 of
the African Charter.
30. Corporal punishment is still allowed in schools and prisons as one form
of punishment. The African Commission regards such forms of punishment as
cruel, inhuman and degrading.
31. There is no organ that is mandated to look into human rights violations
that are perpetrated by non-state actors.
32. The Constitution does not give recognition to economic, social, cultural
and environmental rights.
33. Despite all the efforts that Botswana has made to avail its citizens
economic, social and cultural Botswana has not yet ratified the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
34. The reservations made by Botswana on CAT and the definition of torture
provided under the Constitution of the Republic of Botswana undermine the
protection and guarantees that torture, cruel, inhuman and degrading
treatment or punishment will not be carried out by law enforcement officials.
35. Botswana still retains the death penalty and that it does not have plans
to abolish it soon. The African Commission is especially concerned that the
Republic of Botswana is one of the few African Countries that carries out the
death penalty regularly.
36. The President has a very vast and unchecked power in expelling non-
nationals out of the country and in branding an individual as dangerous to
peace and order.
37. The participation of women in parliament and in other organs of the
government is very nominal.
38. There is no clear provision that criminalises torture.
39. Female prisoners do not have their own separate prison.
40. Convicted prisoners are only allowed visits by friends and relatives for
twenty minutes each month, which in the opinion of the African Commission
is insufficient.
41. Free legal assistance by the state is restricted only to persons charged
with capital offence.
248 African Commission on Human and Peoples’ Rights

42. The government is not giving the necessary attention to the rights and
concerns of the Basawara people who were evicted from the Central Kalahari
Game Reserve.
43. The language requirement for the election of the National Assembly
discriminates against the poor/illiterate and minority groups who do not
speak English.
44. There is no provision for free legal aid.
44. There is undue delay in the disposal of cases, especially pre-trial
detention, leading to a backlog of cases and ultimately overcrowding in
prisons and detention centres.
45. There is no legislation that makes basic education compulsory.
46. The fact that minors are required to be accompanied by their parents
for HIV testing may be contributing to the spreading of AIDS.

PART IV: Factor(s) restricting the enjoyment of the rights prescribed by

the African Charter
47. The report acknowledges that resource constraints have largely been
responsible for Botswana not being able to meet all of its human rights
obligations. It also indicates that the high rate of HIV infection has obliged the
government to shift resources to fight the AIDS pandemic.
48. The report further recognises the deep rooted beliefs in otherwise
human rights unfriendly practices like corporal punishment and the death
penalty.
49. The report also reveals that the official definition of settlements for
purposes of planned development in many instances do not match the
population and geographical distribution of human settlement.

PART V: Recommendations to the Government of the Republic of

Botswana
50. The African Commission recommends that the Government of Botswana:
(i) Should ensure that it involves all relevant NGOs in the preparation of its
next periodic report, including the Botswana Centre for Human Rights
(Ditshwanelo);
(ii) The next periodic report should include environmental issues, and
should enumerate how the government is fulfilling its obligations under
articles 27 – 29 of the African Charter.
(iii) Should take urgent and concrete measures to abolish laws that allow
corporal punishment in schools and prisons.
(iv) Take steps towards establishing a National Human Rights Commission or
elevate the Office of the Ombudsman to look into cases of violations of human
rights by non-state actors.
(v) Expedite the implementation of the Judicial Case Management System
to address the problems of backlog of cases;
(vi) Take the necessary steps to amend the Constitution to incorporate
economic, social, cultural and environmental rights.
(vii) Ratify the International Covenant on Economic, Social and Cultural
Rights.
(viii) Should undertake to make a declaration accepting the competence of
the African Court under article 34(6) of the Protocol to the African Charter on
Human and Peoples’ Rights on the Establishment of the African Court on
Human and Peoples’ Rights.
(ix) Should consider withdrawing the reservations made by it on CAT and
remove the qualifying provisions in the Constitution on the definition of
torture.
(x) Should legislate laws that criminalise torture.
 Concluding Observations 249

(xi) Take the necessary steps to institute a moratorium on the death penalty
and to this effect the Commission recommends that the government of
Botswana works closely with the Commission’s Working Group on the Death
Penalty;
(xii) Take legislative measures to limit and check the President’s powers in
expelling non-nationals out of the country and in branding an individual as
dangerous to peace and order.
(xiii) Should put in place mechanisms to encourage and promote women’s
participation in the social, economic and political affairs of the state.
(xiv) Make the necessary arrangements to build a separate prison for female
prisoners with the necessary facilities.
(xv) Conduct consultations with all the relevant stakeholders involved in the
administration of justice, including families of detainees with a view to
increase the frequency and time duration of visit by friends and relatives of
convicted prisoners.
(xvi) Take the necessary legislative measures and material preparations to
extend free legal assistance to all crimes where the accused person cannot
afford to pay legal representation fees. Such assistance could be means
tested.
(xvii) Should start implementing the 2006 decisions of the High Court in
relation with the Basawara people of the Kalahari. In this regard, it should
focus on the cultural rights and socio-economic needs of the Basawara
people.
(xviii)Consult and or work closely with the African Commission’s ‘Working
Group on Indigenous Populations/Communities in Africa’ in finding practical
ways of implementing the decisions of the Court.
(xix) Should take the necessary steps to amend the provision of the
Constitution which makes the English language a requirement for election to
the National Assembly.
(xx) Should promote civil societies and NGOs that provide free legal aid and
should also enact laws that regulate legal aid.
(xxi) Take the necessary measures to legislate laws that ensure basic
compulsory education for all.
(xxii) Look into ways of amending the law that requires minors to be
accompanied by their parents for HIV testing.
(xxiii)Should include standards like the Robben Island Guidelines in the human
rights program of the Botswana Police College and the training of prison
officers.
(xxiv)Finally, the African Commission requests that the Republic of Botswana
in its next periodic report inform the African Commission of the steps it has
taken to address the areas of concern as well as how it has implemented the
recommendations in these concluding observations.
 Selected Decisions of the African Commission

Under article 55 of the African Charter, the African Commission receives

complaints by individuals against governments. Some examples of the decisions of
the Commission in respect of these complaints are reprinted here. In most cases
only excerpts are provided. The full text of the decisions reprinted here may be
found in the African Human Rights Law Reports under the references provided. See
also the African Case Law Analyser caselaw.ihrda.org. The first date in the
reference, provided in brackets after the name of the case, refers to the date of
publication of the Reports. After the acronym of the name of the Reports (AHRLR)
the page number on which the decision starts may be found. The acronym for the
African Commission on Human and Peoples’ Rights, ACHPR, follows as well as the
year in which the case was decided by the African Commission, in brackets. In
respect of cases that have not yet been published in the AHRLR, the
communication number is cited. The cases are sorted in alphabetical order
following a list of decisions by article of the African Charter discussed. Footnotes
omitted.

Reprinted decisions by article of the African Charter discussed

Article 1 Commission Nationale des Droits de l’Homme et des Libertés v Chad

Institute for Human Rights and Development in Africa v Angola
International Pen and Others (on behalf of Saro-Wiwa) v Nigeria
Jawara v The Gambia
Lawyers for Human Rights v Swaziland
Zimbabwe Human Rights NGO Forum v Zimbabwe
Egyptian Initiative for Personal rights and Interights v Egypt

Article 2 Democratic Republic of the Congo v Burundi, Rwanda and Uganda

Jawara v The Gambia
Purohit and Another v The Gambia
Egyptian Initiative for Personal rights and Interights v Egypt
The Nubian Community in Kenya v Kenya

Article 3 Bissangou v Republic of Congo

Purohit and Another v The Gambia
Egyptian Initiative for Personal rights and Interights v Egypt
The Nubian Community in Kenya v Kenya

Article 4 Democratic Republic of the Congo v Burundi, Rwanda and Uganda

Forum of Conscience v Sierra Leone
International Pen and Others (on behalf of Saro-Wiwa) v Nigeria
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria

Article 5 Achuthan and Another (on behalf of Banda and Others) v Malawi
Amnesty International and Others v Sudan
Article 19 v Eritrea
Doebbler v Sudan
Egyptian Initiative for Personal rights and Interights v Egypt
Huri-Laws v Nigeria
Institute for Human Rights and Development in Africa v Angola
International Pen and Others (on behalf of Saro-Wiwa) v Nigeria
Interights & Ditshwanelo v Botswana
Malawi African Association and Others v Mauritania
The Nubian Community in Kenya v Kenya
Ouko v Kenya
Purohit and Another v The Gambia
Zegveld and Another v Eritrea

Article 6 Constitutional Rights Project and Another v Nigeria

Institute for Human Rights and Development in Africa v Angola
Jawara v The Gambia
Media Rights Agenda and Others v Nigeria
Purohit and Another v The Gambia
Sudan Human Rights Organisation and Another v Sudan
 Decisions of the African Commission 251

Article 7 Bissangou v Republic of Congo

Constitutional Rights Project and Another v Nigeria
Huri-Laws v Nigeria
Lawyers for Human Rights v Swaziland
Media Rights Agenda and Others v Nigeria
Zimbabwe Human Rights NGO Forum v Zimbabwe
Sudan Human Rights Organisation and Another v Sudan

Article 7(1)(a) Constitutional Rights Project (in respect of Akamu and Others) v Nigeria
Institute for Human Rights and Development in Africa v Angola
Purohit and Another v The Gambia
Tembani and Freeth v Angola and Thirteen Others

Article 7(1)(b) Law Office of Ghazi Suleiman v Sudan (I)

Article 7(1)(c) Achuthan and Another (on behalf of Banda and Others) v Malawi
Avocats Sans Frontières (on behalf of Bwampamye) v Burundi
International Pen and Others (on behalf of Saro-Wiwa) v Nigeria
Law Office of Ghazi Suleiman v Sudan (I)
Purohit and Another v The Gambia

Article 7(1)(d) Amnesty International and Others v Sudan

Article 19 v Eritrea
Constitutional Rights Project (in respect of Akamu and Others) v Nigeria
Jawara v The Gambia
Law Office of Ghazi Suleiman v Sudan (I)
Pagnoulle (on behalf of Mazou) v Cameroon

Article 7(2) Jawara v The Gambia

Article 8 Amnesty International and Others v Sudan

Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya
Prince v South Africa

Article 9 Amnesty International and Others v Sudan

Article 19 v Eritrea
Constitutional Rights Project and Another v Nigeria
Constitutional Rights Project and Others v Nigeria
Jawara v The Gambia
Law Office of Ghazi Suleiman v Sudan (II)
Media Rights Agenda and Others v Nigeria
Ouko v Kenya
Zimbabwe Lawyers for Human Rights and Another (on behalf of Meldrum) v
Zimbabwe
Egyptian Initiative for Personal rights and Interights v Egypt

Article 10 Civil Liberties Organisation (in respect of Bar Association) v Nigeria

Huri-Laws v Nigeria
Jawara v The Gambia
Law Office of Ghazi Suleiman v Sudan (II)
Lawyers for Human Rights v Swaziland

Article 11 Jawara v The Gambia

Law Office of Ghazi Suleiman v Sudan (II)
Lawyers for Human Rights v Swaziland

Article 12(1) Huri-Laws v Nigeria

Jawara v The Gambia
Law Office of Ghazi Suleiman v Sudan (II)
The Nubian Community in Kenya v Kenya
Sudan Human Rights Organisation and Another v Sudan

Article 12(4) Institute for Human Rights and Development in Africa v Angola

Article 12(5) African Institute for Human Rights and Development (on behalf of Sierra Leonean
Refugees in Guinea) v Guinea
Institute for Human Rights and Development in Africa v Angola

Article 13 Constitutional Rights Project and Another v Nigeria

Jawara v The Gambia
Lawyers for Human Rights v Swaziland
The Nubian Community in Kenya v Kenya
Purohit and Another v The Gambia
252 African Commission on Human and Peoples’ Rights

Article 14 Bissangou v Republic of Congo

Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya
Constitutional Rights Project and Others v Nigeria
Democratic Republic of the Congo v Burundi, Rwanda and Uganda
Huri-Laws v Nigeria
Institute for Human Rights and Development in Africa v Angola
Media Rights Agenda and Others v Nigeria
The Nubian Community in Kenya v Kenya
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
Sudan Human Rights Organisation and Another v Sudan

Article 15 Institute for Human Rights and Development in Africa v Angola

The Nubian Community in Kenya v Kenya
Prince v South Africa

Article 16 Democratic Republic of the Congo v Burundi, Rwanda and Uganda

International Pen and Others (on behalf of Saro-Wiwa) v Nigeria
Purohit and Another v The Gambia
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
Sudan Human Rights Organisation and Another v Sudan

Article 16(1) Egyptian Initiative for Personal rights and Interights v Egypt
The Nubian Community in Kenya v Kenya

Article 17 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya
Democratic Republic of the Congo v Burundi, Rwanda and Uganda
Malawi African Association and Others v Mauritania
The Nubian Community in Kenya v Kenya
Prince v South Africa

Article 18(1) Democratic Republic of the Congo v Burundi, Rwanda and Uganda
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
Sudan Human Rights Organisation and Another v Sudan

Article 18(3) Egyptian Initiative for Personal rights and Interights v Egypt

Article 18(4) Purohit and Another v The Gambia

Article 19 Malawi African Association and Others v Mauritania

Gunme and Others v Cameroon

Article 20 Constitutional Rights Project and Another v Nigeria

Democratic Republic of the Congo v Burundi, Rwanda and Uganda
Gunme and Others v Cameroon
Jawara v The Gambia
Katangese Peoples’ Congress v Zaire

Article 21 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya
Democratic Republic of the Congo v Burundi, Rwanda and Uganda
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria

Article 22 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya
Democratic Republic of the Congo v Burundi, Rwanda and Uganda
Sudan Human Rights Organisation and Another v Sudan

Article 23 Democratic Republic of the Congo v Burundi, Rwanda and Uganda

Malawi African Association and Others v Mauritania

Article 24 Social and Economic Rights Action Centre (SERAC) and Another v Nigeria

Article 26 Amnesty International and Others v Sudan

Constitutional Rights Project and Another v Nigeria
Huri-Laws v Nigeria
Jawara v The Gambia
Lawyers for Human Rights v Swaziland
Tembani and Freeth v Angola and Thirteen Others
Zimbabwe Lawyers for Human Rights and Another (on behalf of Meldrum) v
Zimbabwe

Article 27(2) Constitutional Rights Project and Others v Nigeria

Interights and Others v Mauritania
Media Rights Agenda and Others v Nigeria
 Decisions of the African Commission 253

Article 47 Democratic Republic of the Congo v Burundi, Rwanda and Uganda

Article 48 Democratic Republic of the Congo v Burundi, Rwanda and Uganda

Article 49 Democratic Republic of the Congo v Burundi, Rwanda and Uganda

Article 56(3) Ligue Camerounaise des Droits de l’Homme v Cameroon

Article 56(4) Jawara v The Gambia

Article 56(5) African Institute for Human Rights and Development (on behalf of Sierra Leonean
Refugees in Guinea) v Guinea
Article 19 v Eritrea
Bissangou v Republic of Congo
Human Rights Council and Others v Ethiopia
Jawara v The Gambia
Media Rights Agenda and Others v Nigeria
Purohit and Another v The Gambia
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
Zimbabwe Human Rights NGO Forum v Zimbabwe

Article 56(6) Majuru v Zimbabwe

Shumba v Zimbabwe

Article 56(7) Sudan Human Rights Organisation and Another v Sudan

Article 61 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya
Democratic Republic of the Congo v Burundi, Rwanda and Uganda
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria

_____________________________________

Achuthan and Another (on behalf of Banda and Others) v Malawi

(2000) AHRLR 144 (ACHPR 1995)

One of the complainants in this case — Vera Chirwa — would later become a
member of the African Commission. The Commission here confirms that new
governments are responsible for the human rights violations of their predecessors.

Law
...
7. Article 5 of the African Charter provides as follows: ‘... All forms of ...
torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.’ The conditions of over crowding and acts of beating and torture
that took place in prisons in Malawi contravened this article. Aspects of the
treatment of Vera and Orton Chirwa such as excessive solitary confinement,
shackling within a cell, extremely poor quality food and denial of access to
adequate medical care, were also in contravention of this article.
...
10. Vera and Orton Chirwa were tried before the Southern Region
Traditional Court without being defended by a counsel. This constitutes a
violation of article 7(1)(c) of the African Charter.
11. The Commission notes that Malawi has undergone important political
change after the submission of the communications. Multiparty elections have
been held, resulting in a new government. The Commission hopes that a new
era of respect for the human rights of Malawi’s citizens has begun.
254 African Commission on Human and Peoples’ Rights

12. Principles of international law stipulate, however, that a new

government inherits the previous government’s international obligations,
including the responsibility for the previous government’s mismanagement.
The change of government in Malawi does not extinguish the present claim
before the Commission. Although the present government of Malawi did not
commit the human rights abuses complained of, it is responsible for the
reparation of these abuses.
...

_____________________________________

African Institute for Human Rights and Development (on behalf of

Sierra Leonean Refugees in Guinea) v Guinea
(2004) AHRLR 57 (ACHPR 2004)

This case relates to the violation of refugees’ rights in Guinea, one of the main
countries hosting refugees in Africa. For the first time, the Commission finds a
violation not only of the African Charter, but also of the OAU Refugee Convention.

Summary of facts
1. It is alleged by the complainant that on 9 September 2000, Guinean
President Lansana Conté proclaimed over the national radio that Sierra
Leonean refugees in Guinea should be arrested, searched and confined to
refugee camps. His speech incited soldiers and civilians alike to engage in
mass discrimination against Sierra Leonean refugees in violation of article 2
of the African Charter.
...
26. At the 35th ordinary session, the respondent state was not represented
due to the change of the venue. At the 35th ordinary session, the Commission
heard oral submissions from complainants and testimonies from witnesses on
the merits of the communication.
...
Admissibility
...
31. Article 56(5) requires the exhaustion of local remedies as a condition of
the presentation of a complaint before the Commission is premised on the
principle that the respondent state must first have an opportunity to redress
by its own means within the framework of its own domestic legal system, the
wrong alleged to have been done to the individual.
32. Concerning the matter of exhausting local remedies, a principle
endorsed by the African Charter as well as customary international law, the
complainant argues that any attempt by Sierra Leonean refugees to seek local
remedies would be futile for three reasons.
33. First, the persistent threat of further persecution from state officials
has fostered an ongoing situation in which refugees are in constant danger of
reprisals and punishment. When the authorities tasked with providing
protection are the same individuals persecuting victims an atmosphere in
which domestic remedies are available is compromised. Furthermore,
according to the precedent set by the African Commission in Jawara v The
Gambia [(2000) AHRLR 107 (ACHPR 2000)], the need to exhaust domestic
 Decisions of the African Commission 255

remedies is not necessarily required if the complainant is in a life-threatening

situation that makes domestic remedies unavailable.
34. Second, the impractical number of potential plaintiffs makes it difficult
for domestic courts to provide an effective avenue of recourse. In September
of 2000, Guinea hosted nearly 300 000 refugees from Sierra Leone. Given the
mass scale of crimes committed against Sierra Leonean refugees — 5 000
detentions, mob violence by Guinean security forces, widespread looting —
the domestic courts would be severely overburdened if even a slight majority
of victims chose to pursue legal redress in Guinea. Consequently, the
requirement to exhaust domestic remedies is impractical.
35. Finally, exhausting local remedies would require Sierra Leonean victims
to return to Guinea, the country in which they suffered persecution, a
situation that is both impractical and unadvisable. According to precedent set
by the Commission in Rencontre Africaine pour la Défense des Droits de
l’Homme v Zambia [(2000) AHRLR 321 (ACHPR 1996)], victims of persecution
are not necessarily required to return to the place where they suffered
persecution to exhaust local remedies.
36. In this present case, Sierra Leonean refugees forced to flee Guinea after
suffering harassment, eviction, looting, extortion, arbitrary arrests,
unjustified detentions, beatings and rapes. Would it be required to return to
the same country in which they suffered persecution? Consequently, the
requirement to exhaust local remedies is inapplicable. For these reasons, the
communication is declared admissible.

Merits
...
67. The African Commission is aware that African countries generally and
the Republic of Guinea in particular, face a lot of challenges when it comes
to hosting refugees from neighbouring war torn countries. In such
circumstances some of these countries often resort to extreme measures to
protect their citizens. However, such measures should not be taken to the
detriment of the enjoyment of human rights.
68. When countries ratify or sign international instruments, they do so
willingly and in total cognisance of their obligation to apply the provisions of
these instruments. Consequently, the Republic of Guinea has assumed the
obligation of protecting human rights, notably the rights of all those refugees
who seek protection in Guinea.
69. In Rencontre Africaine pour la Défense des Droits de l’Homme v Zambia
[(2000) AHRLR 321 (ACHPR 1996)], the African Commission pointed out that
‘the drafters of the Charter believed that mass expulsion presented a special
threat to human rights’. In consequence, the action of a state targeting
specific national, racial, ethnic or religious groups is generally qualified as
discriminatory in this sense as it has no legal basis.
70. The African Commission notes that Guinea is host to the second largest
refugee population in Africa with just under half a million refugees from
neighbouring Sierra Leone and Liberia. It is in recognition of this role that
Guinea was selected to host the 30th anniversary celebrations of the 1969
OAU Convention on the Specific Aspects of Refugee Problems in Africa, which
was held in Conakry, Guinea in March 2000.
71. The African Commission appreciates the legitimate concern of the
Guinean government in view of the threats to its national security posed by
the attacks from Sierra Leone and Liberia with a flow of rebels and arms
across the borders.
72. As such, the government of Guinea is entitled to prosecute persons that
they believe pose a security threat to the state. However, the massive
violations of the human rights of refugees as are outlined in this
256 African Commission on Human and Peoples’ Rights

communication constitute a flagrant violation of the provisions of the African

Charter.
74. Although the African Commission was not provided with a transcript of
the speech of the President, submissions before the Commission led it to
believe that the evidence and testimonies of eye witnesses reveal that these
events took place immediately after the speech of the President of the
Republic of Guinea on 9 September 2000.
75. The African Commission finds that the situation prevailing in Guinea
during the period under consideration led to certain human rights violations.

For the above reasons, the African Commission:

• Finds the Republic of Guinea in violation of articles 2, 4, 5, 12(5) and 14
of the African Charter and article 4 of the OAU Convention Governing the
Specific Aspects of Refugees in Africa of 1969.
• Recommends that a Joint Commission of the Sierra Leonean and the
Guinea governments be established to assess the losses by various victims
with a view to compensate the victims.

_____________________________________

Amnesty International and Others v Sudan

(2000) AHRLR 297 (ACHPR 1999)

In this case the Commission deals with a variety of violations of the Charter by the
government of Sudan following the coup d’état of 1989. Violations include failure
to protect civilians during a civil war, and violations of freedom of religion and
speech.

...
Merits
...
50. In addition to the individuals named in the communications, there are
thousands of other executions in Sudan. Even if these are not all the work of
forces of the government, the government has a responsibility to protect all
people residing under its jurisdiction (see communication 74/91,
[Commission, Nationale des Droits de l’Homme et des Libertés v Chad,
paragraph 21]). Even if Sudan is going through a civil war, civilians in areas of
strife are especially vulnerable and the state must take all possible measures
to ensure that they are treated in accordance with international humanitarian
law.
51. The investigations undertaken by the government are a positive step,
but their scope and depth fall short of what is required to prevent and punish
extrajudicial executions. Investigations must be carried out by entirely
independent individuals, provided with the necessary resources, and their
findings should be made public and prosecutions initiated in accordance with
the information uncovered. Constituting a commission of the district
prosecutor and police and security officials, as was the case in the 1987
Commission of Inquiry set up by the Governor of South Darfur, overlooks the
possibility that police and security forces may be implicated in the very
massacres they are charged to investigate. This Commission of Inquiry, in the
Commission’s view, by its very composition, does not provide the required
guarantees of impartiality and independence.
...
 Decisions of the African Commission 257

55. Torture is prohibited by the Sudanese Penal Code and perpetrators

punishable with up to three months imprisonment or a fine.
56. The government does not deal with these allegations in its report. The
Commission appreciates the fact that the government has brought some
officials to trial for torture, but the scale of the government’s measures is not
commensurate with the magnitude of the abuses. Punishment of torturers is
important, but so also are preventive measures such as halting of
incommunicado detention, effective remedies under a transparent,
independent and efficient legal system, and ongoing investigations into
allegations of torture.
57. Since the acts of torture alleged have not been refuted or explained by
the government, the Commission finds that such acts illustrate, jointly and
severally, government responsibility for violations of the provisions of article
5 of the African Charter.
...
69. The dismissal of over 100 judges who were opposed to the formation of
special courts and military tribunals is not contested by the government. To
deprive courts of the personnel qualified to ensure that they operate
impartially thus denies the right to individuals to have their case heard by
such bodies. Such actions by the government against the judiciary constitute
violations of articles 7(1)(d) and 26 of the Charter.
...
73. Another matter is the application of Shari’a law. There is no controversy
as to Shari’a being based upon the interpretation of the Muslim religion. When
Sudanese tribunals apply Shari’a, they must do so in accordance with the
other obligations undertaken by the State of Sudan. Trials must always accord
with international fair trial standards. Also, it is fundamentally unjust that
religious laws should be applied against nonadherents of the religion.
Tribunals that apply only Shari’a are thus not competent to judge non-
Muslims, and everyone should have the right to be tried by a secular court if
they wish.
74. It is alleged that non-Muslims were persecuted in order to cause their
conversion to Islam. They do not have the right to preach or build their
churches; there are restrictions on freedom of expression in the national
press. Members of the Christian clergy are harassed; Christians are subjected
to arbitrary arrests, expulsions and denial of access to work and food aid.
75. In its various oral and written submissions to the African Commission,
the government has not responded in any convincing manner to all the
allegations of human [rights violations] made against it. The Commission
reiterates the principle that in such cases where the government does not
respect its obligation to provide the Commission with a response to the
allegations of which it is notified, it shall consider the facts probable.
76. Other allegations refer to the oppression of Christian civilians and
religious leaders and the expulsion of missionaries. It is alleged that non-
Muslims suffer persecution in the form of denial of work, food aid and
education. A serious allegation is that of unequal food distribution in prisons,
subjecting Christian prisoners to blackmail in order [to] obtain food. These
attacks on individuals on account of their religious persuasion considerably
restrict their ability to practice freely the religion to which they subscribe.
The government provides no evidence or justifications that would mitigate
this conclusion. Accordingly, the Commission holds a violation of article 8.
77. Article 9(2) of the Charter reads: ‘Every individual shall have the right
to express and disseminate his opinions within the law.’
78. The communications under consideration allege that persons were
detained for belonging to opposition parties or trade unions. The government
confirmed that the ‘Decree on Process and Transitional Powers Act 1989’,
258 African Commission on Human and Peoples’ Rights

promulgated on 30 June 1989, stipulates in section 7 that during a state of

emergency any form of political opposition by any means to the regime of the
Revolution for National Salvation is prohibited where there is ‘imminent and
grave threat to the security of the country, public safety, independence of
the state or territorial integrity and economic stability’.
...
80. The Commission has established the principle that where it is necessary
to restrict rights, the restriction should be as minimal as possible and not
undermine fundamental rights guaranteed under international law
(communication 101/93 [Civil Liberties Organisation (in respect of Bar
Association v Nigeria]). Any restrictions on rights should be the exception.
The government here has imposed a blanket restriction on the freedom of
expression. This constitutes a violation of the spirit of article 9(2).

_____________________________________

Article 19 v Eritrea
(2007) AHRLR 73 (ACHPR 2007)

This communication deals with freedom of expression and arbitrary detention in

Eritrea.

...
82. In the absence of any concrete steps on the part of the state to bring
the victims to court, or to allow them access to their legal representatives
three years after their arrest and detention, and more than one year after
being seized of the matter, the African Commission is persuaded to conclude
that domestic remedies, even if available, are not effective and/or sufficient.

For this reason, the African Commission declares the communication

admissible.
...
Decision on the merits
86. The African Commission will not deal with any issue already decided
upon in communication 250/2002.
...
98. Eritrea contends that the delay in bringing these particular detainees to
trial is due to the complexity and gravity of the offences committed, and to
the ‘precarious war situation’ existing within the state. However, as already
stated, it must be borne in mind that states parties cannot derogate from the
Charter in times of war or any other emergency situation. Even if it is assumed
that the restriction placed by the Charter on the ability to derogate goes
against international principles, there are certain rights such as the right to
life, the right to a fair trial, and the right to freedom from torture and cruel,
inhuman and degrading treatment, that cannot be derogated from for any
reason, in whatever circumstances.
99. The existence of war in Eritrea cannot therefore be used to justify
excessive delay in bringing the detainees to trial. Furthermore, a backlog of
cases awaiting trial cannot excuse unreasonable delays, as the European
Court of Human Rights has held. Further, in the case of Albert Mukong,
referred to above, the Human Rights Committee stated that states parties to
the ICCPR must observe certain minimum standards as regards the condition
 Decisions of the African Commission 259

of detention, regardless of their state of development. The Commission

considers that the same principle applies to the length of detention before
trial, and that states parties to the Charter cannot rely on the political
situation existing within their territory or a large number of cases pending
before the courts to justify excessive delay.
100. Moreover, the detainees are being held incommunicado, and have never
been brought before a judge to face charges. In these circumstances, the
Commission finds that Eritrea has breached the requirement of trial within a
reasonable time set out in article 7(1)(d). This is consonant with its previous
decisions, such as communication 102/93 [Constitutional Rights Project and
Another v Nigeria (2000) AHRLR 199 (ACHPR 1998)], in which three years
detention was found to be unacceptable, and communication 103/93
[Abubakar v Ghana (2000) AHRLR 124 (ACHPR 1996)], in which the Commission
stated that seven years detention without trial, ‘clearly violates the
“reasonable time” standard stipulated in the Charter’.
101. The fact that the detainees are being held incommunicado also merits
further consideration in terms of international human rights law. The United
Nations Human Rights Committee has directed that states should make
provisions against incommunicado detention, which can amount to a violation
of article 7 (torture and cruel treatment and punishment) of the International
Covenant of Civil and Political Rights, to which Eritrea has acceded.
Furthermore, the Commission itself has stated [Amnesty International and
Others v Sudan [(2000) AHRLR 297 (ACHPR 1999) para 54] that
holding an individual without permitting him or her to have contact with his or her
family, and refusing to inform the family if and where the individual is being held,
is inhuman treatment of both the detainee and the family concerned.
102. Eritrea has not denied the complainant’s contention that the detainees
are being held incommunicado, with no access to legal representation or
contact with their families, and as the Commission has enunciated in many of
its previous decisions, where allegations are not disputed by the state
involved, the Commission may take the facts as provided by the complainant
as a given. Nor does the political situation described by Eritrea excuse its
actions, as article 5 permits no restrictions or limitations on the right to be
free from torture and cruel, inhuman or degrading punishment or treatment.
The Commission thus finds that Eritrea has violated article 5, by holding the
journalists and political dissidents incommunicado without allowing them
access to their families.
103. In keeping with its earlier decisions on similar cases, the Commission
also finds that such treatment amounts to a breach of article 18, as it
constitutes violation of the rights of both the detainees and their families to
protection of family life. Finally, the Commission holds that there has been a
violation of article 7(1)(c), since the detainees have been allowed no access
to legal representation, contrary to the right to be defended by counsel which
is protected by that provision of the Charter.
104. The Commission turns its attention now to the question of whether
there has been a violation of the detainees’ rights to express and disseminate
their opinions, as alleged by the complainant. The events which give rise to
this allegation are the ban by the Eritrean government of the private press,
and the arrest and detention of the 18 journalists. The respondent state
argues that these actions were justified by the activities of the journalists and
the newspapers in question, which it considered were aimed at overthrowing
the government. Further, the Eritrean government claims that its actions did
not constitute a breach of the Charter, as article 9 only protects the
expression and dissemination of opinions within the law.
105. As explained above, permitting states parties to construe Charter
provisions so that they could be limited or even negated by domestic laws
260 African Commission on Human and Peoples’ Rights

would render the Charter meaningless. Any law enacted by the Eritrean
government which permits a wholesale ban on the press and the
imprisonment of those whose views contradict those of the government’s is
contrary to both the spirit and the purpose of article 9. The Commission
reiterates its own statement in communications 105/93, 128/94, 130/94 and
152/96 [Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR
1998)]. According to article 9(2) of the Charter, dissemination of opinions may
be restricted by law. This does not mean that national law can set aside the
right to express and disseminate one’s opinions; this would make the
protection of the right to express one’s opinions ineffective. To allow national
law to have precedence over the international law of the Charter would
defeat the purpose of the rights and freedoms enshrined in the Charter.
International human rights standards must always prevail over contradictory
national law. Any limitation on the rights of the Charter must be in conformity
with the provisions of the Charter.
106. By applying norms of international human rights law, the Commission
has previously found, and finds in this case, that the imprisonment of
journalists ‘deprives not only the journalists of their rights to freely express
and disseminate their opinions, but also the public, of the right to
information. This action is a breach of the provisions of article 9 of the
Charter’ [Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000), para 65].
107. Moreover, banning the entire private press on the grounds that it
constitutes a threat to the incumbent government is a violation of the right
to freedom of expression, and is the type of action that article 9 is intended
to proscribe. A free press is one of the tenets of a democratic society, and a
valuable check on potential excesses by government.
108. No political situation justifies the wholesale violation of human rights;
indeed general restrictions on rights such as the right to free expression and
to freedom from arbitrary arrest and detention serve only to undermine
public confidence in the rule of law and will often increase, rather than
prevent, agitation within a state. The Commission draws on the findings of the
UN Human Rights Committee:
The legitimate objective of safeguarding and indeed strengthening national unity
under difficult political circumstances cannot be achieved by attempting to
muzzle advocacy of multi-party democracy, democratic tenets and human rights.
For the reasons given above the Commission:
• Holds a violation of articles 1, 5, 6, 7(1), 9 and 18 by the state of Eritrea;
• Urges the government of Eritrea to release or to bring to a speedy and
fair trial the 18 journalists detained since September 2001, and to lift the
ban on the press;
• Recommends that the detainees be granted immediate access to their
families and legal representatives; and
• Recommends that the government of Eritrea takes appropriate measures
to ensure payment of compensation to the detainees.
 Decisions of the African Commission 261

Avocats Sans Frontières (on behalf of Bwampamye) v Burundi

(2000) AHRLR 48 (ACHPR 2000)

In this case, the Commission found that Mr Bwampamye’s right to a fair trial had
been violated. Mr Bwampamye, the complainant, was sentenced to death after
being found guilty of inciting public disorder. The finding focuses on issues such as
legal representation and requests for adjournment.

Summary of facts
...
2. On 25 September 1997, Mr Gaëtan Bwampamye was sentenced to death
by the Criminal Chamber of the Appeal Court of Ngozi after being convicted
for having, in Ruhoro on 21 October 1993, as author, co-author or accomplice,
incited the population to commit crimes and for having, under the same
circumstances, organised an attack geared towards provoking massacres and
set up barricades with a view to hindering the enforcement of public order;
all offences under articles 212, 417 and 425 of the Penal Code of Burundi.
...
Merits
24. Article 7(1)(c) of the Charter states that: ‘Every individual shall have
the right to have his cause heard. This comprises: ... the right to defence,
including the right to be defended by counsel of his choice’.
25. In its verdict of 5 October 1997, the Supreme Court of Burundi adjudged
and stated:
Whereas this court is of the view that the law implies no obligation on the part of
the judge to nominate a lawyer, though he may do so; whereas in the case under
consideration, the accused had always been assisted by a lawyer, proof being that
his 19 page written plea of 20 August was filed by his lawyer; and that they had
appeared together at the public sitting; whereas, in view of such situation, the
appellant has no reason to claim that the judge should appoint a lawyer for him,
since he already had one who had performed all essential functions of a lawyer for
him; this procedure is, therefore, also hereby rejected ...
26. The Commission recalls that the right to fair trial involves fulfilment of
certain objective criteria, including the right to equal treatment, the right to
defence by a lawyer, especially where this is called for by the interests of
justice, as well as the obligation on the part of courts and tribunals to
conform to international standards in order to guarantee a fair trial to all. The
Commission shall examine the verdict of the Ngozi Court of Appeal, as well as
that of the Supreme Court in the light of the above criteria.
27. The right to equal treatment by a jurisdiction, especially in criminal
matters, means, in the first place, that both the defence and the public
prosecutor shall have equal opportunity to prepare and present their pleas
and indictment during the trial. Simply put, they should argue their cases
before the jurisdiction on an equal footing. Secondly it entails the equal
treatment of all accused persons by jurisdictions charged with trying them.
This does not mean that identical treatment should be meted to all accused.
The idea here is the principle that when objective facts are alike, the
response of the judiciary should also be similar. There is a breach of the
principle of equality if judicial or administrative decisions are applied in a
discriminatory manner. In the case under consideration, it is expected of the
Commission to attend to the first aspect, that is, observation of the rule of
equality of the means utilised by the defence and the prosecution.
28. The right to defence also implies that at each stage of the criminal
proceedings, the accused and his counsel be able to reply to the indictment
262 African Commission on Human and Peoples’ Rights

of the public prosecutor and in any case, to be the last to intervene before
the court retires for deliberations.
29. The Ngozi Court of Appeal had on 25 September 1997 handed down a
verdict sentencing Mr Bwampamye to death, thereby following the prayer of
the public prosecutor, paying no heed to the accused’s prayer for
adjournment of the case, pleading the absence of his lawyer. The Commission
holds the view that the judge should have upheld the prayer of the accused,
in view of the irreversible character of the penalty involved. This was all the
more imperative considering that during the 20 August 1997 hearing he had
upheld the arguments of the prosecutor who had refused to proceed with his
pleading claiming that he needed time to study the written plea presented by
counsel for the accused. The criminal court then decided to adjourn the case
to 25 September 1997. The Commission holds that by refusing to accede to
the request for adjournment, the Court of Appeal violated the right to equal
treatment, one of the fundamental principles of the right to fair trial.
30. The Supreme Court, in its verdict, upholds the position of the lower
court judge in refusing to designate a defence lawyer as follows: ‘this court
is of the view that the law implies no obligation on the part of the judge to
nominate a lawyer, though he may do so.’ The Commission emphatically
recalls that the right to legal assistance is a fundamental element of the right
to fair trial, more so where the interests of justice demand it. It holds the
view that, in the case under consideration, considering the gravity of the
allegations brought against the accused and the nature of the penalty he
faced, it was in the interest of justice for him to have the benefit of the
assistance of a lawyer at each stage of the case.
...
For these reasons, the Commission:
[32.] Finds the Republic of Burundi in violation of article 7(1)(c) of the African
Charter;
[33.] Requests Burundi to draw all the legal consequences of this decision;
and to take appropriate measures to allow the reopening of the file and the
reconsideration of the case in conformity with the laws of Burundi and the
pertinent provisions of the African Charter on Human and Peoples’ Rights;
[34.] Calls on Burundi to bring its criminal legislation in conformity with its
treaty obligations emanating from the African Charter.

_____________________________________

Bissangou v Republic of Congo

(2006) AHRLR 80 (ACHPR 2006)

Refusal by the state to pay damages in execution of a judgment of a domestic

court is held to be a violation of the right to equality before the law, fair trial and
the right to property.

...
Admissibility
...
58. The Commission notes that no strict legal provision grants the minister
responsible for the budget any authority to refuse to pay damages which are
legally granted. The execution of the judgments made against the respondent
state therefore appears to be subject to the regular procedure provided for
in the Administrative Procedure Code (article 293 and the following ones).
 Decisions of the African Commission 263

59. Under these circumstances, the question which arises is whether the
complainant should have initiated the procedures of forced execution against
the respondent state as provided for by the Administrative Procedure Code.
The Commission considers that it is unreasonable to require from a citizen
who has won the case of a payable debt against the state at the end of a legal
proceedings to institute procedures of seizure against it (assuming that it is
possible to resort to this means of imposition against the public authorities).
As it happened, the complainant, having duly notified his judgment to the
competent authorities in accordance with the relevant articles of the
Administrative Procedure Code, he had a right to expect the immediate
execution of his judgment.
60. The Commission is of the view that the minister had not right to hinder
or delay the execution of a final judgment without legitimate reason. The
Commission observes that the decision of the minister was unjustified and
that the respondent state did not, at any time try to clarify to the Commission
the reasons for the refusal by its officer. In this context, the Commission
supports the position of the European Court according to which even the
inability of the respondent state to pay could not justify the refusal by the
minister to execute a final judgment.
61. Furthermore, the Commission considers that the appeal provided for in
article 402 of the Administrative Procedure Code does not constitute a legal
remedy which can be used by the complainant. The Commission reiterates
that local remedies, if any, should be legal, effective and not subject to the
discretionary powers of the public authorities. Concerning the appeal for
annulment provided for in article 410 of the Administrative Procedure Code,
the Commission is not convinced that it would have allowed the complainant
to gain satisfaction. Even a ruling by the Supreme Court setting aside the
unjustified decision of the minister would have given the complainant the
power to demand the execution of his judgment without however providing
him with any means to enforce this ruling. Under these circumstances, the
Commission considers this remedy as ineffective.
62. In conclusion, even assuming that the above-mentioned appeals had
enabled the complainant to recover his debt, the Commission observes that
the complainant had not been informed of the reasons underlying the decision
of the minister, a decision about which, moreover, he does not appear to have
been notified.
63. For these reasons and considering the fact that the complainant had
duly exhausted all local remedies, the African Commission declares the
communication admissible.

The Merits
...
72. In this context the Commission observes that the complainant was
unjustifiably refused the implementation of a legal ruling which had the
character of res judicata. The Minister of the Economy, Finances and the
Budget rejected his request for execution as well as that of two other
individuals for no apparent reason. In its claims before the African
Commission, the respondent state did not put forward any argument to
explain the decision of the minister in rejecting the complainant’s claim.
Moreover, in its submissions dated 30 March 2004 in reaction to the
complainant’s arguments, the state has quoted victims of the same violent
events who have been compensated. The minister thereby transformed the
right of the complainant to an effective remedy before the courts into an
illusion and denied him the right to fair legal compensation. Under these
circumstances, the Commission is of the view that the decision of the minister
264 African Commission on Human and Peoples’ Rights

arbitrarily deprived the complainant of the protection of the law accorded to

other citizens in accordance with the provisions of article 3 of the Charter.
73. Furthermore, although the complainant does not specifically mention
this article of the Charter, the examination of the facts shows a violation of
article 7 of the Charter concerning the right to fair trial. The effective
exercise of this right by individuals requires that:
All state institutions against which an appeal has been lodged or a legal ruling has
been pronounced conform fully with this ruling or this appeal.
74. The Commission notes that in similar instances, the European Court of
Human Rights declared that the right to access to a court guaranteed by
article 6(1) of the European Human Rights Convention would be illusory if the
domestic laws of a state allowed a final and binding legal ruling to remain
ineffective to the detriment of one party. The Court therefore ruled that the
execution of a judgment, no matter from what jurisdiction, should be
considered as being an integral part of the ‘proceedings’ in accordance with
article 6. The Court further recognised that the effective protection of the
person to be tried and the re-establishment of legality constituted an
obligation for the state to comply with a judgment or ruling pronounced by
the highest court in the land. In consequence, by virtue of this article, the
execution of a legal ruling can neither be unduly prevented, nullified nor
delayed.
75. The Commission is also of the view that the right to be heard guaranteed
by article 7 of the African Charter includes the right to the execution of a
judgment. It would therefore be inconceivable for this article to grant the
right for an individual to bring an appeal before all the national courts in
relation to any act violating the fundamental rights without guaranteeing the
execution of judicial rulings. To interpret article 14 any other way would lead
to situations which are incompatible with the rule of law. As a result, the
execution of a final judgment passed by a tribunal or legal court should be
considered as an integral part of ‘the right to be heard’ which is protected by
article 7.
76. Furthermore, the Commission considers that the refusal by the minister
to honour the judgment passed in favour of the complainant also constitutes
a violation of article 14 of the Charter. Although the complainant only alluded
to this article at the moment of his argument, the Commission considers that
his initial claims sufficiently supported a claim of violation of the right to
property. Drawing inspiration from the jurisprudence of the European Court
under article 1 of Protocol 1 of the European Convention, the Commission
considers that a monetary compensation granted by judgment having
acquired the authority of res judicata should be considered as an asset.
Therefore, the unjustified refusal of the respondent state to honour the final
judgment passed in favour of the complainant hindered the enjoyment of his
assets.
...
84. The Commission, although admitting that the complainant suffered
some loss due to the delay in the payment of the sum granted by Congolese
courts, does not consider itself in a position to put a figure to the loss. This is
the reason why, relying on its jurisprudence, especially its decision on
communication 59/91, the Commission recommends that the amount of the
compensation be determined according to Congolese legislation.

For these reasons, the African Commission:

1. Observes that the Republic of Congo is in violation of article 3, 7 and 14
of the African Charter;
2. Says that there was no violation of articles 2 and 21(2) of the African
Charter;
 Decisions of the African Commission 265

3. Urges the Republic of Congo to harmonise its legislation with that of the
African Charter;
4. Requests the Republic of Congo to compensate the complainant as
required by paying him the amount fixed by the High Court of Brazzaville,
namely the global amount of 195,037,000 FCFA equivalent to 297,333 Euros;
5. Further requests the Republic of Congo to pay compensation for the loss
suffered by the complainant, the amount of which shall be determined in
accordance with Congolese legislation.

_____________________________________

Centre for Minority Rights Development (Kenya) and Minority

Rights Group International on behalf of Endorois Welfare Council v
Kenya
(2009) AHRLR 75 (ACHPR 2009)

In this groundbreaking decision, the African Commission held the government of

Kenya accountable for violations of the rights of an indigenous group linked to the
denial of access to their traditional land. The decision is notable as the first time
that the African Commission elaborates on the meaning of the right to
development in article 22 of the African Charter, the only international treaty to
recognise this right.

1. The complainants allege that the government of Kenya in violation of

the African Charter on Human and Peoples’ Rights (hereinafter the African
Charter), the Constitution of Kenya and international law, forcibly removed
the Endorois from their ancestral lands around the Lake Bogoria area of the
Baringo and Koibatek Administrative Districts, as well as in the Nakuru and
Laikipia Administrative Districts within the Rift Valley Province in Kenya,
without proper prior consultations, adequate and effective compensation.
2. The complainants state that the Endorois are a community of
approximately 60 000 people who, for centuries, have lived in the Lake
Bogoria area. They claim that prior to the dispossession of Endorois land
through the creation of the Lake Hannington Game Reserve in 1973, and a
subsequent re-gazetting of the Lake Bogoria Game Reserve in 1978 by the
government of Kenya, the Endorois had established, and, for centuries,
practised a sustainable way of life which was inextricably linked to their
ancestral land. The complainants allege that since 1978 the Endorois have
been denied access to their land.
...
Decision on merits
144. The present communication alleges that the respondent state has
violated the human rights of the Endorois community, an indigenous people,
by forcibly removing them from their ancestral land, the failure to adequately
compensate them for the loss of their property, the disruption of the
community’s pastoral enterprise and violations of the right to practice their
religion and culture, as well as the overall process of development of the
Endorois people.
145. Before addressing the articles alleged to have been violated, the
respondent state has requested the African Commission to determine whether
the Endorois can be recognised as a ‘community’/sub-tribe or clan on their
own. The respondent state disputes that the Endorois are a distinct
266 African Commission on Human and Peoples’ Rights

community in need of special protection. The respondent state argues that

the complainants need to prove this distinction from the Tugen sub-tribe or
indeed the larger Kalenjin tribe. The immediate questions that the African
Commission needs to address itself to are:
146. Are the Endorois a distinct community? Are they indigenous peoples and
thereby needing special protection? If they are a distinct community, what
makes them different from the Tugen sub-tribe or indeed the larger Kalenjin
tribe?
147. Before responding to the above questions, the African Commission notes
that the concepts of ‘peoples’ and ‘indigenous peoples/communities’ are
contested terms. As far as ‘indigenous peoples’ are concerned, there is no
universal and unambiguous definition of the concept, since no single accepted
definition captures the diversity of indigenous cultures, histories and current
circumstances. The relationships between indigenous peoples and dominant
or mainstream groups in society vary from country to country. The same is
true of the concept of ‘peoples’. The African Commission is thus aware of the
political connotation that these concepts carry. Those controversies led the
drafters of the African Charter to deliberately refrain from proposing any
definitions for the notion of ‘people(s)’. In its Report of the Working Group of
Experts on Indigenous Populations/Communities, the African Commission
describes its dilemma of defining the concept of ‘peoples’ in the following
terms:
Despite its mandate to interpret all provisions of the African Charter as per article
45(3), the African Commission initially shied away from interpreting the concept
of ‘peoples’. The African Charter itself does not define the concept. Initially the
African Commission did not feel at ease in developing rights where there was little
concrete international jurisprudence. The ICCPR and the ICESR do not define
‘peoples’. It is evident that the drafters of the African Charter intended to
distinguish between the traditional individual rights where the sections preceding
article 17 make reference to ‘every individual’. Article 18 serves as a break by
referring to the family. Articles 19 to 24 make specific reference to ‘all peoples’.
148. The African Commission, nevertheless, notes that while the terms
‘peoples’ and ‘indigenous community’ arouse emotive debates, some
marginalised and vulnerable groups in Africa are suffering from particular
problems. It is aware that many of these groups have not been accommodated
by dominating development paradigms and in many cases they are being
victimised by mainstream development policies and thinking and their basic
human rights violated. The African Commission is also aware that indigenous
peoples have, due to past and ongoing processes, become marginalised in
their own country and they need recognition and protection of their basic
human rights and fundamental freedoms.
149. The African Commission also notes that normatively, the African Charter
is an innovative and unique human rights document compared to other
regional human rights instruments, in placing special emphasis on the rights
of ‘peoples’. It substantially departs from the narrow formulations of other
regional and universal human rights instruments by weaving a tapestry which
includes the three ‘generations’ of rights: civil and political rights; economic,
social, and cultural rights; and group and peoples’ rights. In that regard, the
African Commission notes its own observation that the term ‘indigenous’ is
also not intended to create a special class of citizens, but rather to address
historical and present-day injustices and inequalities. This is the sense in
which the term has been applied in the African context by the Working Group
on Indigenous Populations/Communities of the African Commission. In the
context of the African Charter, the Working Group notes that the notion of
‘peoples’ is closely related to collective rights.
150. The African Commission also notes that the African Charter, in articles
20 through 24, provides for peoples to retain rights as peoples, that is, as
collectives. The African Commission through its Working Group of Experts on
 Decisions of the African Commission 267

Indigenous Populations/Communities has set out four criteria for identifying

indigenous peoples. These are: the occupation and use of a specific territory;
the voluntary perpetuation of cultural distinctiveness; self-identification as a
distinct collectivity, as well as recognition by other groups; an experience of
subjugation, marginalisation, dispossession, exclusion or discrimination. The
Working Group also demarcated some of the shared characteristics of African
indigenous groups:
... first and foremost (but not exclusively) different groups of hunter-gatherers or
former hunter-gatherers and certain groups of pastoralists ...
... A key characteristic for most of them is that the survival of their particular way
of life depends on access and rights to their traditional land and the natural
resources thereon.
151. The African Commission is thus aware that there is an emerging
consensus on some objective features that a collective of individuals should
manifest to be considered as ‘peoples’, viz: a common historical tradition,
racial or ethnic identity, cultural homogeneity, linguistic unity, religious and
ideological affinities, territorial connection, and a common economic life or
other bonds, identities and affinities they collectively enjoy — especially
rights enumerated under articles 19 to 24 of the African Charter — or suffer
collectively from the deprivation of such rights. What is clear is that all
attempts to define the concept of indigenous peoples recognise the linkages
between peoples, their land, and culture and that such a group expresses its
desire to be identified as a people or have the consciousness that they are a
people.
152. As far as the present matter is concerned, the African Commission is also
enjoined under article 61 of the African Charter to be inspired by other
subsidiary sources of international law or general principles in determining
rights under the African Charter. It takes note of the working definition
proposed by the UN Working Group on Indigenous Populations:
... that indigenous peoples are ... those which, having a historical continuity with
pre-invasion and pre-colonial societies that developed on their territories,
consider themselves distinct from other sectors of the societies now prevailing in
those territories, or parts of them. They form at present non-dominant sectors of
society and are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic identity, as the basis of
their continued existence as peoples, in accordance with their own cultural
patterns, social institutions and legal systems.
153. But this working definition should be read in conjunction with the 2003
Report of the African Commission’s Working Group of Experts on Indigenous
Populations/Communities, which is the basis of its ‘definition’ of indigenous
populations. Similarly it notes that the International Labour Organisation has
proffered a definition of indigenous peoples in Convention 169 concerning
Indigenous and Tribal Peoples in Independent Countries:
Peoples in independent countries who are regarded as indigenous on account of
their descent from the populations which inhabited the country, or a geographical
region to which the country belongs, at the time of conquest or colonisation or the
establishment of present state boundaries and who, irrespective of their legal
status, retain some or all of their own social, economic, cultural and political
institutions.
154. The African Commission is also aware that though some indigenous
populations might be first inhabitants, validation of rights is not automatically
afforded to such pre-invasion and pre-colonial claims. In terms of ILO
Convention 169, even though many African countries have not signed and
ratified the said Convention, and like the UN Working Groups’
conceptualisation of the term, the African Commission notes that there is a
common thread that runs through all the various criteria that attempts to
describe indigenous peoples — that indigenous peoples have an unambiguous
relationship to a distinct territory and that all attempts to define the concept
268 African Commission on Human and Peoples’ Rights

recognise the linkages between people, their land, and culture. In that
regard, the African Commission notes the observation of the UN Special
Rapporteur, where he states that in Kenya indigenous populations/
communities include pastoralist communities such as the Endorois, Borana,
Gabra, Maasai, Pokot, Samburu, Turkana, and Somali, and hunter-gatherer
communities whose livelihoods remain connected to the forest, such as the
Awer (Boni), Ogiek, Sengwer, or Yaaku. The UN Special Rapporteur further
observed that the Endorois community have lived for centuries in their
traditional territory around Lake Bogoria, which was declared a wildlife
sanctuary in 1973.
155. In the present communication the African Commission wishes to
emphasise that the Charter recognises the rights of peoples. The
complainants argue that the Endorois are a people, a status that entitles them
to benefit from provisions of the African Charter that protect collective
rights. The respondent state disagrees. The African Commission notes that
the Constitution of Kenya, though incorporating the principle of non-
discrimination and guaranteeing civil and political rights, does not recognise
economic, social and cultural rights as such, as well as group rights. It further
notes that the rights of indigenous pastoralist and hunter-gatherer
communities are not recognised as such in Kenya’s constitutional and legal
framework, and no policies or governmental institutions deal directly with
indigenous issues. It also notes that while Kenya has ratified most
international human rights treaties and conventions, it has not ratified ILO
Convention 169 on Indigenous and Tribal Peoples in Independent Countries,
and it has withheld its approval of the United Nations Declaration on the
Rights of Indigenous Peoples of the General Assembly.
156. After studying all the submissions of the complainants and the
respondent state, the African Commission is of the view that Endorois culture,
religion, and traditional way of life are intimately intertwined with their
ancestral lands — Lake Bogoria and the surrounding area. It agrees that Lake
Bogoria and the Monchongoi Forest are central to the Endorois’ way of life and
without access to their ancestral land, the Endorois are unable to fully
exercise their cultural and religious rights, and feel disconnected from their
land and ancestors.
157. In addition to a sacred relationship to their land, self-identification is
another important criterion for determining indigenous peoples. The UN
Special Rapporteur on the Rights and Fundamental Freedoms of Indigenous
People also supports self-identification as a key criterion for determining who
is indeed indigenous. The African Commission is aware that today many
indigenous peoples are still excluded from society and often even deprived of
their rights as equal citizens of a state. Nevertheless, many of these
communities are determined to preserve, develop and transmit to future
generations their ancestral territories and their ethnic identity. It accepts the
arguments that the continued existence of indigenous communities as
‘peoples’ is closely connected to the possibility of them influencing their own
fate and to living in accordance with their own cultural patterns, social
institutions and religious systems. The African Commission further notes that
the Report of the African Commission’s Working Group of Experts on
Indigenous Populations/Communities (WGIP) emphasises that peoples’ self-
identification is an important ingredient to the concept of peoples’ rights as
laid out in the Charter. It agrees that the alleged violations of the African
Charter by the respondent state are those that go to the heart of indigenous
rights — the right to preserve one’s identity through identification with
ancestral lands, cultural patterns, social institutions and religious systems.
The African Commission, therefore, accepts that self-identification for
 Decisions of the African Commission 269

Endorois as indigenous individuals and acceptance as such by the group is an

essential component of their sense of identity.
...
Alleged violation of article 8
...
166. This Commission is aware that religion is often linked to land, cultural
beliefs and practices, and that freedom to worship and engage in such
ceremonial acts is at the centre of the freedom of religion. The Endorois’
cultural and religious practices are centred around Lake Bogoria and are of
prime significance to all Endorois. During oral testimony, and indeed in the
complainants’ written submission, this Commission’s attention was drawn to
the fact that religious sites are situated around Lake Bogoria, where the
Endorois pray and where religious ceremonies regularly take place. It takes
into cognisance that Endorois’ ancestors are buried near the lake ... Lake
Bogoria is considered the spiritual home of all Endorois, living and dead.
167. It further notes that one of the beliefs of the Endorois is that their Great
Ancestor, Dorios, came from the Heavens and settled in the Mochongoi
Forest. It notes the complainants’ arguments, which have not been contested
by the respondent state, that the Endorois believe that each season the water
of the lake turns red and the hot springs emit a strong odour, signalling a time
that the community performs traditional ceremonies to appease the
ancestors who drowned with the formation of the lake.
168. From the above analysis, the African Commission is of the view that the
Endorois spiritual beliefs and ceremonial practices constitute a religion under
the African Charter.
169. The African Commission will now determine whether the respondent
state by its actions or inactions have interfered with the Endorois’ right to
religious freedom.
170. The respondent state has not denied that the Endorois have been
removed from their ancestral land they call home. The respondent state has
merely advanced reasons why the Endorois can no longer stay within the Lake
Bogoria area. The complainants argue that the Endorois’ inability to practice
their religion is a direct result of their expulsion from their land and that since
their eviction the Endorois have not been able to freely practice their
religion, as access for religious rituals has been denied the community.
171. It is worth noting that in Amnesty International v Sudan, the African
Commission recognised the centrality of practice to religious freedom. The
African Commission noted that the state party violated the authors’ right to
practice their religion, because non-Muslims did not have the right to preach
or build their churches and were subjected to harassment, arbitrary arrest,
and expulsion. The African Commission also notes the case of Loren Laroye
Riebe Star from the IACmHR, which determined that expulsion from lands
central to the practice of religion constitutes a violation of religious
freedoms. It notes that the Court held that the expulsion of priests from the
Chiapas area was a violation of the right to associate freely for religious
purposes.
172. The African Commission agrees that in some situations it may be
necessary to place some form of limited restrictions on a right protected by
the African Charter. But such a restriction must be established by law and
must not be applied in a manner that would completely vitiate the right. It
notes the recommendation of the HRC that limitations may be applied only
for those purposes for which they were prescribed and must be directly
related and proportionate to the specific need on which they are predicated.
The raison d’être for a particularly harsh limitation on the right to practice
religion, such as that experienced by the Endorois, must be based on
exceptionally good reasons, and it is for the respondent state to prove that
270 African Commission on Human and Peoples’ Rights

such interference is not only proportionate to the specific need on which they
are predicated, but is also reasonable. In the case of Amnesty International v
Sudan, the African Commission stated that a wide-ranging ban on Christian
associations was ‘disproportionate to the measures required by the
government to maintain public order, security, and safety’. The African
Commission further went on to state that any restrictions placed on the rights
to practice one’s religion should be negligible. In the above mentioned case,
the African Commission decided that complete and total expulsion from the
land for religious ceremonies is not minimal.
173. The African Commission is of the view that denying the Endorois access
to the lake is a restriction on their freedom to practice their religion, a
restriction not necessitated by any significant public security interest or other
justification. The African Commission is also not convinced that removing the
Endorois from their ancestral land was a lawful action in pursuit of economic
development or ecological protection. The African Commission is of the view
that allowing the Endorois to use the land to practice their religion would not
detract from the goal of conservation or developing the area for economic
reasons.
...
Alleged violation of article 14
...
187. The complainants argue that both international and domestic courts
have recognised that indigenous groups have a specific form of land tenure
that creates a particular set of problems. Common problems faced by
indigenous groups include the lack of ‘formal’ title recognition of their
historic territories, the failure of domestic legal systems to acknowledge
communal property rights, and the claiming of formal legal title to indigenous
land by the colonial authorities. This, they argue, has led to many cases of
displacement from a people’s historic territory, both by colonial authorities
and post-colonial states relying on the legal title they inherited from the
colonial authorities. The African Commission notes that its Working Group on
Indigenous Populations/Communities has recognised that some African
minorities do face dispossession of their lands and that special measures are
necessary in order to ensure their survival in accordance with their traditions
and customs. The African Commission is of the view that the first step in the
protection of traditional African communities is the acknowledgement that
the rights, interests and benefits of such communities in their traditional
lands constitute ‘property’ under the Charter and that special measures may
have to be taken to secure such ‘property rights’.
...
199. The African Commission is of the view that even though the Constitution
of Kenya provides that Trust Land may be alienated and that the Trust Land
Act provides comprehensive procedure for the assessment of compensation,
the Endorois property rights have been encroached upon, in particular by the
expropriation and the effective denial of ownership of their land. It agrees
with the complainants that the Endorois were never given the full title to the
land they had in practice before the British colonial administration. Their land
was instead made subject to a trust, which gave them beneficial title, but
denied them actual title. The African Commission further agrees that though
for a decade they were able to exercise their traditional rights without
restriction, the trust land system has proved inadequate to protect their
rights.
...
204. The African Commission notes that the UN Declaration on the Rights of
Indigenous Peoples, officially sanctioned by the African Commission through
its 2007 Advisory Opinion, deals extensively with land rights. The
 Decisions of the African Commission 271

jurisprudence under international law bestows the right of ownership rather

than mere access. The African Commission notes that if international law
were to grant access only, indigenous peoples would remain vulnerable to
further violations/dispossession by the state or third parties. Ownership
ensures that indigenous peoples can engage with the state and third parties
as active stakeholders rather than as passive beneficiaries.
205. The Inter-American Court jurisprudence also makes it clear that mere
access or de facto ownership of land is not compatible with principles of
international law. Only de jure ownership can guarantee indigenous peoples’
effective protection.
206. In the Saramaka case, the Court held that the state’s legal framework
merely grants the members of the Saramaka people a privilege to use land,
which does not guarantee the right to effectively control their territory
without outside interference. The Court held that, rather than a privilege to
use the land, which can be taken away by the state or trumped by real
property rights of third parties, members of indigenous and tribal peoples
must obtain title to their territory in order to guarantee its permanent use
and enjoyment. This title must be recognised and respected not only in
practice but also in law in order to ensure its legal certainty. In order to
obtain such title, the territory traditionally used and occupied by the
members of the Saramaka people must first be delimited and demarcated, in
consultation with such people and other neighbouring peoples. The situation
of the Endorois is not different. The respondent state simply wants to grant
them privileges such as restricted access to ceremonial sites. This, in the
opinion of the Commission, falls below internationally recognised norms. The
respondent state must grant title to their territory in order to guarantee its
permanent use and enjoyment.
207. The African Commission notes that articles 26 and 27 of the UN
Declaration on Indigenous Peoples use the term ‘occupied or otherwise used’.
This is to stress that indigenous peoples have a recognised claim to ownership
to ancestral land under international law, even in the absence of official title
deeds. This was made clear in the judgment of Awas Tingni v Nicaragua. In
the current leading international case on this issue, The Mayagna (Sumo)
Awas Tingni v Nicaragua, the IActHR recognised that the American Convention
protected property rights ‘in a sense which includes, among others, the rights
of members of the indigenous communities within the framework of
communal property’. It stated that possession of the land should suffice for
indigenous communities lacking real title to obtain official recognition of that
property.
208. The African Commission also notes that in the case of Sawhoyamaxa v
Paraguay, the IActHR, acting within the scope of its adjudicatory jurisdiction,
decided on indigenous land possession in three different situations, viz: in the
Case of the Mayagna (Sumo) Awas Tingni Community, the Court pointed out
that possession of the land should suffice for indigenous communities lacking
real title to property of the land to obtain official recognition of that
property, and for consequent registration; in the Case of the Moiwana
Community, the Court considered that the members of the N’djuka people
were the ‘legitimate owners of their traditional lands’, although they did not
have possession thereof, because they left them as a result of the acts of
violence perpetrated against them, though in this case, the traditional lands
were not occupied by third parties. Finally, in the Case of the Indigenous
Community Yakye Axa, the Court considered that the members of the
community were empowered, even under domestic law, to file claims for
traditional lands and ordered the State, as measure of reparation, to
individualise those lands and transfer them on a no consideration basis.
272 African Commission on Human and Peoples’ Rights

209. In the view of the African Commission, the following conclusions could
be drawn: (1) traditional possession of land by indigenous people has the
equivalent effect as that of a state-granted full property title; (2) traditional
possession entitles indigenous people to demand official recognition and
registration of property title; (3) the members of indigenous peoples who
have unwillingly left their traditional lands, or lost possession thereof,
maintain property rights thereto, even though they lack legal title, unless the
lands have been lawfully transferred to third parties in good faith; and (4) the
members of indigenous peoples who have unwillingly lost possession of their
lands, when those lands have been lawfully transferred to innocent third
parties, are entitled to restitution thereof or to obtain other lands of equal
extension and quality. Consequently, possession is not a requisite condition
for the existence of indigenous land restitution rights. The instant case of the
Endorois is categorised under this last conclusion. The African Commission
thus agrees that the land of the Endorois has been encroached upon.
210. That such encroachment has taken place could be seen by the Endorois’
inability, after being evicted from their ancestral land, to have free access to
religious sites and their traditional land to graze their cattle. The African
Commission is aware that access roads, gates, game lodges and a hotel have
all been built on the ancestral land of the Endorois community around Lake
Bogoria and imminent mining operations also threatens to cause irreparable
damage to the land. The African Commission has also been notified that the
respondent state is engaged in the demarcation and sale of parts of Endorois
historic lands to third parties.
211. The African Commission is aware that encroachment in itself is not a
violation of article 14 of the Charter, as long as it is done in accordance with
the law. Article 14 of the African Charter indicates a two-pronged test, where
that encroachment can only be conducted — ‘in the interest of public need or
in the general interest of the community’ and ‘in accordance with
appropriate laws’. The African Commission will now assess whether an
encroachment ‘in the interest of public need’ is indeed proportionate to the
point of overriding the rights of indigenous peoples to their ancestral lands.
The African Commission agrees with the complainants that the test laid out
in article 14 of the Charter is conjunctive, that is, in order for an
encroachment not to be in violation of article 14, it must be proven that the
encroachment was in the interest of the public need/general interest of the
community and was carried out in accordance with appropriate laws.
212. The ‘public interest’ test is met with a much higher threshold in the
case of encroachment of indigenous land rather than individual private
property. In this sense, the test is much more stringent when applied to
ancestral land rights of indigenous peoples. In 2005, this point was stressed
by the Special Rapporteur of the United Nations Sub-Commission for the
Promotion and Protection of Human Rights who published the following
statement:
Limitations, if any, on the right to indigenous peoples to their natural resources
must flow only from the most urgent and compelling interest of the state. Few, if
any, limitations on indigenous resource rights are appropriate, because the
indigenous ownership of the resources is associated with the most important and
fundamental human rights, including the right to life, food, the right to self-
determination, to shelter, and the right to exist as a people.
213. Limitations on rights, such as the limitation allowed in article 14, must
be reviewed under the principle of proportionality. The Commission notes its
own conclusions that ‘... the justification of limitations must be strictly
proportionate with and absolutely necessary for the advantages which
follow.’ [Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227
(ACHPR 1999)]. The African Commission also notes the decisive case of
Handyside v United Kingdom, where the ECHR stated that any condition or
 Decisions of the African Commission 273

restriction imposed upon a right must be ‘proportionate to the legitimate aim

pursued’.
214. The African Commission is of the view that any limitations on rights must
be proportionate to a legitimate need, and should be the least restrictive
measures possible. In the present communication, the African Commission
holds the view that in the pursuit of creating a game reserve, the respondent
state has unlawfully evicted the Endorois from their ancestral land and
destroyed their possessions. It is of the view that the upheaval and
displacement of the Endorois from the land they call home and the denial of
their property rights over their ancestral land is disproportionate to any
public need served by the game reserve.
215. It is also of the view that even if the game reserve was a legitimate aim
and served a public need, it could have been accomplished by alternative
means proportionate to the need. From the evidence submitted both orally
and in writing, it is clear that the community was willing to work with the
government in a way that respected their property rights, even if a game
reserve was being created. In that regard, the African Commission notes its
own conclusion in the Constitutional Rights Project case, where it says that
‘a limitation may not erode a right such that the right itself becomes illusory.’
At the point where such a right becomes illusory, the limitation cannot be
considered proportionate — the limitation becomes a violation of the right.
The African Commission agrees that the respondent state has not only denied
the Endorois community all legal rights in their ancestral land, rendering their
property rights essentially illusory, but in the name of creating a game reserve
and the subsequent eviction of the Endorois community from their own land,
the respondent state has violated the very essence of the right itself, and
cannot justify such an interference with reference to ‘the general interest of
the community’ or a ‘public need’.
216. The African Commission notes that the link to the right to life, in
paragraph 219 above, is particularly notable, as it is a non-derogable right
under international law. Incorporating the right to life into the threshold of
the ‘public interest test’ is further confirmed by jurisprudence of the IActHR.
In Yakye Axa v Paraguay the Court found that the fallout from forcibly
dispossessing indigenous peoples from their ancestral land could amount to an
article 4 violation (right to life) if the living conditions of the community are
incompatible with the principles of human dignity.
217. The IActHR held that one of the obligations that the state must
inescapably undertake as guarantor to protect and ensure the right to life is
that of generating minimum living conditions that are compatible with the
dignity of the human person and of not creating conditions that hinder or
impede it. In this regard, the state has the duty to take positive, concrete
measures geared towards fulfilment of the right to a decent life, especially in
the case of persons who are vulnerable and at risk, whose care becomes a high
priority.
218. The African Commission also notes that the ‘disproportionate’ nature of
an encroachment on indigenous lands — therefore falling short of the test set
out by the provisions of article 14 of the African Charter — is to be considered
an even greater violation of article 14, when the displacement at hand was
undertaken by force. Forced evictions, by their very definition, cannot be
deemed to satisfy article 14 of the Charter’s test of being done ‘in accordance
with the law’. This provision must mean, at the minimum, that both Kenyan
law and the relevant provisions of international law were respected. The
grave nature of forced evictions could amount to a gross violation of human
rights. Indeed, the United Nations Commission on Human Rights, in
resolutions 1993/77 and 2004/28, has reaffirmed that forced evictions
amount to a gross violations of human rights and in particular the right to
274 African Commission on Human and Peoples’ Rights

adequate housing. Where such removal was forced, this would in itself
suggest that the ‘proportionality’ test has not been satisfied.
...
225. Two further elements of the ‘in accordance with the law’ test relate to
the requirements of consultation and compensation.
226. In terms of consultation, the threshold is especially stringent in favour
of indigenous peoples, as it also requires that consent be accorded. Failure to
observe the obligations to consult and to seek consent — or to compensate —
ultimately results in a violation of the right to property.
227. In the Saramaka case, in order to guarantee that restrictions to the
property rights of the members of the Saramaka people by the issuance of
concessions within their territory do not amount to a denial of their survival
as a tribal people, the Court stated that the state must abide by the following
three safeguards: first, ensure the effective participation of the members of
the Saramaka people, in conformity with their customs and traditions,
regarding any development, investment, exploration or extraction plan
within Saramaka territory; second, guarantee that the Saramakas will receive
a reasonable benefit from any such plan within their territory; third, ensure
that no concession will be issued within Saramaka territory unless and until
independent and technically capable entities, with the State’s supervision,
perform a prior environmental and social impact assessment. These
safeguards are intended to preserve, protect and guarantee the special
relationship that the members of the Saramaka community have with their
territory, which in turn ensures their survival as a tribal people.
228. In the instant case, the African Commission is of the view that no
effective participation was allowed for the Endorois, nor has there been any
reasonable benefit enjoyed by the community. Moreover, a prior environment
and social impact assessment was not carried out. The absence of these three
elements of the ‘test’ is tantamount to a violation of article 14, the right to
property, under the Charter. The failure to guarantee effective participation
and to guarantee a reasonable share in the profits of the game reserve (or
other adequate forms of compensation) also extends to a violation of the right
to development.
229. On the issue of compensation, the respondent state in rebutting the
complainants’ allegations that inadequate compensation was paid, argues
that the complainants do not contest that a form of compensation was done,
but that they have only pleaded that about 170 families were compensated.
It further argues that, if at all the compensations paid was not adequate, the
Trust Land Act provides for a procedure for appeal, for the amount and the
people who feel that they are denied compensation over their interest.
230. The respondent state does not deny the complainants’ allegations that
in 1986, of the 170 families evicted in late 1973, from their homes within the
Lake Bogoria Game Reserve, each receiving around 3 150 Kshs (at the time,
this was equivalent to approximately £30). Such payment was made some 13
years after the first eviction. It does not also deny the allegation that £30 did
not represent the market value of the land gazetted as Lake Bogoria Game
Reserve. It also does not deny that the Kenyan authorities have themselves
recognised that the payment of 3,150 Kshs per family amounted only to
‘relocation assistance’, and does not constitute full compensation for loss of
land.
231. The African Commission is of the view that the respondent state did not
pay the prompt, full compensation as required by the Constitution. It is of the
view that Kenyan law has not been complied with and that though some
members of the Endorois community accepted limited monetary
compensation that did not mean that they accepted it as full compensation,
or indeed that they accepted the loss of their land.
 Decisions of the African Commission 275

...
Alleged violation of article 17(2) and (3)
...
246. The African Commission is of the view that in its interpretation of the
African Charter, it has recognised the duty of the state to tolerate diversity
and to introduce measures that protect identity groups different from those
of the majority/dominant group. It has thus interpreted article 17(2) as
requiring governments to take measures ‘aimed at the conservation,
development and diffusion of culture’, such as promoting ‘cultural identity as
a factor of mutual appreciation among individuals, groups, nations and
regions; ... promoting awareness and enjoyment of cultural heritage of
national ethnic groups and minorities and of indigenous sectors of the
population.’
...
248. The African Commission is of the opinion that the respondent state has
a higher duty in terms of taking positive steps to protect groups and
communities like the Endorois, but also to promote cultural rights including
the creation of opportunities, policies, institutions, or other mechanisms that
allow for different cultures and ways of life to exist, develop in view of the
challenges facing indigenous communities. These challenges include
exclusion, exploitation, discrimination and extreme poverty; displacement
from their traditional territories and deprivation of their means of
subsistence; lack of participation in decisions affecting the lives of the
communities; forced assimilation and negative social statistics among other
issues and, at times, indigenous communities suffer from direct violence and
persecution, while some even face the danger of extinction.
249. In its analysis of article 17 of the African Charter, the African
Commission is aware that unlike articles 8 and 14, article 17 has no claw-back
clause. The absence of a claw-back clause is an indication that the drafters
of the Charter envisaged few, if any, circumstances in which it would be
appropriate to limit a people’s right to culture. It further notes that even if
the respondent state were to put some limitation on the exercise of such a
right, the restriction must be proportionate to a legitimate aim that does not
interfere adversely on the exercise of a community’s cultural rights. Thus,
even if the creation of the game reserve constitutes a legitimate aim, the
respondent state’s failure to secure access, as of right, for the celebration of
the cultural festival and rituals cannot be deemed proportionate to that aim.
The Commission is of the view that the cultural activities of the Endorois
community pose no harm to the ecosystem of the game reserve and the
restriction of cultural rights could not be justified, especially as no suitable
alternative was given to the community.
250. It is the opinion of the African Commission that the respondent state has
overlooked that the universal appeal of great culture lies in its particulars and
that imposing burdensome laws or rules on culture undermines its enduring
aspects. The respondent state has not taken into consideration the fact that
by restricting access to Lake Bogoria, it has denied the community access to
an integrated system of beliefs, values, norms, mores, traditions and artifacts
closely linked to access to the lake.
251. By forcing the community to live on semi-arid lands without access to
medicinal salt licks and other vital resources for the health of their livestock,
the respondent state have created a major threat to the Endorois pastoralist
way of life. It is of the view that the very essence of the Endorois’ right to
culture has been denied, rendering the right, to all intents and purposes,
illusory. Accordingly, the respondent state is found to have violated article
17(2) and (3) of the Charter.
276 African Commission on Human and Peoples’ Rights

Alleged violation of article 21

...
255. The African Commission notes that in the Ogoni case the right to natural
resources contained within their traditional lands is also vested in the
indigenous people, making it clear that a people inhabiting a specific region
within a state could also claim under article 21 of the African Charter. The
respondent state does not give enough evidence to substantiate the claim
that the complainants have immensely benefited from the tourism and
mineral prospecting activities.
256. The African Commission notes that proceeds from the game reserve
have been used to finance a lot of useful projects, ‘a fact’ that the
complainants do not contest. The African Commission, however, refers to
cases in the Inter-American Human Rights system to understand this area of
the law. The American Convention does not have an equivalent of the African
Charter’s article 21 on the right to natural resources. It therefore reads the
right to natural resources into the right to property (article 21 of the
American Convention), and in turn applies similar limitation rights on the
issue of natural resources as it does on limitations of the right to property.
The ‘test’ in both cases makes for a much higher threshold when potential
spoliation or development of the land is affecting indigenous land.
...
267. In the instant case of the Endorois, the respondent state has a duty to
evaluate whether a restriction of these private property rights is necessary to
preserve the survival of the Endorois community. The African Commission is
aware that the Endorois do not have an attachment to ruby. Nevertheless, it
is instructive to note that the African Commission decided in the Ogoni case
that the right to natural resources contained within their traditional lands
vested in the indigenous people. This decision made clear that a people
inhabiting a specific region within a state can claim the protection of article
21. Article 14 of the African Charter indicates that the two-pronged test of ‘in
the interest of public need or in the general interest of the community’ and
‘in accordance with appropriate laws’ should be satisfied.
268. As far as the African Commission is aware, that has not been done by the
respondent state. The African Commission is of the view the Endorois have the
right to freely dispose of their wealth and natural resources in consultation
with the respondent state. Article 21(2) also concerns the obligations of a
state party to the African Charter in cases of a violation by spoliation, through
provision for restitution and compensation. The Endorois have never received
adequate compensation or restitution of their land. Accordingly, the
respondent state is found to have violated article 21 of the Charter.

Alleged violation of article 22

269. The complainants allege that the Endorois’ right to development have
been violated as a result of the respondent state’s creation of a game reserve
and the respondent state’s failure to adequately involve the Endorois in the
development process.
...
277. The African Commission is of the view that the right to development is
a two-pronged test, that it is both constitutive and instrumental, or useful as
both a means and an end. A violation of either the procedural or substantive
element constitutes a violation of the right to development. Fulfilling only
one of the two prongs will not satisfy the right to development. The African
Commission notes the complainants’ arguments that recognising the right to
development requires fulfilling five main criteria: it must be equitable, non-
discriminatory, participatory, accountable, and transparent, with equity and
choice as important, over-arching themes in the right to development.
 Decisions of the African Commission 277

278. In that regard it takes note of the report of the UN Independent Expert
who said that development is not simply the state providing, for example,
housing for particular individuals or peoples; development is instead about
providing people with the ability to choose where to live. He states ‘... the
state or any other authority cannot decide arbitrarily where an individual
should live just because the supplies of such housing are made available’.
Freedom of choice must be present as a part of the right to development.
279. The Endorois believe that they had no choice but to leave the lake and
when some of them tried to reoccupy their former land and houses they were
met with violence and forced relocations. The complainants argue this lack of
choice directly contradicts the guarantees of the right to development. The
African Commission also notes a report produced for the UN Working Group
on Indigenous Populations requiring that ‘indigenous peoples are not coerced,
pressured or intimidated in their choices of development.’ Had the
respondent state allowed conditions to facilitate the right to development as
in the African Charter, the development of the game reserve would have
increased the capabilities of the Endorois, as they would have had a
possibility to benefit from the game reserve. However, the forced evictions
eliminated any choice as to where they would live.
...
281. The African Commission notes that its own standards state that a
government must consult with respect to indigenous peoples especially when
dealing with sensitive issues as land. The African Commission agrees with the
complainants that the consultations that the respondent state did undertake
with the community were inadequate and cannot be considered effective
participation. The conditions of the consultation failed to fulfil the African
Commission’s standard of consultations in a form appropriate to the
circumstances. It is convinced that community members were informed of the
impending project as a fait accompli, and not given an opportunity to shape
the policies or their role in the game reserve.
282. Furthermore, the community representatives were in an unequal
bargaining position, an accusation not denied or argued by the respondent
state, being both illiterate and having a far different understanding of
property use and ownership than that of the Kenyan authorities. The African
Commission agrees that it was incumbent upon the respondent state to
conduct the consultation process in such a manner that allowed the
representatives to be fully informed of the agreement, and participate in
developing parts crucial to the life of the community. It also agrees with the
complainants that the inadequacy of the consultation undertaken by the
respondent state is underscored by Endorois’ actions after the creation of the
game reserve. The Endorois believed, and continued to believe even after
their eviction, that the game reserve and their pastoralist way of life would
not be mutually exclusive and that they would have a right of re-entry on to
their land. In failing to understand their permanent eviction, many families
did not leave the location until 1986.
...
288. In the instant communication in front of the African Commission, video
evidence from the complainants shows that access to clean drinking water
was severely undermined as a result of loss of their ancestral land (Lake
Bogoria) which has ample fresh water sources. Similarly, their traditional
means of subsistence — through grazing their animals — has been curtailed
due to lack of access to the green pastures of their traditional land. Elders
commonly cite having lost more than half of their cattle since the
displacement. The African Commission is of the view that the respondent
state has done very little to provide necessary assistance in these respects.
...
278 African Commission on Human and Peoples’ Rights

290. In the instant communication, even though the respondent state says
that it has consulted with the Endorois community, the African Commission is
of the view that this consultation was not sufficient. It is convinced that the
respondent state did not obtain the prior, informed consent of all the
Endorois before designating their land as a game reserve and commencing
their eviction. The respondent state did not impress upon the Endorois any
understanding that they would be denied all rights of return to their land,
including unfettered access to grazing land and the medicinal salt licks for
their cattle. The African Commission agrees that the complainants had a
legitimate expectation that even after their initial eviction, they would be
allowed access to their land for religious ceremonies and medicinal purposes
— the reason, in fact why they are in front of the African Commission.
291. Additionally, the African Commission is of the view that any
development or investment projects that would have a major impact within
the Endorois territory, the state has a duty not only to consult with the
community, but also to obtain their free, prior, and informed consent,
according to their customs and traditions.
...
297. The African Commission is convinced that the inadequacy of the
consultations left the Endorois feeling disenfranchised from a process of
utmost importance to their life as a people. Resentment of the unfairness
with which they had been treated inspired some members of the community
to try to reclaim the Mochongoi Forest in 1974 and 1984, meet with the
President to discuss the matter in 1994 and 1995, and protest the actions in
peaceful demonstrations. The African Commission agrees that if consultations
had been conducted in a manner that effectively involved the Endorois, there
would have been no ensuing confusion as to their rights or resentment that
their consent had been wrongfully gained. It is also convinced that they have
faced substantive losses — the actual loss in well-being and the denial of
benefits accruing from the game reserve. Furthermore, the Endorois have
faced a significant loss in choice since their eviction from the land. It agrees
that the Endorois, as beneficiaries of the development process, were entitled
to an equitable distribution of the benefits derived from the game reserve.
298. The African Commission is of the view that the respondent state bears
the burden for creating conditions favourable to a people’s development. It
is certainly not the responsibility of the Endorois themselves to find alternate
places to graze their cattle or partake in religious ceremonies. The
respondent state, instead, is obligated to ensure that the Endorois are not left
out of the development process or benefits. The African Commission agrees
that the failure to provide adequate compensation and benefits, or provide
suitable land for grazing indicates that the respondent state did not
adequately provide for the Endorois in the development process. It finds
against the respondent state that the Endorois community has suffered a
violation of article 22 of the Charter.

Recommendations
In view of the above, the African Commission finds that the respondent state
is in violation of articles 1, 8, 14, 17, 21 and 22 of the African Charter. The
African Commission recommends that the respondent state:
(a) Recognise rights of ownership to the Endorois and restitute Endorois
ancestral land.
(b) Ensure that the Endorois community has unrestricted access to Lake
Bogoria and surrounding sites for religious and cultural rites and for grazing
their cattle.
(c) Pay adequate compensation to the community for all the loss suffered.
 Decisions of the African Commission 279

(d) Pay royalties to the Endorois from existing economic activities and
ensure that they benefit from employment possibilities within the Reserve.
(e) Grant registration to the Endorois Welfare Committee.
(f) Engage in dialogue with the complainants for the effective
implementation of these recommendations.
(g) Report on the implementation of these recommendations within three
months from the date of notification.
2. The African Commission avails its good offices to assist the parties in the
implementation of these recommendations.

_____________________________________

Civil Liberties Organisation (in respect of Bar Association) v

Nigeria
(2000) AHRLR 186 (ACHPR 1995)

Governmental control of the Nigerian Bar Association is held to be a violation of

the right of freedom of association of practicing lawyers.

1. The communication is brought by the Civil Liberties Organisation, a

Nigerian non-governmental organisation, in protest against the Legal
Practitioners’ [(Amendment)] Decree [no 21 of1993]. This decree establishes
a new governing body of the Nigerian Bar Association, namely the Body of
Benchers. Of the 128 members of this body, only 31 are nominees of the Bar
Association. The rest are nominees of the government.
2. The functions of the Body of Benchers are (1) the prescription of
practising fees one tenth of which are payable every year to the Body and (2)
the disciplining of legal practitioners.
3. The decree excludes recourse to the courts and makes it an offence ‘to
commence or maintain an action or any legal proceeding whatever relating to
or connected with or arising from the exercise of any of the powers of the
Body of Benchers.’ The decree is retrospective.
...
Law
...
14. Article 10 of the African Charter reads: ‘(1) Every individual shall have
the right to free association provided that he abides by the law.’ Freedom of
association is enunciated as an individual right and is first and foremost a duty
of the state to abstain from interfering with the free formation of
associations. There must always be a general capacity for citizens to join,
without state interference, in associations in order to attain various ends.
15. In regulating the use of this right, the competent authorities should not
enact provisions which would limit the exercise of this freedom. The
competent authorities should not override constitutional provisions or
undermine fundamental rights guaranteed by the constitution and
international human rights standards.
16. The Body of Benchers is dominated by representatives of the
government and has wide discretionary powers. This interference with the
free association of the Nigerian Bar Association is inconsistent with the
preamble of the African Charter in conjunction with UN Basic Principles on the
280 African Commission on Human and Peoples’ Rights

Independence of the Judiciary and thereby constitutes a violation of article

10 of the African Charter.

For the above reasons, the Commission:

[17.] Holds that there has been a violation of articles 6, 7, and 10 of the
African Charter on Human and Peoples’ Rights. The decree should therefore
be annulled.

_____________________________________

Commission Nationale des Droits de l’Homme et des Libertés v

Chad
(2000) AHRLR 66 (ACHPR 1995)

In this communication, the Commission finds that the government of Chad has
committed serious and massive violations because it has failed to protect those
within its borders, irrespective of the fact that their attackers had not been
government agents. The Commission also held that the African Charter does not
allow state parties to derogate from their Charter obligations during emergency
situations.

The facts
1. The communication is brought by La Commission Nationale des Droits de
l’Homme et des Libertés de la Fédération Nationale des Unions de Jeunes
Avocats de France. The complaint alleges several massive and severe
violations in Chad.
2. The complaint alleges that journalists are harassed, both directly and
indirectly. These attacks are often by unidentified individuals whom the
complainants claim to be security service agents of the government. The
government denies responsibility.
3. The complaint alleges the arbitrary arrest of several people, among
those four members of the opposition party, RDP, by the security services.
These people were never brought before a court, although they were
eventually set free. Fifteen more people were illegally detained, but have
now been liberated.
4. There are several accounts of killings, disappearances and torture.
Fifteen people are reported killed, 200 wounded, and several persons
tortured as a result of the civil war between the security services and other
groups.
5. The communication alleges the assassination of Bisso Mamadou, who
was attacked by armed individuals. The minister responsible was warned of
the danger to Mr Bisso, but he refused to issue protection. Subsequently, the
minister did not initiate investigation into the killing.
6. The communication also alleges the assassination of Joseph Betudi,
Vice-President of Ligue Tchadienne des Droits de l’Homme. It also contains
allegations of inhuman treatment of prisoners.
...
Law
17. Article 1 of the African Charter reads:
The member states of the Organization of African Unity parties to the present
Charter shall recognise the rights, duties and freedoms enshrined in this Charter
and shall undertake to adopt legislative or other measures to give effect to them.
 Decisions of the African Commission 281

18. In this case, the complainant claims that not only did government agents
commit violations of the African Charter, but that the state failed to protect
the rights in the Charter from violation by other parties.
19. The government claims that no violations were committed by its agents,
and that it had no control over violations committed by other parties, as Chad
is in a state of civil war.
20. The Charter specifies in article 1 that the states parties shall not only
recognise the rights, duties and freedoms adopted by the Charter, but they
should also ‘undertake ... measures to give effect to them’. In other words,
if a state neglects to ensure the rights in the African Charter, this can
constitute a violation, even if the state or its agents are not the immediate
cause of the violation.
21. The African Charter, unlike other human rights instruments, does not
allow for state parties to derogate from their treaty obligations during
emergency situations. Thus, even a civil war in Chad cannot be used as an
excuse by the state violating or permitting violations of rights in the African
Charter.
22. In the present case, Chad has failed to provide security and stability in
the country, thereby allowing serious and massive violations of human rights.
The national armed forces are participants in the civil war and there have
been several instances in which the government has failed to intervene to
prevent the assassination and killing of specific individuals. Even where it
cannot be proved that violations were committed by government agents, the
government had a responsibility to secure the safety and the liberty of its
citizens, and to conduct investigations into murders. Chad therefore is
responsible for the violations of the African Charter.
23. The complainant claims that the events in Chad constitute violations of
articles 4 (right to life), 5 (prohibition of torture, inhuman and degrading
treatment), 6 (right to security of person), 7 (right to a fair trial), and [9]
(right to freedom of expression).
24. In the present case, there has been no substantive response from the
government of Chad, only a blanket denial of responsibility.
25. The African Commission, in several previous decisions, has set out the
principle that where allegations of human rights abuse go uncontested by the
government concerned, the Commission must decide on the facts provided by
the complainant and treat those facts as given. This principle conforms with
the practice of other international human rights adjudicatory bodies and the
Commission’s duty to protect human rights. Since the government of Chad
does not wish to participate in a dialogue, the Commission must, regrettably,
continue its consideration of the case on the basis of facts and opinions
submitted by the complaints alone.
26. Thus, in the absence of a substantive response by the government, in
keeping with its practice, the Commission will take its decisions based on the
events alleged by the complainants.

For these reasons, the Commission:

[27.] Finds that there have been serious and massive violations of human
rights in Chad;
[28.] Finds that there have been violations of articles 4, 5, 6, 7 [and 9].
282 African Commission on Human and Peoples’ Rights

Constitutional Rights Project and Another v Nigeria

(2000) AHRLR 191 (ACHPR 1998)

This case deals with the Abacha government’s annulment of elections considered
free and fair by international observers. The annulment is found to be a violation
of the rights of individual voters as well as the right of all Nigerians as a ‘people’
to choose their government. The Commission also finds ad hominem restrictions on
rights (as opposed to limitations through laws of general application) to be in
violation of the Charter.

...
Merits
...
48. A basic premise of international human rights law is that certain
standards must be constant across national borders, and governments must be
held accountable to these standards. The criteria for what constitutes free
and fair elections are internationally agreed upon, and international
observers are put in place to apply these criteria. It would be contrary to the
logic of international law if a national government with a vested interest in
the outcome of an election was the final arbiter of whether the election took
place in accordance with international standards. In this case the government
does not even attempt to defend its decision to overrule the judgment of
international observers.
49. Article 13(1) of the Charter reads:
Every citizen shall have the right to participate freely in the government of his
country, either directly or through freely chosen representatives in accordance
with the provisions of the law.
50. To participate freely in government entails, among other things, the
right to vote for the representative of one’s choice. An inevitable corollary of
this right is that the results of the free expression of the will of the voters are
respected; otherwise, the right to vote freely is meaningless. In the light of
this, the annulment of the election results, which reflected the free choice
of the voters, is in violation of article 13(1).
51. Article 20(1) of the Charter provides: ‘[All peoples] shall freely
determine their political status ... according to the policy they have freely
chosen.’
52. The right of a people to determine their ‘political status’ can be
interpreted as involving the right of Nigerians to be able to choose freely
those persons or party that will govern them. It is the counterpart of the right
enjoyed by individuals under article 13.
53. The election at issue here, held in conditions adjudged to be free and
fair by international observers, was an exercise of the right of Nigerians to
freely determine this political status. The subsequent annulment of the
results by the authority in power is a violation of this right of the Nigerian
people.
54. Article 6 of the African Charter guarantees that:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.
55. The government does not dispute that many people, including human
rights activists and journalists, were detained without having charges brought
against them and without the possibility of bail. The government maintains
that ‘many’ of these individuals have since been released. Where individuals
have been detained without charges being brought, particularly since the
 Decisions of the African Commission 283

time of the elections, a period of now over three years, this constitutes an
arbitrary deprivation of their liberty and thus violates article 6.
56. In the words of article 9 of the African Charter: ‘(1) Every individual
shall have the right to receive information. (2) Every individual shall have the
right to express and disseminate his opinions within the law.’
57. The government justifies its actions with regard to the journalists and
proscription of publications by reference to the ‘chaotic’ situation that
transpired after the elections were annulled. The Commission decided, in its
decision on communication 101/93 [Civil Liberties Organisation (in respect of
Bar Association) v Nigeria, paragraph 15], with respect to freedom of
association, that:
Competent authorities should not enact provisions which would limit the exercise
of this freedom. The competent authorities should not override constitutional
provisions or undermine fundamental rights guaranteed by the constitution and
international human rights standards.
58. With these words the Commission states a general principle that applies
to all rights, not only the freedom of association. Government should avoid
restricting rights, and take special care with regard to those rights protected
by constitutional or international human rights law. No situation justifies the
wholesale violation of human rights. In fact, general restrictions on rights
diminish public confidence in the rule of law and are often counter-
productive.
59. Given that Nigerian law contains all the traditional provisions for libel
suits, a governmental proscription of a particular publication, by name, is of
particular concern. Ad hominem legislation, that is laws made to apply to
specifically one individual or legal entity, raise the acute danger of
discrimination and lack of equal treatment before the law guaranteed by
article 2. The proscription of The News thus constitutes a violation of article
9. Equally, the seizure of 50 000 copies of Tempo and The News magazine [are
not] justified in the face of article 9 of the Charter.

For the above reasons, the Commission:

[60.] Holds violations of articles 1, 6, 9, 13 and [20(1)] of the African Charter;
[61.] Appeals to the government of Nigeria to release all those who were
detained for protesting against the annulment of the elections and to
preserve the traditional functions of the courts by not curtailing their
jurisdiction.

_____________________________________

Constitutional Rights Project and Another v Nigeria

(2000) AHRLR 235 (ACHPR 1999)

The suspension of the right to habeas corpus of detainees in the circumstances

prevailing at the time in Nigeria is held to constitute a violation of the Charter.

...
Merits
21. Article 6 of the Charter reads:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.
284 African Commission on Human and Peoples’ Rights

22. The problem of arbitrary detention has existed for hundreds of years.
The writ of habeas corpus was developed as the response of common law to
arbitrary detention, permitting detained persons and their representatives to
challenge such detention and demand that the authority either release or
justify all imprisonment.
23. Habeas corpus has become a fundamental facet of common law legal
systems. It permits individuals to challenge their detention proactively and
collaterally, rather than waiting for the outcome of whatever legal
proceedings may be brought against them. It is especially vital in those
instances in which charges have not, or may never be, brought against the
detained individual.
24. Deprivation of the right to habeas corpus alone does not automatically
violate article 6. Indeed, if article 6 was never violated, there would be no
need for habeas corpus provisions. However, where violation of article 6 is
widespread, habeas corpus rights are essential in ensuring that the
individuals’ rights in article 6 are respected.
25. The question thus becomes whether the right to habeas corpus, as it has
developed in common law systems, is a necessary corollary to the protection
of article 6 and whether its suspension thus violates this article.
26. The African Charter should be interpreted in a culturally sensitive way,
taking into full account the differing legal traditions of Africa and finding
expression through the laws of each country. The government has conceded
that the right to habeas corpus is important in Nigeria, and emphasised that
it will be reinstated ‘with the democratisation of society’.
27. The importance of habeas corpus is demonstrated by the other
dimensions of communication 150/96. The government argued that no one
had actually been denied the right to habeas corpus under the amended
decree. Communication 150/96 provides a list of such individuals who are
detained without charges in very poor conditions, some incommunicado, and
are unable to challenge their detention due to the suspension of this right.
The government has however made no specific response.
28. First of all, in accordance with its well-established precedent [the
Commission then cites unofficial versions of earlier decisions, which are
omitted here — eds], since the government has presented no defence or
contrary evidence that the conditions of detention are acceptable, the
Commission accepts the allegations that the conditions of detention are a
violation of article 5 of the Charter, which prohibits inhuman and degrading
treatment. The detention of individuals without charge or trial is a clear
violation of articles 6 and 7(1)(a) and (d).
29. Furthermore, these individuals are being held incommunicado with no
access to lawyers, doctors, friends or family. Preventing a detainee access to
his lawyer clearly violates article 7(1)(c) which provides for the ‘right to
defence, including the right to be defended by a counsel of his choice’. It is
also a violation of article 18 to prevent a detainee from communicating with
his family.
30. The fact that the government refuses to release Chief Abiola, despite
the order for his release on bail made by the Court of Appeal, is a violation of
article 26 which obliges states parties to ensure the independence of the
judiciary. Failing to recognise a grant of bail by the Court of Appeal militates
against the independence of the judiciary.
31. These circumstances dramatically illustrate how a deprivation of rights
under articles 6 and 7 is compounded by the deprivation of the right to apply
for a writ of habeas corpus. Given the history of habeas corpus in the common
law to which Nigeria is an heir, and its acute relevance in modern Nigeria, the
amended decree suspending it must be seen as a further violation of articles
6 and 7(1)(a) and (d).
 Decisions of the African Commission 285

32. The government argues that habeas corpus actions are still available to
most detainees in Nigeria, and that the right to bring habeas corpus actions is
denied only to those detained for state security reasons under Decree no 2.
While this does not create a situation as serious as when all detainees were
denied the right to challenge their detention, the limited application of a
provision does not guarantee its compatibility with the Charter. To deny a
fundamental right to a few is just as much a violation as denying it to many.
33. The government attempts to justify Decree no 14 with the necessity for
state security. While the Commission is sympathetic to all genuine attempts
to maintain public peace, it must note that too often extreme measures to
curtail rights simply create greater unrest. It is dangerous for the protection
of human rights for the executive branch of government to operate without
such checks as the judiciary can usefully perform.
...

_____________________________________

Constitutional Rights Project (in respect of Akamu and Others) v

Nigeria
(2000) AHRLR 180 (ACHPR 1995)

In this case special tribunals had been created for the prosecution of certain
offences punishable by death. No appeal to a higher court was possible.

...
Merits
11. ... In this case, the fundamental rights in question are those to life and
liberty provided for in articles 4 and 6 of the African Charter. While
punishments decreed as the culmination of a carefully conducted criminal
procedure do not necessarily constitute violations of these rights, to foreclose
any avenue of appeal to ‘competent national organs’ in criminal cases bearing
such penalties clearly violates article 7(1)(a) of the African Charter, and
increases the risk that severe violations may go unredressed.
12. The Robbery and Firearms (Special Provisions) Act, section 8(1),
describes the constitution of the tribunals, which shall consist of three
persons; one judge, one officer of the army, navy or air force and one officer
of the police force. Jurisdiction has thus been transferred from the normal
courts to a tribunal chiefly composed of persons belonging to the executive
branch of government, the same branch that passed the Robbery and Firearms
(Special Provisions) Act, whose members do not necessarily possess any legal
expertise. Article 7(1)(d) of the African Charter requires the court or tribunal
to be impartial. Regardless of the character of the individual members of such
tribunals, its composition alone creates the appearance, if not actual lack, of
impartiality. It thus violates article 7(1)(d).

For the above reasons, the Commission:

[13.] Declares that there has been a violation of article 7(a), (c) and (d) of
the African Charter and recommends that the government of Nigeria should
free the complainants.
[14.] At the 17th session the Commission decided to bring the file to Nigeria
for the planned mission in order to verify that the complainants have been
released.
286 African Commission on Human and Peoples’ Rights

Constitutional Rights Project and Others v Nigeria

(2000) AHRLR 227 (ACHPR 1999)

These excerpts deal with the limitation of rights under the African Charter and
property rights.

...
Merits
...
35. Article 9 of the African Charter reads: ‘(1) Every individual shall have
the right to receive information. (2) Every individual shall have the right to
express and disseminate his opinions within the law.’
36. Freedom of expression is a basic human right, vital to an individual’s
personal development and political consciousness, and participation in the
conduct of public affairs in his country. Under the African Charter, this right
comprises the right to receive information and express opinions.
37. The proscription of specific newspapers by name and the sealing of their
premises, without a hearing at which they could defend themselves or any
accusation of wrong doing, legal or otherwise, amounts to harassment of the
press. Such actions not only have the effect of hindering the directly affected
persons in disseminating their opinions, but also poses an immediate risk that
journalists and newspapers not yet affected by any of the decrees will subject
themselves to self-censorship in order to be allowed to carry on their work.
38. Decrees like these pose a serious threat to the public of the right to
receive information not in accordance with what the government would like
the public to know. The right to receive information is important: article 9
does not seem to permit derogation, no matter what the subject of the
information or opinions and no matter the political situation of a country.
Therefore, the Commission finds that the proscription of the newspapers is a
violation of article 9(1).
39. The complainant argues that article 9(2) must be read as referring to
‘already existing law’. The government argues that the decrees were justified
by the special circumstances; the complainant invokes the constancy of
international obligations.
40. According to article 9(2) of the Charter, dissemination of opinions may
be restricted by law. This does not however mean that national law can set
aside the right to express and disseminate one’s opinions guaranteed at the
international level; this would make the protection of the right to express
one’s opinion ineffective. To permit national law to take precedence over
international law would defeat the purpose of codifying certain rights in
international law and indeed the whole essence of treaty making.
41. In contrast to other international human rights instruments, the African
Charter does not contain a derogation clause. Therefore limitations on the
rights and freedoms enshrined in the Charter cannot be justified by
emergencies or special circumstances. The only legitimate reasons for
limitations of the rights and freedoms of the African Charter are found in
article 27(2), that is, that the rights of the Charter ‘shall be exercised with
due regard to the rights of others, collective security, morality and common
interest.’
42. The justification of limitations must be strictly proportionate with and
absolutely necessary for the advantages which follow. Most important, a
limitation may not erode a right such that the right itself becomes illusory.
43. The government has provided no concrete evidence that the
proscription was for any of the above reasons given in article 27(2). It has
 Decisions of the African Commission 287

failed to prove that proscription of the newspapers was for any reason but
simple criticism of the government. If the newspapers had been guilty of libel,
for example, they could have individually been sued and called upon to
defend themselves. There was no substantive evidence presented that the
newspapers were threatening national security or public order.
44. For the government to proscribe a particular publication, by name, is
thus disproportionate and not necessary. Laws made to apply specifically to
one individual or legal personality raise the serious danger of discrimination
and lack of equal treatment before the law, guaranteed by article 3. The
proscription of these publications cannot therefore be said to be ‘within the
law’ and constitutes a violation of article 9(2).
...
52. The complainants also allege that the government violated proprietary
rights of owners of companies by the said decrees.
53. Article 14 of the Charter reads:
The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in
accordance with the provisions of appropriate laws.
54. The government did not offer any explanation for the sealing up of the
premises of many publications, but maintained the seizure in violation of
direct court orders. Those affected were not previously accused or convicted
in court of any wrongdoing. The right to property necessarily includes a right
to have access to one’s property and the right not to have one’s property
invaded or encroached upon. The decrees which permitted the Newspapers
premises to be sealed up and for publications to be seized cannot be said to
be ‘appropriate’ or in the interest of the public or the community in general.
The Commission finds a violation of article 14.

For these reasons, the Commission:

[55.] Finds that there have been violations of articles 5, 6, 7(1)(a), 9(1) and
(2), and 14 of the African Charter; and
[56.] Invites the government to take all necessary steps to comply with its
obligations under the Charter.

_____________________________________

Democratic Republic of the Congo v Burundi, Rwanda and Uganda

(2004) AHRLR 19 (ACHPR 2003)

In its first inter-state communication the Commission finds the respondent states
to have violated a number of human and peoples’ rights including the right to self-
determination, the right to development and the right to peace and security.

Summary of facts
...
2. The communication is filed against the Republics of Burundi, Rwanda
and Uganda (hereinafter referred to, respectively, as ‘Burundi’, ‘Rwanda’
and ‘Uganda’). It alleges grave and massive violations of human and peoples’
rights committed by the armed forces of these three countries in the
Congolese provinces where there have been rebel activities since 2 August
1998, and for which the Democratic Republic of Congo blames Burundi,
288 African Commission on Human and Peoples’ Rights

Uganda and Rwanda. In support of its complaint the Democratic Republic of

Congo states that the Ugandan and Rwandan governments have acknowledged
the presence of their respective armed forces in the eastern provinces of the
Democratic Republic of Congo under what it terms the ‘fallacious pretext’ of
‘safeguarding their interests’. The complaint states, furthermore, that the
Congolese government has ‘sufficient and overwhelming evidence of
Burundi’s involvement’.
...
Law
...
The merits
66. The use of armed force by the respondent states, which the Democratic
Republic of Congo complains of contravenes the well-established principle of
international law that states shall settle their disputes by peaceful means in
such a manner that international peace, security and justice are not
endangered. Indeed, there cannot be both national and international peace
and security guaranteed by the African Charter under the conditions created
by the respondent states in the eastern provinces of the complainant state.
67. Rwanda and Uganda, in their oral arguments before the Commission at
its 27th ordinary session held in Algeria had argued that the decision of the
complainant state to submit the communication directly to the Chairman of
the Commission without first notifying them and the Secretary-General of the
OAU, is procedurally wrong and therefore fatal to the admissibility of the
case. But the African Commission found otherwise.
68. The Commission finds the conduct of the respondent states inconsistent
with the standard expected of them under UN Declaration on Friendly
Relations, which is implicitly affirmed by the Charters of the UN and OAU, and
which the Commission is mandated by article 23 of the African Charter on
Human and Peoples’ Rights to uphold. Any doubt that this provision has been
violated by the respondent states is resolved by recalling an injunction in the
UN Declaration on Friendly Relations:
No state or group of states has the right to intervene directly or indirectly, for any
reason whatever, in the internal or external affairs of any other states.
Consequently, armed intervention and all other forms of interference or
attempted threats against the personality of the state or against its political,
economic and cultural elements are in violation of international law ... Also no
state shall organise, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the regime
of another state or interfere in civil strife in another state.
The substance of the complaint of the Democratic Republic of Congo against
the respondents is covered by the foregoing prohibition. The respondent
states have therefore violated article 23 of the African Charter. The conduct
of the respondent states also constitutes a flagrant violation of the right to
the unquestionable and inalienable right of the peoples of the Democratic
Republic of Congo to self-determination provided for by article 20 of the
African Charter, especially clause 1 of this provision.
69. The complainant state alleges grave and massive violations of human
and peoples’ rights committed by the armed forces of the respondent states
in its eastern provinces. It details series of massacres, rapes, mutilations,
mass transfers of populations and looting of the peoples’ possessions, as some
of those violations. As noted earlier on, the series of violations alleged to have
been committed by the armed forces of the respondent states fall within the
province of humanitarian law, and therefore rightly covered by the four
Geneva Conventions and the Protocols additional to them. And the
Commission having found the alleged occupation of parts of the provinces of
the complainant state by the respondents to be in violation of the Charter
 Decisions of the African Commission 289

cannot turn a blind eye to the series of human rights violations attendants
upon such occupation.
70. The combined effect of articles 60 and 61 of the African Charter enables
the Commission to draw inspiration from international law on human and
peoples’ rights, the Charter of the United Nations, the Charter of the
Organisation of African Unity and also to take into consideration, as subsidiary
measures to determine the principles of law, other general or special
international conventions, laying down rules recognised by member states of
the Organization of African Unity, general principles recognised by African
states as well as legal precedents and doctrine. By virtue of articles 60 and 61
the Commission holds that the four Geneva Conventions and the two
Additional Protocols covering armed conflicts constitute part of the general
principles of law recognised by African states, and take same into
consideration in the determination of this case.
71. It is noted that article 75(2) of the First Protocol of the Geneva
Conventions of 1949, prohibits the following acts at any time and in all places
whatsoever, whether committed by civilian or by military agents:
Violence to life, health, or physical or mental well-being of persons, in particular;
murder; torture of all kinds, whether physical or mental; corporal punishment;
mutilations; and outrages upon personal dignity, in particular, humiliating and
degrading treatment; enforced prostitution and any form of indecent assault.
72. The complainant state alleges the occupation of the eastern provinces
of the country by the respondent states’ armed forces. It alleges also that
most parts of the affected provinces have been under the control of the rebels
since 2 August 1998, with the assistance and support of the respondent states.
In support of its claim, it states that the Ugandan and Rwandan governments
have acknowledged the presence of their respective armed forces in the
eastern provinces of the country under what it calls the ‘fallacious pretext’
of ‘safeguarding their interests’. The Commission takes note that this claim
is collaborated by the statements of the representatives of the respondent
states during the 27th ordinary session held in Algeria.
73. Article 23 of the Charter guarantees to all peoples the right to national
and international peace and security. It provides further that ‘[t]he principles
of solidarity and friendly relations implicitly affirmed by the Charter of the
United Nations and reaffirmed by that of the Organization of African Unity
shall govern relations between states.’ The principles of solidarity and
friendly relations contained in the Declaration on Principles of International
Law Concerning Friendly Relations and Co-operation among states in
Accordance with the Charter of the United Nations (Res. 2625 (XXV), adopted
by the UN General Assembly on 24 October 1970, prohibits threat or use of
force by states in settling disputes. Principle 1 provides: Every state has the
duty to refrain in its international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the purposes of the United Nations. Such
a threat or use of force constitutes a violation of international law and the
Charter of the United Nations and shall never be employed as a means of
settling international issues.
74. In the same vein, article 33 of the United Nations Charter enjoins
‘parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security ... first of all, to seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice’. Chapter VII of the same Charter outrightly
prohibits threats to the peace, breaches of the peace and acts of aggression.
Article III of the OAU Charter states that:
The member states, in pursuit of the purposes stated in article II, solemnly affirm
and declare their adherence to the following principles: ... (2) Non-interference in
290 African Commission on Human and Peoples’ Rights

the internal affairs of states; (3) Respect for the sovereignty and territorial
integrity of each state and for its inalienable right to independent existence; (4)
Peaceful settlement of disputes by negotiation, mediation, conciliation or
arbitration.
75. It also contravenes the well-established principle of international law
that states shall settle their disputes by peaceful means in such a manner that
international peace and security and justice are not endangered. As noted in
paragraph 66 above, there cannot be both national and international peace
and security guaranteed by the Charter with the conduct of the respondent
states in the eastern provinces of the complainant state.
76. The Commission therefore disapproves of the occupation of the
complainant’s territory by the armed forces of the respondent forces and
finds it impermissible, even in the face of their argument of being in the
complainant’s territory in order to safeguard their national interests and
therefore in contravention of article 23 of the Charter. The Commission is of
the strong belief that such interests would better be protected within the
confines of the territories of the respondent states.
77. It bears repeating that the Commission finds the conduct of the
respondent states in occupying territories of the complainant state to be a
flagrant violation of the rights of the peoples of the Democratic Republic of
Congo to their unquestionable and inalienable right to self-determination
provided for by article 20 of the African Charter.
78. As previously stated, the Commission is entitled, by virtue of articles 60
and 61 of the African Charter, to draw inspiration from international law on
Human and Peoples’ Rights, ... the Charter of the United Nations, the Charter
of the Organisation of African Unity ... and also take into consideration, as
subsidiary measures to determine the principles of law, other general or
special international conventions, laying down rules recognised by member
states of the Organisation of African Unity ... general principles recognised by
African states as well as legal precedents and doctrine. Invoking these
provisions, the Commission holds that the four Geneva Conventions and the
two Additional Protocols covering armed conflicts, fall on all fours with the
category of special international conventions, laying down rules recognised by
member states of the Organisation of African Unity and also constitute part
of the general principles recognised by African states, and to take same into
consideration in the determination of this case.
79. The Commission finds the killings, massacres, rapes, mutilations and
other grave human rights abuses committed while the respondent states’
armed forces were still in effective occupation of the eastern provinces of the
complainant state reprehensible and also inconsistent with their obligations
under Part III of the Geneva Convention Relative to the Protection of Civilian
Persons in Time of War of 1949 and Protocol 1 of the Geneva Convention.
80. They also constitute flagrant violations of article 2 of the African
Charter, such acts being directed against the victims by virtue of their
national origin; and article 4, which guarantees respect for life and the
integrity of one’s person and prohibits the arbitrary deprivation rights.
81. The allegation of mass transfer of persons from the eastern provinces of
the complainant state to camps in Rwanda, as alleged by the complainant and
not refuted by the respondent, is inconsistent with article 18(1) of the African
Charter, which recognises the family as the natural unit and basis of society
and guarantees it appropriate protection. It is also a breach of the right to
freedom of movement, and the right to leave and to return to ones country
guaranteed under article 12(1) and (2) of the African Charter respectively.
82. Article 56 of the First Protocol Additional to the Geneva Conventions of
1949 provides:
Works or installations containing dangerous forces, namely dams, dykes and
nuclear electrical generating stations, shall not be made object of military attack,
 Decisions of the African Commission 291

even where these objects are military objectives, if such attack may cause the
release of dangerous forces and consequent severe losses among the civilian
population.
The special protection against attack provided by paragraph 1 shall cease: (a) for a
dam or dyke only if it is used for other than its normal function in a regular,
significant and direct support of military operations and if such attack is the only
feasible way to terminate such support ...
In all cases, the civilian population and individual civilians shall remain entitled to
all the protection accorded them by international law, including the protection of
precautionary measures provided for in article 57.
83. As noted previously, taking article 56, quoted above into account, and
by virtue of articles 60 and 61 of the African Charter, the Commission
concludes that in besieging the hydroelectric dam in Lower Congo province,
the respondent states have violated the Charter.
84. The besiege of the hydroelectric dam may also be brought within the
prohibition contained in The Hague Convention (II) with Respect to the Laws
and Customs of War on Land which provides in article 23 that ‘besides the
prohibitions provided by special Conventions, it is especially prohibited ... to
destroy the enemy’s property, unless such destruction or seizure be
imperatively demanded by the necessities of war’. By parity of reason, and
bearing in mind articles 60 and 61 of the Charter, the respondent states are
in violation of the Charter with regard to the just noted article 23.
85. The case of the International Criminal Tribunal for Yugoslavia v Zejnil
Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo (the Celebici Judgment;
Nov., 16, 1998 at para. 587) is supportive of the Commission’s stance. It
states, inter alia, that
international law today imposes strict limitations on the measures which a party to
an armed conflict may lawfully take in relation to the private and public property
of an opposing party. The basic norms in this respect, which form part of
customary international law ... include the fundamental principle ... that private
property must be respected and cannot be confiscated ... pillage is formally
forbidden.
86. The raping of women and girls, as alleged and not refuted by the
respondent states, is prohibited under article 76 of the first Protocol
Additional to the Geneva Conventions of 1949, which provides that ‘women
shall be the object of special respect and shall be protected in particular
against rape, forced prostitution and any form of indecent assault.’ It also
offends against both the African Charter and the Convention on the
Elimination of All Forms of Discrimination Against Women; and on the basis of
articles 60 and 61 of the African Charter find the respondent states in
violation of the Charter.
87. The Commission condemns the indiscriminate dumping of and or mass
burial of victims of the series of massacres and killings perpetrated against
the peoples of the eastern province of the complainant state while the armed
forces of the respondent states were in actual fact occupying the said
provinces. The Commission further finds these acts barbaric and in reckless
violation of Congolese peoples’ rights to cultural development guaranteed by
article 22 of the African Charter, and an affront on the noble virtues of the
African historical tradition and values enunciated in the preamble to the
African Charter. Such acts are also forbidden under article 34 of the First
Protocol Additional to the Geneva Conventions of 1949, which provides for
respect for the remains of such peoples and their gravesites. In disregarding
the last provision, the respondent states have violated the African Charter on
the basis of articles 60 and 61 of this instrument.
88. The looting, killing, mass and indiscriminate transfers of civilian
population, the besiege and damage of the hydro-dam, stopping of essential
services in the hospital, leading to deaths of patients and the general
disruption of life and state of war that took place while the forces of the
respondent states were occupying and in control of the eastern provinces of
292 African Commission on Human and Peoples’ Rights

the complainant state are in violation of article 14 guaranteeing the right to

property, articles 16 and 17 (all of the African Charter), which provide for the
rights to the best attainable state of physical and mental health and
education, respectively.
89. Part III of the Geneva Convention Relative to the Protection of Civilian
Persons in Time of War 1949, particularly in article 27 provides for the
humane treatment of protected persons at all times and for protection
against all acts of violence or threats and against insults and public curiosity.
Further, it provides for the protection of women against any attack on their
honour, in particular against rape, enforced prostitution, or any form of
indecent assault. Article 4 of the Convention defines a protected person as
those who, at a given moment and in any manner whatsoever, find
themselves, in case of a conflict or occupation, in the hands of a party to the
conflict or occupying power of which they are not nationals.
90. The complainant state alleges that between October and December
1998, the gold produced by the OKIMO firm and by local diggers yielded
$100,000,000 (one hundred million US dollars) to Rwanda. By its calculation,
the coffee produced in the region and in North Kivu yielded about $70,000,000
(seventy million US dollars) to Uganda in the same period. Furthermore,
Rwanda and Uganda took over control of the fiscal and customs revenue
collected respectively by the Directorate General of Taxes. The plunder of
the riches of the eastern provinces of Congo is also affecting endangered
animal species such as okapis, mountain gorillas, rhinoceros, and elephants.
91. Indeed, the respondent states, especially, Uganda, has refuted these
allegations, pretending for example that its troops never stepped in some of
the regions they are accused of human rights violations and looting of the
natural resources of the complainant states. However, the African
Commission has evidence that some of these facts did take place and are
imputable to the armies and agents of the respondent states. In fact, the
United Nations have acknowledged that during the period when the armies of
the respondent states were in effective control over parts of the territory of
the complainant state, there were lootings of the natural resources of the
complainant state. The United Nations set up a Panel of Experts to investigate
this matter.
92. The report of the Panel of Experts, submitted to the Security Council of
the United Nations in April 2001 (under reference S/2001/357) identified all
the respondent states among others actors, as involved in the conflict in the
Democratic Republic of Congo. The report profusely provides evidence of the
involvement of the respondent states in the illegal exploitation of the natural
resources of the complainant state. It is stated in paragraph 5 of the Summary
of the report:
During this first phase (called Mass-scale looting phase by the experts), stockpiles
of minerals, coffee, wood, livestock and money that were available in territories
conquered by the armies of Burundi, Rwanda and Uganda were taken, and either
transferred to those countries or exported to international markets by their forces
and nationals.
93. Paragraph 25 of the reports further states:
The illegal exploitation of resources (of the Democratic Republic of Congo) by
Burundi, Rwanda and Uganda took different forms, including confiscation,
extraction, forced monopoly and price-fixing. Of these, the first two reached
proportions that made the war in the Democratic Republic of the Congo a very
lucrative business.
94. The Commission therefore finds the illegal exploitation/looting of the
natural resources of the complainant state in contravention of article 21 of
the African Charter, which provides:
All peoples shall freely dispose of their wealth and natural resources. This right
shall be exercised in the exclusive interest of the people. In no case shall a people
 Decisions of the African Commission 293

be deprived of it ... states parties to the present Charter shall individually and
collectively exercise the right to free disposal of their wealth and natural
resources with a view to strengthening African Unity and solidarity.
95. The deprivation of the right of the people of the Democratic Republic of
Congo, in this case, to freely dispose of their wealth and natural resources,
has also occasioned another violation — their right to their economic, social
and cultural development and of the general duty of states to individually or
collectively ensure the exercise of the right to development, guaranteed
under article 22 of the African Charter.
96. For refusing to participate in any of the proceedings although duly
informed and invited to respond to the allegations, Burundi admits the
allegations made against it.
97. Equally, by refusing to take part in the proceedings beyond admissibility
stage, Rwanda admits the allegations against it.
98. As in the case of Rwanda, Uganda is also found liable of the allegations
made against it.

For the above reasons, the Commission:

Finds the respondent states in violation of articles 2, 4, 5, 12(1) and (2), 14,
16, 17, 18(1) and (3), 19, 20, 21, 22, and 23 of the African Charter on Human
and Peoples’ Rights.
Urges the respondent states to abide by their obligations under the Charters
of the United Nations, the Organisation of African Unity, the African Charter
on Human and Peoples’ Rights, the UN Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among
states and other applicable international principles of law and withdraw its
troops immediately from the complainant’s territory.
Takes note with satisfaction, of the positive developments that occurred in
this matter, namely the withdrawal of the respondent states armed forces
from the territory of the complainant state.
Recommends that adequate reparations be paid, according to the appropriate
ways to the complainant state for and on behalf of the victims of the human
rights by the armed forces of the respondent states while the armed forces of
the respondent states were in effective control of the provinces of the
complainant state, which suffered these violations.

_____________________________________

Doebbler v Sudan
(2003) AHRLR 153 (ACHPR 2003)

This case deals with corporal punishment for acts considered to be immoral in a
context where Shari’a law applies.

Summary of facts
1. The complainant alleges that on 13 June 1999, the students of the Nubia
Association at Ahlia University held a picnic in Buri, Khartoum along the banks
of the river. Although under the law no permission is necessary for such a
picnic, the students nevertheless sought permission and got it from the local
authorities.
294 African Commission on Human and Peoples’ Rights

2. After starting off for some hours, security agents and policemen
accosted the students, beating some of them and arresting others. They were
alleged to have violated ‘public order’ contrary to article 152 of the Criminal
Law of 1991 because they were not properly dressed or acting in a manner
considered being immoral.
3. The complainant avers that the acts constituting these offences
comprised of girls kissing, wearing trousers, dancing with men, crossing legs
with men, sitting with boys and sitting and talking with boys.
...
5. On 14 June 1999, the eight students referred to in the above paragraph
were convicted and sentenced to fines and or lashes. The said punishment was
executed through the supervision of the court. This type of punishment is
widespread in Sudan.
6. Complainant alleges that the punishment meted out was grossly
disproportionate, as the acts for which the students were punished were
minor offences, which ordinarily would not have attracted such punishments.
The alleged punishments therefore constitute cruel, inhuman and degrading
punishment.
...
Merits
...
36. Article 5 of the Charter prohibits not only cruel but also inhuman and
degrading treatment. This includes not only actions which cause serious
physical or psychological suffering, but which humiliate or force the
individual against his will or conscience.
37. While ultimately whether an act constitutes inhuman degrading
treatment or punishment depends on the circumstances of the case. The
African Commission has stated that the prohibition of torture, cruel,
inhuman, or degrading treatment or punishment is to be interpreted as widely
as possible to encompass the widest possible array of physical and mental
abuses. (See communication 225/98 [Huri-Laws v Nigeria (2000) AHRLR 273
(ACHPR 2000)]).
38. The European Court of Human Rights in Tyrer v United Kingdom,
applying article 3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, 213 UNTS 221, entered into force 3
February 1953, that is substantially similar prohibition of cruel, inhuman, and
degrading punishment as article 5 of the Charter, has similarly held that even
lashings that were carried out in private, with appropriate medical
supervision, under strictly hygienic conditions, and only after the exhaustion
of appeal rights violated the rights of the victim. The Court stated that:
The very nature of judicial corporal punishment is that it involves one human
being inflicting physical violence on another human being. Furthermore, it is
institutionalised violence that is in the present case violence permitted by law,
ordered by the judicial authorities of the state and carried out by the police
authorities of the state. Thus, although the applicant did not suffer any severe or
long lasting physical effects, his punishment whereby he was treated as an object
in the power of authorities — constituted an assault on precisely that which it is
one of the main purposes of article 3 to protect, namely a person dignity and
physical integrity. Neither can it be excluded that the punishment may have had
adverse psychological effects.
39. The complainant alleges that the punishment meted out was grossly
disproportionate, as the acts for which the students were punished were
minor offences, which ordinarily would not have attracted such punishments.
40. The complainant submits that according to Islamic law the penalty of
lashings may be meted out for some serious crimes. For example, hadd
offenses may be punished with lashes under Shari’a because they are
considered grave offences and strict requirements of proof apply. Minor
offenses, however, cannot be punished as hadd because the Qur’an does not
 Decisions of the African Commission 295

expressly prohibit them with a prescribed penalty. The acts committed by the
students were minor acts of friendship between boys and girls at a party.
41. The African Commission, however, wishes to assert that it was not invited
to interpret Islamic Shari’a Law as obtains in the Criminal Code of the
respondent state. No argument was presented before it nor did the African
Commission consider arguments based on the Shari’a Law. The African
Commission hereby states that the inquiry before it was confined to the
application of the African Charter in the legal system of a state party to the
Charter.
42. There is no right for individuals, and particularly the government of a
country to apply physical violence to individuals for offences. Such a right
would be tantamount to sanctioning state sponsored torture under the
Charter and contrary to the very nature of this human rights treaty.
43. The facts in this communication have not been disputed by the
respondent state. In their oral submissions at the 33rd ordinary session, the
respondent state confirmed this by stating that it was the opinion of the
respondent state that it was better for the victims to have been lashed rather
than hold them in detention for the said criminal offences and as such deny
them of the opportunity to continue with their normal lives.
44. The law under which the victims in this communication were punished
has been applied to other individuals. This continues despite the government
being aware of its clear incompatibility with international human rights law.

For these reasons, the African Commission:

• Finds the Republic of Sudan violation of article 5 of the African Charter
on Human and Peoples’ Rights and,
• Requests the Government of Sudan to: immediately amend the Criminal
Law of 1991, in conformity with its obligations under the African Charter
and other relevant international human rights instruments; abolish the
penalty of lashes; and take appropriate measures to ensure compensation
of the victims.

_____________________________________

Egyptian Initiative for Personal Rights and Interights v Egypt

(2011) AHRLR 90 (ACHPR 2011)

This is the first Commission decision to discuss gender specific violence in detail.

...
3. The complainants submit that on 25 May 2005, the Egyptian Movement
for Change (Kefaya) organised a demonstration in front of Saad Zaghloul
Mausoleum with respect to the referendum aimed at amending article 76 of
the Egyptian Constitution, allowing multi-candidate presidential elections.
They submit that riot police surrounded the small number of protesters
(around fifty) and several journalists reporting the events, and at about 12:00
noon, while public buses were transporting young supporters of President
Mubarak and his party called the National Democratic Party (NDP), violence
broke out as NDP supporters attacked the supporters of Kefaya. The
complainants allege that riot police reportedly did not intervene.
4. According to the complainants, the protesters and the journalists
covering the demonstration reconvened in front of the Press Syndicate at
around 2:00 PM where they were met by a large group of riot police and NDP
296 African Commission on Human and Peoples’ Rights

supporters. They allege that further incidents of insults, violence,

intimidation and sexual harassment occurred in the presence of high ranking
officers of the Ministry of Interior (MoI) and the riot police.
...
121. The Women’s Protocol defines discrimination against women as ‘Any
distinction, exclusion or restriction or any differential treatment based on sex
and whose objectives or effects compromise or destroy the recognition,
enjoyment or the exercise by women [...] of human rights and fundamental
freedoms in all spheres of life.’ The same Protocol defines violence against
women as ‘All acts perpetuated against women which cause or could cause
them physical, sexual, psychological, and economic harm, including the
threat to take such acts; or to undertake the imposition of arbitrary
restrictions on or deprivation of fundamental freedoms in private or public
life ...’.
...
137. Three clear conclusions are obvious from the submissions of the
statements made by the victims;
(a) The victims were exclusively women;
(b) The victims were not protected from the perpetrators and other
unidentified actors during the demonstrations; and
(c) The violations were perpetrated on the victims because of their
gender.
...
140. In claiming a violation of article 18(3) of the African Charter, the
complainants submit that the sexual abuse that the victims endured were
gender-specific, amounting to discrimination on the grounds of sex.
...
142. In order for the African Commission to establish that article 18(3) has
been violated by the respondent state, it is going to analyse ‘some of the
elements’ of the testimonies provided by the complainants (discussed in
paragraphs 131 to 136) above to establish whether the allegations were
indeed gender-specific, and discriminatory on the primary basis of gender.
This is because the characteristics of violence commonly committed against
women and men differ, and it is only by analysing the nature of the violence
that the African Commission can effectively draw its conclusions.
143. Firstly, when looking at the verbal assaults used against the victims,
such as ‘sluts’ and ‘whores,’ it is the opinion of the African Commission that
these words are not usually used against persons of the male gender, and are
generally meant to degrade and rip off the integrity of women who refuse to
abide by traditional religious, and even social norms.
144. Secondly, the physical assaults described above are gender-specific in
the sense that the victims were subjected to acts of sexual harassment and
physical violence that can only be directed to women. For instance, breasts
fondling and touching or attempting to touch ‘private and sensitive parts’.
There is no doubt that the victims were targeted in this manner due to their
gender.
145. Thirdly, the alleged threats against some of the victims who were
accused of practising prostitution when they refused to withdraw their
complaints can also be classified as being gender-specific.
...
152. It is clear that the incidents alleged took place in a form of systematic
sexual violence targeted at the women participating or present in the scene
of the demonstration. Furthermore, perpetrators of the assaults seemed to be
aware of the context of the Egyptian society; an Arab Muslim society where a
woman’s virtue is measured by keeping herself physically and sexually
unexposed except to her husband. The perpetrators were aware of the
 Decisions of the African Commission 297

consequences of such acts on the victims; both to themselves and their

families, but still perpetrated the acts as a means of punishing and silencing
them from expressing their political opinions.
...
166. To sum up, it is clear that the sexual assaults against the victims which
occurred on 25 May 2005 were acts of gender-based violence, perpetrated by
state actors, and non-state actors under the control of state actors, that went
unpunished. The violations were designed to silence women who were
participating in the demonstration and deter their activism in the political
affairs of the respondent state which in turn, failed in its inescapable
responsibility to take action against the perpetrators.
...
265. In the present communication, the facts demonstrate that the victims
were physically and emotionally traumatised as a result of sexual violence and
assaults on their person. The trauma and injuries sustained has affected their
physical, psychological and mental health clearly in violation of article 16(1)
of the African Charter.
...
275. From the above reasoning, the African Commission
(i) Observes that the respondent state is in violation of articles 1, 2, 3, 5,
9(2), 16(1), 18(3) and 26 of the African Charter;
(ii) That there was no violation of articles 7(1)(a) and 16(2) of the African
Charter by the respondent state;
(iii) Request an amendment of laws in the respondent state, to bring them
in line with the African Charter;
(iv) Request compensation to each of the victims in the amount of
EP 57, 000, as requested by the complainant, for the physical and emotional
damages/traumas they suffered;
(v) Urges the respondent state to investigate the violations, and bring the
perpetrators to justice;
(vi) Urges the respondent state to ratify the Women’s Protocol; and
(vii) Urges the respondent state to report on the steps it has taken to
implement these decisions in accordance with rule 122(2) of its Rule of
Procedure, within one-hundred and eighty (180) days.

_____________________________________

Forum of Conscience v Sierra Leone

(2000) AHRLR 293 (ACHPR 2000)

The excerpt below deal with fair trial in the context of the death penalty and the
right to life.

...
Merits
...
19. The right to life is the fulcrum of all other rights. It is the fountain
through which other rights flow, and any violation of this right without due
process amounts to arbitrary deprivation of life. Having found above that the
trial of the 24 soldiers constituted a breach of due process of law as
guaranteed under article 7(1)(a) of the Charter, the Commission consequently
finds their execution an arbitrary deprivation of their rights to life provided
298 African Commission on Human and Peoples’ Rights

for in article 4 of the Charter. Although this process cannot bring the victims
back to life, it does not exonerate the government of Sierra Leone from its
obligations under the Charter.

_____________________________________

Gunme and Others v Cameroon

(2009) AHRLR 9 (ACHPR 2009)

This case deals with the right to self-determination and the definition of a
‘people’.

...
129. The complainants submit that the accused were tried in a language they
did not understand, without the help of interpreters. The respondent state
did not contradict that allegation. The Commission states that it is a
prerequisite of the right to a fair trial, for a person to be tried in a language
he understands, otherwise the right to defence is clearly hampered. A person
put in such a situation cannot adequately prepare his defence, since he would
not understand what he is being accused of, nor would he apprehend the legal
arguments mounted against him.
...
130. The Commission recognises that the respondent state is a bilingual
country. Its institutions including the judiciary can use either French or
English ... However since not all the citizens are fluent in both languages, it
is the state’s duty to make sure that, when a trial is conducted in a language
that the accused does not speak, he/she is provided with the assistance of an
interpreter. Failing to do that amounts to a violation of the right to a fair trial.
...
Alleged violation of article 19
...
160. The respondent state did not however respond specifically to the
allegations concerning the relocation of major economic projects and
enterprises from Southern Cameroon. It explained the reason for relocating
the seaport to Douala from Limbe, otherwise known as Victoria. It argues
that, Douala being the gateway into Cameroon, the government needed to
monitor the movement of persons and goods for evident security reasons and
efficient customs control.
161. Every state has an obligation under international law to preserve the
integrity of its entire territory. The maintenance of security and movements
of persons and goods on the territory is part of that obligation. The argument
by the respondent state that it could not guarantee the security of persons
and goods at Limbe, unless it moved the port, is tantamount to acknowledging
that it had no control of Limbe. The Commission believes that the security and
customs authorities could have effectively monitored the movement of
persons and goods, even if the seaport had continued to be at Limbe.
162. The Commission states that the relocation of business enterprises and
location of economic projects to Francophone Cameroon, which generated
negative effects on the economic life of Southern Cameroon constituted
violation of article 19 of the Charter.
 Decisions of the African Commission 299

Alleged violation of article 20

163. The complainants state that the ‘alleged unlawful and forced
annexation and colonial occupation’ of Southern Cameroon by the respondent
state constituted a violation of article 20 of the Charter. They claim that
Southern Cameroonians are entitled to exercise the rights to self
determination under article 20 of the Charter as a separate and distinct
people from the people of ‘La Republique du Cameroon’ ...
169. The Commission shall clarify its understanding of ‘peoples’ rights’,
under the African Charter. The Commission is aware of the controversial
nature of the issue, due to the political connotation that it carries. That
controversy is as old as the Charter. The drafters of the Charter refrained
deliberately from defining it. To date, the concept has not been defined
under international law. However, there is recognition that certain objective
features attributable to a collective of individuals, may warrant them to be
considered as ‘people’.
170. A group of international law experts commissioned by UNESCO to reflect
on the concept of ‘people’ concluded that where a group of people manifest
some of the following characteristics; a common historical tradition, a racial
or ethnic identity, cultural homogeneity, linguistic unity, religious and
ideological affinities, territorial connection, and a common economic life, it
may be considered to be a ‘people’. Such a group may also identify itself as
a people, by virtue of their consciousness that they are a people. This
characterisation does not bind the Commission but can only be used as a
guide.
171. In the context of the African Charter, the notion of ‘people’ is closely
related to collective rights. Collective rights enumerated under articles 19 to
24 of the Charter can be exercised by a people, bound together by their
historical, traditional, racial, ethnic, cultural, linguistic, religious,
ideological, geographical, economic identities and affinities, or other bonds.
172. The drafters of the Charter provided for the protection of ‘peoples’
rights’ under the Charter. In his book, entitled The Law of the African
(Banjul) Charter on Human and Peoples’ Rights, Justice Hassan B Jallow, an
eminent African jurist, who participated in the drafting the African Charter,
sheds light on this issue. He says that:
[t]he concept of peoples’ rights, to which a whole chapter had been devoted in
the draft did not mean there was any grading of rights. There were economic,
social and cultural rights which have particular importance to developing
countries and which together with civil rights and political rights in one
complementary whole should henceforth be give an important place.
173. Justice Jallow cites the late President Leopold Sedar Senghor, the first
president of Senegal and an eminent African statesman, who told the
inaugural meeting of African legal experts to draft the Charter, the following:
People will perhaps expatiate for a long time upon the ‘people rights’ we were
very keen on referring to. We simply meant, by so doing, to show our attachment
to economic, social, and cultural rights, to collective rights in general, rights
which have a particular importance in our situation of a developing country. We
are certainly not drawing lines of demarcation between the different categories of
rights. We want to show essentially that beside civil and political rights, economic,
social and cultural rights should henceforth be given the important place they
deserve. We wanted to lay emphasis on the right to development and the other
rights which need the solidarity of our states to be fully met; the right to peace
and security, the right to a healthy environment, right to participate in the
equitable share of the common heritage of mankind, the right to enjoy a fair
international economic order and, finally the right to natural wealth and
resources.
174. The African Commission has itself dealt with the issues of peoples’ rights
without defining the term ‘people’ or ‘peoples’ right’. In its acclaimed Report
of the Working Group of Experts on Indigenous Populations/Communities, the
300 African Commission on Human and Peoples’ Rights

African Commission described its dilemma of defining the concepts in the

following terms:
Despite its mandate to interpret all provisions of the African Charter as per article
45(3), the African Commission initially shied away from interpreting the concept
of ‘peoples’. The African Charter itself does not define the concept. Initially the
African Commission did not feel at ease in developing rights where there was little
concrete international jurisprudence. The ICCPR and the ICESR do not define
‘peoples’. It is evident that the drafters of the African Charter intended to
distinguish between the traditional individual rights where the sections preceding
article 17 make reference to ‘every individual’. Article 18 serves as a break by
referring to the family. Article 19-24 make specific reference to ‘all peoples’
175. It continues:
Given such specificity, it is surprising that the African Charter fails to define
‘peoples’ unless it was trusted that its meaning could be discerned from the
prevailing international instruments and norms. Two conclusions can be drawn
from this. One, that the African Charter seeks to make provision for a group or
collective rights, that is, that set of rights that can conceivably be enjoyed only in
a collective manner like the right to self determination or independence or
sovereignty ...
176. The Commission deduces from the foregoing discourse that peoples’
rights are equally important as are individual rights. They deserve, and must
be given protection. The minimum that can be said of peoples’ rights is that,
each member of the group carries with him/her the individual rights into the
group, on top of what the group enjoys in its collectivity, ie common rights
which benefit the community such as the right to development, peace,
security, a healthy environment, self determination, and the right to
equitable share of their resources.
177. It is in the light of the above that the Commission shall examine the
allegations against the respondent state, concerning the violations of the
collective rights cited herein above.
178. The Commission states that after thorough analysis of the arguments
and literature, it finds that the people of Southern Cameroon can legitimately
claim to be a ‘people’. Besides the individual rights due to Southern
Cameroon, they have a distinct identity which attracts certain collective
rights. The UNESCO group of Experts report referred to herein above, states
that for a collective of individuals to constitute a ‘people’ they need to
manifest some, or all the identified attributes. The Commission agrees with
the respondent state that a ‘people’ may manifest ethno-anthropological
attributes. Ethno- anthropological attributes may be added to the
characteristics of a ‘people’. Such attributes are necessary only when
determining indigenology of a ‘people’, but cannot be used as the only
determinant factor to accord or deny the enjoyment or protection of peoples’
rights. Was it the intention of the state parties to rely on ethno
anthropological roots only to determine ‘peoples’ rights’, they would have
said so in the African Charter? As it is, the African Charter guarantees equal
protection to people on the continent, including other racial groups whose
ethno anthropological roots are not African.
179. Based on that reasoning, the Commission finds that ‘the people of
Southern Cameroon’ qualify to be referred to as a ‘people’ because they
manifest numerous characteristics and affinities, which include a common
history, linguistic tradition, territorial connection, and political outlook. More
importantly they identify themselves as a people with a separate and distinct
identity. Identity is an innate characteristic within a people. It is up to other
external people to recognise such existence, but not to deny it.
180. The respondent state might not recognise such innate characteristics.
That shall not resolve the question of self identification of Southern
Cameroonians. It might actually postpone the solution to the problems in
Southern Cameroon, including those already highlighted herein above. The
 Decisions of the African Commission 301

respondent state acknowledges that there have been problems created

regularly by the secessionist SCNC and SCAPO, in that part of its territory,
which calls itself the ‘Southern Cameroon’.
181. The Commission is aware that post colonial Africa has witnessed
numerous cases of domination of one group of people over others, either on
the basis of race, religion, or ethnicity, without such domination constituting
colonialism in the classical sense. Civil wars and internal conflicts on the
continent are testimony to that fact. It is incumbent on state parties,
therefore, whenever faced with allegations of the nature contained in the
present communication, to address them rather than ignore them under the
guise of sovereignty and territorial integrity. Mechanisms such as the African
Commission were established to resolve disputes in an amicable and peaceful
manner. If such mechanisms are utilised in good faith, they can spare the
continent valuable human and material resources, otherwise lost due to
conflicts fighting against ethnic, religious domination or economic
marginalisation.
182. The Commission shall address the question, whether the people of
Southern Cameroon are entitled to the right to self determination. In so doing
it shall contextualise the question by dealing, not with the 1961 UN plebiscite,
or the 1972 unification, but rather the events of 1993 and 1994 on the
constitutional demands vis-à-vis the claim for the right to self determination
of the Southern Cameroonian people.
183. The complainants allege that the 1993 Buea and 1994 Bamenda
Anglophone conferences submitted constitutional proposals, which were
ignored by the respondent state. This forced the complainants to conduct a
signature referendum of Southern Cameroonians in 1995, which endorsed
separation.
184. The complainants argued that the people of Southern Cameroon through
the 1993, 1994 conferences, and the 1995 signature referendum, raised issues
of constitutional, political and economic marginalisation. They allege further
that the Constitution adopted by the respondent state in December 1995 did
not address their appeals for autonomy. The Commission is of the view that
these complaints merit its determination.
185. The complainants submit that the respondent state’s refusal or failure
to address their grievances amounted to a violation of article 20. They claim
therefore that they are entitled to exercise their right to self determination
under the Charter. The respondent state responds that these grievances
constitute a secessionist agenda by SCNC and SCAPO. It denies that the
complainants are entitled to exercise the right to self determination under
article 20.
186. The respondent state submitted that the Buea Declaration of 3 April
1993 recognised that the Southern Cameroonians had freely joined La
Republique du Cameroun in 1961, and further that the transition to a unitary
state in 1972 was approved by both Francophones and Anglophones who voted
98.26% and 97.9% respectively through a national referendum. It states
further that the so called referendum of September 1995 by SCNC does not
invalidate the 1972 data. The respondent state doubts the accuracy of the
referendum. It states that:
Since 1996, the state of Cameroon is a unitary decentralised state, adopted by
members of parliament, including those from the Anglophone part of the country.
Legal instruments relating to putting in place of the decentralised regional and
local authorities were enacted in July 2004
187. The respondent state argues further that:
The self determination of the ‘people’ of Southern Cameroon, following the logic
of the Commission (cf per the Katanga case) would be understandable where there
are tangible evidence of massive violations of human rights, and where there is
evidence ascertaining the refusal of the nationals of Southern Cameroon, the right
302 African Commission on Human and Peoples’ Rights

to take part in the management of public affairs of the state of Cameroon. There
is no such proof ...
190. The Commission notes that the Republic of Cameroon is a party to the
Constitutive Act (and was a state party to the OAU Charter). It is a party to
the African Charter on Human and Peoples’ Rights as well. The Commission is
obliged to uphold the territorial integrity of the respondent state. As a
consequence, the Commission cannot envisage, condone or encourage
secession, as a form of self-determination for the Southern Cameroons. That
will jeopardise the territorial integrity of the Republic of Cameroon.
191. The Commission states that secession is not the sole avenue open to
Southern Cameroonians to exercise the right to self determination. The
African Charter cannot be invoked by a complainant to threaten the
sovereignty and territorial integrity of a state party. The Commission has
however accepted that autonomy within a sovereign state, in the context of
self government, confederacy, or federation, while preserving territorial
integrity of a state party, can be exercised under the Charter. In their
submission, the respondent state implicitly accepted that self determination
may be exercisable by the complainants on condition that they establish cases
of massive violations of human rights, or denial of participation in public
affairs.
192. The complainants have submitted that the people of the Southern
Cameroon are marginalised, oppressed, and discriminated against to such an
extent that they demand to exert their right to self-determination.
193. The respondent state submitted that the 1996 Constitution was adopted
by the National Assembly, which included representatives of the people of
Southern Cameroon. The respondent state argues that, within the framework
of the 1996 Constitution, three laws on decentralisation, which ‘will enable
Cameroon to resume the development of local potentials’, were adopted by
the Parliament. The respondent state submits further that since 2004
measures are being taken to give more autonomy to regions. Whether the
laws shall be applied to address the concerns of South Cameroonians will
depend on the goodwill of both sides.
194. The Commission has so far found that the respondent has violated
articles 2, 4, 5, 6, 7, 11, and 19 of the Charter. It is the view of the
Commission, however that, in order for such violations to constitute the basis
for the exercise of the right to self determination under the African Charter,
they must meet the test set out in the Katanga case [Katangese Peoples’
Congress v Zaire (2000) AHRLR 72 (ACHPR 1995)], that is, there must be
concrete evidence of violations of human rights to the point that the territorial
integrity of the state party should be called to question, coupled with the denial
of the people, their right to participate in the government as guaranteed by
article 13(1).
195. The Commission has already made a finding that article 13 was not
violated. The Commission saw ample evidence that the people of Southern
Cameroon are represented in the National Assembly, at least through an
opposition party, the SDF. Information on the record suggests that there has
been some form of representation of the people of Southern Cameroon in the
national institutions prior to, and after 18 December 1989. The complainants
may not recognise the representatives elected to the national institutions
under the current constitutional arrangement. The respondent state on the
other hand may not share the same views or even recognise the SCNC and
SCAPO as representing a section of the people of Southern Cameroon.
196. The complainants’ main complaint is that the people of Southern
Cameroon are denied equal status in the determination of national issues.
They allege that their constitutional demands have been ignored by the
respondent state. In other words they assert their right to exist and hence the
 Decisions of the African Commission 303

right to determine their own political, and social economic affairs under
article 20(1).
197. The Commission is not convinced that the respondent state violated
article 20 of the Charter. The Commission holds the view that when a
complainant seeks to invoke article 20 of the African Charter, it must satisfy
the Commission that the two conditions under article 20(2), namely
oppression and domination have been met.
198. The complainants have not demonstrated if these conditions have been
met to warrant invoking the right to self determination. The basic demands
of the SCNC and SCAPO as well as the two Anglophone conferences, is the
holding of constitutional negotiations to address economic marginalisation,
unequal representation and access to economic benefits. Secession was the
last option after the demands of Buea and Bamenda conferences were ignored
by the respondent state.
199. Going by the Katanga decision, the right to self determination cannot
be exercised, in the absence of proof of massive violation of human rights
under the Charter. The respondent state holds the same view. The
Commission states that the various forms of governance or self determination
such as federalism, local government, unitarism, confederacy, and self
government can be exercised only subject to conformity with state
sovereignty and territorial integrity of a state party. It must take into account
the popular will of the entire population, exercised through democratic
means, such as by way of a referendum, or other means of creating national
consensus. Such forms of governance cannot be imposed on a state party or a
people by the African Commission.
200. The African Commission finds that the people of Southern Cameroon
cannot engage in secession, except within the terms expressed herein above,
since secession is not recognised as a variant of the right to self determination
within the context of the African Charter.
201. The Commission, however, finds also that the respondent state violated
various rights protected by the African Charter in respect of Southern
Cameroonians. It urges the respondent state to address the grievances
expressed by the Southern Cameroonians through its democratic institutions.
The 1993 Buea and 1994 Bamenda Anglophone conferences raised
constitutional and human rights issues which have been a matter of concern
to a sizable section of the Southern Cameroonian population for quite a long
time. The demand for these rights has lead to civil unrest, demonstrations,
arrests, detention, and the deaths of various people, which culminated in the
demand for secession.
202. The respondent state implicitly acknowledges the existence of this
unwelcome state of affairs. It is evident that the 1995 Constitution did not
address the Southern Cameroonians’ demands, particularly since it did not
accommodate the concerns expressed through the 1993 Buea Declaration and
1994 Bamenda Proclamation.
203. The Commission believes that the Southern Cameroonians’ grievances
cannot be resolved through secession but through a comprehensive national
dialogue.
...
Recommendations
215. The African Commission therefore recommends as follows:
1. That the respondent state:
(i) Abolishes all discriminatory practices against people of Northwest and
Southwest Cameroon, including equal usage of the English language in
business transactions;
(ii) Stops the transfer of accused persons from the Anglophone provinces for
trial in the Francophone provinces;
304 African Commission on Human and Peoples’ Rights

(iii) Ensures that every person facing criminal charges be tried under the
language he/she understands. In the alternative, the respondent state must
ensure that interpreters are employed in courts to avoid jeopardising the
rights of accused persons;
(iv) Locates national projects, equitably throughout the country, including
Northwest and Southwest Cameroon, in accordance with economic viability as
well as regional balance;
(v) Pays compensation to companies in Northwest and Southwest
Cameroon, which suffered as a result of discriminatory treatment by banks;
(vi) Enters into constructive dialogue with the complainants, and in
particular, SCNC and SCAPO to resolve the constitutional issues, as well as
grievances which could threaten national unity; and
(vii) Reforms the Higher Judicial Council, by ensuring that it is composed of
personalities other than the President of the Republic, the Minister for Justice
and other members of the executive branch.
2. To the complainants, and SCNC and SCAPO in particular:
(i) To transform into political parties,
(ii) To abandon secessionism and engage in constructive dialogue with the
respondent state on the constitutional issues and grievances.
3. The African Commission places its good offices at the disposal of the
parties to mediate an amicable solution and to ensure the effective
implementation of the above recommendations.
4. The African Commission requests the parties to report on the
implementation of the aforesaid recommendations within 180 days of the
adoption of this decision by the AU Assembly.

_____________________________________

Human Rights Council and Others v Ethiopia

[Communication 445/13 (2015)]

In this case the Commission discusses the admissibility requirement of exhaustion

of local remedies.

57. … the Commission cannot accept that challenging the constitutionality

of the measures adopted against the first complainant and certain parts of the
CSO Proclamation was not relevant at domestic level when that is precisely
the nature of the claim now pleaded before the Commission. The
complainants are content to have the complaint examined under the lenses
of fundamental rights guaranteed under the Charter as a proper means of
redressing the grievance. Inexplicably, they deemed a similar procedure
irrelevant at domestic level. Subject to certain factors to be considered
below, the complainants’ inexplicable estimation that a constitutional review
was not relevant cannot in and of itself absolve the complainants from the
duty to utilise that procedure. Similarly, the fact that domestic courts did not
refer the constitutionality of the relevant parts of the CSO Proclamation to
the CCI, when they could have done so sua sponte, cannot be pleaded in
support of the case that such a referral was irrelevant. It must be recalled
that the duty to exhaust local remedies where they are available lies on the
complainant and whether this duty has been satisfied is determined by
reference to the steps taken by the complainant at domestic level.
 Decisions of the African Commission 305

58. By pleading the complaint without invoking any fundamental rights in

the domestic proceedings, the complainant denied the respondent state the
very opportunity article 56(5) is designed to afford a state to deal with alleged
violations using its domestic mechanisms. Accordingly, the Commission is not
persuaded by the argument that a constitutional review was not necessary on
the facts of this case.
...
59. … Article 56(5) of the Charter does not in itself also hint at the types of
local remedies that ought to be exhausted. It is thus necessary to clarify that
the essential characteristic of the remedy that ought to be exhausted for
purposes of article 56(5) of the Charter is its demonstrable effectiveness in
redressing a particular violation. In this regard, the remedy must primarily
conform to and operate in accordance with certain fundamental legal
principles. It must operate in strict observance of the procedural guarantees
of a fair hearing by a competent, independent and impartial organ. It must be
based on enforceable law from which the relief it offers earns its mandatory
or coercive force, as opposed to being merely discretionary.
...
68. From the foregoing, it is apparent that despite being a second chamber
of a state organ called ‘parliament’, the House of Federation is a sui generis
dispute settlement body on constitutional issues. Notably, it does not take
part in the law making process, which is the preserve of the House of Peoples’
Representatives. The House of Federation’s dispute settlement competence
specifically includes cases where federal or state law or government decisions
are contested as unconstitutional through the procedure of constitutional
review. This jurisdiction is exclusive to the House of Federation. Unlike in
other jurisdictions, regular courts do not have such competence. The fact
that the House of Federation is not a court of law does not obviate its
suitability to handle constitutional review as a remedy. Moreover in all the
other cases in which the Commission insisted on judicial remedies before
courts of law, it was the case, or at least assumed that such domestic courts
have the jurisdiction to deal with the complaints in question. This is clearly
not the case for constitutional review as a remedy in the respondent state’s
legal system.

_____________________________________

Huri-Laws v Nigeria
(2000) AHRLR 273 (ACHPR 2000)

One of the many cases emanating from the period of Abacha’s dictatorship, this
matter deals with harassment and persecution of a Nigerian human rights NGO, the
Civil Liberties Organisation (CLO). The issues dealt with include conditions of
detention, the right to a fair trial, persecution of human rights defenders, freedom
of movement and the right to property.

...
Merits
40. The complainant alleges a violation of article 5 of the Charter with
respect to Mr Ogaga Ifowodo only. Article 5 states:
Every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of exploitation
306 African Commission on Human and Peoples’ Rights

and degradation of man particularly slavery, slave trade, torture, cruel, inhuman
or degrading punishment and treatment shall be prohibited.
It is alleged that Mr Ogaga Ifowodo was detained in a sordid and dirty cell
under inhuman and degrading conditions. Also that being detained arbitrarily,
not knowing the reason or duration of detention, is itself a mental trauma.
Moreover, this deprivation of contact with the outside world and the health-
threatening conditions amount to cruel, inhuman and degrading treatment.
Principle 1 of the UN Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment of 1988 provides: ‘All persons under
any form of detention or imprisonment shall be treated in a humane manner
and with respect for the inherent dignity of the human person.’ Further,
principle 6 states:
No person under any form of detention or imprisonment shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. No
circumstance whatever may be invoked as a justification for torture or other
cruel, inhuman or degrading treatment or punishment.
It is worth noting that the term ‘cruel, inhuman or degrading treatment or
punishment’ is to be interpreted so as to extend to the widest possible
protection against abuses, whether physical or mental (see UN Body of
Principles).
41. The prohibition of torture, cruel, inhuman or degrading treatment or
punishment is absolute. However, as observed by the European Court of
Human Rights in Ireland v United Kingdom when called upon to decide on a
similar provision of the European Convention on Human Rights
... the treatment prohibited under article 3 of the Convention is that which attains
a minimum level of severity and ... the assessment of this minimum is, in the
nature of things, relative ... It depends on all the circumstances of the case, such
as the duration of the treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim etc.
(Judgment of 18 January 1987, series A no 25 paragraph 162; see also the
European Commission on Human Rights decision in Jose Antonio
Urrutikoetxea v France, decision of 5 December 1996, p 157). The treatment
meted out to the victim in this case constitutes a breach of the provision of
article 5 of the Charter and the relevant international human rights
instruments cited above. Also the denial of medical attention under health
threatening conditions and access to outside world do not fall into the
province of ‘the respect of the dignity inherent in a human being and to the
recognition of his legal status’, nor is it in line with the requirement of
principles 1 and 6 of the UN Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. This, therefore, is a breach of
article 5 of the Charter.
42. The complainant alleges that the detention of Ogaga Ifowodo and Olisa
Agbakoba under the State Security (Detention of Persons) Decree no 2 of 1984
(as amended in 1990) is a violation of their guaranteed right to freedom from
arbitrary detention under article 6 of the Charter. This is a violation of article
6 of the Charter which provides:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested and detained.
43. Closely related to the above violation of the article 6 provision is the
violation of the victims’ right to fair hearing. The complainant states that up
to the date of filing this communication no reason has been given for the
victims’ arrest and detention, nor have any charges been pressed against
them. In expounding on the guarantees of the right to fair trial under the
Charter, the Commission observed in its Resolution on the Right to Recourse
and Fair Trial of 1992 thus:
 Decisions of the African Commission 307

(2) the right to fair trial includes, among other things, the following: (b) Persons
who are arrested shall be informed, at the time of arrest, in a language which they
understand, of the reason for their arrest and shall be informed promptly of any
charges against them.
44. The failure and/or negligence of the security agents of the respondent
government to scrupulously comply with these requirements is therefore a
violation of the right to fair trial as guaranteed under the African Charter.
45. The complainant alleges violation of article 7(1)(a) and (d) of the
Charter in that Mr Ifowodo and Agbakoba had no legal remedies available with
which they could challenge their detentions. Further, that the absolute
ouster of the jurisdiction of the court to adjudicate on the legality or
otherwise of acts done under the decree is a violation of the above provision,
and also a contravention of article 26 of the Charter. Article 7(1) of the
African Charter states:
Every individual shall have the right to have his cause heard. This comprises: (a)
the right to an appeal to competent national organs against acts violating his
fundamental rights as recognised and guaranteed by conventions, laws,
regulations and customs in force.
Article 7(1)(d) states: ‘Every individual shall have ... the right to be tried
within reasonable time by an impartial court or tribunal.’ This is reinforced
by paragraph 2(c) of the Commission’s Resolution on the Right to Recourse
and Fair Trial of 1992, which provides:
Persons arrested or detained shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power and shall be entitled to trial
within reasonable time or to be released.
46. The refusal and/or negligence on the part of the respondent
government to bring Messrs Ifowodo and Agbakoba promptly before a judge
or other judicial officer for trial is therefore a violation of article 7(1)(d) of
the Charter. This is also in violation of article 26 which stipulates:
State parties to the present Charter shall have the duty to guarantee the
independence of the courts and shall allow the establishment and improvement of
appropriate national institutions entrusted with the promotion and protection of
the rights and freedoms guaranteed by the present Charter.
47. The complainant contends that CLO is a human rights organisation,
permitting its employees the opportunity to work together towards respect
for human rights through organised programmes. Such programmes are aimed
at enlightening the people as to their rights. The persecution of its employees
and raids of its offices in an attempt to undermine its ability to function in
this regard amount to an infringement of articles 9 and 10 of the Charter
providing for the rights to freedom of expression and association respectively.
Article 9 of the Charter provides: ‘(1) Every individual shall have the right to
receive information. (2) Every individual shall have the right to express and
disseminate his opinions within the law.’
48. The complaint above is therefore a violation of this provision. On the
other hand, article 10 states: ‘(1) Every individual shall have the right to free
association provided that he abides by the law.’ In its Resolution on the Right
to Freedom of Association of 1992 , the Commission observed thus:
(1) The competent authorities should not override constitutional provisions or
undermine fundamental rights guaranteed by the constitution and international
standard. (2) In regulating the use of this right, the competent authorities should
not enact provisions which would limit the exercise of this freedom. (3) The
regulation of the exercise of the right to freedom of association should be
consistent with state’s obligations under the African Charter on Human and
Peoples’ Rights.
49. The above actions of the respondent state constitute a violation of
article 10 of the Charter.
50. The complainant alleges that the arrest and detention of Messrs Ifowodo
and Agbakoba while returning from trips abroad are a violation of article 12(2)
308 African Commission on Human and Peoples’ Rights

of the Charter. In this regard, it is contended that when re-entry points

become sites of frequent harassment and arrest, freedom of movement is
infringed. Further, the Charter provides for restrictions on the right to
freedom of movement only by law for the protection of national security, law
and order, public health or morality. The arrest and subsequent detentions of
the two men are unjustified by any appeal to these restrictions. Articles 12(1)
and (2) state:
(1) Every individual shall have the right to freedom of movement and residence
within the borders of a state provided he abides by the law. (2) Every individual
shall have the right to leave any country including his own, and to return to his
country. This right may only be subject to restrictions, provided for by law for the
protection of national security, law and order, public health or morality.
51. The said encroachment, not being in consonance with the above
restrictions, is therefore a violation of the victims’ right to freedom of
movement under article 12(1) and (2) of the African Charter.
52. The complainant alleges that the search without warrant of CLO’s
premises and the seizure of its property is a violation of article 14 of the
Charter. It is contended that article 14 implies that owners have the right to
undisturbed possession, use and control of their property however they deem
fit. Article 14 of the African Charter provides:
The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in
accordance with the provisions of appropriate laws.
53. The complainant further contends that no evidence was ever offered of
public need or community interest to justify the search and seizure. The said
encroachment therefore is a violation of article 14 of the Charter.
54. Unfortunately, to date, the government of the Federal Republic of
Nigeria has neither responded to the Commission’s request for additional
information or observations nor for the arguments on the merits of the case.
In these circumstances, the Commission is therefore compelled to accept the
facts of the complainant as the facts of this case.

_____________________________________

Institute for Human Rights and Development in Africa v Angola

(2008) AHRLR 43 (ACHPR 2008)

This case deals with human rights violations in connection with the mass expulsion
of foreigners.

...
Admissibility
40. Time and again, in communication 71/1992, Recontre Africaine pour la
Défense des Droits de l’Homme v Zambia [(2000) AHRLR 321 (ACHPR 1996)],
the African Commission held that the mass expulsions, particularly following
arrest and subsequent detentions, deny victims the opportunity to establish
the legality of these actions in the courts. In the present case, there is no
indication as to whether the deportees were accorded the opportunity to
contact their families, much less attorneys, thereby making the requirement
of exhausting local remedies impracticable.
...
 Decisions of the African Commission 309

Decision on the merits

...
Alleged violation of article 5
...
51. In further corroborating the failure of the respondent state, the
complaint alleges that guards frequently beat the Gambians and extorted
money from them. Food was not regularly provided and medical attention was
not readily available, despite repeated requests. Complainants were
transported between detention centres in overcrowded cargo planes and
lorries. The detention centre in Saurimo had no roof or walls and
complainants were exposed to the elements of weather for five consecutive
days. At the Cafunfu detention centre, bathroom facilities consisted solely of
two buckets for over 500 detainees, and these were located in the same one
room where all detainees were compelled to eat and sleep. This, for the
African Commission, is clearly a violation of article 5 of the African Charter
since such treatment cannot be called anything but degrading and inhuman.
...
Alleged violation of article 6
...
55. In the present case, there is nothing from the respondent state to
indicate that the manner of victims’ arrests and subsequent expulsion was not
arbitrary as alleged by the complainant. As the complainant puts it, at no
point were any of the victims shown a warrant or any other document relating
to the charges under which the arrests were being carried out. The African
Commission thus finds the respondent state to have violated article 6 of the
African Charter.

Alleged violation of article 7(1)(a)

...
58. ... The abrupt manner in which they were arrested, detained and
deported denied them of the opportunity to engage a lawyer to take their
case to court to challenge the regularity and legality of their arrest, detention
and deportation. The African Commission has ruled that every individual has
the right to appeal to competent national organs for violations of his/her
fundamental rights, and as such, if one is detained without charge or trial and
there exists no legal remedy to challenge the detention, it is a clear violation
of article 7(1)(a).
...
Violation of article 12(4) of the African Charter on due process before
expulsion
...
64. The African Charter’s requirement of due process as outlined above is
also shared by similar systems elsewhere. The Human Rights Committee under
the International Covenant on Civil and Political Rights, for instance, had
expressed a similar concern over the treatment of aliens being deported from
Switzerland when it held the latter liable for degrading treatment and use of
excessive force resulting on some occasions in the death of the deportee
during deportation of aliens. The Committee recommended that Switzerland
should ‘ensure that all cases of forcible deportation are carried out in a
manner which is compatible with articles 6 and 7 of the Covenant’ and that
‘restraint methods do not affect the life and physical integrity of the persons
concerned’.
65. The African Commission notes that the import of this provision under
the African Charter is to ensure that due process is followed before legally
admitted non-nationals are expelled from a member state. Very clearly, the
situation as presented by the complainant did not afford those expelled due
310 African Commission on Human and Peoples’ Rights

process of law for protection of the rights that have been alleged to be
violated by the respondent state and that they were not allowed access to the
remedies under domestic law to at least challenge, if not reverse, their
expulsion. The African Commission thus holds the respondent state in
violation of the provisions of article 12(4) of the African Charter.

Alleged violation of article 12(5)

...
69. ... the fact that the deportees as a group were arrested over a period
of several months at different places and may have been served with
deportation orders on different dates does not qualify, for purposes of the
African Commission, to be sufficient to negate the en masse element of the
expulsions. The African Commission underscores that any expulsions or
deportations must comply with the human rights obligations found in the
African Charter. Accordingly, the African Commission finds the respondent
state in violation of article 12(5) of the African Charter.
...
Alleged violation of article 14
...
72. The complainant alleges that in the course of the arrest, victims’
property was confiscated by Angolan authorities, including television sets,
shoes, wrist watches and clothing. It further claims that the abruptness of
their arrest forced them to leave behind all property in Angola giving them no
opportunity to make arrangements regarding the transport or disposal of their
belongings.
...
73. ... While the right to property under the African Charter is not absolute,
the respondent state has not provided evidence to prove that its actions were
necessitated either by public need or community interest. Without such a
justification and the provision of adequate compensation determined by an
impartial tribunal of competent jurisdiction, the African Commission finds the
respondent state’s actions in violation of the right to property under article
14 of the African Charter.

Alleged violation of article 15

...
75. The complainant alleges that the victims were in possession of official
documents, including passports, visas, work and residence permits, allowing
them to stay and work legally in Angola. The victims were required on a
monthly basis to pay for their work permits that enabled them to continue
working in the mines. Nevertheless, they were arrested on the grounds that
foreigners were not permitted to engage in mining activities in Angola.
76. As indicated above, the respondent state has regrettably not forwarded
any arguments to refute any of the allegations made in this communications
including the alleged violation under article 15 of the African Charter. The
facts indicate and the African Commission agrees that the abrupt expulsion
without any possibility of due process or recourse to national courts to
challenge the respondent state’s actions severely compromised the victims’
right to continue working in Angola under equitable and satisfactory
conditions. Accordingly, the African Commission holds that the respondent
state’s actions of arbitrary arrest, detention and subsequent deportation
resulted in persons who were lawfully working in Angola losing their jobs in a
manner that is in violation of article 15 of the African Charter.
...
Alleged violation of article 1
...
 Decisions of the African Commission 311

84. The African Commission wishes to emphasise that there is nothing in the
African Charter that requires member states of the African Union to
guarantee for non-nationals an absolute right to enter and/or reside in their
territories. This, however, does not in any way mean that the African Charter
gives member states the free hand to unnecessarily and without due process
deal with non-nationals to such an extent that they are denied the basic
guarantees enshrined under the African Charter for the benefit of everyone.
Member states may deny entry to or withdraw residence permits from non-
nationals for various reasons including national security, public policy or
public health. Even in such extreme circumstances as expulsion, however, the
affected individuals should be allowed to challenge the order/decision to
expel them before competent authorities, or have their cases reviewed, and
have access to legal counsel, among others. Such procedural safeguards aim
at making sure that non-nationals enjoy the equal protection of the law in
their country of residence, ensure that their daily lives are not arbitrarily
interfered with, and that they are not sent back/deported/expelled to
countries or places they are likely to suffer from torture, inhuman or
degrading treatment, or death, among others. ...
87. The African Commission notes that the present communication is not
the first in which it found similar violations of the human rights of non-
nationals in the context of mass expulsions/deportations by the Republic of
Angola. It, therefore, recommends that the Republic of Angola should:
• Ensure that its immigration policies, measures and legislations do not
have the effect of discriminating against persons on the basis of race,
colour, descent, national, ethnic origin, or any other status, and
particularly take into account the vulnerability of women, children and
asylum seekers;
• Take measures to ensure that all persons in detention are provided with
proper medical examination and medical treatment and care;
• Ensure regular supervision or monitoring of places of detention by
qualified and/or experienced persons or organisations;
• Put in place mechanisms allowing all detained persons access to effective
complaint procedures regarding their treatment with a view to curb, in
particular, cases of physical and/or psychological abuse;
• Put in place procedural safeguards or clear procedures/policies that
guarantee for all persons deprived of their liberty (nationals and non-
nationals alike) effective access to competent authorities such as
administrative tribunals and courts responsible for prison/detention
oversight and/or review;
• Establish a Commission of inquiry to investigate the circumstances under
which the victims were expelled and ensure the payment of adequate
compensation of all those whose rights were violated in the process;
• Institute safeguards to ensure that individuals are not deported/expelled
to countries where they might face torture or their lives could be at risk;
• Allow representatives of the African Commission, relevant international
organisations, ICRC, NGOs, concerned consulates and others access to
detainees and places of detention, including to those where non-
nationals are held;
• Institute human rights training programmes for law enforcement agencies
and relevant civil servants dealing with matters involving non-nationals
on non-discrimination, due process, and the rights of detainees, among
others;
• The African Commission further requests that the Republic of Angola
report back to it, at a later stage, measures it has taken to implement
the recommendations made in this communication.
312 African Commission on Human and Peoples’ Rights

Interights & Ditshwanelo v Botswana

[Communication 319/06 (2015)]

In this decision the Commission goes further than in its previous jurisprudence and
holds that hanging as a method of execution constitutes cruel, inhuman or
degrading punishment

84. On hanging, the Commission takes cognizance of the current position of

international human rights law on the execution of the death penalty which
is that, where a death sentence has been imposed, it must be carried out in
such a way as to cause the least possible physical and mental suffering. In its
own jurisprudence the Commission has reiterated that executions may
amount to cruel, inhuman and degrading treatment or punishment ‘if the
suffering caused in execution is excessive and goes beyond that is strictly
necessary.’
85. In the present case, the prisoner was executed via hanging. The issue
therefore is whether hanging as a method of execution violates article 5 of
the Charter. Currently, no method of execution has been found to be
acceptable under international law. This complicates the current inquiry
since it seems that no method of execution is appropriate under international
law.
86. In the present case, the victim’s execution was done in secrecy and
therefore no specific details have been provided. Nevertheless, the
Commission will rely on the following account provided by the Tanzanian High
Court in order to appreciate the nature of executions by hanging as a matter
of principle:
The prisoner is dropped through a trapdoor, to eight and a half feet with a rope
around his neck. The intention is to break his neck so that he dies quickly. The
length of the drop is determined on the basis of such factors as body weight and
muscularity or fatness of the prisoner’s neck. If the hangman gets it wrong and the
prisoner is dropped too far, the prisoner’s head can be decapitated or his face can
be torn away. If the drop is too short then the neck will not be broken but instead
the prisoner will die of strangulation. There are many documented cases of
botched hangings in various countries including Tanzania. There are a few cases in
which hangings have been messed up and the prison have had to pull on the
prisoner’s leg to speed up his death or use hammer to hit his head. The shock to
the system causes the prisoner to lose control over his bowels and he will soil
himself. In short the whole process is sordid and debasing. Not only is the process
generally sordid and debasing, but also it is generally brutalizing. ... It is my
finding that the petitioners have managed to prove on a balance of probabilities
that hanging in carrying out the death penalty is a cruel, inhuman and degrading
punishment.
87. The above description, to say the least, is inhuman and degrading. The
above case explains a general reality that happens during hangings. The
conclusion by the sitting judge that the whole process is ‘sordid and debasing’
and that it is ‘generally brutalizing’ is telling. The Commission therefore finds
that in line with the description of the Tanzanian High Court about hanging as
a method of execution in Africa that hanging causes excessive suffering and
is not strictly necessary; therefore, it constitutes a violation of article 5 of the
African Charter. …
96. … the Commission holds that the failure by the prison authorities of the
respondent state to inform the family and the lawyers of Mr Ping, of the date,
the hour, the place of the execution as well as the exact place of the burial,
violates article 5 of the African Charter, and by their conduct, have failed to
respect the human dignity of both the family and the prisoner, which further
violates article 5.
 Decisions of the African Commission 313

Interights and Others v Mauritania

(2004) AHRLR 87 (ACHPR 2004)

In this case, the main opposition party in Mauritania had been dissolved by the
government. The Commission applies the standard of strict proportionality in
respect of limitations.

Summary of facts
...
2. The complainants, mandated by Mr Ahmed Ould Daddah, allege the
following facts. By Decree 2000/116/PM/MIPT, dated 28 October 2000, Union
des Forces Démocratiques-Ere nouvelle (UFD/EN), the main opposition party
in Mauritania, led by Mr Ahmed Ould Daddah was dissolved by the Prime
Minister of the Islamic Republic of Mauritania, Mr Cheick El Avia Mohamed
Khouna.
3. This measure, taken pursuant to Mauritanian law (in particular articles
11 and 18 of the Mauritanian Constitution, and Ordinance 91.024 of 25 July
1991 which deals with political parties in articles 4, 25 and 26), was imposed,
according to this senior official, following a series of actions and undertakings
committed by the leaders of this political organisation, and which were
damaging to the good image and interests of the country; incited Mauritanians
to violence and intolerance; and led to demonstrations which compromised
public order, peace and security.
...
On the legality of the Act governing dissolution and the illegal and unjus-
tified lapses blamed on the political party UFD/Ere nouvelle
...
76. According to the interpretation given by the African Commission to
freedom of expression and to the right of association as defined in the African
Charter, states have the right to regulate, through their national legislation,
the exercise of these two rights. Articles 9(2), 10(1) and 13(1) of the African
Charter all specifically refer to the need to respect the provisions of national
legislation in the implementation and enjoyment of such rights. In this
particular case, the relevant provisions of Mauritanian laws that had been
applied are articles 11 and 18 of the Constitution and articles 4, 25 and 26 of
the Decree 91-024 of the 25 July 1991 relative to political parties.
77. However these regulations should be compatible with the obligations of
states as outlined in the African Charter. In the specific case of the freedom
of expression that the African Commission considers as a ‘fundamental human
right, essential to an individual’s personal development, political
consciousness and participation in the public affairs of his country,’ a recent
decision clearly delineated that the right of states to restrain, through
national legislation, the expression of opinions did not mean that national
legislation could push aside entirely the right to expression and the right to
express one’s opinion. This, in the Commission’s view, would make the
protection of this right inoperable. To allow national legislation to take
precedence over the Charter would result in wiping out the importance and
impact of the rights and freedoms provided for under the Charter.
International obligations should always have precedence over national
legislation, and any restriction of the rights guaranteed by the Charter should
be in conformity with the provisions of the latter.
78. For the African Commission the only legitimate reasons for restricting
the rights and freedoms contained in the Charter are those stipulated in
314 African Commission on Human and Peoples’ Rights

article 27(2), namely that the rights ‘shall be exercised with due regard to the
rights of others, collective security, morality and common interest’. And even
in this case the restrictions should ‘be founded in a legitimate state interest
and the evils of limitations of rights must be strictly proportional with and
absolutely necessary for the advantages which are to be obtained’.
79. Furthermore, the African Commission requires that for a restriction
imposed by the legislators to conform to the provisions of the African Charter,
it should be done ‘with due regard to the rights of others, collective security,
morality and common interest’, that it should be based on a legitimate public
interest and should be ‘strictly proportionate with and absolutely necessary’
to the sought after objective. And more over, the law in question should be
in conformity with the obligations to which the state has subscribed in
ratifying the African Charter and should not render the right itself an illusion.
80. It is worthy of note that freedom of expression and the right to
association are closely linked because the protection of opinions and the right
to express them freely constitute one of the objectives of the right of
association. And this amalgamation of the two norms is even clearer in the
case of political parties, considering their essential role for the maintenance
of pluralism and the proper functioning of democracy. A political group should
therefore not be hounded for the simple reason of wanting to hold public
debates, with due respect for democratic rules, on a certain number of issues
of national interest.
...
85. The African Commission observes that the respondent state contends
rightly that the attitudes or declarations of the leaders of the dissolved party
could indeed have violated the rights of individuals, the collective security of
the Mauritanians and the common interest, but the disputed dissolution
measure was ‘not strictly proportional’ to the nature of the breaches and
offences committed by the UFD/EN.

For these reasons, the African Commission:

• Finds that the dissolution of UFD/Ere nouvelle political party by the
respondent state was not proportional to the nature of the breaches and
offences committed by the political party and is therefore in violation of
the provisions of article 10(1) of the African Charter.

_____________________________________

International Pen and Others (on behalf of Saro-Wiwa) v Nigeria

(2000) AHRLR 212 (ACHPR 1998)

A complaint against Nigeria was brought to the Commission on behalf of the Ogoni
environmental activist and writer, Ken Saro-Wiwa, after he (along with eight co-
defendants) was sentenced to death. The communication alleged a number of
irregularities in Saro-Wiwa’s trial. The Commission adopted provisional measures
urging that Saro-Wiwa and the others not be executed, pending the hearing of the
case by the Commission. The Nigerian military government of Abacha disregarded
the Commission’s request and executed Saro-Wiwa and his co-defendants.

1. These communications were submitted to the African Commission by

International Pen, the Constitutional Rights Project (CRP), Interights and the
Civil Liberties Organisation respectively. They were joined because they all
 Decisions of the African Commission 315

concern the detention and trial of Kenule Beeson Saro-Wiwa, a writer and
Ogoni activist, President of the Movement for the Survival of the Ogoni
People. Communications 139/94 and 154/96 also complain of similar human
rights violations suffered by Mr Saro-Wiwa’s co-defendants, also Ogoni
leaders.
...
7. On 30 and 31 October 1995, Ken Saro-Wiwa and eight of the co-
defendants (Saturday Dobee, Felix Nuate, Nordu Eawo, Paul Levura, Daniel
Gbokoo, Barinem Kiobel, John Kpunien and Baribor Bera) were sentenced to
death, while six others including Mr Mitee were acquitted. The CRP submitted
an emergency supplement to its communication on 2 November 1995, asking
the Commission to adopt provisional measures to prevent the executions.
8. The Secretariat of the Commission faxed a note verbale invoking interim
measures under revised rule 111 of the Commission’s Rules of Procedure to
the Ministry of Foreign Affairs of Nigeria, the Secretary-General of the OAU,
the Special Adviser (Legal) to the Head of State, the Ministry of Justice of
Nigeria, and the Nigerian High Commission in The Gambia. The note verbale
pointed out that as the case of Mr Saro-Wiwa and the others was already
before the Commission, and the government of Nigeria had invited the
Commission to undertake a mission to that country, during which mission the
communications would be discussed, the executions should be delayed until
the Commission had discussed the case with the Nigerian authorities.
9. No response to this appeal was received before the executions were
carried out.
...
Merits
79. Article 5 prohibits not only torture, but also cruel, inhuman or degrading
treatment. This includes not only actions which cause serious physical or
psychological suffering, but which humiliate the individual or force him or her
to act against his will or conscience.
...
97. Initially, the accused were defended by a team of lawyers of their own
choice. According to communication 154/96 and communication 139/94, this
team withdrew from the case because of harassment, both in the conduct of
the trial and in their professional and private lives outside. Communication
154/96 alleges that two of the lawyers were seriously assaulted by soldiers
claiming to be acting on the instruction of the military officer responsible for
the trial. On three occasions defence lawyers were arrested and detained and
two of the lawyers had their offices searched. When these lawyers withdrew
from the case, the harassment subsided.
98. After the withdrawal of their chosen counsel, the accused were
defended by a team assigned by the tribunal. However, this team also
resigned, complaining of harassment. After that, the accused declined to
accept a new team appointed by the tribunal, and the court proceedings were
closed without the accused having legal representation for the duration.
99. Communication 154/96 also claims that the defence was denied access
to the evidence on which the prosecution was based and that files and
documents which were required by the accused for their defence were
removed from their residences and offices when they were searched by
security forces on different occasions during the trial.
100. The government claims that:
Their [the accused’s] defence team which comprised sly human rights activists
such as Femi Falana and Gani Fawehinmi, known to be more disposed towards
melodrama than the actual defence of their clients, inexplicably withdrew from
the special tribunal at a crucial stage of the trial in order to either play to the
gallery or delay and frustrate the process.
316 African Commission on Human and Peoples’ Rights

101. This statement does not contradict the allegations of communication

154/96, that two different defence teams were harassed into quitting the
defence of the accused persons; it merely attributed malicious motives to the
defence. The government has not responded to the allegations of withholding
evidence from the defence. The Commission therefore finds itself with no
alternative but to conclude that a violation of article 7(1)(c) has occurred.
102. Article 4 of the African Charter reads:
Human beings are inviolable. Every human being shall be entitled to respect for
his life and the integrity of his person. No one may be arbitrarily deprived of this
right.
103. Given that the trial which ordered the executions itself violates article
7, any subsequent implementation of sentences renders the resulting
deprivation of life arbitrary and in violation of article 4. The violation is
compounded by the fact that there were pending communications before the
African Commission at the time of the executions, and the Commission had
requested the government to avoid causing any ‘irreparable prejudice’ to the
subjects of the communications before the Commission had concluded its
consideration. Executions had been stayed in Nigeria in the past on the
invocation by the Commission of its rule on provisional measures (rule 109,
now 111) and the Commission had hoped that a similar situation would obtain
in the case of Ken Saro-Wiwa and Others. It is a matter of deep regret that
this did not happen.
104. The protection of the right to life in article 4 also includes a duty for the
state not to purposefully let a person die while in its custody. Here at least
one of the victims’ lives was seriously endangered by the denial of medication
during detention. Thus, there are multiple violations of article 4.
...
111. Article 16 of the Charter reads:
(1) Every individual shall have the right to enjoy the best attainable state of
physical and mental health. (2) State parties to the present Charter shall take the
necessary measures to protect the health of their people and to ensure that they
receive medical attention when they are sick.
112. The responsibility of the government is heightened in cases where an
individual is in its custody and therefore someone whose integrity and well-
being is completely dependent on the actions of the authorities. The state has
a direct responsibility in this case. Despite requests for hospital treatment
made by a qualified prison doctor, these were denied to Ken Saro-Wiwa,
causing his health to suffer to the point where his life was endangered. The
government has not denied this allegation in any way. This is a violation of
article 16.
113. Nigeria has been a state party to the African Charter for over a decade,
and is thus bound by article 1 of the African Charter.
114. The Commission assists states parties to implement their obligations
under the Charter. Rule 111 of the Commission’s Rules of Procedure of 1995
aims at preventing irreparable damage being caused to a complainant before
the Commission. Execution in the face of the invocation of rule 111 defeats
the purpose of this important rule. The Commission had hoped that the
government of Nigeria would respond positively to its request for a stay of
execution pending the former’s determination of the communication before
it.
115. This is a blot on the legal system of Nigeria which will not be easy to
erase. To have carried out the execution in the face of pleas to the contrary
by the Commission and world opinion is something which we pray will never
happen again. That it is a violation of the Charter is an understatement.
116. The Nigerian government itself recognises that human rights are no
longer solely a matter of domestic concern. The African Charter was drafted
and acceded to voluntarily by African states wishing to ensure the respect of
 Decisions of the African Commission 317

human rights on this continent. Once ratified, states parties to the Charter
are legally bound to its provisions. A state not wishing to abide by the African
Charter might have refrained from ratification. Once legally bound, however,
a state must abide by the law in the same way an individual must.

For the above reasons, the Commission:

...
[122.] Holds that in ignoring its obligations to institute provisional measures,
Nigeria has violated article 1.

_____________________________________

Jawara v The Gambia

(2000) AHRLR 107 (ACHPR 2000)

Democratic rule in The Gambia came to an end in 1994 when President Jawara was
deposed. Jawara brought a complaint against the new government of The Gambia
concerning the circumstances and consequences of the 1994 coup d’état that
removed him from power. In deciding the case, the Commission finds, among other
things, that in deposing Jawara, the new government had violated the peoples’
right to self-determination.

Summary of facts
...
1. The complainant is the former Head of State of the Republic of The
Gambia. He alleges that after the military coup d’état of July 1994 that
overthrew his government, there has been ‘blatant abuse of power by ... the
military junta’. The military government is alleged to have initiated a reign
of terror, intimidation and arbitrary detention.
2. The complainant further alleges the abolition of the Bill of Rights as
contained in the 1970 Gambia Constitution by Military Decree no 30/31,
ousting the competence of the courts to examine or question the validity of
any such decree.
3. The communication alleges the banning of political parties and of
ministers of the former civilian government from taking part in any political
activity. The communication alleges restrictions on freedom of expression,
movement and religion. These restrictions were manifested, according to the
complainant, by the arrest and detention of people without charge,
kidnappings, torture and the burning of a mosque.
4. He further alleges that two former ministers of the Armed Forces
Provisional Ruling Council (AFPRC) were killed by the regime, asserting that
the restoration of the death penalty through Decree no 52 means ‘the arsenal
of the AFPRC is now complete’.
5. He also alleges that not less than 50 soldiers were killed in cold blood
and buried in mass graves by the military government during what the
complainant terms ‘a staged-managed attempted coup’. Several members of
the armed forces are alleged to have been detained some for up to six months
without trial, following the introduction of Decree no 3 of July 1994. This
decree gives the Minister of Interior the power to detain and to extend the
period of detention ad infinitum. The decree further prohibits the
proceedings of habeas corpus on any detention issued under it.
6. The complainant alleges further that Decree no 45 of June 1995, the
National Intelligence Agency (NIA) Decree empowers the Minister of Interior
318 African Commission on Human and Peoples’ Rights

or his designate to issue search warrants and authorise interference with

correspondence, be it wireless or electronic.
7. Finally, the communication alleges disregard for the judiciary and
contempt of court following the regime’s disregard of a court order; the
imposition of retroactive legislation following the Economic Crimes (Specified
Offences) Decree of 25 November 1994, thus infringing on the rule and the
due process of law.
...
Law
Admissibility
22. The admissibility of communications by the Commission is governed by
article 56 of the African Charter. This article lays down seven conditions that,
under normal circumstances, must be fulfilled for a communication to be
admissible. Of the seven, the government claims that two conditions have not
been fulfilled, namely article 56(4) and 56(5).
23. Article 56(4) of the Charter requires that communications: ‘Are not
based exclusively on news disseminated through the mass media.’
24. The government claims that the communication should be declared
inadmissible because it is based exclusively on news disseminated through the
mass media, and specifically made reference to the attached letter of
Captain Ebou Jallow. While it would be dangerous to rely exclusively on news
disseminated from the mass media, it would be equally damaging if the
Commission were to reject a communication because some aspects of it are
based on news disseminated through the mass media. This is borne out of the
fact that the Charter makes use of the word ‘exclusively’.
25. There is no doubt that the media remains the most important, if not the
only source of information. It is common knowledge that information on
human rights violations is always obtained from the media. The genocide in
Rwanda, the human rights abuses in Burundi, Zaire, Congo, to name but a
few, were revealed by the media.
26. The issue therefore should not be whether the information was obtained
from the media, but whether the information is correct. Did the complainant
try to verify the truth about these allegations? Did he have the means or was
it possible for him to do so, given the circumstances of his case?
27. The communication under consideration cannot be said to be based
exclusively on news disseminated through the mass media, because the
communication is not exclusively based on Captain Jallow’s letter. The
complainant alleges extrajudicial execution and has attached the names of
some of those he alleges have been killed. Captain Jallow’s letter made no
mention of this fact.
28. Article 56(5) of the Charter states that: ‘Communications ... shall be
considered if they: ... Are sent after exhausting local remedies, if any, unless
it is obvious that this procedure is unduly prolonged ...’.
29. The government also claims that the author has not attempted to
exhaust local remedies. The government claims that the author should have
sent his complaint to the police who would in turn have investigated the
allegations and prosecuted the offenders ‘in a court of law’.
30. This rule is one of the most important conditions for admissibility of
communications, no doubt therefore, in almost all the cases, the first
requirement looked at by both the Commission and the state concerned is the
exhaustion of local remedies.
31. The rationale of the local remedies rule both in the Charter and other
international instruments is to ensure that before proceedings are brought
before an international body, the state concerned must have had the
opportunity to remedy matters through its own local system. This prevents
the Commission from acting as a court of first instance rather than a body of
 Decisions of the African Commission 319

last resort (...). Three major criteria could be deduced from the practice of
the Commission in determining this rule, namely: the remedy must be
available, effective and sufficient.
32. A 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.
33. The government’s assertion of non-exhaustion of local remedies will
therefore be looked at in this light. As aforementioned, a remedy is
considered available only if the applicant can make use of it in the
circumstance of his case. The applicants ... had their communications
declared admissible by the Commission because the competence of the
ordinary courts had been ousted either by decrees or the establishment of
special tribunals.
34. The Commission has stressed that, remedies, the availability of which is
not evident, cannot be invoked by the state to the detriment of the
complainant. Therefore, in a situation where the jurisdiction of the courts has
been ousted by decrees whose validity cannot be challenged or questioned,
as is the position with the case under consideration, local remedies are
deemed not only to be unavailable but also non-existent.
35. The existence of a remedy must be sufficiently certain, not only in
theory but also in practice, failing which it will lack the requisite accessibility
and effectiveness. Therefore, if the applicant cannot turn to the judiciary of
his country because of a generalised fear for his life (or even those of his
relatives), local remedies would be considered to be unavailable to him.
36. The complainant in this case had been overthrown by the military, he
was tried in absentia, former ministers and members of parliament of his
government have been detained and there was terror and fear for lives in the
country. It would be an affront to common sense and logic to require the
complainant to return to his country to exhaust local remedies.
37. There is no doubt that there was a generalised fear perpetrated by the
regime as alleged by the complainant. This created an atmosphere not only
in the mind of the author but also in the minds of right-thinking people that
returning to his country at that material moment, for whatever reason, would
be risky to his life. Under such circumstances, domestic remedies cannot be
said to have been available to the complainant.
38. According to the established case law of the Commission, a remedy that
has no prospect of success does not constitute an effective remedy. The
prospect of seizing the national courts, whose jurisdiction has been ousted by
decrees, in order to seek redress is nil. This fact is reinforced by the
government’s response of 8 March 1996, note verbale no PA 203/232/ 01/(97-
ADJ) in which it stated that ‘The Gambian government ... does not intend to
spend valuable time responding to baseless and frivolous allegations by a
deposed despot ...’.
39. As to whether there were sufficient remedies, one can deduce from the
above analysis that there were no remedies capable of redressing the
complaints of the author.
40. Considering the fact that the regime at that material time controlled all
the arms of government and had little regard for the judiciary, as was
demonstrated by its disregard of a court order in the TK Motors’ case, and
considering further that the Court of Appeal of The Gambia in the case of Pa
Salla Jagne v The State, ruled that: ‘[There are no longer human rights] or
objective laws in the country’, it would be reversing the clock of justice to
request the complainant to attempt local remedies.
41. It should also be noted that the government also claims that the
communication lacks ‘proofs in support’. The position of the Commission has
always been that a communication must establish a prima facie evidence of
320 African Commission on Human and Peoples’ Rights

violation. It must specify the provisions of the Charter alleged to have been
violated. The state also claims that the Commission is allowed under the
Charter to take action only on cases which reveal a series of serious or massive
violations of human rights.
42. This is an erroneous proposition. Apart from articles 47 and 49 of the
Charter, which empower the Commission to consider interstate complaints,
article 55 of the Charter provides for the consideration of ‘Communications
other than those of states parties’. Further to this, article 56 of the Charter
stipulates the conditions for consideration of such communications (see also
chapter XVII of the Rules of Procedure entitled ‘Procedure for the
Consideration of the Communications Received in Conformity with article 55
of the Charter’). In any event, the practice of the Commission has been to
consider communications even if they do not reveal a series of serious or
massive violations. It is out of such useful exercise that the Commission has,
over the years, been able to build up its case law and jurisprudence.
43. The argument that the action of the government is in conformity with
regulations previously laid down by law is unfounded. The Commission
decided in its decision on communication 101/93 [Civil Liberties Organisation
(in respect of Bar Association) v Nigeria, paragraph 15], with respect to
freedom of association, that:
... competent authorities should not enact provisions which would limit the
exercise of this freedom. The competent authorities should not override
constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international human rights standards.
And more importantly, the Commission in its Resolution on the Right to
Freedom of Association of 1992 had also reiterated that:
The regulation of the exercise of the right to freedom of association should be
consistent with states’ obligations under the African Charter on Human and
Peoples’ Rights.
It follows that any law which is pleaded for curtailing the enjoyment of any
of the rights provided for in the Charter must meet this requirement. For
these reasons, the Commission declared the communications admissible.

Merits
44. The complainant alleges that by suspending the Bill of Rights in the 1970
Gambian Constitution, the government violated articles 1 and 2 of the African
Charter.
45. Article 1 of the Charter provides that: ‘The member states parties to the
present Charter shall recognise the rights, duties and freedoms enshrined in
this Charter’, while article 2 reads: ‘Every individual shall be entitled to the
enjoyment of the rights and freedoms recognised and guaranteed in the
present Charter’.
46. Article 1 gives the Charter the legally binding character always
attributed to international treaties of this sort. Therefore a violation of any
provision of the Charter automatically means a violation of article 1. If a state
party to the Charter fails to recognise the provisions of the same, there is no
doubt that it is in violation of this article. Its violation, therefore, goes to the
root of the Charter.
47. The Republic of The Gambia ratified the Charter on 6 June 1983. In its
first periodic report to the Commission in 1992, the Gambian government
asserted that:
Most of the rights set out in the Charter have been provided for in chapter 3,
sections 13 to 30 of the 1970 Constitution ... The Constitution predicts the
Gambian accession to the covenants, but in fact gave legal effect to some of the
provisions of the Charter.
 Decisions of the African Commission 321

This therefore means that the Gambian government gave recognition to some
of the provisions of the Charter (ie those contained in chapter 3 of its
Constitution), and incorporated them into its domestic law.
48. By suspending chapter 3 (the Bill of Rights), the government therefore
restricted the enjoyment of the rights guaranteed therein, and, by
implication, the rights enshrined in the Charter.
49. It should, however, be stated that the suspension of the Bill of Rights
does not ipso facto mean the suspension of the domestic effect of the
Charter. In communication 129/94 [Civil Liberties Organisation v Nigeria,
paragraph 17], the Commission held that ‘the obligation of the ... government
... remains, unaffected by the purported revocation of the domestic effect of
the Charter.’
50. The suspension of the Bill of Rights and consequently the application of
the Charter was not only a violation of article 1 but also a restriction on the
enjoyment of the rights and freedoms enshrined in the Charter, thus violating
article 2 of the Charter as well.
...
57. Article 6 of the Charter reads:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.
58. The military government has not refuted the allegations of arbitrary
arrests and detentions, but has defended its position by stating that, its
action must be ‘studied and placed in the context of the changed
circumstances in The Gambia’. It also claims that it is acting within the
confines of legislation ‘previously laid down by law’, as required by the
wordings of article 6 of the Charter.
59. The Commission in its decision on communication 101/93 [Civil Liberties
Organisation (in respect of Bar Association) v Nigeria, paragraph 15] laid
down a general principle with respect to freedom of association that
competent authorities should not enact provisions which would limit the
exercise of this freedom. The competent authorities should not override
constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international human rights standards. This principle
therefore applies not only to freedom of association but also to all other rights
and freedoms. For a state to avail itself of this plea, it must show that such a
law is consistent with its obligations under the Charter. The Commission finds
the arrests and incommunicado detention of the aforementioned persons
inconsistent with The Gambia’s obligations under the Charter. They
constitute arbitrary deprivation of their liberty and thus a violation of article
6 of the Charter. Decree no 3 is, therefore, contrary to the spirit of article 6.
60. Article 7(1)(d) of the Charter reads: ‘Every individual shall have the
right to have his cause heard. This comprises: the right to be tried within a
reasonable time by an impartial court or tribunal.’
61. Given that the Minister of Interior could detain anyone without trial for
up to six months, and could extend the period ad infinitum, his powers in this
case are analogous to that of a court, and for all intents and purposes, he is
more likely to use his discretion to the detriment of the detainees, who are
already in a disadvantaged position. The victims will be at the mercy of the
minister who, in this case, will render favour rather than vindicating a right.
This power granted to the minister renders valueless the provision enshrined
in article 7(1)(d) of the Charter.
62. Article 7(2) of the Charter reads:
No one may be condemned for an act or omission which did not constitute a legally
punishable offence at the time it was committed. No penalty may be inflicted for
an offence for which no provision was made at the time it was committed ...
322 African Commission on Human and Peoples’ Rights

63. This provision is a general prohibition on retroactivity. It is to ensure

that citizens at all times are fully aware of the state of the law under which
they are living. The Economic Crimes (Specified Offences) Decree of 25
November 1994, which was deemed to have come into force in July 1994, is
therefore a serious violation of this right.
64. Article 9 of the Charter reads: ‘(1) Every individual shall have the right
to receive information. (2) Every individual shall have the right to express and
disseminate his opinion within the law.’
65. The government did not provide any defence to the allegations of
arrests, detentions, expulsions and intimidation of journalists, made by the
complainant. The intimidation and arrest or detention of journalists for
articles published and questions asked deprives not only the journalists of
their rights to freely express and disseminate their opinions, but also the
public, of the right to information. This action is clearly a breach of the
provisions of article 9 of the Charter.
66. The complainant alleges that political parties have been banned, and
that an independent member of Parliament and his supporters were arrested
for planning a peaceful demonstration. In addition, ministers and members of
parliament in the former regime have been banned from taking part in any
political activity and some of them restricted from travelling out of the
country, with a maximum sentence of three years for any default.
67. The imposition of the ban on former ministers and members of
parliament is in contravention of their rights to participate freely in the
government of their country provided for under article 13(1) of the Charter.
Article 13(1) reads:
Every citizen shall have the right to participate freely in the government of his
country, either directly or through freely chosen representatives in accordance
with the provisions of the law.
68. Also, the banning of political parties is a violation of the complainants’
rights to freedom of association guaranteed under article 10(1) of the
Charter. In its decision on communication 101/93 [Civil Liberties Organisation
(in respect of Bar Association) v Nigeria, paragraph 15], the Commission
stated a general principle on this right, to the effect that: competent
authorities should not enact provisions which would limit the exercise of this
freedom. The competent authorities should not override constitutional
provisions or undermine fundamental rights guaranteed by the constitution
and international human rights standards. And more importantly, the
Commission in its Resolution on the Right to Freedom of Association of 1992
had also reiterated that: ‘The regulation of the exercise of the right to
freedom of association should be consistent with states’ obligations under the
African Charter on Human and Peoples’ Rights.’ This principle does not apply
to freedom of association alone but to all other rights and freedoms enshrined
in the Charter, including the right to freedom of assembly. Article 10(1)
provides: ‘Every individual shall have the right to free association provided
that he abides by the law.’
69. The Commission also finds the ban an encroachment on the right to
freedom of assembly guaranteed by article 11 of the Charter. Article 11 reads:
‘Every individual shall have the right to assemble freely with others’.
70. The restrictions on travel placed on the former ministers and members
of parliament is also a violation of their right to freedom of movement and
the right of ingress and egress provided for under article 12 of the Charter.
Article 12 provides:
(1) Every individual shall have the right to freedom of movement and residence
within the borders of a state provided he abides by the law. (2) Every individual
shall have the right to leave any country including his own, and to return to his
country. This right may only be subject to restrictions provided for by law for the
protection of national security, law and order, public health or morality.
 Decisions of the African Commission 323

71. Section 62 of the Gambian Constitution of 1970 provides for elections

based on universal suffrage, and section 85(4) made it mandatory for
elections to be held within at most five years. Since independence in 1965,
The Gambia has always had a plurality of parties participating in elections.
This was temporarily halted in 1994 when the military seized power.
72. The complainant alleges that the Gambian peoples’ right to self-
determination has been violated. He claims that the policy that the people
freely choose to determine their political status since independence has been
‘hijacked’ by the military and that the military has imposed itself on the
people.
73. It is true that the military regime came to power by force, albeit,
peacefully. This was not through the will of the people who, since
independence have known only the ballot box, as a means of choosing their
political leaders. The military coup d’état was therefore a grave violation of
the right of Gambian people to freely choose their government as entrenched
in article 20(1) of the Charter. Article 20(1) provides: ‘All peoples shall ...
freely determine their political status ... according to the policy they have
freely chosen.’ (See also the Commission’s Resolution on the Military of1994).
74. The rights and freedoms of individuals enshrined in the Charter can only
be fully realised if governments provide structures which enable them to seek
redress if they are violated. By ousting the competence of the ordinary courts
to handle human rights cases, and ignoring court judgments, the Gambian
military government demonstrated clearly that the courts were not
independent. This is a violation of article 26 of the Charter. Article 26 reads:
State parties to the present Charter shall have the duty to guarantee the
independence of the courts and shall allow the establishment and improvement of
appropriate national institutions entrusted with the promotion and protection of
the rights and freedoms guaranteed by the present Charter.

For the above reasons, the Commission:

[75.] Finds the government of The Gambia in violation of the following
provisions of the Charter: articles: 1, 2, 6, 7(1)(d) and (2), 9(1) and (2), 10(1),
11, 12(1) and (2), 13(1), 20(1) and 26 of the Charter, for the period within
which the violations occurred;
[76.] Urges the government of The Gambia to bring its laws into conformity
with the provisions of the Charter.

_____________________________________

Katangese Peoples’ Congress v Zaire

(2000) AHRLR 72 (ACHPR 1995)

Here, the Commission explores the meaning of the concept of a ‘peoples’ right to
self-determination’ in the context of a group claiming the independence of
Katanga from Zaire (now Democratic Republic of Congo).

1. The communication was submitted in 1992 by Mr Gerard Moke,

President of the Katangese Peoples’ Congress requesting the African
Commission on Human and Peoples’ Rights to recognise the Katangese
Peoples’ Congress as a liberation movement entitled to support in the
achievement of independence for Katanga; to recognise the independence of
Katanga and to help secure the evacuation of Zaire from Katanga.
324 African Commission on Human and Peoples’ Rights

Law
2. The claim is brought under article 20(1) of the African Charter on Human
and Peoples’ Rights. There are no allegations of specific breaches of other
human rights apart from the claim of the denial of self-determination.
3. All peoples have a right to self-determination. There may, however, be
controversy as to the definition of peoples and the content of the right. The
issue in the case is not self-determination for all Zaireoise as a people but
specifically for the Katangese. Whether the Katangese consist of one or more
ethnic groups is, for this purpose, immaterial and no evidence has been
adduced to that effect.
4. The Commission believes that self-determination may be exercised in
any of the following ways — independence, self-government, local
government, federalism, confederalism, unitarism or any other form of
relations that accords with the wishes of the people, but is fully cognisant of
other recognised principles such as sovereignty and territorial integrity.
5. The Commission is obligated to uphold the sovereignty and territorial
integrity of Zaire, a member of the OAU and a party to the African Charter on
Human and Peoples’ Rights.
6. In the absence of concrete evidence of violations of human rights to the
point that the territorial integrity of Zaire should be called to question and in
the absence of evidence that the people of Katanga are denied the right to
participate in government as guaranteed by article 13(1) of the African
Charter, the Commission holds the view that Katanga is obliged to exercise a
variant of self-determination that is compatible with the sovereignty and
territorial integrity of Zaire.

For the above reasons, the Commission:

[7.] Declares that the case holds no evidence of violations of any rights
under the African Charter. The request for independence for Katanga
therefore has no merit under the African Charter on Human and Peoples’
Rights.

_____________________________________

Law Office of Ghazi Suleiman v Sudan (I)

(2003) AHRLR 134 (ACHPR 2003)

This case deals with various aspects of the fair trial provisions of the African
Charter.

...
Merits
...
54. In the communication under consideration, the complainant alleges that
the victims were declared guilty in public by investigators and highly placed
government officers. It is alleged that the government organised wide
publicity around the case, with a view to convincing the public that there had
been an attempted coup and that those who had been arrested were involved
in it. The government showed open hostility towards the victims by declaring
that ‘those responsible for the bombings’ will be executed.
55. The complainant alleges that in order to reconstitute the facts, the
military court forced the victims to act as if they were committing crimes by
 Decisions of the African Commission 325

dictating to them what to do and those pictures were filmed and used during
the trial. It is claimed that the authorities attested to the guilt of the accused
on the basis of these confessions. The African Commission has no proof to
show that these officers were the same as those who presided over or were
part of the military court that tried the case. These pictures were not
presented to the African Commission as proof. In such conditions, the African
Commission cannot carry out an investigation on the basis of non-established
proof.
56. However, the African Commission condemns the fact that state officers
carried out the publicity aimed at declaring the suspects guilty of an offence
before a competent court establishes their guilt. Accordingly, the negative
publicity by the government violates the right to be presumed innocent,
guaranteed by article 7(1)(b) of the African Charter.
57. As shown in the summary of facts, the complainants did not get
permission to get assistance from counsel and those who defended them were
not given sufficient time nor access to the files to prepare their defense.
58. The victims’ lawyer, Ghazi Suleiman, was not authorised to appear
before the court and despite several attempts, he was deprived of the right
to represent his clients or even contact them.
59. Concerning the issue of the right to defense, communications 48/90, 50/
91, 52/91, 89/93, Amnesty International & Others v Sudan [(2000) AHRLR 297
(ACHPR 1999) para 64] are clear on this subject. The African Commission held
in those communications that:
The right to freely choose one’s counsel is essential to the assurance of a fair trial.
To give the tribunal the power to veto the choice of counsel of defendants is an
unacceptable infringement of this right. There should be an objective system for
licensing advocates, so that qualified advocates cannot be barred from appearing
in particular cases. It is essential that the national bar be an independent body
which regulates legal practitioners, and that the tribunals themselves not adopt
this role, which will infringe the right to defence.
60. Refusing the victims the right to be represented by the lawyer of their
choice, Ghazi Suleiman, amounts to a violation of article 7(1)(c) of the African
Charter.
61. It is alleged that the military court which tried the victims was neither
competent, independent nor impartial insofar as its members were carefully
selected by the Head of State. Some members of the court are active military
officers. The government did not refute this specific allegation, but just
declared that the counsels submitted an appeal to the Constitutional Court,
thus suspending the course of military proceedings. The Constitutional Court
delivered a final judgment, rendering void the decision of the military court
against the accused.
62. In its Resolution on Nigeria (adopted at the 17th session), the African
Commission stated that among the serious and massive acts of violation
committed in the country, there was ‘the restriction of the independence of
the court and the establishment of military courts which had no independence
nor rules of procedure to try individuals suspected of being opponents of the
military regime’.
63. The government confirmed the allegations of the complainants
concerning the membership of the military court. It informed the African
Commission in its written submissions that the military court had been
established by a presidential decree and that it was mainly composed of
military officers; of the four members, three were active servicemen and that
the trial had taken place legally.
64. This composition of the military court alone is evidence of impartiality.
Civilians appearing before and being tried by a military court presided over
by active military officers who are still under military regulations violates the
fundamental principles of fair trial. Likewise, depriving the court of qualified
326 African Commission on Human and Peoples’ Rights

staff to ensure its impartiality is detrimental to the right to have one’s cause
heard by competent organs.
65. In this regard, it is important to recall the general stand of the African
Commission on the question of civilians being tried by military courts. In its
Resolution on the right to a fair trial and legal aid in Africa, during the
adoption of the Dakar Declaration and Recommendations, the African
Commission noted that:
In many African countries, military courts or specialised criminal courts exist side
by side with ordinary courts to hear and determine offences of a purely military
nature committed by military staff. In carrying out this responsibility, military
courts should respect the norms of a fair trial. They should in no case try civilians.
Likewise, military courts should not deal with offences which are under the
purview of ordinary courts.
66. Additionally, the African Commission considers that the selection of
active military officers to play the role of judges violates the provisions of
paragraph 10 of the fundamental principles on the independence of the
judiciary which stipulates that: ‘Individuals selected to carry out the
functions of judges should be persons of integrity and competent, with
adequate legal training and qualifications. (Communication 224/98 Media
Rights Agenda v Nigeria [(2000) AHRLR 262 (ACHPR 2000)])’.
67. Article 7(1)(d) of the Charter requires the court to be impartial. Apart
from the character of the membership of this military court, its composition
alone gives an appearance, if not, the absence of impartiality, and this
therefore constitutes a violation of article 7(1)(d) of the African Charter.

For these reasons, the African Commission:

• Finds the Republic of Sudan in violation of the provisions of articles 5, 6
and 7(1) of the African Charter;
• Urges the government of Sudan to bring its legislation in conformity with
the African Charter;
• Requests the government of Sudan to duly compensate the victims.

_____________________________________

Law Office of Ghazi Suleiman v Sudan (II)

(2003) AHRLR 144 (ACHPR 2003)

Here, different aspects of the rights of a human rights defender are highlighted.

...
Merits
39. Article 9 of the Charter provides: ‘Every individual shall have the right
to receive information. Every individual shall have the right to express and
disseminate his opinions within the law’.
40. The African Commission affirms the ‘fundamental importance of
freedom of expression and information as an individual human right, as a
cornerstone of democracy and as a means of ensuring respect for all human
rights and freedoms’.
41. The African Commission also holds that article 9 ‘reflects the fact that
freedom of expression is a basic human right, vital to an individual’s personal
development, his political consciousness, and participation in the conduct of
public affairs in his country’. (Communications 105/93, 128/94, 130/94 and
 Decisions of the African Commission 327

152/96 Media Agenda and Others v Nigeria [(2000) AHRLR 200 (ACHPR 1998)
para 54]).
42. The communication alleges that Mr Ghazi Suleiman was arrested,
detained, mistreated, and punished for his promotion and encouragement of
human rights, which the respondent state claims are inconsistent with its
laws. These activities consisted of speaking out about violations of human
rights, encouraging the government to respect human rights, encouraging
democracy in his public speeches and interviews, and discussing democracy
and human rights with others. These activities have not been conducted
secretly, but have been carried out in public by Mr Ghazi Suleiman for many
years.
43. It is alleged that Mr Ghazi Suleiman was exercising his right to freedom
of expression to advocate for human rights and democracy in Sudan and was
stopped; or, he was contemplating the exercise of his human rights for the
same reasons but was prevented from exercising these rights.
44. During the 27th ordinary session of the African Commission, the
representative of the respondent state did not contest the facts adduced by
the complainant, however, he states that the 1998 Constitution of Sudan
guarantees the right to freedom of movement (article 23), right to freedom
of expression (article 25) and the right to freedom of association (article 26).
He did not provide any defence to the allegations of arrests, detentions and
intimidation of Mr Ghazi Suleiman.
45. The respondent state did not submit arguments on the merits in respect
of this communication. In the view of the foregoing, the African Commission
shall base its argument on the elements provided by the complainant and
condemn the state’s failure not to submit arguments on the merits.
46. In adopting the Resolution on the Right to Freedom of Association, the
African Commission noted that governments should be especially careful that:
In regulating the use of this right, the competent authorities should not enact
provisions which would limit the exercise of this freedom. The regulation of the
exercise of the right to freedom of association should be consistent with states’
obligations under the African Charter on Human and Peoples’ Rights.
(Mr Ghazi Suleiman’s speech is a unique and important part of political debate
in his country.)
47. Article 60 of the Charter provides that the African Commission shall
draw inspiration from international law on human and people’s rights.
48. The European Court on Human Rights recognises that ‘freedom of
political debate is at the very core of the concept of a democratic society ...’.
49. The African Commission’s view affirms those of the Inter-American
Court of Human Rights which held that:
Freedom of expression is a cornerstone upon which the very existence of a society
rests. It is indispensable for the formation of public opinion. It is also a condition
sine qua non for the development of political parties, trade unions, scientific and
cultural societies and, in general, those who wish to influence the public. It
represents, in short, the means that enable the community, when exercising its
options, to be sufficiently informed. Consequently, it can be said that a society
that is not well informed is not a society that is truly free.
50. The Inter-American Court states that: ‘when an individual’s freedom of
expression is unlawfully restricted, it is not only the right of that individual
that is being violated, but also the right of all others to ‘receive’ information
and ideas’. It is particularly grave when information that others are being
denied concerns the human rights protected in the African Charter as did each
instance in which Mr Ghazi Suleiman was arrested.
51. The charges levied against Mr Ghazi Suleiman by the government of
Sudan indicate that the government believed that his speech threatened
national security and public order.
328 African Commission on Human and Peoples’ Rights

52. Because Mr Suleiman’s speech was directed towards the promotion and
protection of human rights, ‘it is of special value to society and deserving of
special protection’.
53. In keeping with its important role of promoting democracy in the
continent, the African Commission should also find that a speech that
contributes to political debate must be protected. The above challenges to
Mr Ghazi Suleiman’s freedom of expression by the government of Sudan
violate his right to freedom of expression under article 9 of the African
Charter. However, the allegations of arrests, detentions and threats
constitute also a violation of article 6 of the Charter.
54. Article 10 of the Charter provides: ‘Every individual shall have the right
to free association provided that he abides by the law’.
55. Article 11 of the Charter provides:
Every individual shall have the right to assemble freely with others. The exercise
of this right shall be subjected only to necessary restrictions provided for by the
law, in particular those enacted in the interest of national security ... and rights
and freedoms of others.
56. By preventing Mr Ghazi Suleiman from gathering with others to discuss
human rights and by punishing him for doing so, the respondent state had
violated Mr Ghazi Suleiman’s human rights to freedom of association and
assembly which are protected by articles 10 and 11 of the African Charter.
...
64. By stopping Mr Ghazi Suleiman from travelling to Sinnar, which is
located in the Blue Nile State, a part within the country under the control of
the government of Sudan, to speak to a group of human rights defenders, the
government of Sudan violated Mr Ghazi Suleiman’s right to freedom of
movement in his own country. This constitutes a violation of article 12 of the
Charter.
65. The fact that Mr Ghazi Suleiman advocates peaceful means of action and
his advocacy has never caused civil unrest is additional evidence that the
complained about actions of the respondent state were not proportionate and
necessary to the achievement of any legitimate goal. Furthermore, the
actions of the government of Sudan not only prevent Mr Ghazi Suleiman from
exercising his human rights, but these actions have a seriously discouraging
effect on others who might also contribute to promoting and protecting
human rights in Sudan.
66. For the above reasons, the interference with Mr Ghazi Suleiman’s rights
of freedom of expression, association and assembly cannot be justified.

Therefore, the African Commission:

• Finds the Republic of Sudan in violation of articles 6, 9, 10, 11 and 12 of
the African Charter on Human and Peoples’ Rights; and
• Requests the government of Sudan to amend its existing laws to provide
for de jure protection of the human rights to freedom of expression,
assembly, association and movement.
 Decisions of the African Commission 329

Lawyers for Human Rights v Swaziland

(2005) AHRLR 66 (ACHPR 2005)

In 1973, the Swazi King repealed the 1968 Constitution and Bill of Rights. Although
Swaziland only ratified the Charter in 1995, the repeal of the Constitution in the
view of the Commission constituted an ongoing violation, and as a result the
Commission had jurisdiction. The Commission found Swaziland to be in violation of
a range of provisions of the African Charter.

...
Admissibility
...
23. The complainant submits that as a result of the King’s Proclamation to
the Nation 12 of 1973, the written and democratic Constitution of the
Kingdom of Swaziland enacted in 1968 containing a Bill of Rights was
repealed. Furthermore, the Proclamation prohibited the Courts of the
Kingdom of Swaziland from enquiring into the validity of the Proclamation or
any acts undertaken in accordance with the Proclamation.
24. The complainant indicates that under the Proclamation, the King
assumes supreme power in the Kingdom and judicial power is vested in him
and he retains the power to overturn all court decisions, thereby removing
any meaningful legal avenue for redress. The complainant quotes the case of
Professor Dlamini v The King to illustrate instances where the King has
exercised his power to undermine decisions of the courts. In that case, the
Court of Appeal overturned the Non-Bailable Offences Order of 1993, which
ousted the courts’ jurisdiction to entertain bail applications. Following the
decision of the Court of Appeal, the King issued a decree, 2 of 2001 reinstating
the Non Bailable Offences Order. However, due to international pressure, the
King later repealed aspects of the reinstated Non Bailable Offenses Order by
Decree 3 of 2001.
25. Therefore the complainant argues it cannot exhaust domestic remedies
because they are unavailable by virtue of the Proclamation and even where a
matter could be instituted and won in the courts of Swaziland, it would not
constitute a meaningful, durable remedy because the King would nullify such
legal victory.
26. The complainant provides all the proclamations made by the King and
after perusing the proclamations, the African Commission notes that no where
in all the proclamations is there an ouster clause to the effect that the courts
of the Kingdom of Swaziland are prohibited from enquiring into the validity of
the proclamation or any acts undertaken in accordance with the
Proclamation.
27. The African Commission has considered this matter and realises that for
the past 31 years the Kingdom of Swaziland has had no Constitution.
Furthermore, the complainant has presented the African Commission with
information demonstrating that the King is prepared to utilise the judicial
power vested in him to overturn court decisions. As such, the African
Commission believes that taking into consideration the general context within
which the judiciary in Swaziland is operating and the challenges that they
have been faced with especially in the recent past, any remedies that could
have been utilised with respect to the present communication would have
likely been temporary. In other words, the African Commission is of the view
that the likelihood of the complainant succeeding in obtaining a remedy that
would redress the situation complained of in this matter is so minimal as to
render it unavailable and therefore ineffective. For the reasons stated herein
above, the African Commission declares this communication admissible.
330 African Commission on Human and Peoples’ Rights

...
Commission’s decision on the merits
41. In making this decision on the merits, the African Commission would like
to point out that it is disappointed with the lack of co-operation from the
respondent state. The decision on the merits was taken without any response
from the state. As a matter of fact, since the communication was submitted
to the Commission and in spite several correspondences to the state, there
hasn’t been any response from the latter on the matter. Under such
circumstances, the Commission is left with no other option than to take a
decision based on the information at its disposal.
42. lt must be stated however that, by relying on the information provided
by the complainant, the Commission did not rush into making a decision. The
Commission analysed each allegation made and established the veracity
thereof.
43. A preliminary matter that has to be addressed by the African
Commission is the competence of the commission to entertain allegations of
human rights violations that took place before the adoption of the Charter or
even its coming into force. In making this determination the Commission has
to differentiate between allegations that are no longer being perpetrated and
violations that are ongoing.
44. In case of the former, that is, violations that occurred before the coming
into force of the Charter but which are no longer or which stopped before the
coming into force of the Charter, the Commission has no competence to
entertain them. The events which occurred before the date of ratification of
the Charter are therefore outside the Commission’s competence ratione
temporis. The Commission is only competent ratione temporis to consider
events which happened after that date or, if they happened before then,
constitute a violation continuing after that date.
45. In the present communication, the violations are said to have started in
1973 following the Proclamation by the King, that is, prior to the coming into
force of the African Charter and continued after the coming into force of the
Charter through when the respondent state ratified the Charter and is still
ongoing to date. The Commission therefore has the competence to deal with
the communication.
46. The Commission has competence ratione loci to examine the case
because the petition alleges violations of rights protected by the African
Charter, which have taken place within the territory of a state party to that
Charter. It has competence ratione materiae as the petition alleges violations
of human rights protected by the Charter, and lastly it has competence
ratione temporis as the facts alleged in the petition took place when the
obligation to respect and guarantee the rights established in the Charter was
in force for the Kingdom of Swaziland. Given that Swaziland signed the
Charter in 1991 and later ratified on 15 September 1995, it is clear that the
alleged events continues to be perpetrated when the state became under the
obligation to respect and safeguard all rights enshrined in the Charter, giving
the Commission rationae temporis competence.
47. The two stages of signature and ratification of an international treaty
provides states with the opportunity to take steps to ensure that they make
the necessary domestic arrangements to ensure that by the time they ratify
a treaty the latter is in conformity with their domestic law. When ratifying
the Charter, the respondent state was aware of the violation complained of
and had the obligation to take all the necessary steps to comply with its
obligations under article 1 of the Charter - to adopt legislative and other
measures to give effect to the rights and freedoms in the Charter.
48. From the above, it is the Commission’s opinion that it is competent to
deal with the matter before it.
 Decisions of the African Commission 331

49. Having determined that it is competent to deal with the matter, the
Commission will now proceed to examine each of the rights alleged to have
been violated by the respondent state.
50. The complainant argues that by ratifying the African Charter and not
adopting legislative and other measures to bring the 1973 Proclamation in
conformity with the Charter, the respondent state has violated article 1 of the
African Charter. The use of the term ‘other measures’ in article 1 provides
state parties with a wide choice of measures to use to deal with human rights
problems. In the present situation when a decree has been passed by the head
of state abrogating the constitution, it was incumbent on the same head of
state and other relevant institutions in the country to demonstrate good faith
and either reinstate the constitution or amend the Decree to bring it in
conformity with the Charter provisions during or after ratification.
51. In the opinion of the Commission, by ratifying the Charter without at the
same time taking appropriate measures to bring domestic laws in conformity
with it, the respondent state’s action defeated the very object and spirit of
the Charter and thus violating article 1 thereof.
52. The complainant also alleges violation of article 7 of the Charter stating
that the Proclamation vests all powers of state to the King, including judicial
powers and the authority to appoint and remove judges and Decree 3/2001
which ousts the courts’ jurisdiction to grant bail on matters listed in the
schedule. According to the complainant this illustrates that courts are not
independent.
53. Article 7 of the African Charter provides for fair trial guarantees —
safeguards to ensure that any person accused of an offence is given a fair
hearing. In its Resolution on Fair Trial adopted at its 11th ordinary session, in
Tunis, Tunisia, from 2 to 9 March 1992, the African Commission held that the
right to fair trial includes, among other things, the right to be heard, the right
of an arrested person to be informed at the time of arrest in a language he or
she understands, of the reason for the arrest and to be informed promptly of
any charges against them, the right of arrested or detained persons to be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and be tried within a reasonable time or be released,
and the right to be presumed innocent until proven guilty by a competent
court.
54. In the present communication the Proclamation of 1973 and the Decree
of 2001 vested judicial power in the King and ousted the jurisdiction of the
court on certain matters. The acts of vesting judicial power in the King or
ousting the jurisdiction of the courts on certain matters in themselves do not
only constitute a violation of the right to fair trial as guaranteed in article 7
of the Charter, but also tend to undermine the independence of the judiciary.
55. Article 26 of the Charter provides that states parties shall have the duty
to guarantee the independence of the courts. Article 1 of the UN Basic
Principles on the Independence of the Judiciary states that:
The independence of the judiciary shall be guaranteed by the state and enshrined
in the Constitution or the law of the country. It is the duty of all governmental and
other institutions to respect and observe the independence of judiciary.
Article 11 of the same Principles states that ‘the term of office of judges,
their independence, security ... shall be adequately secured by law’. Article
18 provides that ‘Judges shall be subject to suspension or removal only for
reasons of incapacity or behaviour that renders them unfit to discharge their
duties’. Article 30 of the International Bar Association (IBA)’s Minimum
Standards of Judicial Independence also guarantees that: a Judge shall not be
subject to removal unless, by reason of a criminal act or through gross or
repeated neglect or physical or mental incapacity, he has shown himself
manifestly unfit to hold the position of judge and article 1(b) states that
332 African Commission on Human and Peoples’ Rights

‘Personal independence means that the terms and conditions of judicial

service are adequately secured so as to ensure that individual judges are not
subject to executive control’.
56. By entrusting all judicial powers to the Head of State with powers to
remove judges, the Proclamation of 1973 seriously undermines the
independence of the judiciary in Swaziland. The main raison d’être of the
principle of separation of powers is to ensure that no organ of government
becomes to powerful and abuses its power. The separation of power amongst
the three organs of government — executive, legislature and judiciary ensure
checks and balances against excesses from any of them. By concentrating the
powers of all-three government structures into one person, the doctrine of
separation of power is undermines and subject to abuse.
57. In its Resolution on the Respect and the Strengthening on the
Independence of the Judiciary adopted at its 19th ordinary session held from
26 March to 4 April 1996 at Ouagadougou, Burkina Faso, the African
Commission ‘recognised the need for African countries to have a strong and
independent judiciary enjoying the confidence of the people for sustainable
democracy and development’. The Commission then:
Urged all state parties to the Charter to repeal all their legislation which are
inconsistent with the principles of respect of the independence of the judiciary,
especially with regard to the appointment and posting of judges and to refrain
from taking any action which may threaten directly or indirectly the independence
and the security of judges and magistrates.
58. Clearly, retaining a law which vest all judicial powers in the Head of
State with possibility of hiring and firing judges directly threatens the
independence and security of judges and the judiciary as a whole. The
Proclamation of 1973, to the extent that it allows the Head of State to dismiss
judges and exercise judicial power is in violation of article 26 of the African
Charter.
59. With regards allegation of violation of articles 10 and 11, the
complainant submits that the Proclamation of 1973 abolishes and prohibits
the existence and the formation of political parties or organisations of a
similar nature and that the Proclamation also violates article 11 — right to
assemble peacefully as the right to associate cannot be divorced from the
right to assembly freely and peacefully.
60. Article 10 of the African Charter provides that ‘every individual shall
have the right to free association provided that he abides by the law’. Article
11 provides that ‘every individual shall have the right to assemble freely with
others. The exercise of this right shall be subject only to necessary
restrictions provided for by law ...’. In communication 225/98 [Huri-Laws v
Nigeria (2000) AHRLR 273 (ACHPR 2000)] the African Commission, quoting its
Resolution on the Right to Freedom of Association held that the regulation of
the exercise of the right to freedom of association should be consistent with
states’ obligations under the African Charter and in regulating the use of this
right, the competent authorities should not enact provisions which would
limit the exercise of this freedom. That the competent authorities should not
override constitutional provisions or undermine fundamental rights guaran-
teed by the constitution and international standards. The Commission
reiterated this in communications 147/95 and 149/96 [Jawara v The Gambia
(2000) AHRLR 107 (ACHPR 2000)] and concluded that this principle does not
apply to freedom of association alone but also to all other rights and freedoms
enshrined in the Charter, including, the right to freedom of assembly.
61. Admittedly, the Proclamation restricting the enjoyment of these rights
was enacted prior to the coming into effect of the Charter. However, the
respondent state had an obligation to ensure that the Proclamation conforms
to the Charter when it ratified the latter in 1995. By ratifying the Charter
without taking appropriate steps to bring its laws in line with the same, the
 Decisions of the African Commission 333

African Commission is of the opinion that the state has not complied with its
obligations under article 1 of the Charter and in failing to comply with the said
duty, the prohibition on the establishment of political parties under the
Proclamation remained effective and consequently restricted the enjoyment
of the right to freedom of association and assembly of its citizens. The
Commission therefore finds the state to have violated these two articles by
virtue of the 1973 proclamation.
62. The complainant also alleges violation of article 13 of the African
Charter claiming that the King’s Proclamation of 1973 restricted participation
of citizens in governance as according to the complainant the import of
sections 11 and 12 of the Proclamation is that citizens can only participate in
issues of governance only within structures of the Tinkhundla. In
communications 147/95 and 149/96 [Jawara v The Gambia [(2000) AHRLR 107
(ACHPR 2000)] the Commission held that:
The imposition of the ban on former Ministers and members of Parliament is in
contravention of their rights to participate freely in the government of their
country provided for under article 13(1) of the Charter Also the ban on political
parties is a violation of the complainants rights to freedom of association
guaranteed under article 10(1) of the Charter.
63. In the present communication, the King’s Proclamation clearly outlaws
the formation of political parties or any similar structure. Political parties are
one means through which citizens can participate in governance either
directly or through elected representatives of their choice. By prohibiting the
formation of political parties, the King’s Proclamation seriously undermined
the ability of the Swaziland people to participate in the government of their
country and thus violated article 13 of the Charter.

From the above reasoning, the African Commission:

• Is of the view that the Kingdom of Swaziland by its Proclamation of 1973
and the subsequent Decree 3 of 2001 violated articles 1, 7, 10, 11, 13 and
26 of the African Charter.
• Recommends as follows: that the Proclamation and the Decree be
brought in conformity with the provisions of the African Charter; that the
state engages with other stakeholders, including members of civil society
in the conception and drafting of the new Constitution; and that the
Kingdom of Swaziland should inform the African Commission in writing
within six months on the measures it has taken to implement the above
recommendations.

_____________________________________

Legal Resources Foundation v Zambia

(2001) AHRLR 84 (ACHPR 2001)

This complaint concerns an amendment to the Zambian Constitution that

restricted the right to run for President to persons who could prove that both their
parents were Zambian.

...
Law
Merits
52. The allegation before the Commission is that respondent state has
violated articles 2, 3 and 19 of the Charter in that the Constitution of Zambia
334 African Commission on Human and Peoples’ Rights

Amendment Act of 1996 is discriminatory. Article 34 provides that anyone who

wishes to contest the Office of President of Zambia had to prove that both
parents were Zambian citizens by birth or descent. The effect of this
amendment was to prohibit a Zambian citizen, former president Dr Kenneth
David Kaunda from contesting the elections having been duly nominated by a
legitimate political party. It is alleged that the effect of the amendment was
to disenfranchise some 35 per cent of the electorate of Zambia from standing
as candidate presidents in any future elections for the highest office in the
land.
...
64. All parties are agreed that any measure which seeks to exclude a section
of the citizenry from participating in the democratic processes, as the
amendment in question has managed to do, is discriminatory and falls foul of
the Charter. Article 11 of the Constitution of Zambia provides that there shall
be no discrimination on the grounds of ‘race, place of origin, political
opinions, colour, creed, sex or marital status ...’. The African Charter uses
‘national and social origin ...’ which could be encompassed within the
expression ‘place of origin’ in the Zambian Constitution. Article 23(1) of the
Zambian Constitution says that Parliament shall not make any law that ‘is
discriminatory either of itself or in its effect ...’.
...
70. The Commission has argued forcefully that no state party to the Charter
should avoid its responsibilities by recourse to the limitations and ‘claw-back’
clauses in the Charter. It was stated, following developments in other
jurisdictions, that the Charter cannot be used to justify violations of sections
thereof. The Charter must be interpreted holistically and all clauses must
reinforce each other. The purpose or effect of any limitation must also be
examined, as the limitation of the right cannot be used to subvert rights
already enjoyed. Justification, therefore, cannot be derived solely from
popular will, as this cannot be used to limit the responsibilities of states
parties in terms of the Charter. Having arrived at this conclusion, it does not
matter whether one or 35 per cent of Zambians are disenfranchised by the
measure; that anyone is, is not disputed and it constitutes a violation of the
right.
71. The Commission has arrived at a decision regarding allegations of
violation of article 13 by examining closely the nature and content of the right
to equality (article 2). It cannot be denied that there are Zambian citizens
born in Zambia but whose parents were not born in what has become known
as the Republic of Zambia following independence in 1964. This is a
particularly vexing matter as the movement of people in what had been the
Central African Federation (now the states of Malawi, Zambia and Zimbabwe)
was free and that by Zambia’s own admission, all such residents were, upon
application, granted the citizenship of Zambia at independence. Rights which
have been enjoyed for over 30 years cannot be lightly taken away. To suggest
that an indigenous Zambian is one who was born and whose parents were born
in what came (later) to be known as the sovereign territory of the state of
Zambia may be arbitrary and its application retrospectively cannot be
justifiable according to the Charter.
72. The Charter makes it clear that citizens should have the right to
participate in the government of their country ‘directly or through freely
chosen representatives ...’. See UN Human Rights Committee General
Comment no 25 (1996) where it says that ‘[p]ersons who are otherwise
eligible to stand for election should not be excluded by unreasonable or
discriminatory requirements such as education, residence, or descent, or by
reason of political affiliation ...’. The pain in such an instance is caused not
just to the citizen who suffers discrimination by reason of place of origin, but
 Decisions of the African Commission 335

[by the fact] that the rights of the citizens of Zambia to ‘freely choose’
political representatives of their choice is violated. The purpose of the
expression ‘in accordance with the provisions of the law’ is surely intended to
regulate how the right is to be exercised rather than that the law should be
used to take away the right.
73. The Commission believes that recourse to article 19 of the Charter was
mistaken. The section dealing with ‘peoples’ cannot apply in this instance. To
do so would require evidence that the effect of the measure was to affect
adversely an identifiable group of Zambian citizens by reason of their common
ancestry, ethnic origin, language or cultural habits. The allegedly offensive
provisions in the Zambia Constitution (Amendment) Act, 1996 do not seek to
do that.

For the above reasons, the Commission:

[74.] Finds that the Republic of Zambia is in violation of articles 2, 3(1) and
13 of the African Charter;
[75.] Strongly urges the Republic of Zambia to take the necessary steps to
bring its laws and Constitution into conformity with the African Charter; and
[76.] Requests the Republic of Zambia to report back to the Commission when
it submits its next country report in terms of article 62 on measures taken to
comply with this recommendation.

_____________________________________

Ligue Camerounaise des Droits de l’Homme v Cameroon

(2000) AHRLR 61 (ACHPR 1997)

According to the African Charter, complaints should not be written in disparaging

or insulting language. In this case the use of such language was one of the reasons
why the Commission did not admit the case.

...
Law
Admissibility
...
[12.] Article 56(3) of the Charter reads:
Communications relating to human and peoples’ rights referred to in article 55,
received by the Commission, shall be considered if they: Are not written in
disparaging or insulting language directed against the state concerned and its
institutions or to the Organization of African Unity.
[13.] The allegations submitted by the Ligue Camerounaise are of a series of
serious and massive violations of the Charter. The communication contains
statements such as: ‘Paul Biya must respond to crimes against humanity’, ‘30
years of the criminal neo-colonial regime incarnated by the duo Ahidjo/Biya’,
‘regime of torturers’, and ‘government barbarisms’. This is insulting
language.
...
336 African Commission on Human and Peoples’ Rights

Majuru v Zimbabwe
(2008) AHRLR 146 (ACHPR 2008)

Requirement of submission of communications to the Commission within

reasonable time.

...
104. Article 56(6) of the Charter provides that ‘communications received by
the Commission will be considered if they are submitted within a reasonable
period from the time local remedies are exhausted, or from the date the
Commission is seized with the matter ...’. The respondent state contends that
the present communication was not submitted on time by the complainant,
as required by the African Charter.
...
108. The Charter does not provide for what constitutes ‘reasonable period’.
However, the Commission has the mandate to interpret the provisions of the
Charter and in doing so, it take cognisance of its duty to protect human and
people’s rights as stipulated in the Charter. The provisions of other
international/regional instruments like the European Convention on Human
Rights and Fundamental Freedoms and the Inter-American Convention on
Human Rights, are almost similar and state that they ‘... may only deal with
the matter ... within a period of six months from the date on which the final
decision was taken’, after this period has elapsed the Court/Commission will
no longer entertain the communication.
109. The Commission is urged in articles 60 and 61 of the Charter to consider
as subsidiary measures to determine the applicable principles of law ‘other
general or special international instruments, laying down rules expressly
recognised by member states of the African Union ...’. Going by the practice
of similar regional human rights instruments, such as the Inter-American
Commission and Court and the European Court, six months seem to be the
usual standard. This notwithstanding, each case must be treated on its own
merit. Where there is good and compelling reason why a complainant could
not submit his/her complaint for consideration on time, the Commission may
examine the complaint to ensure fairness and justice.
110. ... Even if the Commission accepts that he fled the country and needed
time to settle, or that he was concerned for the safety of his relatives, 22
months after fleeing the country is clearly beyond a reasonable man’s
understanding of reasonable period of time. The African Commission thus
holds that the submission of the communication was unduly delayed and thus
does not comply with the requirements under article 56(6) of the Charter.
 Decisions of the African Commission 337

Malawi African Association and Others v Mauritania

(2000) AHRLR 149 (ACHPR 2000)

Following a coup d’état in 1984, a prolonged conflict between the ‘Moor’ majority
in the North and the ‘black ethnic’ majority in the South characterised political life
in Mauritania. In this communication, a large group of complainants (including
widows of ‘disappeared’ Southern men), alleges that the government was involved
in concomitant violations. Issues such as slavery, the peoples’ right of existence
and equality and a government’s responsibility for the actions of non-state actors
are dealt with.

...
Admissibility
...
82. The Commission notes that the amnesty law adopted by the Mauritanian
legislature had the effect of annulling the penal nature of the precise facts
and violations of which the plaintiffs are complaining; and that the said law
also had the effect of leading to the foreclosure of any judicial actions that
may be brought before local jurisdictions by the victims of the alleged
violations.
83. The Commission recalls that its role consists precisely in pronouncing on
allegations of violations of the human rights protected by the Charter of
which it is seized in conformity with the relevant provisions of that
instrument. It is of the view that an amnesty law adopted with the aim of
nullifying suits or other actions seeking redress that may be filed by the
victims or their beneficiaries, while having force within Mauritanian national
territory, cannot shield that country from fulfilling its international
obligations under the Charter.
84. Also, the Islamic Republic of Mauritania, being a party to the African
Charter on Human and Peoples’ Rights, has no basis to deny its citizens those
rights that are guaranteed and protected by an international convention,
which represents the minimum on which the states parties agreed, to
guarantee fundamental human freedoms. The entry into force of the Charter
in Mauritania created for that country an obligation of consequence, deriving
from the customary principle pacta sunt servanda. It consequently has the
duty to adjust its legislation to harmonise it with its international obligations.
And, as this Commission has previously had to emphasise,
the African Charter, unlike other human rights instruments, does not allow for
state parties to derogate from their treaty obligations during emergency
situations. Thus, even a situation of civil war cannot be used as an excuse by the
state violating or permitting violations of rights in the African Charter.
(Cf communication 74/92 [Commission Nationale des Droits de l’Homme et
des Libertés v Chad, paragraph 21]).
...
Merits
...
133. Communications 54/91 and 98/93 allege that a majority of the
Mauritanian population is composed of slaves. The government states that
slavery had been abolished under the French colonial regime. The
communications also allege that freed slaves maintain traditional and close
links with their former masters and that this constitutes another form of
exploitation.
134. During its mission to Mauritania in June 1996, the Commission’s
delegation noted that it was still possible to find people considered as slaves
in certain parts of the country. Though Edict no 81-234 of 9 November [1981]
338 African Commission on Human and Peoples’ Rights

had officially abolished slavery in Mauritania, it was not followed by effective

measures aimed at the eradication of the practice. This is why, in many cases,
the descendants of slaves find themselves in the service of the masters,
without any remuneration. This is due either to the lack of alternative
opportunities or because they had not understood that they had been freed
of all forms of servitude for many years. From all appearances, some freed
slaves chose to return to their former masters. From the Commission’s point
of view, the state has the responsibility to ensure the effective application of
the edict and thus ensure the freedom of its citizens, to carry out inquiries
and initiate judicial action against the perpetrators of violations of the
national legislation.
135. Independently from the justification given by the defendant state, the
Commission considers, in line with the provisions of article 23(3) of the
Universal Declaration of Human Rights, that everyone who works has the right
to just and favourable remuneration ensuring for himself and his family an
existence worthy of human dignity, and supplemented, if necessary, by other
means of social protection. These provisions are complemented by those of
article 7 of the International Covenant on Economic, Social and Cultural
Rights. In view of the foregoing, the Commission deems that there was a
violation of article 5 of the Charter due to practices analogous to slavery, and
emphasises that unremunerated work is tantamount to a violation of the right
to respect for the dignity inherent in the human being. It furthermore
considers that the conditions to which the descendants of slaves are
subjected clearly constitute exploitation and degradation of man; both
practices condemned by the African Charter. However, the African
Commission cannot conclude that there is a practice of slavery based on these
evidences before it.
136. Article 17 of the Charter stipulates that:
(2) Every individual may freely take part in the cultural life of his community. (3)
The promotion and protection of morals and traditional values recognised by the
community shall be the duty of the state.
137. Language is an integral part of the structure of culture; it in fact
constitutes its pillar and means of expression par excellence. Its usage
enriches the individual and enables him to take an active part in the
community and in its activities. To deprive a man of such participation
amounts to depriving him of his identity.
138. The government made it known that there is in the country an institute
of national languages, for over ten years now, and that this institute teaches
those languages. However, a persisting problem is the fact that many of these
languages are exclusively spoken in small parts of the country and that they
are not written. Communication 54/91 alleges the violation of linguistic rights
but does not provide any further evidence as to how the government denies
the black groups the right to speak their own languages. Information available
to the Commission does not provide it a sufficient basis to determine if there
has been violation of article 17.
139. Article 23 of the Charter states that: ‘(1) All peoples shall have the right
to national and international peace and security ...’.
140. As advanced by the Mauritanian government, the conflict through which
the country passed is the result of the actions of certain groups, for which it
is not responsible. But in the case in question, it was indeed the Mauritanian
public forces that attacked Mauritanian villages. And even if they were rebel
forces, the responsibility for protection is incumbent on the Mauritanian
state, which is a party to the Charter (cf the Commission’s decision in
communication 74/92 [Commission Nationale des Droits de l’Homme et des
Libertés v Chad]). The unprovoked attacks on villages constitute a denial of
the right to live in peace and security.
 Decisions of the African Commission 339

141. Article 19 provides that: ‘All peoples shall be equal; they shall enjoy the
same respect and shall have the same rights. Nothing shall justify the
domination of a people by another.’
142. At the heart of the abuses alleged in the different communications is the
question of the domination of one section of the population by another. The
resultant discrimination against black Mauritanians is, according to the
complainants (cf especially communication 54/91) the result of a negation of
the fundamental principle of the equality of peoples as stipulated in the
African Charter and constitutes a violation of its article 19. The Commission
must however admit that the information made available to it does not allow
it to establish with certainty that there has been a violation of article 19 of
the Charter along the lines alleged here. It has nevertheless identified and
condemned the existence of discriminatory practices against certain sectors
of the Mauritanian population (cf especially paragraph 164).

For these reasons, the Commission:

[143.] Declares that, during the period 1989-1992, there were grave or
massive violations of human rights as proclaimed in the African Charter; and
in particular of articles 2, 4, 5 (constituting cruel, inhuman and degrading
treatments), 6, 7(1)(a),(b),(c) and (d), 9(2), 10(1), 11, 12(1), 14, 16(1), 18(1),
[23(1)] and 26;
[The Commission] recommends to the government:
[144.] To arrange for the commencement of an independent inquiry in order
to clarify the fate of persons considered as disappeared, identify and bring to
book the authors of the violations perpetrated at the time of the facts
arraigned;
[145.] To take diligent measures to replace the national identity documents
of those Mauritanian citizens which were taken from them at the time of their
expulsion and ensure their return without delay to Mauritania as well as the
restitution of the belongings looted from them at the time of the said
expulsion; and to take the necessary steps for the reparation of the
deprivations of the victims of the above events;
[146.] To take appropriate measures to ensure payment of a compensatory
benefit to the widows and beneficiaries of the victims of the above violations;
[147.] To reinstate the rights due to the unduly dismissed and/or forcibly
retired workers, with all the legal consequences appertaining thereto;
[148.] As regards the victims of degrading practices, carry out an assessment
of the status of such practices in the country with a view to identifying with
precision the deep-rooted causes for their persistence and to put in place a
strategy aimed at their total and definitive eradication;
[149.] To take appropriate administrative measures for the effective
enforcement of Ordinance no 81-234 of 9 November 1981, on the abolition of
slavery in Mauritania;
[150.] The Commission assures the Mauritanian state of its full co-operation
and support in the application of the above measures.
340 African Commission on Human and Peoples’ Rights

Media Rights Agenda and Others v Nigeria

(2000) AHRLR 200 (ACHPR 1998)

During the Abacha dictatorship, a number of decrees purported to ‘oust’ the

jurisdiction of the courts. This decision of the Commission deals with the
implications of such ‘ouster clauses’. It also deals with ‘claw-back’ clauses
contained in the African Charter, in the context of the banning and restriction of
newspapers. A ‘claw-back’ clause is a provision in which a right is recognised
provided one abides by ‘the law’. This could create the impression that the
protection of the right in question is subject to any limitations imposed by national
law. Here, the Commission confirms as it does in other decisions, that a domestic
law limiting the right in question must comply with international standards. The
Commission also places emphasis on article 27(2) of the African Charter as setting
the standards for all limitations of rights. The Commission also states that public
officials (including the head of state) must face a higher degree of criticism than
private citizens.

1. Communications 105/93, 128/94 and 130/94 state that after the

annulment of the Nigerian elections of 12 June 1993, several decrees were
issued by the government. These proscribed the publication of two
magazines. State officials sealed the premises of the two magazines,
embarking upon frequent seizures of copies of magazines critical of its
decisions and the arrest of newspaper vendors selling such magazines.
2. By decree, the government also proscribed ten newspapers published by
four different media organisations. The complainant alleges that the
newspapers and their operators were not previously accused of any
wrongdoing either publicly or before a court of law or given any opportunity
to defend themselves before their premises were sealed up on 22 July and
they were subsequently outlawed by [the Newspapers, etc (Proscription and
Prohibition from Circulation)] Decree 48 of 1993, which was released on 16
August 1993.
3. The Constitution (Suspension and Modification) Decree no 107 of 17
November 1993 article 5 specifies:
No question as to the validity of this decree or any other decree made during the
period 31 December 1983 to 26 August 1993 or made after the commencement of
this decree or of an edict shall be entertained by a court of law in Nigeria.
4. On 16 August 1993, the government also announced the promulgation of
the Newspaper Decree no 43 of 1993. By virtue of section 7 of the decree, it
is an offence, punishable with either a fine of N250 000 or imprisonment for
a term of seven years or both for a person to own, publish or print a
newspaper not registered under the decree. The registration of existing
newspapers under a previously subsisting law (the Newspaper Act) is
extinguished by the decree.
5. The decision whether or not to register a newspaper is vested
exclusively in the Newspapers Registration Board set up under the decree.
Compliance with the formal pre-registration requirements stipulated in the
decree does not guarantee registration of a newspaper because the
Newspaper Registration Board has total discretion to decide whether the
registration of a newspaper is ‘justified having regard to the public interest’.
There are no procedures for challenging the Board’s decision not to register
a newspaper.
6. If the Board decides to register a newspaper, N100 000 must be paid as
registration fee. Furthermore, N250 000 must be deposited into a fund to
meet the amount of any penalty imposed on or damages awarded against the
owner, printer, or publisher of the newspaper by a court of law in the future.
Under the Newspapers Act (now repealed by Decree 43), a bond for N500 with
 Decisions of the African Commission 341

sureties was sufficient security for possible penalties or damages which might
be imposed on or awarded against a newspaper.
7. Although released by the government on 16 August 1993, the decree was
given a retroactive commencement date to 23 June 1993 and persons
intending to own, print or publish newspapers in Nigeria were obliged to apply
for registration within three weeks of the commencement of the decree (ie
by 14 July 1993) after complication with pre-registration requirements, thus
making all newspapers in Nigeria immediately ‘illegal’, and owners, printers
and publishers liable to be arrested and detained.
8. Communications 128/94 and 130/94 deal specifically with the events of
2 January 1994, when 50 000 copies of TELL magazine were seized by heavily
armed policemen and other security officers on the printer’s premises. In
addition, 12 films and 14 plates, used for processing, were also confiscated.
TELL is a popular weekly magazine whose aim is to promote and protect
human rights in Nigeria. That week’s issue was entitled: ‘The Return of
Tyranny — Abacha bares his fangs.’ The story involved a critical analysis of
certain legislation enacted by the military government which ousts the
jurisdiction of the courts. The complainant stated that no remedies were
available at the local level, the jurisdiction of the courts having been ousted
in considering the validity of such actions.
9. Communication 152/96 was submitted by the Constitutional Rights
Project. It states that on 23 December 1995 Mr Nosa Igiebor, the Editor in
Chief of TELL magazine was arrested and detained. The Constitutional Rights
Project alleges that he was not told the reason for his arrest and that no
charge has been made against him. Furthermore, the Constitutional Rights
Project alleges that he has been denied access to his family, doctors and
lawyers and that he has received no medical help even though his health is
deteriorating.
10. The Constitutional Rights Project also claims that TELL magazine was
declared illegal and in violation of Decree no 43 of 1993 which requires all
newspapers to register with the Newspaper Registration Board and to pay a
pre-registration fee of N250 000 and a non-refundable fee of N100 000. These
payments would be put into a fund for payment of penalties from libel actions
against the owner, publisher or printer. The Constitutional Rights Project
stated that Decree no 43 of 1993 had been declared null and void by two
different courts, namely the Ikeja High Court on 18 November 1993, and the
Lagos High Court on 5 December 1993. The Nigerian government did not
appeal against these decisions.
11. In his oral arguments before the Commission, the complainants’
representative emphasised that the government’s prerogative to make laws
for peace and good government does not entitle it to evade its obligations
under international law.

The state party’s response and observations

12. The government has made no written submissions in respect of this
communication. At the 19th session, held in March 1995 in Ouagadougou,
Burkina Faso, the government sent a delegation of several persons. Mr Chris
Osah, Assistant Director General of the Legal and Treaties Department at the
Ministry of Foreign Affairs, made the following statements in his presentation
on the communication.
13. He stated that:
Decree no 43 of1993 was made to underscore not only the government’s sovereign
rights but also its policy of free enterprise. Registration fees are payable to an
independent board. It is in the public interest that all newspaper providers or
publishers should ensure registration of their enterprises. The government is
convinced that such registration fees are reasonable and justifiable in any
342 African Commission on Human and Peoples’ Rights

democratic society. In any case, many newspapers and magazines operate

although they have not registered.
14. On the ouster of the jurisdiction of the courts, the government stated that
there is nothing particularly new about this. It is the nature of military
regimes to provide for ouster clauses, the reasons being that for a military
administration which has come in, the resources of litigation become too
cumbersome for the government to do what it wants to do.
15. As for retroactive effect, the government maintained that, although the
decree technically did have retroactive effect, not a single newspaper was
declared illegal or harassed for violating the decree.

The complaint
16. The communications allege violations of articles 6, 7, 9, 14 and 16 of the
Charter.

Procedure
...
Admissibility
47. Article 56 of the African Charter reads: ‘Communications ... shall be
considered if they: ... (5) Are sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged ...’.
48. Specifically, in four decisions the Commission has already taken
concerning Nigeria, article 56(5) is analysed in terms of the Nigerian context
...
49. All the decrees in question in the above communications contain
‘ouster’ clauses. In the case of the special tribunals, these clauses prevent
the ordinary courts from taking up cases placed before the special tribunals
or from entertaining any appeals from the decisions of the special tribunals
(communications 60/91 and 87/93). The Legal Practitioners [(Amendment)]
Decree specifies that it cannot be challenged in the courts and that anyone
attempting to do so commits a crime (communication 101/93). The
Constitution Suspension and Modification Decree prohibited them from being
challenged in the Nigerian courts (communication 129/94).
50. In all the cases cited above, the Commission found that the ouster
clauses render local remedies non-existent, ineffective or illegal. They create
a legal situation in which the judiciary can provide no check on the executive
branch of government. A few courts in the Lagos district have occasionally
found that they have jurisdiction; in 1995 the Court of Appeal in Lagos, relying
on common law, found that courts should examine some decrees
notwithstanding ouster clauses, where the decree is ‘offensive and utterly
hostile to rationality’ (reprinted in the Constitutional Rights Journal). It
remains to be seen whether any Nigerian courts will be courageous enough to
follow this holding, and whether the government will abide by their rulings
should they do so.
51. In communication 152/96 the complainant states that the Newspapers
Decree no 43 of 1993 has been declared null and void by two different courts,
but these decisions have not been respected by the government. This is a
dramatic illustration of the futility of seeking a remedy from the Nigerian
courts.
52. For these reasons, consistent with its earlier decisions, the Commission
declared the communications admissible.

Merits
53. Article 9 of the African Charter reads: ‘(1) Every individual shall have
the right to receive information. (2) Every individual shall have the right to
express and disseminate his opinions within the law.’
 Decisions of the African Commission 343

54. This article reflects the fact that freedom of expression is a basic human
right, vital to an individual’s personal development, his political
consciousness, and participation in the conduct of public affairs in his
country. The problem at hand is whether the decrees requiring the
registration of newspapers, and prohibiting many of them, violate this article.
55. A payment of a registration fee and a pre-registration deposit for
payment of penalty or damages is not in itself contrary to the right to the
freedom of expression. The government has argued that these fees are
‘justifiable in any democratic society’, and the Commission does not
categorically disagree.
56. However, the amount of the registration fee should not be more than
necessary to ensure administrative expenses of the registration, and the pre-
registration fee should not exceed the amount necessary to secure against
penalties or damages against the owner, printer or publisher of the
newspaper. Excessively high fees are essentially a restriction on the
publication of news media. In this case, the fees required for registration,
while high, are not so clearly excessive that they constitute a serious
restriction.
57. Of more concern is the total discretion and finality of the decision of the
Registration Board, which effectively gives the government the power to
prohibit publication of any newspapers or magazines they choose. This invites
censorship and seriously endangers the rights of the public to receive
information, as protected by article 9(1). There has thus been a violation of
article 9(1).
58. Also of serious concern is the retroactivity of the decree. The
government bases its defence on the non-enforcement of this aspect of the
decree. The government representative offered this defence: Article 7(2) of
the Charter is very specific: ‘no one may be condemned’, and we are saying
that no one has been condemned. Second, it says ‘no penalty may be
inflicted’. We are also submitting that there has been no penalty inflicted ...
We are even going further to say that more than 3/4 of the newspapers in
Nigeria have [not] registered and yet nobody has taken them to court.
59. While it is reassuring to hear that no one has suffered under the
retroactivity clause of the Newspapers Decree no 43, the Commission must
take a stand on the issue of justice underlying article 7(2) and condemn the
literal, minimalist interpretation of the Charter offered by the representative
of Nigeria. Article 7(2) must be read to prohibit not only condemnation and
infliction of punishment for acts which did not constitute crimes at the time
they were committed, but retroactivity itself. It is expected that citizens
must take the laws seriously. If laws change with retroactive effect, the rule
of law is undermined since individuals cannot know at any moment if their
actions are legal. For a law-abiding citizen, this is a terrible uncertainty,
regardless of the likelihood of eventual punishment.
60. Furthermore, the Commission unfortunately cannot rest total
confidence in the assurance that no one and no newspaper has yet suffered
under the retroactivity of Decree no 43. Potential prosecution is a serious
threat. An unjust but unenforced law undermines, as above, the sanctity in
which the law should be held. The Commission must thus holds that Decree
no 43 violates article 7(2).
61. Communication 152/96 states that two different courts have declared
Decree no 43 null and void, without any result.
62. This shows not only a shocking disrespect by the Nigerian government
for the judgments of the courts, it is also a violation of article 7(1). The right
to have one’s cause heard by competent and independent courts must
naturally comprise the duty of everyone, including the state, to respect and
follow these judgments.
344 African Commission on Human and Peoples’ Rights

63. [The Newspapers, etc (Proscription and Prohibition from Circulation)]

Decree no 48 proscribes approximately ten newspapers published by four
different media organisations without having subjected them to the due
process of the law. Decree no 48 likewise permitted the newspapers and their
operators to have their premises sealed without being given any opportunity
to defend themselves and without previously being accused of any
wrongdoing before a court of law.
64. The Commission decided, in its decision on communication 101/93 [Civil
Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR
186 (ACHPR 1995), paragraph 15], with respect to freedom of association,
that:
Competent authorities should not enact provisions which would limit the exercise
of this freedom. The competent authorities should not override constitutional
provisions or undermine fundamental rights guaranteed by the constitution and
international human rights standards.
65. With these words the Commission states a general principle that applies
to all rights, not only to freedom of expression. Governments should avoid
restricting rights, and have special care with regard to those rights protected
by constitutional or international human rights law. No situation justifies the
wholesale violation of human rights. In fact, general restrictions on rights
diminish public confidence in the rule of law and are often counter-
productive.
66. According to article 9(2) of the Charter, dissemination of opinions may
be restricted by law. This does not mean that national law can set aside the
right to express and disseminate one’s opinions; this would make the
protection of the right to express one’s opinions ineffective. To allow national
law to have precedent over the international law of the Charter would defeat
the purpose of the rights and freedoms enshrined in the Charter. International
human rights standards must always prevail over contradictory national law.
Any limitation on the rights of the Charter must be in conformity with the
provisions of the Charter.
67. In contrast to other international human rights instruments, the African
Charter does not contain a derogation clause. Therefore limitations on the
rights and freedoms enshrined in the Charter cannot be justified by
emergencies or special circumstances.
68. The only legitimate reasons for limitations to the rights and freedoms of
the African Charter are found in article 27(2), that is that the rights of the
Charter ‘shall be exercised with due regard to the rights of others, collective
security, morality and common interest’.
69. The reasons for possible limitations must be founded in a legitimate
state interest and the evils of limitations of rights must be strictly
proportionate with and absolutely necessary for the advantages which are to
be obtained.
70. Even more important, a limitation may never have as a consequence
that the right itself becomes illusory.
71. The government has provided no evidence that the prohibition was for
any of the above reasons given in article 27(2). Given that Nigerian law
contains all the traditional provisions for libel suits, so that individuals may
defend themselves where the need arises, for the government to proscribe a
particular publication, by name, is disproportionate and uncalled for. Laws
made to apply specifically to one individual or legal personality raise the
serious danger of discrimination and lack of equal treatment before the law
guaranteed by article 3. The proscription of The News [sic] cannot therefore
be said to be ‘within the law’ and constitutes a violation of article 9(2).
72. Communications 128/94 and 130/94 allege that 50 000 copies of TELL
magazine were seized without any possibility of having the decision judged by
a court of law, because of an article critical of the government.
 Decisions of the African Commission 345

73. In the present case, the government has provided no evidence that
seizure of the magazine was for any other reason than simple criticism of the
government. The article in question might have caused some debate and
criticism of the government, but there seems to have been no information
threatening, for example, national security or public order in it. All the
legislation criticised in the article was already known to members of the
public, as laws must be in order to be effective.
74. The only person whose reputation was perhaps tarnished by the article
was the Head of State. However, in the lack of evidence to the contrary, it
should be assumed that criticism of the government does not constitute an
attack on the personal reputation of the Head of State. People who assume
highly visible public roles must necessarily face a higher degree of criticism
than private citizens, otherwise public debate may be stifled altogether.
75. It is important for the conduct of public affairs that opinions critical of
the government be judged according to whether they represent a real danger
to national security. If the government thought that this particular article
represented merely an insult towards it or the Head of State, a libel action
would have been more appropriate than the seizure of the whole edition of
the magazine before publication. The seizure of TELL therefore amounts to a
violation of article 9(2).
76. Article 14 of the Charter reads:
The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in
accordance with the provisions of appropriate laws.
77. The government did not offer any explanation for the sealing up of the
premises of many publications. Those affected were not previously accused
in a court of law of any wrongdoing. The right to property necessarily includes
a right to have access to property of one’s own and the right not for one’s
property to be removed. The decrees which enabled these premises to be
sealed and for publications to be seized cannot be said to be ‘appropriate’ or
in the interest of the public or the community in general. The Commission
holds a violation of article 14. In addition, the seizure of the magazines for
reasons that have not been shown to be in the public need or interest also
violates the right to property.
78. In his oral argument, the complainant specifically raised the ouster of
the court’s jurisdiction over the decrees at issue here, denied the alleged
victims the right to challenge the acts which affected them. The government
offered the surprising defence that ‘[I]t is in the nature of military regimes to
provide for ouster clauses’, because without such clauses the volume of
litigation would make it ‘too cumbersome for the government to do what it
wants to do.’
79. This argument rests on the assumption that ease of government action
takes precedence over the right of citizens to challenge such action. It
neglects the central fact that the courts are a critical monitor of the legality
of government action, which no lawful government acting in good faith should
seek to evade. The courts’ ability to examine government actions and, if
necessary, halt those that violate human rights or constitutional provisions, is
an essential protection for all citizens.
80. It is true that if national tribunals are not deprived of their powers, they
will almost certainly eventually pronounce on the legality of military
government itself. The government representative’s argument implicitly
admits what the Commission has already said in its decision on communication
102/93 [Constitutional Rights Project and Another v Nigeria], which is that
military regimes rest on questionable legal ground. Government by force is in
principle not compatible with the rights of peoples to freely determine their
political future.
346 African Commission on Human and Peoples’ Rights

81. A government that governs truly in the best interest of the people,
however, should have no fears of an independent judiciary. The judiciary and
the executive branch of government should be partners in the good ordering
of society. For a government to oust the jurisdiction of the courts on a broad
scale reflects a lack of confidence in the justifiability of its own actions, and
a lack of confidence in the courts to act in accordance with the public interest
and rule of law.
82. The Commission must therefore reject the defence of ‘the nature of
military regimes’ offered by the government’s representative, and holds that
the ouster of the court’s jurisdiction violates the right to have one’s cause
heard, under article 7(1).
83. Article 6 of the African Charter reads:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.
84. Communication 152/96 alleges that Mr Nosa Igiebor was arrested and
detained without being told any reason and without any charges being made.
85. The government has offered no substantive response to this allegation.
86. The Commission, in several previous decisions, has set out the principle
that where allegations of human rights abuses go uncontested by the
government concerned, even after repeated notifications, the Commission
must decide on the facts provided by the [complainant and] treat those facts
as given ... Therefore the Commission finds that there has been a violation of
article 6.
87. Article 7 of the African Charter reads:
(1) Every individual shall have the right to have his cause heard. This comprises:
... (c) the right to defence, including the right to be defended by counsel of his
own choice ...
88. The Constitutional Rights Project alleges that Mr Nosa Igiebor was
denied access to lawyers. The government has made no response to this
allegation. Therefore the Commission must take a decision on the facts as
presented by the complainant. To be denied access to a lawyer is a violation
of article 7(1)(c) even if there were no charges against Mr Igiebor. People who
are detained in violation of the Charter must not have lesser rights that those
detained in conformity with the rules in article 7.
89. Article 16 of the African Charter reads:
(1) Every individual shall have the right to enjoy the best attainable state of
physical and mental health. (2) State parties to the present Charter shall take the
necessary measures to protect the health of their people and to ensure that they
receive medical attention when they are sick.
90. The Constitutional Rights Project alleges Mr Nosa Igiebor was denied
access to doctors and that he received no medical help even though his health
was deteriorating through his detention. The government has made no
response to this allegation. Therefore the Commission must take a decision on
the facts as presented by the complainant.
91. The responsibility of the government is heightened in cases where the
individual is in its custody and therefore someone whose integrity and well-
being is completely dependent on the activities of the authorities. To deny a
detainee access to doctors while his health is deteriorating is a violation of
article 16.

For these reasons, the Commission:

[92.] Holds a violation of article 6, [7(1)] 7(1)(c), 7(2), 9(1), 9(2), 14 and 16
of the African Charter;
[93.] Requests that the government of Nigeria take the necessary steps to
bring its law into conformity with the Charter.
 Decisions of the African Commission 347

The Nubian Community in Kenya v Kenya

[Communication 317/06 (2015)]

This case deals with discriminatory practices against the Nubian community in
Kenya. See also the decision of the African Committee on the Rights and Welfare
of the Child on children of Nubian descent in Kenya.

134. … Kenyan Nubians are unfairly discriminated against in the acquisition

of identity documents solely on account of their ethnic and religious
affiliations, which assails their dignity as human beings who are inherently
equal in dignity. This position is further supported by the findings of the
Kenyan government’s own human rights institution, the Kenya National
Commission on Human Rights, which in a study found that:
There is a strong institutionalised link between citizenship and ethnicity in the
issuance of identity cards. The Study found that the registration system applied
different and stricter rules with respect to Nubians, Kenyan Somalis and Kenyan
Arabs as opposed to other Kenyan ethnic groups. This approach offends the tenets
of equal treatment and has no place in a pluralistic and democratic society.
Denying specific ethnic groups Identity Cards is not only discriminatory; it also
enhances opportunities for rent seeking and further marginalizes these
communities.
135. In view of the above the Commission considers that the rights of Kenyan
Nubians under article 2 and 3 of the Charter have been violated.
…
150. The state’s discriminatory practices results in many Nubians who face
enormous challenges to obtain or replace their ID cards when they are lost.
Some are left altogether without an identity card (legal document required
to proof citizenship) which excludes them from the state’s juridical system.
As a result, they cannot benefit from the advantages associated with Kenyan
citizenship and are unable to enjoy a range of rights and freedoms already
outlined above.
151. By failing to take measures to prevent members of the Nubian
Community from becoming stateless and by failing to put in place fair
processes, devoid of discrimination and arbitrariness for the acquisition of
identity documents, the Commission considers that Kenya has failed to
recognize the legal status of Nubians, in violation of article 5 of the Charter.
…
165. In the present Communication, it has been submitted that Nubians have
severally been evicted from Kibera with no provision made for alternative
housing; no compensation provided to the displaced and no notice of such
evictions given to the occupants. The respondent state has not refuted any of
these allegations. It has not also shown the public interest that necessitated
these evictions nor has the legal framework within which the evictions were
carried out been advanced. It therefore appears to the Commission that
evictions were carried out without due process of law and in total disregard
of the respondent state’s international human rights obligations.
166. For the above reasons, the Commission considers that the property
rights of the Nubians in Kibera have been encroached on, in violation of
article 14 of the Charter.
…
168. The Commission has already concluded in its assessment of articles 2, 3
and 5 above that Nubians are discriminated against in acquisition of identity
documents which effectively hampers their ability to enjoy a range of rights
guaranteed in the Charter. As a result, the Commission will therefore not
examine in detail the violations consequent on this discriminatory treatment.
348 African Commission on Human and Peoples’ Rights

It suffices to note that it is common knowledge that in Kenya, those without

national identity cards cannot vote or contest for public office, cannot be
employed in the public service, and may not have access to public services
such as healthcare and education. They may also not be able to register their
marriages, may not be able to enter public buildings or open bank accounts,
and may not be able to move freely within the country and undertake a host
of other transactions that are necessary for a dignified life. All these affect
the ability of Nubians to enjoy the rights guaranteed in articles 12, 13, 15, 16
and 17 (1) of the Charter.

_____________________________________

Ouko v Kenya
(2000) AHRLR 135 (ACHPR 2000)

Here the Commission focuses on the requirements posed by the Charter in respect
of conditions of detention.

...
Merits
20. The complainant alleges that prior to his fleeing the country, he was
arrested and detained for ten months without trial at the notorious basement
cells of the Secret Service Department headquarters in Nairobi.
21. The respondent state party has not contested this claim. In fact, it has
not responded to the many requests made by the secretariat of the
Commission. In this circumstance and following its well laid down precedent
on this, the Commission accepts the facts of the complainant as the facts of
the case and finds the respondent state in violation of article 6 of the Charter.
Article 6 provides:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.
22. The complainant claims that the detention facility had a 250 watts
electric bulb, which was left on throughout his ten months detention.
Furthermore, that throughout his period of detention, he was denied
bathroom facilities and was subjected to both physical and mental torture.
23. The Commission finds the above condition which the complainant was
subjected to in contravention of the respondent state party’s obligation to
guarantee to the complainant the right to the respect of his dignity and
freedom from inhuman and degrading treatment under article 5 in violation
of the Charter. Article 5 provides:
Every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of exploitation
and degradation of man particularly slavery, slave trade, torture, cruel, inhuman
or degrading punishment and treatment shall be prohibited.
24. Such conditions and treatment also runs contrary to the minimum
standards contained in the United Nations Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment,
particularly principles 1 and 6.
25. Principle 1 provides: ‘All persons under any form of detention or
imprisonment shall be treated in a humane manner and with respect for the
inherent dignity of the human person.’ Principle 6 on the other hand states:
 Decisions of the African Commission 349

No person under any form of detention or imprisonment shall be subjected to

torture or to cruel, inhuman or degrading treatment or punishment. No
circumstance whatever may be invoked as a justification for torture or other
cruel, inhuman or degrading treatment or punishment.
26. Although the complainant has claimed a violation of his right to freedom
from torture, he has not substantiated on this claim. In the absence of such
information, the Commission cannot find a violation as alleged.
27. The complainant alleges that he was forced to flee his country because
of his political opinions. He details some of the events that led to his strained
relationship with the government. Article 9 of the African Charter provides:
‘(1) Every individual shall have the right to receive information. (2) Every
individual shall have the right to express and disseminate his opinions within
the law.’
28. The above provision guarantees to every individual the right to free
expression, within the confines of the law. Implicit in this is that if such
opinions are contrary to laid down laws, the affected individual or
government has the right to seek redress in a court of law. Herein lies the
essence of the law of defamation. This procedure has not been followed in
this particular instance. Rather the government has opted to arrest and
detain the complainant without trial and to subject him to a series of inhuman
and degrading treatments. The Commission finds this in violation of article 9
of the Charter.
...

_____________________________________

Pagnoulle (on behalf of Mazou) v Cameroon

(2000) AHRLR 57 (ACHPR 1997)

This case deals with article 7(1)(d) of the Charter which protects the right to be
tried within a reasonable time.

...
Merits
...
[19.] Mr Mazou has not yet had a judgment on his case brought before the
Supreme Court over two years ago, without being given any reason for the
delay. At the 20th session the delegation held that the case might be decided
upon by the end of October 1996, but still no news of it has been forwarded
to the Commission. Given that this case concerns Mr Mazou’s ability to work
in his profession, two years without any hearing or projected trial date
constitutes a violation of article 7(1)(d) of the African Charter.
...
350 African Commission on Human and Peoples’ Rights

Prince v South Africa

(2004) AHRLR 105 (ACHPR 2004)

In this case, the complainant alleges that his freedom of religion is violated
because he has to choose between adhering to his Rastafarian beliefs and his
professional career as a lawyer. Finding that the relevant legislation constitutes
reasonable limitations to the right, the Commission also states that the principle
of subsidiarity and the margin of appreciation doctrine does not minimise its
oversight mandate.

...
Decision on merits
28. As per the original complaint, the complainant is a 32 years old man who
wishes to become an attorney in the courts of South Africa. Having satisfied
all the academic requirements of the South African Attorney’s Act (the Act),
he applies to register a contract of community service with the Law Society
of the Cape of Good Hope (the Law Society). Under the same Act, registering
articles of clerkship or performing community service, as Mr Prince wished to
do, is another requirement that an applicant should fulfil before he or she
could be admitted as an attorney to practice before the High Court. Per the
provisions of the Act, the applicant, such as Mr Prince should serve for a
period of one year. Before serving so, however, the Act requires that the
applicant should provide proof to the satisfaction of the Law Society that he
or she is ‘fit and proper person’. In his application to the Society, and as part
of the legal requirement, Mr Prince disclosed not only that he had two
previous convictions for possession of cannabis under the Drugs and Drug
Trafficking Act (the Drugs Act) but that he intended to continue using
cannabis as inspired and required by his Rastafarian religion.
29. The Law Society declined to register Mr Prince’s contract of community
service taking the view that a person who, while having two previous
convictions for possession of cannabis, declares his intention to continue
using the substance, is not a ‘fit and proper person’ to be admitted as an
attorney. Mr Prince alleged that the Law Society’s refusal to register meant
that as long as he adhered to the requirements of his Rastafari faith, he would
never be admitted as an attorney. Accordingly, Mr Prince brought this
complaint alleging violation of articles 5, 8, 15, and 17(2) of the African
Charter. In his prayers to the African Commission, the complainant requested
the African Commission to find the respondent in violation of the said articles,
and that he be entitled to an exemption for the sacramental use of cannabis
reasonably accommodating him to manifest his beliefs in accordance with his
Rastafari religion.
...
Violation of the right to freedom of religion: Article 8 of the African
Charter
40. The complainant alleges violation of this article due to the respondent
state’s alleged proscription of the sacramental use of cannabis and for failure
to provide a religious exemption for Rastafari. The crux of his argument is that
manifestation of Rastafari religious belief, which involves the sacramental
use of cannabis, places the Rastafari in conflict with the law and puts them
at risk of arrest, prosecution and conviction for the offence of possession or
use of cannabis. While admitting the prohibition serves a rational and
legitimate purpose, he nonetheless holds that this prohibition is
disproportionate as it included within its scope the sacramental use of
cannabis by Rastafari.
 Decisions of the African Commission 351

41. Although the freedom to manifest one’s religion or belief cannot be

realised if there are legal restrictions preventing a person from performing
actions dictated by his or her convictions, it should be noted that such a
freedom does not in itself include a general right of the individual to act in
accordance with his or her belief. While the right to hold religious beliefs
should be absolute, the right to act on those beliefs should not. As such, the
right to practice one’s religion must yield to the interests of society in some
circumstances. A parent’s right to refuse medical treatment for a sick child,
for instance, may be subordinate to the state’s interest in protecting the
health, safety, and welfare of its minor children.
42. In the present case, thus, the Commission upholds the respondent
state’s restriction, which is general and happens to affect Rastafari
incidentally (de facto), along the lines of the UN Human Rights Committee,
which, in the case K Singh Bhinder v Canada (communication 208/1986)
upheld restrictions against the manner of manifestation of one’s religious
practice. That case concerned the dismissal of the complainant from his post
as maintenance electrician of the government-owned Canadian National
Railway Company. He had insisted on wearing a turban (as per the edicts of
his Sikh religion) instead of safety headgear at his work, which led to the
termination of his labour contract. The UN Human Rights Committee held:
If the requirement that a hard hat be worn is seen as a discrimination de facto
against persons of the Sikh religion under article 26, then, applying criteria now
well established in the jurisprudence of the Committee, the legislation requiring
that workers in federal employment be protected from injury and electric shock
by the wearing of hard hats is to be regarded as reasonable and directed towards
objective purposes that are compatible with the Covenant.
43. The African Commission considers that the restrictions in the two South
African legislations on the use and possession of cannabis are similarly
reasonable as they serve a general purpose and that the Charter’s protection
of freedom of religion is not absolute. The only legitimate limitations to the
rights and freedoms contained in the African Charter are found in article
27(2); ie that the rights in the African Charter ‘shall be exercised with due
regard to the rights of others, collective security, morality, and common
interest’. The limitation is inspired by well-established principle that all
human and peoples’ rights are subject to the general rule that no one has the
right to ’engage in any activity or perform any act aimed at the destruction
of any of the rights and freedoms’ recognised elsewhere. And the reasons for
possible limitations must be founded in a legitimate state interest and the
evils of limitations of rights must be strictly proportionate with and absolutely
necessary for the advantages, which are to be obtained. It is noted that the
respondent state’s interest to do away with the use of cannabis and its abuse
or trafficking stems from the fact that, and this is also admitted by the
complainant, cannabis is an undesirable dependence-producing substance.
For all intents and purposes, this constitutes a legitimate limitation on the
exercise of the right to freedom of religion within the spirit of article 27(2)
cum article 8.
44. Besides, the limitations so visited upon the complainant and his fellow
Rastafari fall squarely under article 2 of the African Charter which requires
states to ensure equal protection of the law. As the limitations are of general
application, without singling out the complainant and his fellow Rastafari but
applying to all across the board, they cannot be said discriminatory so as to
curtail the complainant’s free exercise of his religious rights.

Violation of the right to occupational choice: Article 15 of the African

Charter
45. The complainant has alleged that because of his religious beliefs, the
Law Society refused to register his contract of community service, thereby
352 African Commission on Human and Peoples’ Rights

violating his right to occupational choice. He argued that the effect of the
legal restrictions on cannabis in effect denied the Rastafari access to a
profession.
46. One purpose of this Charter provision is to ensure that states respect
and protect the right of everyone to have access to the labour market without
discrimination. The protection should be construed to allow certain
restrictions depending on the type of employment and the requirements
thereof. Given the legitimate interest the state has in restricting the use and
possession of cannabis as shown above, it is held that the complainant’s
occupational challenge can be done away with should he chose to
accommodate these restrictions. Although he has the right to choose his
occupational call, the Commission should not give him or any one a leeway to
bypass restrictions legitimately laid down for the interest of the whole
society. There is no violation, thus, of his right to choose his occupation as he
himself chose instead to disqualify himself from inclusion by choosing to
confront the legitimate restrictions.

Violation of the right to dignity and cultural life: Articles 5 and 17(2) of
the Charter
47. The complainant lists down the main characteristics for identifying the
Rastafari way of life (culture): hairstyle, dress code, dietary code, usage of
cannabis, the worship of Jah Rastafari, the Living God and others. He further
states that the critical form of social interaction amongst the followers of this
religion is the worship of the Creator, which is not possible without cannabis,
and to which the respondent state argues to the contrary.
48. The Commission notes that the participation in one’s culture should not
be at the expense of the overall good of the society. Minorities like the
Rastafari may freely choose to exercise their culture, yet, that should not
grant them unfettered power to violate the norms that keep the whole nation
together. Otherwise, as the respondent state alleged, the result would be
anarchy, which may defeat everything altogether. Given the outweighing
balance in favour of the whole society as opposed to a restricted practice of
Rastafari culture, the Commission should hold that the respondent state
violated no cultural rights of the complainant.
49. With respect to the alleged violation of the right to human dignity, the
Commission holds that the complainant’s treatment by the respondent state
does not constitute unfair treatment so as to result in his loss of self-worth
and integrity. As he or his fellow Rastafari are not the only one’s being
proscribed from the use or possession of cannabis, the complainant has no
grounds to feel devalued, marginalised, and ignored. Thus, the Commission
should find no violation of the right to dignity.

With respect to the arguments of the respondent state invoking the inter-
related principle of subsidiarity and the margin of appreciation doctrine
50. The African Commission notes the meaning attached to these doctrines
by the respondent state as outlined in its submissions to the former. 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 or 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.
51. Similarly, the margin of appreciation doctrine informs the African
Charter in that it recognises the respondent state in being better disposed in
adopting national rules, policies and guidelines in promoting and protecting
human and peoples’ rights as it indeed has direct and continuous knowledge
 Decisions of the African Commission 353

of its society, its needs, resources, economic and political situation, legal
prac-tices, and the fine balance that need to be struck between the
competing and sometimes conflicting forces that shape its society.
52. Both doctrines establish the primary competence and duty of the
respondent state to promote and protect human and peoples’ rights within its
domestic order. That is why, for instance, the African Charter, among others,
requires complainants to exhaust local remedies under its article 56. It also
gives member states the required latitude under specific articles in allowing
them to introduce limitations. The African Commission is aware of the fact
that it is a regional body and cannot, in all fairness, claim to be better
situated than local courts in advancing human and peoples’ rights in member
states.
53. That underscored, however, the African Commission does not agree
with the respondent state’s implied restrictive construction of these two
doctrines relating to the role of the African Commission, which, if not set
straight, would be tantamount to ousting the African Commission’s mandate
to monitor and oversee the implementation of the African Charter. Whatever
discretion these two doctrines may allow member states in promoting and
protecting human and peoples’ rights domestically, they do not deny the
African Commission’s mandate to guide, assist, supervise and insist upon
member states on better promotion and protection standards should it find
domestic practices wanting. They do allow member states to primarily take
charge of the implementation of the African Charter in their respective
countries. In doing so, they are informed by the trust the African Charter has
on member states to fully recognise and give effect to the rights enshrined
therein. What the African Commission would not allow, however, is a
restrictive reading of these doctrines, like that of the respondent state, which
advocates for the hands-off approach by the African Commission on the mere
assertion that its domestic procedures meet more than the minimum
requirements of the African Charter.

For these reasons, the African Commission:

• Finds no violation of the complainant’s rights as alleged.

_____________________________________

Purohit and Another v The Gambia

(2003) AHRLR 96 (ACHPR 2003)

This case was brought in regard to the legal and material conditions of detention
in a Gambian mental health institution. In its decision, the Commission finds that
requiring indigent people like the patients in this case, without legal assistance, to
exhaust local remedies in The Gambia before they may approach the Commission
is not realistic and should not be required. On the merits the Commission explores
the prohibition of discrimination on the basis of disability and the meaning of the
right to health, as provided for under the African Charter.

Summary of facts
1. The complainants are mental health advocates, submitting the
communication on behalf of patients detained at Campama, a Psychiatric Unit
of the Royal Victoria Hospital, and existing and ‘future’ mental health
354 African Commission on Human and Peoples’ Rights

patients detained under the Mental Health Acts of the Republic of The
Gambia.
...
3. The complainants allege that legislation governing mental health in The
Gambia is outdated.
4. It is alleged that within the Lunatics Detention Act (the principle
instrument governing mental health) there is no definition of who a lunatic is,
and that there are no provisions and requirements establishing safeguards
during the diagnosis, certification and detention of the patient.
5. Further, the complainants allege that there is overcrowding in the
Psychiatric Unit, no requirement of consent to treatment or subsequent
review of continued treatment.
6. The complainants also state that there is no independent examination
of administration, management and living conditions within the Unit itself.
7. The complainants also complain that patients detained in the
psychiatric unit are not even allowed to vote.
8. The complainants notify the African Commission that there is no
provision for legal aid and the Act does not make provision for a patient to
seek compensation if his or her rights have been violated.
...
Law
Admissibility
32. The issue before the African Commission is whether or not there are
domestic remedies available to the complainants in this instance.
33. The respondent state indicates that there are plans to amend the
Lunatics Detention Act, which, in other words is an admission on part of the
respondent state that the Act is imperfect and would therefore not produce
real substantive justice to the mental patients that would be detained.
34. The respondent state further submits that even though the Act itself
does not provide review or appeal procedures, there are legal procedures or
provisions in terms of the constitution that the complainants could have used
and thus sought remedies in court. However, the respondent state has
informed the African Commission that no legal assistance or aid is availed to
vulnerable groups to enable them to access the legal procedures in the
country. Only persons charged with Capital Offences get legal assistance in
accordance with the Poor Persons Defence (Capital Charge) Act.
35. In the present matter, the African Commission cannot help but look at
the nature of people that would be detained as voluntary or involuntary
patients under the Lunatics Detention Act and ask itself whether or not these
patients can access the legal procedures available (as stated by the
respondent state) without legal aid.
36. The African Commission believes that in this particular case, the general
provisions in law that would permit anybody injured by another person’s
action are available to the wealthy and those that can afford the services of
private counsel. However, it cannot be said that domestic remedies are
absent as a general statement – the avenues for redress are there if you can
afford it.
37. But the real question before this Commission is whether looking at this
particular category of persons the existent remedies are realistic. The
category of people being represented in the present communication are likely
to be people picked up from the streets or people from poor backgrounds and
as such it cannot be said that the remedies available in terms of the
Constitution are realistic remedies for them in the absence of legal aid
services.
38. If the African Commission were to literally interpret article 56(5) of the
African Charter, it might be more inclined to hold the communication
 Decisions of the African Commission 355

inadmissible. However, the view is that, even as admitted by the respondent

state, the remedies in this particular instance are not realistic for this
category of people and therefore not effective and for these reasons the
African Commission declares the communication admissible.

Merits
...
44. The complainants submit that the provisions of the Lunatics Detention
Act (LDA) condemning any person described as a ‘lunatic’ to automatic and
indefinite institutionalisation are incompatible with and violate articles 2 and
3 of the African Charter. Section 2 of the LDA defines a ‘lunatic’ as including
‘an idiot or person of unsound mind’.
45. The complainants argue further that to the extent that mental illness is
a disability, the practice of detaining persons regarded as mentally ill
indefinitely and without due process constitutes discrimination on the
analogous ground of disability.
46. Article 2 of the African Charter provides:
Every individual shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in the present Charter without distinction of any kind
such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national or social origin, fortune, birth or other status.
Article 3 of the African Charter provides: ‘(1) Every individual shall be equal
before the law; (2) Every individual shall be entitled to equal protection of
the law.’
47. In interpreting and applying the African Charter, the African Commission
relies on its own jurisprudence, and as provided by articles 60 and 61 of the
African Charter, on appropriate and relevant international and regional
human rights instruments, principles and standards.
48. The African Commission is, therefore, more than willing to accept legal
arguments with the support of appropriate and relevant international and
regional human rights instruments, principles, norms and standards taking
into account the well recognised principle of universality which was
established by the Vienna Declaration and Programme of Action of 1993 and
which declares that ‘All human rights are universal, indivisible and
interdependent, and interrelated’.
49. Articles 2 and 3 of the African Charter basically form the anti-
discrimination and equal protection provisions of the African Charter. Article
2 lays down a principle that is essential to the spirit of the African Charter and
is therefore necessary in eradicating discrimination in all its guises, while
article 3 is important because it guarantees fair and just treatment of
individuals within a legal system of a given country. These provisions are non-
derogable and therefore must be respected in all circumstances in order for
anyone to enjoy all the other rights provided for under the African Charter.
50. In their submissions to the African Commission, the respondent state
conceded that under the LDA, persons declared ‘lunatics’ do not have the
legal right to challenge the two separate medical certificates that constitute
the legal basis of their detention. However, the respondent state argued, that
in practice patients found to be insane are informed that they have a right to
ask for a review of their assessment. The respondent state further argues that
section 7(d) of the Constitution of The Gambia recognises that common law
forms part of the laws of The Gambia. Therefore, such a vulnerable group of
persons is free to seek remedies by bringing a tort action for false
imprisonment or negligence if they believe they have been wrongly diagnosed
and as a result of such diagnosis been wrongly institutionalised.
51. Furthermore, the respondent state submits that patients detained
under the LDA have every right to challenge the Act in a constitutional court
claiming that their detention under that Act deprives them of their right to
356 African Commission on Human and Peoples’ Rights

freedom of movement and association as provided for under the Constitution

of The Gambia.
52. In view of the respondent state’s submissions on the availability of legal
redress, the African Commission questioned the respondent state as to
whether legal aid or assistance would be availed to such a vulnerable group
of persons in order for them to access the legal procedures of in the country.
The respondent state informed the African Commission that only persons
charged with Capital Offences are entitled to legal assistance in accordance
with the Poor Persons Defence (Capital Charge) Act.
53. The category of persons that would be detained as voluntary or
involuntary patients under the LDA are likely to be people picked up from the
streets or people from poor backgrounds. In cases such as this, the African
Commission believes that the general provisions in law that would permit
anybody injured by another person’s act can only be available to the wealthy
and those that can afford the services of private counsel.
54. Clearly the situation presented above fails to meet the standards of
anti-discrimination and equal protection of the law as laid down under the
provisions of articles 2 and 3 of the African Charter and principle 1(4) of the
United Nations Principles for the Protection of Persons with Mental Illness and
the Improvement of Mental Illnesses and the Improvement of Mental Health
Care.
55. The complainants further submit that the legislative scheme of the LDA,
its implementation and the conditions under which persons detained under
the Act are held, constitute separately and together violations of respect for
human dignity in article 5 of the African Charter and the prohibition against
subjecting anybody to cruel, inhuman or degrading treatment as contained in
the same Charter provision.
56. Article 5 of the African Charter provides:
Every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of exploitation
and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman
or degrading punishment and treatment shall be prohibited.
57. Human dignity is an inherent basic right to which all human beings,
regardless of their mental capabilities or disabilities as the case may be, are
entitled to without discrimination. It is therefore an inherent right which
every human being is obliged to respect by all means possible and on the other
hand it confers a duty on every human being to respect this right.
58. In Media Rights Agenda v Nigeria the African Commission held that the
term ‘cruel, inhuman or degrading punishment and treatment’ is to be
interpreted so as to extend to the widest possible protection against abuses,
whether physical or mental; furthermore, in Modise v Botswana, the African
Commission stated that exposing victims to ‘personal suffering and indignity’
violates the right to human dignity. Personal suffering and indignity can take
many forms, and will depend on the particular circumstances of each
communication brought before the African Commission.
59. Under the LDA, persons with mental illness have been branded as
‘lunatics’ and ‘idiots’, terms, which without any doubt dehumanise and deny
them any form of dignity in contravention of article 5 of the African Charter.
60. In coming to this conclusion, the African Commission would like to draw
inspiration from principle 1(2) of the United Nations Principles for the
Protection of Persons with Mental Illness and the Improvement of Mental
Care. Principle 1(2) requires that ‘All persons with mental illness, or who are
being treated as such persons, shall be treated with humanity and respect for
the inherent dignity of the human person’.
61. The African Commission maintains that mentally disabled persons would
like to share the same hopes, dreams and goals and have the same rights to
pursue those hopes, dreams and goals just like any other human being. Like
 Decisions of the African Commission 357

any other human being, mentally disabled persons or persons suffering from
mental illnesses have a right to enjoy a decent life, as normal and full as
possible, a right which lies at the heart of the right to human dignity. This
right should be zealously guarded and forcefully protected by all states party
to the African Charter in accordance with the well established principle that
all human beings are born free and equal in dignity and rights.
62. The complainants also submit that the automatic detention of persons
considered ‘lunatics’ within the meaning of the LDA violates the right to
personal liberty and the prohibition of arbitrary arrest and detention in terms
of article 6 of the African Charter.
63. Article 6 of the African Charter provides:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.
64. Article 6 of the African Charter guarantees every individual, be they
disabled or not, the right to liberty and security of the person. Deprivation of
such liberty is only acceptable if it is authorised by law and is compatible with
the obligations of states parties under the African Charter. However, the
mere mention of the phrase ‘except for reasons and conditions previously laid
down by law’ in article 6 of the African Charter does not mean that any
domestic law may justify the deprivation of such persons’ freedom and
neither can a state party to the African Charter avoid its responsibilities by
recourse to the limitations and claw back clauses in the African Charter.
Therefore, any domestic law that purports to violate this right should conform
to internationally laid down norms and standards.
65. Article 6 of the African Charter further states that no one may be
arbitrarily arrested or detained. Prohibition against arbitrariness requires
among other things that deprivation of liberty shall be under the authority
and supervision of persons procedurally and substantively competent to
certify it.
66. Section 3(1) of the LDA prescribes circumstances under which mentally
disabled persons can be received into a place of detention and they are: On
submission of two certificates by persons referred to under the LDA as ‘duly
qualified medical practitioners’; Upon an order being made by and signed by
Judge of the Supreme Court, a Magistrate or any two Justices of the Peace.
67. A ‘duly qualified medical practitioner’ under the LDA has been defined
as ‘every person possessed of a qualification entitling him to be registered
and practice medicine in The Gambia’.
68. By these provisions, the LDA authorises the detention of persons
believed to be mentally ill or disabled on the basis of opinions of general
medical practitioners. Although the LDA does not lay out fixed periods of
detention for persons found to be mentally disabled, the respondent state has
submitted that in practice the length of time spent by patients in the unit
ranges from two to four weeks and that it is only in exceptional circumstances
that patients may be detained longer than this period. These exceptional
circumstances apply to mainly schizophrenics, and vagrant psychotics without
any family support and known addresses. The African Commission takes note
of the fact that such general medical practitioners may not be actual experts
in the field of mental health care and as such there is a possibility that they
could make a wrong diagnosis upon which certain persons may be
institutionalised. Additionally, because the LDA does not provide for review
or appeal procedures, persons institutionalised under such circumstances
would not be able to challenge their institutionalisation in the event of an
error or wrong diagnosis being made. Although this situation falls short of
international standards and norms, the African Commission is of the view that
it does not violate the provisions of article 6 of the African Charter because
358 African Commission on Human and Peoples’ Rights

article 6 of the African Charter was not intended to cater for situations where
persons in need of medical assistance or help are institutionalised.
69. The complainants also allege that institutionalisation of detainees under
the LDA who are not afforded any opportunity of being heard or represented
prior to or after their detention violates article 7(1)(a) and (c) of the African
Charter.
70. Article 7(1)(a) and (c) of the African Charter provides:
(1) Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts of violating his
fundamental rights as recognised and guaranteed by conventions, laws,
regulations and customs in force; ... (c) the right to defense, including the right to
be defended by counsel of his choice.
71. It is evident that the LDA does not contain any provisions for the review
or appeal against an order of detention or any remedy for detention made in
error or wrong diagnosis or treatment. Neither do the patients have the legal
right to challenge the two separate medical certificates, which constitute the
legal basis of their detention. These omissions in the LDA clearly violate
articles 7(1)(a) and (c) of the African Charter.
72. The guarantees in article 7(1) extend beyond hearings in the normal
context of judicial determinations or proceedings. Thus article 7(1)
necessitates that in circumstances where persons are to be detained, such
persons should at the very least be presented with the opportunity to
challenge the matter of their detention before the competent jurisdictions
that should have ruled on their detention. The entitlement of persons with
mental illness or persons being treated as such to be heard and to be
represented by counsel in determinations affecting their lives, livelihood,
liberty, property or status, is particularly recognised in principles 16, 17 and
18 of the UN Principles for the Protection of Persons with Mental Illness and
the Improvement of Mental Care.
73. The complainants submit that the failure of the respondent state to
provide for and enable the detainees under the LDA to exercise their civic
rights and obligations, including the right to vote, violates article 13(1) of the
African Charter which provides:
Every citizen shall have the right to participate freely in the government of his
country, either directly or through freely chosen representatives in accordance
with the provisions of the law.
74. In its earlier submissions, the respondent state admits that persons
detained at Campama are not allowed to vote because they believe that
allowing mental health patients to vote would open the country’s democratic
elections to much controversy as to the mental ability of these patients to
make an informed choice as to which candidate to vote for. Subsequently, the
respondent state in its more recent submissions suggests that there are
limited rights for some mentally disabled persons to vote; however this has
not been clearly explained.
75. The right provided for under article 13(1) of the African Charter is
extended to ‘every citizen’ and its denial can only be justified by reason of
legal incapacity or that the individual is not a citizen of a particular state.
Legal incapacity may not necessarily mean mental incapacity. For example a
state may fix an age limit for the legibility of its own citizens to participate
in its government. Legal incapacity, as a justification for denying the right
under article 13(1) can only come into play by invoking provisions of the law
that conform to internationally acceptable norms and standards.
76. The provisions of article 13(1) of the African Charter are similar in
substance to those provided for under article 25 of the International Covenant
on Civil and Political Rights. In interpreting article 13(1) of the African
Charter, the African Commission would like to endorse the clarification
provided by the Human Rights Committee in relation to article 25. The Human
 Decisions of the African Commission 359

Rights Committee has expressed that any conditions applicable to the

exercise of article 25 rights should be based on objective and reasonable
criteria established by law. Besides the view held by the respondent state
questioning the mental ability of mentally disabled patients to make informed
choices in relation to their civic duties and obligations, it is very clear that
there are no objective bases within the legal system of the respondent state
to exclude mentally disabled persons from political participation.
77. The complainants submit that the scheme and operation of the LDA both
violate the right to health provided for in article 16 of the African Charter
when read with article 18(4) of the African Charter.
78. Article 16 of the African Charter provides:
(1) Every individual shall have the right to enjoy the best attainable state of
physical and mental health; (2) State parties to the present Charter shall take the
necessary measures to protect the health of their people and to ensure that they
receive medical attention when they are sick.
79. Article 18(4) of the African Charter provides: ‘The aged and the disabled
shall also have the right to special measures of protection in keeping with
their physical or moral needs’.
80. Enjoyment of the human right to health as it is widely known is vital to
all aspects of a person’s life and well-being, and is crucial to the realisation
of all the other fundamental human rights and freedoms. This right includes
the right to health facilities, access to goods and services to be guaranteed to
all without discrimination of any kind.
81. More so, as a result of their condition and by virtue of their disabilities,
mental health patients should be accorded special treatment which would
enable them not only attain but also sustain their optimum level of
independence and performance in keeping with article 18(4) of the African
Charter and the standards applicable to the treatment of mentally ill persons
as defined in the Principles for the Protection of Persons with Mental Illness
and Improvement of Mental Health Care.
82. Under the principles, ‘mental health care’ includes analysis and
diagnosis of person’s mental condition and treatment, care and rehabilitation
for a mental illness or suspected mental illness. The principles envisage not
just ‘attainable standards’, but the highest attainable standards of health
care for the mentally ill at three levels. First, in the analysis and diagnosis of
a person’s mental condition; second, in the treatment of that mental
condition and; thirdly, during the rehabilitation of a suspected or diagnosed
person with mental health problems.
83. In the instant case, it is clear that the scheme of the LDA is lacking in
terms of therapeutic objectives as well as provision of matching resources and
programmes of treatment of persons with mental disabilities, a situation that
the respondent state does not deny but which never-the-less falls short of
satisfying the requirements laid down in articles 16 and 18(4) of the African
Charter.
84. The African Commission would however like to state that it is aware that
millions of people in Africa are not enjoying the right to health maximally
because African countries are generally faced with the problem of poverty
which renders them incapable to provide the necessary amenities,
infrastructure and resources that facilitate the full enjoyment of this right.
Therefore, having due regard to this depressing but real state of affairs, the
African Commission would like to read into article 16 the obligation on part
of states party to the African Charter to take concrete and targeted steps,
while taking full advantage of its available resources, to ensure that the right
to health is fully realised in all its aspects without discrimination of any kind.
85. The African Commission commends the respondent state’s disclosure
that there is no significant shortage of drug supplies at Campama and that in
the event that there are drug shortages, all efforts are made to alleviate the
360 African Commission on Human and Peoples’ Rights

problem. Furthermore, that it has taken steps to improve the nature of care
given to mental health patients held at Campama. The respondent state also
informed the African Commission that it is fully aware of the outdated aspects
of the LDA and has therefore long taken administrative steps to complement
and/or reform the archaic parts of the LDA. This is however not enough
because the rights and freedoms of human beings are at stake. Persons with
mental illnesses should never be denied their right to proper health care,
which is crucial for their survival and their assimilation into and acceptance
by the wider society.

For the above reasons, the African Commission:

• Finds the Republic of The Gambia in violation of articles 2, 3, 5, 7 (1)(a)
and (c), 13(1), 16 and 18(4) of the African Charter.
• Strongly urges the government of The Gambia to: (a) Repeal the Lunatics
Detention Act and replace it with a new legislative regime for mental health
in The Gambia compatible with the African Charter on Human and Peoples’
Rights and international standards and norms for the protection of mentally
ill or disabled persons as soon as possible; (b) Pending (a), create an expert
body to review the cases of all persons detained under the Lunatics
Detention Act and make appropriate recommendations for their treatment
or release; (c) Provide adequate medical and material care for persons
suffering from mental health problems in the territory of The Gambia;
• Requests the government of The Gambia to report back to the African
Commission when it submits its next periodic report in terms of article 62 of
the African Charter on measures taken to comply with the recommendations
and directions of the African Commission in this decision.

_____________________________________

Shumba v Zimbabwe
[Communication 288/2004 (2012)]

In this case the Commission finds that the complainant who alleged that he had
been tortured in Zimbabwe and therefore fled the county did not have to return to
Zimbabwe to exhaust local remedies.

...
39. Article 56(6) of the African Charter provides that ‘communications ...
received by the Commission shall be considered if they: are submitted within
a reasonable period from the time local remedies are exhausted, or from the
date the Commission is seized with the matter.’
...
44. Indeed, as the respondent state has noted, the African Commission has
not specified what a reasonable period is but it is apparent from its practice
that it has tended to be flexible and as such, determines this question on a
case-by-case basis. For instance, in several communications, the African
Commission has admitted communications that have been brought before the
African Commission more than 16 months after the violation is reported to
have taken place or domestic remedies were exhausted. Consequently, the
African Commission believes that the complainant in the present
communication having filed the communication 16 months after the violation
took place, met the conditions laid down in article 56(6) of the African
Charter.
...
 Decisions of the African Commission 361

56. The African Commission has held in several of its decisions that the
rationale of the rule to exhaust local remedies is to allow the state concerned
an opportunity to remedy a grievance through its own domestic legal system.
However, the African Commission has gone ahead to state that it will not hold
this requirement to apply literally in cases where it is impracticable or
undesirable for the complainant to seize the domestic courts. Accordingly,
the African Commission in Jawara v The Gambia stated that for a complainant
to be able to exhaust local remedies, such remedies must meet three basic
criteria — they must be available, effective and sufficient The African
Commission went on to state with respect to that case that, if the availability
of a remedy is not evident it ‘cannot be invoked by the State to the detriment
of the complainant’.
...
64. The African Commission was informed by the respondent state (a claim
the complainant has not denied or challenged) that the complainant left
Zimbabwe on or about 17 January 2003. He returned to Zimbabwe on
4 February 2003. He made a court appearance on 5 February 2003 and
subsequently left Zimbabwe on the same day and never returned ...
77. ... there can be particular circumstances which justify the application
of the constructive exhaustion of domestic remedies rule to an individual,
where it is established that the remedies are neither adequate, effective nor
available. In this particular case, in spite of the complainant’s two day
presence in Zimbabwe, and in view of the allegation of torture, it is
abundantly clear that bearing the experience by the said Mark Chavunduka
and Ray Choto, the remedies available to the complainant are inadequate,
ineffective, unavailable and would not be accessed without a lot of
impediments, including the possible incarceration of the complainant for the
criminal charges which in all fairness would have taken precedence over his
personal claim against torture. Had he remained in Zimbabwe, there was no
guarantee that he would not have been arrested, nor would he be subjected
to the same treatment he had been subjected to the previous time, thus
fleeing after the two days brought him within the constructive exhaustion
rule.
...
159. The African Commission agrees that the complainant has submitted
more than adequate evidence to support the victim’s allegations of torture
and ill-treatment, which at least should have prompted an official
investigation. The African Commission also agrees with the complainant that
in seeking to refute the allegations, it is not sufficient for the respondent
state to simply argue that they are unsubstantiated when they are supported
by range of documentation. Rather, the respondent state must provide
evidence to the contrary.
362 African Commission on Human and Peoples’ Rights

Social and Economic Rights Action Centre (SERAC) and

Another v Nigeria
(2001) AHRLR 60 (ACHPR 2001)

This is probably the best known case of the African Commission, and is reprinted
here in full. The complaint concerns the consequences of environmental
degradation in Ogoniland (in the Niger Delta of Nigeria) caused by Shell
Corporation in collusion with the Nigerian government. In its decision the
Commission deals with the obligation of the state to ensure the realisation of rights
(also by private parties). The decision also deals with socio-economic rights
provided for in the African Charter, and finds some ‘implied socio-economic rights’
in the Charter.

Summary of facts
1. The communication alleges that the military government of Nigeria has
been directly involved in oil production through the state oil company, the
Nigerian National Petroleum Company (NNPC), the majority shareholder in a
consortium with Shell Petroleum Development Corporation (SPDC), and that
these operations have caused environmental degradation and health
problems resulting from the contamination of the environment among the
Ogoni people.
2. The communication alleges that the oil consortium has exploited oil
reserves in Ogoniland with no regard for the health or environment of the
local communities, disposing toxic wastes into the environment and local
waterways in violation of applicable international environmental standards.
The consortium also neglected and/or failed to maintain its facilities causing
numerous avoidable spills in the proximity of villages. The resulting
contamination of water, soil and air has had serious short- and long-term
health impacts, including skin infections, gastrointestinal and respiratory
ailments, increased risk of cancers, and neurological and reproductive
problems.
3. The communication alleges that the Nigerian government has condoned
and facilitated these violations by placing the legal and military powers of the
state at the disposal of the oil companies. The communication contains a
memo from the Rivers State Internal Security Task Force, calling for ‘ruthless
military operations’.
4. The communication alleges that the government has neither monitored
the operations of the oil companies nor required safety measures that are
standard procedure within the industry. The government has withheld from
the Ogoni communities information on the dangers created by oil activities.
Ogoni communities have not been involved in the decisions affecting the
development of Ogoniland.
5. The government has not required oil companies or its own agencies to
produce basic health and environmental impact studies regarding hazardous
operations and materials relating to oil production, despite the obvious health
and environmental crisis in Ogoniland. The government has even refused to
permit scientists and environmental organisations from entering Ogoniland to
undertake such studies. The government has also ignored the concerns of
Ogoni communities regarding oil development, and has responded to protests
with massive violence and executions of Ogoni leaders.
6. The communication alleges that the Nigerian government does not
require oil companies to consult communities before beginning operations,
even if the operations pose direct threats to community or individual lands.
 Decisions of the African Commission 363

7. The communication alleges that in the course of the last three years,
Nigerian security forces have attacked, burned and destroyed several Ogoni
villages and homes under the pretext of dislodging officials and supporters of
the Movement of the Survival of Ogoni People (MOSOP). These attacks have
come in response to MOSOP’s non-violent campaign in opposition to the
destruction of their environment by oil companies. Some of the attacks have
involved uniformed combined forces of the police, the army, the air force,
and the navy, armed with armoured tanks and other sophisticated weapons.
In other instances, the attacks have been conducted by unidentified gunmen,
mostly at night. The military-type methods and the calibre of weapons used
in such attacks strongly suggest the involvement of the Nigerian security
forces. The complete failure of the government of Nigeria to investigate these
attacks, let alone punish the perpetrators, further implicates the Nigerian
authorities.
8. The Nigerian army has admitted its role in the ruthless operations which
have left thousands of villagers homeless. The admission is recorded in
several memos exchanged between officials of the SPDC and the Rivers State
Internal Security Task Force, which has devoted itself to the suppression of
the Ogoni campaign. One such memo calls for ‘ruthless military operations’
and ‘wasting operations coupled with psychological tactics of displacement’.
At a public meeting recorded on video, Major Okuntimo, head of the Task
Force, described the repeated invasion of Ogoni villages by his troops, how
unarmed villagers running from the troops were shot from behind, and the
homes of suspected MOSOP activists were ransacked and destroyed. He stated
his commitment to rid the communities of members and supporters of MOSOP.
9. The communication alleges that the Nigerian government has destroyed
and threatened Ogoni food sources through a variety of means. The
government has participated in irresponsible oil development that has
poisoned much of the soil and water upon which Ogoni farming and fishing
depended. In their raids on villages, Nigerian security forces have destroyed
crops and killed farm animals. The security forces have created a state of
terror and insecurity that has made it impossible for many Ogoni villagers to
return to their fields and animals. The destruction of farm lands, rivers, crops
and animals has created malnutrition and starvation among certain Ogoni
communities.

The complaint
10. The communication alleges violations of articles 2, 4, 14, 16, 18(1), 21
and 24 of the African Charter.

Procedure
11. The communication was received by the Commission on 14 March 1996.
The documents were sent with a video.
12. On 13 August 1996 letters acknowledging receipt of the communication
were sent to both complainants.
13. On 13 August 1996, a copy of the communication was sent to the
government of Nigeria.
14. At the 20th ordinary session held in Grand Bay, Mauritius, in October
1996, the Commission declared the communication admissible, and decided
that it would be taken up with the relevant authorities by the planned mission
to Nigeria.
15. On 10 December 1996, the Secretariat sent a note verbale and letters
to this effect to the government and the complainants respectively.
16. At its 21st ordinary session held in April 1997, the Commission postponed
taking a decision on the merits to the next session, pending the receipt of
364 African Commission on Human and Peoples’ Rights

written submissions from the complainants to assist it in its decision. The

Commission also awaits further analysis of its report of the mission to Nigeria.
17. On 22 May 1997, the complainants were informed of the Commission’s
decision, while the state was informed on 28 May 1997.
18. At the 22nd ordinary session, the Commission postponed taking a
decision on the case pending the discussion of the Nigerian mission report.
19. At the 23rd ordinary session held in Banjul, The Gambia, the Commission
postponed consideration of the case to the next session owing to lack of time.
20. On 25 June 1998, the Secretariat of the Commission sent letters to all
parties concerned informing them of the status of the communication.
21. At the 24th ordinary session, the Commission postponed consideration
of the above communication to the next session.
22. On 26 November 1998, the parties were informed of the Commission’s
decision.
23. At the 25th ordinary session of the Commission held in Bujumbura,
Burundi, the Commission further postponed consideration of this
communication to the 26th ordinary session.
24. The above decision was conveyed through separate letters of 11 May
1999 to the parties.
25. At its 26th ordinary session held in Kigali, Rwanda, the Commission
deferred taking a decision on the merits of the case to the next session.
26. This decision was communicated to the parties on 24 January 2000.
27. Following the request of the Nigerian authorities through a note verbale
of 16 February 2000 on the status of pending communications, the
Secretariat, among other things, informed the government that this
communication was set down for a decision on the merits at the next session.
28. At the 27th ordinary session of the Commission, held in Algeria from 27
April to 11 May 2000, the Commission deferred further consideration of the
case to the 28th ordinary session.
29. The above decision was communicated to the parties on 12 July 2000.
30. At the 28th ordinary session of the Commission held in Cotonou, Benin,
from 26 October to 6 November 2000, the Commission deferred further
consideration of the case to the next session. During that session, the
respondent state submitted a note verbale describing the actions taken by the
government of the Federal Republic of Nigeria in respect of all the
communications filed against it, including the present one. In respect of the
instant communication, the note verbale admitted the gravamen of the
complaints but went on to describe the remedial measures being taken by the
new civilian administration. They included:
• Establishing, for the first time in the history of Nigeria, a Federal Ministry
of Environment with adequate resources to address environment-related
issues prevalent in Nigeria and as a matter of priority in the Niger delta
area
• Enacting into law the establishment of the Niger Delta Development
Commission (NDDC) with adequate funding to address the environmental
and social problems of the Niger delta area and other oil producing areas
of Nigeria
• Inaugurating the Judicial Commission of Inquiry to investigate the issues
of human rights violations. In addition, the representatives of the Ogoni
people have submitted petitions to the Commission of Inquiry on these
issues and these are presently being reviewed in Nigeria as a top priority.
31. The above decision was communicated to the parties on 14 November
2000.
32. At the 29th ordinary session held in Tripoli, Libya, from 23 April to 7 May
2001, the Commission decided to defer the final consideration of the case to
the next session to be held in Banjul, The Gambia, in October 2001.
33. The above decision was communicated to the parties on 6 June 2001.
 Decisions of the African Commission 365

34. At its 30th session held in Banjul, The Gambia, from 13 to 27 October
2001, the African Commission reached a decision on the merits of this
communication.

Law
Admissibility
35. Article 56 of the African Charter governs admissibility. All of the
conditions of this article are met by the present communication. Only the
exhaustion of local remedies requires close scrutiny.
36. Article 56(5) requires that local remedies, if any, be exhausted, unless
these are unduly prolonged.
37. One purpose of the exhaustion of local remedies requirement is to give
the domestic courts an opportunity to decide upon cases before they are
brought to an international forum, thus avoiding contradictory judgments of
law at the national and international levels. Where a right is not covered by
domestic law, it is unlikely that the case will be heard. Thus the potential of
conflict does not arise. Likewise, if the right is not acknowledged, there
cannot be effective remedial action or any remedial action at all.
38. Another rationale for the exhaustion requirement is that a government
should be notified of a human rights violation in order to have the opportunity
to remedy such violation before being called to account by an international
tribunal. (See the Commission’s decision on communications 25/89, 47/90,
56/91 and 100/93 [Free Legal Assistance Group and Others v Zaire (2000)
AHRLR 74 (ACHPR 1995)]). The exhaustion of domestic remedies requirement
should be properly understood to ensure that the state concerned has ample
opportunity to remedy the situation pertaining to the applicant’s complaint.
It is unnecessary here to recount the international attention that Ogoniland
has received as proof that the Nigerian government has had ample notice and,
over the past several decades, more than sufficient opportunity to rectify the
situation.
39. Requiring the exhaustion of local remedies also ensures that the African
Commission does not become a tribunal of first instance for cases for which
an effective domestic remedy exists.
40. The present communication does not contain any information on
domestic court actions brought by the complainants to halt the violations
alleged. However, on numerous occasions the Commission brought the
complaint to the attention of the government at the time, but no response
was made to the Commission’s requests. In such cases the Commission has
held that in the absence of a substantive response from the respondent state
it must decide on the facts provided by the complainants and treat them as
given. (See communications 25/89, 47/90, 56/91, 100/93 [Free Legal
Assistance Group and Others v Zaire (2000) AHRLR 74 (ACHPR 1995)], 60/91
Constitutional Right Project (in respect of Akamu) v Nigeria [(2000) AHRLR
180 (ACHPR 1995)] and communication 101/93 Civil Liberties Organisation v
Nigeria [(2000) AHRLR 186 (ACHPR 1995)]).
41. The Commission takes cognisance of the fact that the Federal Republic
of Nigeria has incorporated the African Charter on Human and Peoples’ Rights
into its domestic law with the result that all the rights contained therein can
be invoked in Nigerian courts including those violations alleged by the
complainants. However, the Commission is aware that at the time of
submitting this communication, the then military government of Nigeria had
enacted various decrees ousting the jurisdiction of the courts and thus
depriving the people in Nigeria of the right to seek redress in the courts for
acts of government that violate their fundamental human rights. In such
instances, and as in the instant communication, the Commission is of the view
366 African Commission on Human and Peoples’ Rights

that no adequate domestic remedies are existent (see communication 129/94

Civil Liberties Organisation v Nigeria [(2000) AHRLR 188 (ACHPR 1995)]).
42. It should also be noted that the new government in their note verbale
referenced 127/2000 submitted at the 28th session of the Commission held in
Cotonou, Benin, admitted to the violations committed then by stating:
There is no denying the fact that a lot of atrocities were and are still being
committed by the oil companies in Ogoni Land and indeed in the Niger Delta area.
The Commission therefore declared the communication admissible.

Merits
43. The present communication alleges a concerted violation of a wide
range of rights guaranteed under the African Charter for Human and Peoples’
Rights. Before we venture into the inquiry whether the government of Nigeria
has violated the said rights as alleged in the complaint, it would be proper to
establish what is generally expected of governments under the Charter and
more specifically vis-à-vis the rights themselves.
44. Internationally accepted ideas of the various obligations engendered by
human rights indicate that all rights — both civil and political rights and social
and economic — generate at least four levels of duties for a state that
undertakes to adhere to a rights regime, namely the duty to respect, protect,
promote and fulfill these rights. These obligations universally apply to all
rights and entail a combination of negative and positive duties. As a human
rights instrument, the African Charter is not alien to these concepts and the
order in which they are dealt with here is chosen as a matter of convenience
and should in no way imply the priority accorded to them. Each level of
obligation is equally relevant to the rights in question.
45. Firstly, the obligation to respect entails that the state should refrain
from interfering in the enjoyment of all fundamental rights; it should respect
right-holders, their freedoms, autonomy, resources, and liberty of their
action. With respect to socio-economic rights, this means that the state is
obliged to respect the free use of resources owned or at the disposal of the
individual alone or in any form of association with others, including the
household or the family, for the purpose of rights-related needs. And with
regard to a collective group, the resources belonging to it should be
respected, as it has to use the same resources to satisfy its needs.
46. Secondly, the state is obliged to protect right-holders against other
subjects by legislation and provision of effective remedies. This obligation
requires the state to take measures to protect beneficiaries of the protected
rights against political, economic and social interferences. Protection
generally entails the creation and maintenance of an atmosphere or
framework by an effective interplay of laws and regulations so that
individuals will be able to freely realise their rights and freedoms. This
corresponds to a large degree with the third obligation of the state to
promote the enjoyment of all human rights. The state should make sure that
individuals are able to exercise their rights and freedoms, for example, by
promoting tolerance, raising awareness, and even building infrastructures.
47. The last obligation requires the state to fulfil the rights and freedoms it
freely undertook under the various human rights regimes. It is more of a
positive expectation on the part of the state to move its machinery towards
the actual realisation of the rights. This also corresponds to a large degree
with the duty to promote mentioned in the preceding paragraph. It could
comprise the direct provision of basic needs such as food or resources that can
be used for food (direct food aid or social security).
48. Thus states are generally burdened with the above set of duties when
they commit themselves under human rights instruments. Emphasising the all-
embracing nature of the obligations, the International Covenant on Economic,
 Decisions of the African Commission 367

Social and Cultural Rights, for instance, under article 2(1), stipulates
explicitly that states ‘undertake to take steps ... by all appropriate means,
including particularly the adoption of legislative measures’. Depending on the
type of rights under consideration, the level of emphasis in the application of
these duties varies. Sometimes the need meaningfully to enjoy some of the
rights demands a concerted action from the state in terms of more than one
of the said duties. Whether the government of Nigeria has, by its conduct,
violated the provisions of the African Charter as claimed by the complainants
is examined below.
49. In accordance with articles 60 and 61 of the African Charter, this
communication is examined in the light of the provisions of the African
Charter and the relevant international and regional human rights instruments
and principles. The Commission thanks the two human rights NGOs which
brought the matter under its purview: the Social and Economic Rights Action
Centre (Nigeria) and the Centre for Economic and Social Rights (USA). This is
a demonstration of the usefulness to the Commission and individuals of actio
popularis, which is wisely allowed under the African Charter. It is a matter of
regret that the only written response from the government of Nigeria is an
admission of the gravity of the complaints which is contained in a note
verbale and which we have reproduced above at paragraph 30. In the
circumstances, the Commission is compelled to proceed with the examination
of the matter on the basis of the uncontested allegations of the complainants,
which are consequently accepted by the Commission.
50. The complainants allege that the Nigerian government violated the right
to health and the right to a clean environment as recognised under articles 16
and 24 of the African Charter by failing to fulfil the minimum duties required
by these rights. This, the complainants allege, the government has done by:
• Directly participating in the contamination of air, water and soil and
thereby harming the health of the Ogoni population
• Failing to protect the Ogoni population from the harm caused by the
NNPC Shell Consortium but instead using its security forces to facilitate
the damage
• Failing to provide or permit studies of potential or actual environmental
and health risks caused by the oil operations, article 16 of the African
Charter reads:
(1) Every individual shall have the right to enjoy the best attainable state of
physical and mental health. (2) States parties to the present Charter shall take the
necessary measures to protect the health of their people and to ensure that they
receive medical attention when they are sick.
Article 24 of the African Charter reads: ‘All peoples shall have the right to a
general satisfactory environment favourable to their development.’
51. These rights recognise the importance of a clean and safe environment
that is closely linked to economic and social rights in so far as the environment
affects the quality of life and safety of the individual. As has been rightly
observed by Alexander Kiss:
An environment degraded by pollution and defaced by the destruction of all
beauty and variety is as contrary to satisfactory living conditions and the
development of personality as the breakdown of the fundamental ecologic
equilibria is harmful to physical and moral health.
52. The right to a general satisfactory environment, as guaranteed under
article 24 of the African Charter or the right to a healthy environment, as it
is widely known, therefore imposes clear obligations upon a government. It
requires the state to take reasonable and other measures to prevent pollution
and ecological degradation, to promote conservation, and to secure an
ecologically sustainable development and use of natural resources. Article 12
of the International Covenant on Economic, Social and Cultural Rights
(ICESCR), to which Nigeria is a party, requires governments to take necessary
steps for the improvement of all aspects of environmental and industrial
368 African Commission on Human and Peoples’ Rights

hygiene. The right to enjoy the best attainable state of physical and mental
health enunciated in article 16(1) of the African Charter and the right to a
generally satisfactory environment favourable to development (article [24])
already noted, obligate governments to desist from directly threatening the
health and environment of their citizens. The state is under an obligation to
respect these rights and this largely entails non-interventionist conduct from
the state; for example, to desist from carrying out, sponsoring or tolerating
any practice, policy or legal measures violating the integrity of the individual.
53. Government compliance with the spirit of articles 16 and 24 of the
African Charter must also include ordering or at least permitting independent
scientific monitoring of threatened environments, requiring and publicising
environmental and social impact studies prior to any major industrial
development, undertaking appropriate monitoring and providing information
to those communities exposed to hazardous materials and activities and
providing meaningful opportunities for individuals to be heard and to
participate in the development decisions affecting their communities.
54. We now examine the conduct of the government of Nigeria in relation
to articles 16 and 24 of the African Charter. Undoubtedly and admittedly, the
government of Nigeria, through NNPC has the right to produce oil, the income
from which will be used to fulfil the economic and social rights of Nigerians.
However, the care that should have been taken as outlined in the preceding
paragraph and which would have protected the rights of the victims of the
violations complained of was not taken. To exacerbate the situation, the
security forces of the government engaged in conduct in violation of the rights
of the Ogonis by attacking, burning and destroying several Ogoni villages and
homes.
55. The complainants also allege a violation of article 21 of the African
Charter by the government of Nigeria. The complainants allege that the
military government of Nigeria was involved in oil production and thus did not
monitor or regulate the operations of the oil companies and in so doing paved
the way for the oil consortiums to exploit oil reserves in Ogoniland.
Furthermore, in all their dealings with the oil consortiums, the government
did not involve the Ogoni communities in the decisions that affected the
development of Ogoniland. The destructive and selfish role played by oil
development in Ogoniland, along with repressive tactics of the Nigerian
government, and the lack of material benefits accruing to the local
population, may well be said to constitute a violation of article 21. Article 21
provides:
(1) All peoples shall freely dispose of their wealth and natural resources. This right
shall be exercised in the exclusive interest of the people. In no case shall a people
be deprived of it. (2) In case of spoliation the dispossessed people shall have the
right to the lawful recovery of its property as well as to an adequate
compensation. (3) The free disposal of wealth and natural resources shall be
exercised without prejudice to the obligation of promoting international economic
co-operation based on mutual respect, equitable exchange and the principles of
international law. (4) States parties to the present Charter shall individually and
collectively exercise the right to free disposal of their wealth and natural
resources with a view to strengthening African unity and solidarity. (5) States
parties to the present Charter shall undertake to eliminate all forms of foreign
economic exploitation particularly that practised by international monopolies so
as to enable their peoples to fully benefit from the advantages derived from their
national resources.
56. The origin of this provision may be traced to colonialism, during which
the human and material resources of Africa were largely exploited for the
benefit of outside powers, creating tragedy for Africans themselves, depriving
them of their birthright and alienating them from the land. The aftermath of
colonial exploitation has left Africa’s precious resources and people still
vulnerable to foreign misappropriation. The drafters of the Charter obviously
wanted to remind African governments of the continent’s painful legacy and
 Decisions of the African Commission 369

restore cooperative economic development to its traditional place at the

heart of African society.
57. Governments have a duty to protect their citizens, not only through
appropriate legislation and effective enforcement, but also by protecting
them from damaging acts that may be perpetrated by private parties (see
[Commission Nationale des Droits de l’Homme et des Libertés v Chad (2000)
AHRLR 66 (ACHPR 1995)]). This duty calls for positive action on the part of
governments in fulfilling their obligation under human rights instruments. The
practice before other tribunals also enhances this requirement as is
evidenced in the case Velàsquez Rodríguez v Honduras. In this landmark
judgment, the Inter-American Court of Human Rights held that when a state
allows private persons or groups to act freely and with impunity to the
detriment of the rights recognised, it would be in clear violation of its
obligations to protect the human rights of its citizens. Similarly, this
obligation of the state is further emphasised in the practice of the European
Court of Human Rights, in X and Y v Netherlands. In that case, the Court
pronounced that there was an obligation on authorities to take steps to make
sure that the enjoyment of the rights is not interfered with by any other
private person.
58. The Commission notes that in the present case, despite its obligation to
protect persons against interferences in the enjoyment of their rights, the
government of Nigeria facilitated the destruction of the Ogoniland. Contrary
to its Charter obligations and despite such internationally established
principles, the Nigerian government has given the green light to private
actors, and the oil companies in particular, to devastatingly affect the well-
being of the Ogonis. By any measure of standards, its practice falls short of
the minimum conduct expected of governments, and therefore, is in violation
of article 21 of the African Charter.
59. The complainants also assert that the military government of Nigeria
massively and systematically violated the right to adequate housing of
members of the Ogoni community under article 14 and implicitly recognised
by articles 16 and 18(1) of the African Charter. Article 14 of the Charter reads:
The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in
accordance with the provisions of appropriate laws.
Article 18(1) provides: ‘The family shall be the natural unit and basis of
society. It shall be protected by the state ...’.
60. Although the right to housing or shelter is not explicitly provided for
under the African Charter, the corollary of the combination of the provisions
protecting the right to enjoy the best attainable state of mental and physical
health, cited under article 16 above, the right to property, and the protection
accorded to the family forbids the wanton destruction of shelter because
when housing is destroyed, property, health and family life are adversely
affected. It is thus noted that the combined effect of articles 14, 16 and 18(1)
reads into the Charter a right to shelter or housing which the Nigerian
government has apparently violated.
61. At a very minimum, the right to shelter obliges the Nigerian government
not to destroy the housing of its citizens and not to obstruct efforts by
individuals or communities to rebuild lost homes. The state’s obligation to
respect housing rights requires it, and thereby all of its organs and agents, to
abstain from carrying out, sponsoring or tolerating any practice, policy or
legal measure violating the integrity of the individual or infringing upon his or
her freedom to use those material or other resources available to him or her
in a way he or she finds most appropriate to satisfy individual, family,
household or community housing needs. Its obligations to protect obliges it to
prevent the violation of any individual’s right to housing by any other
370 African Commission on Human and Peoples’ Rights

individual or non-state actors like landlords, property developers, and

landowners, and where such infringements occur, it should act to preclude
further deprivations as well as guaranteeing access to legal remedies. The
right to shelter even goes further than a roof over one’s head. It extends to
embody the individual’s right to be left alone and to live in peace — whether
under a roof or not.
62. The protection of the rights guaranteed in articles 14, 16 and 18(1) leads
to the same conclusion. As regards the earlier right, and in the case of the
Ogoni people, the government of Nigeria has failed to fulfil these two
minimum obligations. The government has destroyed Ogoni houses and
villages and then, through its security forces, obstructed, harassed, beaten
and, in some cases, shot and killed innocent citizens who have attempted to
return to rebuild their ruined homes. These actions constitute massive
violations of the right to shelter, in violation of articles 14, 16, and 18(1) of
the African Charter.
63. The particular violation by the Nigerian government of the right to
adequate housing as implicitly protected in the Charter also encompasses the
right to protection against forced evictions. The African Commission draws
inspiration from the definition of the term ‘forced evictions’ by the
Committee on Economic, Social and Cultural Rights which defines this term
as ‘the permanent removal against their will of individuals, families and/or
communities from the homes and/or which they occupy, without the
provision of, and access to, appropriate forms of legal or other protection’.
Wherever and whenever they occur, forced evictions are extremely
traumatic. They cause physical, psychological and emotional distress; they
entail losses of means of economic sustenance and increase impoverishment.
They can also cause physical injury and in some cases sporadic deaths.
Evictions break up families and increase existing levels of homelessness. In
this regard, General Comment no 4 (1991) of the Committee on Economic,
Social and Cultural Rights on the right to adequate housing states that ‘... all
persons should possess a degree of security of tenure which guarantees legal
protection against forced eviction, harassment and other threats.’ (E/1992/
23, annex III, paragraph 8(a)). The conduct of the Nigerian government clearly
demonstrates a violation of this right enjoyed by the Ogonis as a collective
right.
64. The communication argues that the right to food is implicit in the
African Charter, in such provisions as the right to life (article 4), the right to
health (article 16) and the right to economic, social and cultural development
(article 22). By its violation of these rights, the Nigerian government
disregarded not only the explicitly protected rights but also upon the right to
food implicitly guaranteed.
65. The right to food is inseparably linked to the dignity of human beings
and is therefore essential for the enjoyment and fulfilment of such other
rights as health, education, work and political participation. The African
Charter and international law require and bind Nigeria to protect and improve
existing food sources and to ensure access to adequate food for all citizens.
Without touching on the duty to improve food production and to guarantee
access, the minimum core of the right to food requires that the Nigerian
government should not destroy or contaminate food sources. It should not
allow private parties to destroy or contaminate food sources, and prevent
peoples’ efforts to feed themselves.
66. The government’s treatment of the Ogonis has violated all three
minimum duties of the right to food. The government has destroyed food
sources through its security forces and state oil company; has allowed private
oil companies to destroy food sources; and, through terror, has created
significant obstacles to Ogoni communities trying to feed themselves. The
 Decisions of the African Commission 371

Nigerian government has again fallen short of what is expected of it as under

the provisions of the African Charter and international human rights
standards, and hence, is in violation of the right to food of the Ogonis.
67. The complainants also allege that the Nigerian government has violated
article 4 of the Charter which guarantees the inviolability of human beings
and everyone’s right to life and that the integrity of the person will be
respected. Given the widespread violations perpetrated by the government of
Nigeria and private actors (be it with its blessing or not), the most
fundamental of all human rights, the right to life has been violated. The
security forces were given the green light to deal decisively with the Ogonis,
which was illustrated by the widespread terrorisations and killings. The
pollution and environmental degradation to a level humanly unacceptable has
made living in Ogoniland a nightmare. The survival of the Ogonis depended on
their land and farms that were destroyed by the direct involvement of the
government. These and similar atrocities not only persecuted individuals in
Ogoniland but also the Ogoni community as a whole. They affected the life of
the whole of the Ogoni society. The Commission conducted a mission to
Nigeria from 7–14 March 1997 and witnessed firsthand the deplorable
situation in Ogoniland including the environmental degradation.
68. The uniqueness of the African situation and the special qualities of the
African Charter on Human and Peoples’ Rights imposes upon the African
Commission an important task. International law and human rights must be
responsive to African circumstances. Clearly, collective rights, environmental
rights, and economic and social rights are essential elements of human rights
in Africa. The African Commission will apply any of the diverse rights
contained in the African Charter. It welcomes this opportunity to make clear
that there is no right in the African Charter that cannot be made effective. As
indicated in the preceding paragraphs, however, the Nigerian government did
not live up to the minimum expectations of the African Charter.
69. The Commission does not wish to fault governments that are labouring
under difficult circumstances to improve the lives of their people. The
situation of the people of Ogoniland, however, requires, in the view of the
Commission, a reconsideration of the government’s attitude to the
allegations contained in the instant communication. The intervention of
multinational corporations may be a potentially positive force for
development if the state and the people concerned are ever mindful of the
common good and the sacred rights of individuals and communities. The
Commission however takes note of the efforts of the present civilian
administration to redress the atrocities that were committed by the previous
military administration as illustrated in the note verbale referred to in
paragraph 30 of this decision.

For the above reasons, the Commission:

[70.] Finds the Federal Republic of Nigeria in violation of articles 2, 4, 14, 16,
18(1), 21 and 24 of the African Charter on Human and Peoples’ Rights;
[71.] Appeals to the government of the Federal Republic of Nigeria to ensure
protection of the environment, health and livelihood of the people of
Ogoniland by:
• Stopping all attacks on Ogoni communities and leaders by the Rivers
State Internal Securities Task Force and permitting citizens and
independent investigators free access to the territory;
• Conducting an investigation into the human rights violations described
above and prosecuting officials of the security forces, NNPC and relevant
agencies involved in human rights violations;
• Ensuring adequate compensation to victims of the human rights
violations, including relief and resettlement assistance to victims of
372 African Commission on Human and Peoples’ Rights

government-sponsored raids, and undertaking a comprehensive clean-up

of lands and rivers damaged by oil operations;
• Ensuring that appropriate environmental and social impact assessments
are prepared for any future oil development and that the safe operation
of any further oil development is guaranteed through effective and
independent oversight bodies for the petroleum industry; and
• Providing information on health and environmental risks and meaningful
access to regulatory and decision-making bodies to communities likely to
be affected by oil operations.
[72.] Urges the government of the Federal Republic of Nigeria to keep the
African Commission informed of the outcome of the work of:
• The Federal Ministry of Environment which was established to address
environmental and environment-related issues prevalent in Nigeria, and
as a matter of priority, in the Niger Delta area including the Ogoni land;
• The Niger Delta Development Commission (NDDC) enacted into law to
address the environmental and other social related problems in the Niger
Delta area and other oil producing areas of Nigeria; and
• The Judicial Commission of Inquiry inaugurated to investigate the issues
of human rights violations.

_____________________________________

Sudan Human Rights Organisation and Another v Sudan

(2009) AHRLR 153 (ACHPR 2009)

This case deals with massive human rights violations in the Darfur region of Sudan.

...
103. The respondent state argued that the violations have been settled by
other international mechanisms and cites article 56(7) of the Charter.
104. The African Commission wishes to state that a matter shall be
considered settled within the context of article 56(7) of the African Charter,
if it was settled by any of the UN human rights treaty bodies or any other
international adjudication mechanism, with a human rights mandate. The
respondent state must demonstrate to the Commission the nature of remedies
or relief granted by the international mechanism, such as to render the
complaints res judicata, and the African Commission’s intervention
unnecessary.
105. The African Commission, while recognising the important role played by
the United Nations Security Council, the Human Rights Council, (and its
predecessor, the Commission on Human Rights,) and other UN organs and
agencies on the Darfur crisis, is of the firm view that these organs are not the
mechanisms envisaged under article 56(7). The mechanisms envisaged
under article 56(7) of the Charter must be capable of granting declaratory or
compensatory relief to victims, not mere political resolutions and
declarations.
...
116. The communication recalls the decision of the Commission in the case
of Social and Economic Rights Action Centre and Centre for Economic and
Social Rights v Nigeria (the SERAC Case) where the Commission found, inter
alia, that forced evictions by government forces and private security forces is
an infringement of article 14 and the right to an adequate housing which is
implicitly guaranteed by articles 14, 16 and 18(1) of the Charter.
 Decisions of the African Commission 373

...
158. In Media Rights Agenda v Nigeria, the Commission stated that the
term ‘cruel, inhuman and degrading punishment or treatment’ is to be
interpreted so as to extend the widest possible protection against abuse,
whether physical or mental. In John Modise v Botswana, the Commission
elaborated further and noted that ‘exposing victims to personal sufferings
and indignity violates the right to human dignity’. It went on to state
that ‘personal suffering and indignity can take many forms, and will depend
on the particular circumstances of each communication brought before the
African Commission’.
159. Based on the above reasoning, the African Commission agrees with the
UN Committee Against Torture in Hijrizi v Yugoslavia that forced evictions
and destruction of housing carried out by non-state actors amounts to cruel,
inhuman and degrading treatment or punishment, if the state fails to protect
the victims from such a violation of their human rights ...
164. In the present communication, the respondent state and its agents, the
Janjaweed militia, actively participated in the forced eviction of the civilian
population from their homes and villages. It failed to protect the victims
against the said violations. The respondent state, while fighting the armed
groups, targeted the civilian population, as part of its counter insurgence
strategy. In the opinion of the Commission this kind of treatment was cruel
and inhuman and threatened the very essence of human dignity.
...
179. In the present communication, the respondent state, in spite all the
information regarding the physical abuse the victims were enduring, has not
demonstrated that it took appropriate measures to protect the physical
integrity of its citizens from abuse either by official authorities or other
citizens/third parties. By failing to take steps to protect the victims, the
respondent state violated article 6 of the African Charter.
...
185. In the present communication, the forced evictions, burning of houses,
bombardments and violence perpetrated against the victims made access to
competent national organs illusory and impractical. To this extent, the
respondent state is found to have violated article 7 of the African Charter.
...
190. The complainant submitted that thousands of civilian were forcibly
evicted from their homes to make-shift camps for internally displaced persons
or fled to neighbouring countries as refugees. People in the Darfur region
cannot move freely for fear of being killed by gunmen allegedly supported by
the respondent state. The respondent state failed to prevent forced evictions
or to take urgent steps to ensure displaced persons return to their homes. The
Commission therefore finds that the respondent state has violated article
12(1) of the African Charter.
...
201. The victims in the present communication, have been forced out of their
normal places of residence by government military forces and militia forces
believed to be supported by the respondent state. Their homes and other
possessions destroyed. The African Commission recognises that the Darfur
Region has been engulfed in armed conflict and there has been widespread
violence resulting in serious human rights violations. It is the primary duty and
responsibility of the respondent state to establish conditions, as well as
provide the means, to ensure the protection of both life and property, during
peace time and in times of disturbances and armed conflicts. The respondent
state also has the responsibility to ensure that persons who are in harm’s way,
as it seems the victims were, are resettled in safety and with dignity in
another part of the country.
374 African Commission on Human and Peoples’ Rights

...
205. In the present communication, the respondent state has failed to show
that it refrained from the eviction, or demolition of victims’ houses and other
property. It did not take steps to protect the victims from the constant
attacks and bombings, and the rampaging attacks by the Janjaweed militia.
It doesn’t matter whether they had legal titles to the land, the fact that the
victims cannot derive their livelihood from what they possessed for
generations means they have been deprived of the use of their property under
conditions which are not permitted by article 14. The Commission therefore
finds the respondent state in violation of article 14.
...
210. Violations of the right to health can occur through the direct action of
states or other entities insufficiently regulated by states. According
to General Comment 14 ‘states should also refrain from unlawfully polluting
air, water and soil, ... during armed conflicts in violation of international
humanitarian law ... States should also ensure that third parties do not limit
people’s access to health-related information and services, and the failure to
enact or enforce laws to prevent the pollution of water ... [violates the right
to health]’.
211. In its decision on Free Legal Assistance Group and Others v Zaire the
Commission held that the failure of the government to provide basic services
such as safe drinking water and electricity and the shortage of medicine ...
constitutes a violation of article 16.
212. In the present communication, the destruction of homes, livestock and
farms as well as the poisoning of water sources, such as wells exposed the
victims to serious health risks and amounts to a violation of article 16 of the
Charter.
...
216. The respondent state and its agents, the Janjaweed militia forcefully
evicted the victims from their homes, some family members were killed,
others fled to different places, inside and outside the territory of the
respondent state. This kind of scenario threatens the very foundation of the
family and renders the enjoyment of the right to family life difficult. By not
ensuring protection to the victims, thus allowing its forces or third parties to
infringe on the rights of the victims, the respondent state is held to have
violated article 18(1) of the African Charter.
...
224. The complainant alleged that the violations were committed by
government forces, and by an Arab militia, the Janjaweed, against victims of
black African tribes. The attacks and forced displacement of Darfurian people
denied them the opportunity to engage in economic, social and cultural
activities. The displacement interfered with the right to education for their
children and pursuit of other activities. Instead of deploying its resources to
address the marginalisation in the Darfur, which was the main cause of the
conflict, the respondent state instead unleashed a punitive military campaign
which constituted a massive violation of not only the economic social and
cultural rights, but other individual rights of the Darfurian people. Based on
the analysis hereinabove, concerning the nature and magnitude of the
violations, the Commission finds that the respondent state is in violation
of article 22 of the Africa Charter.
...
229. The African Commission recommends that the respondent state should
take all necessary and urgent measures to ensure protection of victims of
human rights violations in the Darfur Region, including to:
 Decisions of the African Commission 375

(1) conduct effective official investigations into the abuses, committed by

members of military forces, ie ground and air forces, armed groups and the
Janjaweed militia for their role in the Darfur;
(2) undertake major reforms of its legislative and judicial framework in
order to handle cases of serious and massive human rights violations;
(3) take steps to prosecute those responsible for the human rights
violations, including murder, rape, arson and destruction of property;
(4) take measures to ensure that the victims of human rights abuses are
given effective remedies, including restitution and compensation;
(5) rehabilitate economic and social infrastructure, such as education,
health, water, and agricultural services, in the Darfur provinces in order to
provide conditions for return in safety and dignity for the IDPs and Refugees;
(6) establish a National Reconciliation Forum to address the long-term
sources of conflict, equitable allocation of national resources to the various
provinces, including affirmative action for Darfur, resolve issues of land,
grazing and water rights, including destocking of livestock;
(7) desist from adopting amnesty laws for perpetrators of human rights
abuses; and
(8) consolidate and finalise pending Peace Agreements.

_____________________________________

Tembani and Freeth v Angola and Thirteen Others

[Communication 409/12 (2013)]

This case was submitted by two Zimbabwean citizens who had obtained judgments
in their favour by the SADC Tribunal. Subsequent to these judgments the Tribunal
was suspended by the SADC Summit. Mr Tembani and Mr Freeth submitted a
communication to the African Commission challenging the decision to suspend the
Tribunal.

138. The language of article 7(1)(a) of the Charter itself is a clear indication
that the provision envisages the right of individuals to access court at the
national level. Accordingly, the Commission understands article 7(1)(a) of the
Charter to embrace both a right of access to court and a right to an effective
remedy at the domestic level in the event of a violation of the rights
guaranteed in the Charter. A denial of the right of access to a national judicial
forum will amount to a definite and inexcusable violation of article 7(1)(a) of
the Charter. In this regard, the Commission notes its established
jurisprudence as cited by the Complainant that in appropriate cases the
ouster of the jurisdiction of the courts constitutes a restriction of access to
court and therefore amounts to a violation of article 7(1)(a) of the Charter.
However, as is clearly laid out in the Charter itself, the access envisaged in
article 7(1)(a) of the Charter is access to national courts within the domestic
legal system of the state parties to the Charter.
…
144. The Commission agrees with the complainant that article 26 of the
Charter should be read together with article 7 of the Charter. In that regard,
the Commission takes the view that reference to ‘the Courts’ in article 26 of
the Charter cannot be reference to an international court but is akin and
related to the national judicial organs mentioned in article 7 of the Charter.
The Commission notes that its established jurisprudence on the meaning and
376 African Commission on Human and Peoples’ Rights

implications of article 26 of the Charter apply to the national courts which

exercise compulsory jurisdiction over individuals who have no possibility of
opting out of the coverage of the judicial authority of those courts.
Accordingly, the Commission does not find any Charter obligation on the
respondent states to guarantee the independence, competence and
institutional integrity of the SADC Tribunal.
145. Having failed to find the existence of an obligation to ensure access to
the SADC Tribunal in the separate analysis of articles 7 and 26 of the Charter,
the Commission is of the opinion that even a combined reading of the two
provisions does not create an obligation to ensure access to the SADC
Tribunal.

_____________________________________

Zegveld and Another v Eritrea

(2003) AHRLR 84 (ACHPR 2003)

High-level government officials who had criticised government policies were

arrested, detained and held without access to the outside world.

Summary of facts
...
2. The complainants allege that 11 former Eritrean government officials,
namely, Petros Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud Ahmed
Sheriffo, Berhane Ghebre Eghzabiher, Astier Feshation, Saleh Kekya, Hamid
Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre Selassie were
illegally arrested in Asmara, Eritrea on 18 and 19 September 2001 in violation
of Eritrean laws and the African Charter on Human and Peoples’ Rights. They
were part of a group of 15 senior officials of the ruling Peoples Front for
Democracy and Justice (PFDJ) who had been openly critical of the Eritrean
Government policies. In May 2001, they wrote an open letter to ruling party
members criticising the government for acting in an ‘illegal and
unconstitutional’ manner. Their letter also called upon ‘all PFDJ members
and Eritrean people in general to express their opinion through legal and
democratic means and to give their support to the goals and principles they
consider just.’ The government subsequently announced that the 11
individuals mentioned above, on whose behalf the present complaint is being
filed, had been detained ‘because of crimes against the nation’s security and
sovereignty.’
3. The complaint also alleges that the detainees could be prisoners of
conscience, detained solely for the peaceful expression of their political
opinions. Their whereabouts are currently unknown. The complainants allege
that the detainees may be held in some management building between the
capital Asmara and the port of Massawa. They have reportedly not been given
access to their families or lawyers. The complainants fear for the safety of
the detainees.
...
Merits
...
55. Incommunicado detention is a gross human rights violation that can lead
to other violations such as torture or ill-treatment or interrogation without
 Decisions of the African Commission 377

due process safeguards. Of itself, prolonged incommunicado detention and/

or solitary confinement could be held to be a form of cruel, inhuman or
degrading punishment and treatment. The African Commission is of the view
that all detentions must be subject to basic human rights standards. There
should be no secret detentions and states must disclose the fact that someone
is being detained as well as the place of detention. Furthermore, every
detained person must have prompt access to a lawyer and to their families
and their rights with regards to physical and mental health must be protected
as well as entitlement to proper conditions of detention.
56. The African Commission holds the view that the lawfulness and
necessity of holding someone in custody must be determined by a court or
other appropriate judicial authority. The decision to keep a person in
detention should be open to review periodically so that the grounds justifying
the detention can be assessed. In any event, detention should not continue
beyond the period for which the state can provide appropriate justification.
Therefore, persons suspected of committing any crime must be promptly
charged with legitimate criminal offences and the state should initiate legal
proceedings that should comply with fair trial standards as stipulated by the
African Commission in its Resolution on the Right to Recourse and Fair Trial
and elaborated upon in its Guidelines on the Right to Fair Trial and Legal
Assistance in Africa.
...

_____________________________________

Zimbabwe Human Rights NGO Forum v Zimbabwe

(2005) AHRLR 128 (ACHPR 2005)

This decision was adopted by the Commission in May 2006, but only published in
January 2007 after Zimbabwe objected to it being published without its comments
being attached. At issue in the communication was whether an amnesty for
perpertrators of human rights violations is in violation of the Charter and whether
the state was responsible for the activities of non-state actors.

African Commission’s decision on admissibility

63. The complainant in this communication states that during the period in
question, the criminal acts that were committed ranged from assault, arson,
theft, torture, kidnap, torture, murder etc and these acts were directed
towards persons perceived to be or known as supporters of the opposition and
as such were politically motivated.
64. The African Commission holds the view that by pardoning ‘every person
liable for any politically motivated crime ...’ the Clemency Order had
effectively foreclosed the complainant or any other person from bringing
criminal action against persons who could have committed the acts of
violence during the period in question and upon which this communication is
based. By so doing, the complainant had been denied access to local remedies
by virtue of the Clemency Order.
65. Exhaustion of local remedies does not mean that the complainants are
required to exhaust any local remedy, which may be impractical or even
unrealistic. Ability to choose which course of action to pursue when wronged
is essential and clearly in the instant communication the one course of action
that was practical and therefore realistic for the victims to pursue — that of
criminal action was foreclosed as a result of the Clemency Order.
378 African Commission on Human and Peoples’ Rights

66. The respondent state also submitted that the complainant failed to
exhaust domestic remedies when they did not challenge the legality of the
President’s prerogative to issue a Clemency Order.
67. The African Commission is of the view that asking the complainant to
challenge the legality of the Clemency Order in the Constitutional Court of
Zimbabwe would require the complainant to engage in an exercise that would
not bring immediate relief to the victims of the violations. The African
Commission is aware that the situation prevailing in Zimbabwe at the time in
question was perilous and therefore required the state machinery to act fast
and firmly in cases such as this in order to restore the rule of law. To therefore
ask victims in this matter to bring a constitutional matter before being able
to approach the domestic courts to obtain relief for criminal acts committed
against them would certainly result into going through an unduly prolonged
procedure in order to obtain a remedy, an exception that falls within the
meaning of article 56(5) of the African Charter.
68. It is argued by the respondent state that before bringing this matter to
the African Commission, the complainant could have utilised the available
domestic remedies by requesting the Attorney General to invoke his powers
under article 76(4)(a) or undertaken private prosecution of the persons
alleged to have committed the said criminal acts under article 76(4).
69. The African Commission believes that the primary responsibility for the
protection of human rights in a country lies with the government of that
country. In the instant case, the international community in general and the
African Commission paid particular attention to the events that took place in
the run up to the referendum in Zimbabwe in February 2000 right up to the
end of and after the Parliamentary elections of June 2002. The respondent
state was sufficiently informed and aware of the worrying human rights
situation prevailing at the time.
70. The responsibility of maintaining law and order in any country lies with
the state specifically with the police force of that state. As such, it is the duty
of the state to ensure through its police force that where there is a breakdown
of law and order, the perpetrators are arrested and brought before the
domestic courts of that country. Therefore any criminal processes that flow
from this action, including undertaking investigations to make the case for the
prosecution are the responsibility of the state concerned and the state cannot
abdicate that duty. To expect victims of violations to undertake private
prosecutions where the state has not instituted criminal action against
perpetrators of crimes or even follow up with the Attorney General what
course of action has been taken by the state as the respondent state seems
to suggest in this matter would be tantamount to the state relinquishing its
duty to the very citizens it is supposed to protect. Thus, even if the victims
of the criminal acts did not institute any domestic judicial action, as the
guardians of law and order and protectors of human rights in the country, the
respondent state is presumed to be sufficiently aware of the situation
prevailing in its own territory and therefore holds the ultimate responsibility
of harnessing the situation and correcting the wrongs complained of.
71. It is apparent to the African Commission that the human rights situation
prevailing at the time this communication was brought was grave and the
numbers of victims involved were numerous. Indeed the respondent state
concedes that its criminal justice system could not have been expected to
investigate and prosecute all the cases reported and ensure that remedies are
given. This admission on part of the respondent state points to the fact that
domestic remedies may have been available in theory but as a matter of
practicality were not capable of yielding any prospect of success to the
victims of the criminal assaults.
 Decisions of the African Commission 379

72. Thus, for the reasons outlined above, the African Commission declares
this communication admissible and in coming to this conclusion, would like to
reiterate that the conditions laid down in article 56(5) are not meant to
constitute an unjustified impediment to access international remedies. As
such, the African Commission interprets this provision in light of its duty to
protect human and peoples’ rights and therefore does not hold the
requirement of exhaustion of local remedies to apply literally in cases where
it is believed that this exercise would be impractical or futile.
...
Merits
Issues for determination and decision of the African Commission on the
merits
134. The present communication raises several issues that must be addressed
by the African Commission to determine whether the respondent state has or
has not violated the rights of the victims as alleged by the complainant. The
African Commission is called upon to determine:
- What non-state actors are and whether the Zimbabwe African National
Union-Patriotic Front — ZANU (PF) and the Zimbabwe Liberation War
Veterans Association (war veterans) can be termed non-state actors;
- The extent of a state’s responsibility for human rights violations or acts
committed by non-state actors; and
- Whether the Clemency Order 1 of 2000 resulted to a violation of the
respondent state’s obligations under article 1 of the Charter.
...
139. Given what this Commission will call the ‘mixed membership’, it would
appear that there is a very thin line to be drawn between the government and
the ZANU (PF), the government and war veterans and between the ZANU (PF)
and the war veterans. There are members of government who are members
of the party and members of the party who are war veterans. However thin
the line of distinction may seem, it is not the view of the African Commission
that the ZANU (PF) and the Zimbabwe Liberation War Veterans Association are
structures of the government or organs of the state. The complainant did not
supply the African Commission with documentary evidence to prove this
relationship. Even if President Mugabe is patron of the war veterans and
exercises control over the group, this does not make the war veteran
association part of government or state machinery.
...
Issue three: Extent of a state’s responsibility for acts of non-state actors
142. Article 1 of the African Charter is essential in determining whether a
violation of the human rights recognised by the Charter can be imputed to a
state party or not. That article charges the states parties with the
fundamental duty to ‘recognise the rights ... and undertake to adopt
legislative or other measures to give effect to them’. Any impairment of those
rights which can be attributed under the rules of international law to the
action or omission of any public authority constitutes an act imputable to the
state, which assumes responsibility in the terms provided by the African
Charter.
143. Human rights standards do not contain merely limitations on state’s
authority or organs of state. They also impose positive obligations on states
to prevent and sanction private violations of human rights. Indeed, human
rights law imposes obligations on states to protect citizens or individuals
under their jurisdiction from the harmful acts of others. Thus, an act by a
private individual and therefore not directly imputable to a state can
generate responsibility of the state, not because of the act itself, but because
of the lack of due diligence to prevent the violation or for not taking the
necessary steps to provide the victims with reparation.
380 African Commission on Human and Peoples’ Rights

144. The Inter-American Court of Human Rights has issued a judgment in the
case of Velásquez Rodríguez v Honduras which articulates one of the most
significant assertions of state responsibility for acts by private individuals.
The Court stated that a state ‘has failed to comply with [its] duty ... when
the state allows “private persons or groups to act freely and with impunity to
the detriment of the rights recognised by the Convention”’. In the same case,
the Inter American Court reaffirmed that states are ‘obliged to investigate
every situation involving a violation of the rights protected by [international
law]’. Moreover, the Court required governments to: ‘take reasonable steps
to prevent human rights violations and to use the means at its disposal to
carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim adequate compensation.’ This
represents an authoritative interpretation of an international standard on
state duty. The opinion of the Court could also be applied, by extension, to
article 1 of the African Charter of Human and Peoples’ Rights, which requires
states parties to ‘recognise the rights, duties and freedoms enshrined in the
Charter and ... undertake to adopt legislative and other measures to give
effect to them’. Thus, what would otherwise be wholly private conduct is
transformed into a constructive act of state, ‘because of the lack of due
diligence to prevent the violation or respond to it as required by the [African
Charter]’.
...
159. The due diligence requirement encompasses the obligation both to
provide and enforce sufficient remedies to survivors of private violence. In
general terms, the Human Rights Committee has held, for example, that the
existence of legal rules does not suffice to fulfil a condition of reasonable
measures. The rules must also be implemented and applied (entailing for
instance, investigations and judicial proceedings) and victims must have
effective remedy. Thus, the existence of a legal system criminalising and
providing sanctions for assault and violence would not in itself be sufficient;
the government would have to perform its functions to ‘effectively ensure’
that such incidents of violence are actually investigated and punished. For
example, actions by state employees, the police, justice, health and welfare
departments, or the existence of government programmes to prevent and
protect victims of violence are all concrete indications for measuring due
diligence. Individual cases of policy failure or sporadic incidents of non-
punishment would not meet the standard to warrant international action.
160. It follows from the above that, by definition, a state can be held
complicit where it fails systematically to provide protection of violations from
private actors who deprive any person of his/her human rights. However,
unlike for direct state action, the standard for establishing state
responsibility in violations committed by private actors is more relative.
Responsibility must be demonstrated by establishing that the state condones
a pattern of abuse through pervasive non-action. Where states do not actively
engage in acts of violence or routinely disregard evidence of murder, rape or
assault, states generally fail to take the minimum steps necessary to protect
their citizens’ rights to physical integrity and, in extreme cases, to life. This
sends a message that such attacks are justified and will not be punished. To
avoid such complicity, states must demonstrate due diligence by taking active
measures to protect, prosecute and punish private actors who commit abuses.
161. In the present communication, the state indicated measures that it took
to deal with the alleged human rights violations, including amendment of
legislation, arrest and prosecution of alleged perpetrators, payment of
compensation to some victims and ensuring that it investigated most of the
allegations brought to its attention. The complainant did not dispute these
 Decisions of the African Commission 381

actions claimed to have been taken by the respondent state but contends
instead that the actions were not sufficient and were not taken early enough
to be diligent.
162. The question to be asked is whether these measures taken by the state
were sufficient for the Commission to come to the conclusion that the state
had discharged its duty?
163. The complainant did not dispute these actions claimed to have been
taken by the respondent state but contended instead that the actions were
not sufficient and were not taken early enough to be diligent. The
complainant also did not demonstrate collusion by the state to either aid or
abet the non-state actors in committing the violence, and equally failed to
show that the state remained indifferent to the violence that took place. This
view is supported by the conclusion of the report of this Commission’s fact-
finding mission to the respondent state which noted that
there were allegations that the human rights violations that occurred were in
many instances at the hands of ZANU PF party activists. The mission [was] however
not able to find definitively that this was part of an orchestrated policy of the
government of the Republic of Zimbabwe. There were enough assurances from the
head of state, cabinet ministers and the leadership of the ruling party that there
has never been any plan or policy of violence, disruption or any form of human
rights violations, orchestrated by the state.
164. Given the above, the African Commission cannot find that with regards
to the violence perpetrated by the non-state actors, the respondent state
failed to comply with its duty under article 1 of the African Charter to ‘ ...
adopt other measures to give effect to [the rights]’ and to that extent cannot
find the state to have violated article 1 of the African Charter.
...
169. Together with equality before the law and equal protection of the law,
the principle of non-discrimination provided under article 2 of the Charter
provides the foundation for the enjoyment of all human rights. As Shestack
has observed, equality and non-discrimination ‘are central to the human
rights movement’. The aim of this principle is to ensure equality of treatment
for individuals irrespective of nationality, sex, racial or ethnic origin, political
opinion, religion or belief, disability, age or sexual orientation. The African
Commission has held in communication 211/98 [Legal Resources Foundation
v Zambia (2001) AHRLR 84 (ACHPR 2001)] that the right protected in article 2
is an important entitlement as the availability or lack thereof affects the
capacity of one to enjoy many other rights.
...
210. In the present communication, the African Commission has established
that most of the atrocities, including human rights violations, were
perpetrated by non-state actors, that the state exercised due diligence in its
response to the violence — investigated the allegations, amended some of its
laws, and in some cases, paid compensation to victims. The fact that all the
allegations could not be investigated does not make the state liable for the
human rights violations alleged to have been committed by non-state actors.
It suffices for the state to demonstrate that the measures taken were
proportionate to deal with the situation, which in the present
communication, the state seemed to have shown.
211. However, this Commission is of the opinion that by passing the Clemency
Order 1 of 2000, prohibiting prosecution and setting free perpetrators of
‘politically motivated crimes’, including alleged offences such as abductions,
forced imprisonment, arson, destruction of property, kidnappings and other
human rights violations, the state did not only encourage impunity but
effectively foreclosed any available avenue for the alleged abuses to be
investigated, and prevented victims of crimes and alleged human rights
violations from seeking effective remedy and compensation.
382 African Commission on Human and Peoples’ Rights

212. This act of the state constituted a violation of the victims’ right to
judicial protection and to have their cause heard under article 7(1) of the
African Charter.
213. The protection afforded by article 7 is not limited to the protection of
the rights of arrested and detained persons but encompasses the right of
every individual to access the relevant judicial bodies competent to have
their causes heard and be granted adequate relief. If there appears to be any
possibility of an alleged victim succeeding at a hearing, the applicant should
be given the benefit of the doubt and allowed to have their matter heard.
Adopting laws such as the Clemency Order 1 of 2000, that have the effect of
eroding this opportunity, renders the victims helpless and deprives them of
justice.
...
215. In light of the above, the African Commission holds that by enacting
Decree 1 of 2000 which foreclosed access to any remedy that might be
available to the victims to vindicate their rights, and without putting in place
alternative adequate legislative or institutional mechanisms to ensure that
perpetrators of the alleged atrocities were punished, and victims of the
violations duly compensated or given other avenues to seek effective remedy,
the respondent state did not only prevent the victims from seeking redress,
but also encouraged impunity, and thus reneged on its obligation in violation
of articles 1 and 7(1) of the African Charter. The granting of amnesty to
absolve perpetrators of human rights violations from accountability violates
the right of victims to an effective remedy.

For these reasons, the African Commission:

• Holds that the Republic of Zimbabwe is in violation of articles 1 and 7(1)
of the African Charter;
• Calls on the Republic of Zimbabwe to establish a Commission of Inquiry to
investigate the causes of the violence which took place from February – June
2000 and bring those responsible for the violence to justice, and identify
victims of the violence in order to provide them with just and adequate
compensation.
• Request the Republic of Zimbabwe to report to the African Commission
on the implementation of this recommendation during the presentation of its
next periodic report.

_____________________________________

Zimbabwe Lawyers for Human Rights and Another (on behalf of

Meldrum) v Zimbabwe
(2009) AHRLR 268 (ACHPR 2009)

This case deals with the lack of implementation of domestic court orders in
Zimbabwe and the violation of the freedom of expression through the deportation
of a journalist.

...
2. ... Mr Andrew Barclay Meldrum, an American citizen, was legally
admitted into Zimbabwe in October 1980 and settled permanently until 2003
when he was deported ...
 Decisions of the African Commission 383

3. ... the complainants claim Mr Meldrum was charged with ‘publishing

falsehood’ under section 80(1)(b) of the Access to Information and Protection
of Privacy Act (AIPPA). Mr Meldrum was found not guilty on 15 July 2002. ...
4. It is further alleged that immediately after his acquittal, Mr Meldrum
was requested to report to the Immigrations Department Investigations Unit
and was served with a deportation order issued in terms of section 14 (i)g of
the Immigrations Act. Mr Meldrum appealed the deportation order within 24
hours to the Ministry of Home Affairs as required by the Immigrations Act.
Meanwhile, an application challenging the deportation order was filed by his
lawyers in the High Court. On 17 July 2002, the High Court ordered that Mr
Meldrum should be allowed to stay in the country until the Supreme Court had
dealt with all the constitutional matters raised in the matter.
5. The complainants allege further that on 16 May 2003, Mr Meldrum was
summoned to the Immigration Department where he was informed that he
could no longer work as a journalist. He was informed that he had not been
accredited in terms of the Access to Information and Protection of Privacy
Act. Mr Meldrum informed the immigration authorities that he had filed an
application to the Supreme Court and pending the outcome he should be
allowed to practice journalism as provided by the Act. The Immigration
authorities then informed him that they had a deportation order issued by the
Ministry of Home Affairs which empowered them to deport him forthwith
without disclosing the reason for the deportation. Mr Meldrum was then
forced into a car and taken to the airport.
6. They claim that an urgent appeal was filed in the High Court to interdict
the deportation order and to compel the state to bring Mr Meldrum before the
High Court by 15:30hrs that same day. But at 15:30hrs, the state counsel
appeared in court without Mr Meldrum. The High Court gave another order
prohibiting the state from deporting Mr Meldrum. At about 20:00hrs, the state
counsel informed the Court that Mr Meldrum could not be located. The High
Court issued another order for the release of Mr Meldrum and this order was
served on the immigration authorities by Mr Meldrum’s lawyer who had to
drive to the airport for that purpose. In spite all these efforts and court
orders, the state defiantly deported Mr Meldrum.
...
54. The deportation of the victim in the case under consideration had been
effected in the face of several High Court orders, the Commission finds that
to require the victim to pursue further judicial remedies, when all efforts at
seeking judicial remedies had been frustrated and ignored by the respondent
state, would have amounted to a ‘senseless formality’ in the true meaning of
the words. The remedy which would have granted protection to Mr Meldrum,
namely the application pending in the Supreme Court, was considered by the
respondents state’s immigration officials, as ‘trivial’ and of no legal
consequence. The respondent state had notice of the pending application in
the Supreme Court, and yet effected the deportation. It actively participated
in impeding the victim from accessing the remedy.
...
112. It should be recalled that the victim’s deportation arose from the
publication of an article that the respondent state did not appreciate. The
respondent state resorted to deportation in order to silence him, in spite a
court order that he can stays in the country. Admittedly, he is not prevented
from expressing himself where ever he was deported to, but vis-à-vis his
status in the respondent state, which is a state party to the African Charter,
his ability to express himself as guaranteed under article 9 was violated.
...
Alleged violation of article 26
...
384 African Commission on Human and Peoples’ Rights

119. It is a vital requirement in a state governed by law that court decisions

be respected by the state, as well as individuals. The courts need the trust of
the people in order to maintain their authority and legitimacy. The credibility
of the courts must not be weakened by the perception that courts can be
influenced by any external pressure.
120. Thus, by refusing to comply with the High Court orders, staying the
deportation of Mr Meldrum and requiring the respondent state to produce him
before the Court, the respondent state undermined the independence of the
Courts. This was a violation of article 26 of the African Charter.
...
The African Commission recommends that the respondent state should:
(a) Take urgent steps to ensure court decisions are respected and
implemented;
(b) Rescind the deportation orders against Mr Andrew Meldrum, so that he
can return to Zimbabwe, if he so wishes, being a person who had permanent
residence status prior to his deportation. The status quo ante to be restored;
(c) Ensure that the Supreme Court finalises the determination of the
application by Mr Meldrum, on the denial of accreditation;
(d) In the alternative, taking into account that the AIPPA has undergone
considerable amendments, grant accreditation to Mr Andrew Meldrum, so
that he can resume his right to practice journalism; and
(e) Report to the African Commission within six months on the
implementation of these recommendations.
 Resolutions, guidelines and general comments of
the African Commission

Part of the mandate of the Commission is to adopt resolutions on human rights

issues. Resolutions may address matters of procedure, but often they serve to
further define standards set by the African Charter.

Resolution on Granting Observer Status to National Human Rights

Institutions in Africa (1998)

In more than 30 African countries there are national human rights institutions, with
a greater or lesser degree of independence. They interact with the Commission in
accordance with this Resolution.

...
Considering the preamble of the African Charter on Human and Peoples’
Rights which reaffirms the adherence of African states to ‘human and
peoples’ rights and freedoms contained in the declarations, conventions and
other instruments adopted by the organisation of African Unity, the
Movement of Non-Aligned countries and the United Nations’;
Considering that article 26 of the African Charter on Human and Peoples’
Rights stipulates that ‘states parties to the present Charter shall have the
duty to ... allow the establishment and the improvement of appropriate
national institutions entrusted with the promotion and protection of rights’;
Considering the recommendation adopted in the Programme of Action of the
World Conference on Human Rights held in Vienna, Austria in June 1993 and
United Nations resolutions on human rights, particularly Resolution 1992/54
of 3 March 1992 of the Commission Human Rights and Resolution 48/134 of 20
December 1993 of the United Nations General Assembly;
Considering the decisions, resolutions, recommendations and the final
declaration adopted by the first conference of national human rights
institutions in Africa held in Yaounde, Cameroon from 5 to 7 February 1996
and the 2nd conference held in Durban, South Africa on 1 to 3 July 1998;
Convinced of the importance of the role of national institutions in the
promotion and protection of human rights and in creating public awareness in
Africa with regard to the institutional defense of human rights;

1. COMMENDS the increasing interests shown by African states in

establishing and strengthening national institutions for the protection and
promotion of human rights based on the principles of independence and
pluralism.
2. RECOGNISES that it is the right of each state to establish, according to
its sovereign prerogatives and within the most appropriate legislative
framework, a national institution charged with the promotion and protection
of human rights according to internationally recognised norms.
3. NOTES WITH SATISFACTION the significant participation of African
National Institutions in the deliberations of the sessions of the African
Commission on Human and Peoples’ Rights and registers positively the wish
expressed by several institutions to be granted an observer status with the
Commission.
386 African Commission on Human and Peoples’ Rights

4. DECIDES to grant special observer status to any African national

institution established in Africa and functioning according to internationally
recognised norms and standards.
(a) that the following criteria for the status of affiliated institution shall
apply:
• the national institution should be duly established by law, constitution or
by decree;
• that it shall be a national institution of a state party to the African
Charter;
• that the national institution should conform to the Principles relating to
the Status of National Institutions, also known as the Paris Principles,
adopted by the General Assembly of the United Nations under Resolution
48/144 of 20 December 1993;
• that a National Institution shall formally apply for status in the African
Commission.
(b) that such institutions shall have the following rights and responsibilities.
• be invited to sessions of the African Commission according to rule 6 of
the Rules and Procedures,
• be represented in public sessions of the commission and its subsidiary
bodies,
• participate, without voting rights, in deliberations on issues which are of
interest to them and to submit proposals which may be put to the vote
at the request of any member of the Commission.
(c) that any national institution shall be required to submit reports to the
Commission every two years on its activities in the promotion and protection
of the rights enshrined in the Charter and;
(d) that the National Institution will assist the Commission in the promotion
and protection of human rights at national level.

_____________________________________

Criteria for the Granting of and for Maintaining Observer Status

with the African Commission on Human and Peoples’ Rights (1999)

The African Commission is unique in its close relationship with NGOs. All the
Commission’s resolutions are available at http://www.achpr.org

Chapter I
1. All non-governmental organisations applying for observer status with
the African Commission on Human and Peoples’ Rights shall be expected to
submit a documented application to the Secretariat of the Commission, with
a view to showing their willingness and capability work for the realisation of
the objectives of the African Charter on Human and Peoples’ Rights.
2. All organisations applying for observer status with the African
Commission shall consequently:
• Have objectives and activities in consonance with the fundamental
principles and objectives enunciated in the OAU Charter and in the
African Charter on Human and Peoples’ Rights;
• Be organisations working in the field of human rights;
• Declare their financial resources.
3. To this effect, such an organisation shall be requested to provide:
 Resolutions of the African Commission 387

• A written application addressed to the Secretariat stating its intentions,

at least three months prior to the ordinary session of the Commission
which shall decide on the application, in order to give the Secretariat
sufficient time in which to process the said application;
• Its statutes, proof of its legal existence, a list of its members, its
constituent organs, its sources of funding, its last financial statement, as
well as a statement on its activities.
4. The statement of activities shall cover the past and present activities of
the organisation, its plan of action and any other information that may help
to determine the identity of the organisation, its purpose and objectives, as
well as its field of activities.
5. No application for observer status shall be put forward for examination
by the Commission without having been previously processed by the
Secretariat.
6. The Commission’s Bureau shall designate a rapporteur to examine the
dossiers. The Commission’s decision shall be notified without delay to the
applicant NGO.

Chapter II: Participation of observers in proceedings of the African

Commission
1. All observers shall be invited to be present at the opening and closing
sessions of all sessions of the African Commission; an observer accredited by
the Commission shall not participate in its proceedings in any manner other
than as provided for in the Rules of Procedure governing the conduct of
sessions of the African Commission.
2. All observers shall have access to the documents of the Commission
subject to the condition that such documents:
• shall not be of a confidential nature;
• deal with issues that are of relevance to their interests.
The distribution of general information documents of the African Commission
shall be free of charge; the distribution of specialised documents shall be on
a paid-for basis, except where reciprocal arrangements are in place.
3. Observers may be invited specially to be present at closed sessions
dealing with issues of particular interest to them.
4. Observers may be authorised by the Chairman of the African Commission
to make a statement on an issue that concerns them, subject to the text of
the statement having been provided, with sufficient lead-time, to the
Chairman of the Commission through the Secretary of the Commission.
5. The Chairman of the Commission may give the floor to observers to
respond to questions directed at them by participants.
6. Observers may request to have issues of a particular interest to them
included in the provisional agenda of the African Commission, in accordance
with the provisions of the Rules of Procedure.

Chapter III: Relations between the African Commission and observers

1. Organisations enjoying observer status shall undertake to establish close
relations of co-operation with the African Commission and to engage in
regular consultations with it on all matters of common interest.
2. NGOs enjoying observer status shall present their activity reports to the
Commission every two years.
3. Administrative arrangements shall be made, whenever necessary, to
determine the modalities of this co-operation.

Chapter IV: Final provisions

1. The provisions of the General Convention on the privileges and
immunities of the OAU and those of the Headquarters Agreement of the
388 African Commission on Human and Peoples’ Rights

African Commission shall not apply to observers except as regards the

granting of visas.
2. The Commission reserves the right to take the following measures
against NGOs that are in default of their obligations:
• non-participation in sessions;
• denial of documents and information;
• denial of the opportunity to propose items to be included in the
Commission’s agenda and of participating in its proceedings.
3. Observer status may be suspended or withdrawn from any organisation
that does not fulfil the present criteria, after deliberation by the Commission.

_____________________________________

Declaration of Principles on Freedom of Expression in Africa

(2019)

Adopted by the African Commission on Human and Peoples’ Rights at its 65th
ordinary session held from 21 October to 10 November 2019 in Banjul, The Gambia.
This declaration replaces the 2002 Declaration of Principles on Freedom of
Expression in Africa reprinted in earlier editions of this Compendium.

Preamble

The African Commission on Human and Peoples’ Rights (African Commission):

Affirming its mandate to promote human and peoples’ rights in accordance
with article 45 of the African Charter on Human and Peoples’ Rights (the
African Charter);
Recalling Resolution 222 (ACHPR/Res.222 (LI) 2012) calling on the African
Commission to modify the Declaration of Principles on Freedom of Expression
in Africa of 2002 (the Declaration) to include access to information,
Resolution 350 (ACHPR/Res.350 (EXT.OS/XX) 2016) mandating the African
Commission to revise the Declaration and Resolution 362 (ACHPR/Res.362
(LIX) 2016) requesting the Special Rapporteur on Freedom of Expression and
Access to Information in Africa to take note of developments in the internet
age during the revision of the Declaration;
Recognizing the need to revise the Declaration to consolidate developments
on freedom of expression and access to information, including by taking
account of African Union treaties and soft law standards, the emerging
jurisprudence of judicial and quasi-judicial organs of the African Union, as
well as the need for the elaboration of the digital dimensions of both rights;
Reaffirming the fundamental importance of freedom of expression and access
to information as individual human rights, as cornerstones of democracy and
as means of ensuring respect for other human rights;
Recalling that freedom of expression and access to information are
fundamental human rights guaranteed by article 9 of the African Charter, and
that those rights are also affirmed in the African Charter on the Rights and
Welfare of the Child, the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Persons with Disabilities in Africa, the African
Union Convention on Preventing and Combating Corruption, the African
Charter on Statistics, the African Youth Charter, the African Charter on
Democracy, Elections and Governance, the African Charter on Values and
 Resolutions of the African Commission 389

Principles of Public Service and Administration, and the Protocol to the

African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa;
Noting the adoption by the African Commission of relevant soft law standards,
such as the Model Law on Access to Information for Africa of 2013 and the
Guidelines on Access to Information and Elections in Africa of 2017;
Noting further the adoption of the African Union Convention on Cyber Security
and Personal Data Protection;
Conscious that freedom of expression and access to information are cross-
cutting rights that are important for the realization of all other human rights,
including socio-economic rights, and of the potential of both rights to
contribute to the socio-economic transformation of the continent;
Recognising the need to protect and promote the right to freedom of
expression and access to information of marginalized groups and groups that
face multiple discrimination, including women, children, persons with
disabilities, older persons, sexual and gender minorities, refugees and
internally displaced persons;
Desiring to promote the free flow of information and ideas and greater
respect for the rights to freedom of expression and access to information;
Noting that local languages are critical in optimizing the realization of access
to information by communities and for the effective realization of freedom of
expression;
Considering the key role of the media and other means of communication in
ensuring full respect for the right to freedom of expression, promoting the
free flow of information and ideas, assisting individuals in making informed
decisions and facilitating and strengthening democracy;
Recognising that the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights as well as other
international instruments and national constitutions also guarantee the rights
to freedom of expression and access to information;
Aware of the particular importance of broadcast media in Africa, given its
capacity to reach a wide audience due to the comparatively low cost of
receiving transmissions and its ability to overcome barriers of illiteracy;
Recognising the role of new digital technologies in the realization of the rights
to freedom of expression and access to information and the role of open
government data in fostering transparency, efficiency and innovation;
Affirming that the same rights that people have offline should be protected
online and in accordance with international human rights law and standards;
Acknowledging that the exercise of the rights to freedom of expression and
access to information using the internet are central to the enjoyment of other
rights and essential to bridging the digital divide;
Conscious that freedom of expression and privacy are mutually reinforcing
rights that are essential for human dignity and the overall promotion and
protection of human and peoples’ rights;
The African Commission adopts the Declaration of Principles on Freedom of
Expression and Access to Information in Africa to replace the Declaration on
Principles of Freedom of Expression in Africa of 2002.

Part I: General Principles

Principle 1: Importance of the rights to freedom of expression and access

to information
1. Freedom of expression and access to information are fundamental rights
protected under the African Charter and other international human rights
laws and standards. The respect, protection and fulfilment of these rights is
crucial and indispensable for the free development of the human person, the
390 African Commission on Human and Peoples’ Rights

creation and nurturing of democratic societies and for enabling the exercise
of other rights.
2. States parties to the African Charter (states) shall create an enabling
environment for the exercise of freedom of expression and access to
information, including by ensuring protection against acts or omissions of non-
state actors that curtail the enjoyment of freedom of expression and access
to information.

Principle 2: Non-interference with freedom of opinion

Freedom of opinion, including the right to form and change all forms of
opinion at any time and for whatever reason, is a fundamental and inalienable
human right indispensable for the exercise of freedom of expression. States
shall not interfere with anyone’s freedom of opinion.

Principle 3: Non-discrimination
Everyone shall have the rights to exercise freedom of expression and access
to information without distinction of any kind, on one or more grounds,
including race, ethnic group, colour, sex, language, religion, political or any
other opinion, political association, national and social origin, birth, age,
class, level of education, occupation, disability, sexual orientation, gender
identity or any other status.

Principle 4: Most favourable provision to prevail

Where a conflict arises between any domestic and international human rights
law, the most favourable provision for the full exercise of the rights to
freedom of expression or access to information shall prevail.

Principle 5: Protection of the rights to freedom of expression and access

to information online
The exercise of the rights to freedom of expression and access to information
shall be protected from interference both online and offline, and states shall
interpret and implement the protection of these rights in this Declaration and
other relevant international standards accordingly.

Principle 6: Protection of human rights defenders and others

The protections accorded to journalists and other media practitioners in this
Declaration shall apply, as necessary, to every human rights defender and any
other individual or group exercising their rights to freedom of expression and
access to information through any medium.

Principle 7: Specific measures

States shall take specific measures to address the needs of marginalised
groups in a manner that guarantees the full enjoyment of their rights to
freedom of expression and access to information on an equal basis with
others. Marginalised groups include women, children, persons with
disabilities, older persons, refugees, internally displaced persons, other
migrants, ethnic, religious, sexual or gender minorities.

Principle 8: Evolving capacities of children

States shall recognise and respect the evolving capacities of children, and
shall take measures that enable children, including adolescents, to exercise
the rights to freedom of expression and access to information. In all such
actions, the best interest of the child shall be a primary consideration.
 Resolutions of the African Commission 391

Principle 9: Justifiable limitations

1. States may only limit the exercise of the rights to freedom of expression
and access to information, if the limitation:
(a) Is prescribed by law;
(b) Serves a legitimate aim; and
(c) Is a necessary and proportionate means to achieve the stated aim in a
democratic society.
2. States shall ensure that any law limiting the rights to freedom of
expression and access to information:
(a) Is clear, precise, accessible and foreseeable;
(b) Is overseen by an independent body in a manner that is not arbitrary or
discriminatory; and
(c) Effectively safeguards against abuse including through the provision of
a right of appeal to independent and impartial courts.
3. A limitation shall serve a legitimate aim where the objective of the
limitation is:
(a) To preserve respect for the rights or reputations of others; or
(b) to protect national security, public order or public health.
4. To be necessary and proportionate, the limitation shall:
(a) Originate from a pressing and substantial need that is relevant and
sufficient;
(b) Have a direct and immediate connection to the expression and
disclosure of information, and be the least restrictive means of achieving the
stated aim; and
(c) Be such that the benefit of protecting the stated interest outweighs the
harm to the expression and disclosure of information, including with respect
to the sanctions authorised.

PART II: Right to Freedom of Expression

Principle 10: Guarantee of freedom of expression

Freedom of expression, including the right to seek, receive and impart
information and ideas, either orally, in writing or in print, in the form of art
or through any other form of communication or medium, including across
frontiers, is a fundamental and inalienable human right and an indispensable
component of democracy.

Principle 11: Media diversity and pluralism

1. State or private monopoly over print, broadcast and online media is not
compatible with the right to freedom of expression.
2. State and government-controlled broadcasters shall be transformed into
public service broadcasters, accountable to the public through the legislature
or other mechanism for public accountability.
3. States shall take positive measures to promote a diverse and pluralistic
media, which shall facilitate:
(a) The promotion of free flow of information and ideas;
(b) Access to media and other means of communication, including by
marginalised groups, linguistic and cultural minorities;
(c) Access to non-discriminatory and non-stereotyped information;
(d) Access to the media by poor and rural communities, including by
subsidising household costs associated with digital migration;
(e) The promotion of transparency and diversity in media ownership;
(f) The promotion of local and African languages, content and voices; and
(g) The promotion of the use of local languages in public affairs, including
by the executive, legislature and the judiciary.
392 African Commission on Human and Peoples’ Rights

Principle 12: Media independence

1. States shall guarantee the right to establish various forms of
independent media, including print, broadcast and online media.
2. Any registration system for media shall be for administrative purposes
only, and shall not impose excessive fees or other restrictions on the media.
3. States shall develop regulatory environments that encourage media
owners and media practitioners to reach agreements to guarantee editorial
independence and to prevent commercial and other considerations from
influencing media content.

Principle 13: Public service media

1. States shall establish public service media governed by a transparently
constituted and diverse board adequately protected against undue
interference of a political, commercial or other nature.
2. The senior management of public service media shall be appointed by
and accountable to the board.
3. The editorial independence of public service media shall be guaranteed.
4. Public service media shall be adequately funded in a manner that
protects them from undue interference.
5. Public service broadcasters shall ensure that their transmission systems
cover the whole territory of the State.
6. The public service ambit of public broadcasters shall be clearly defined
and include an obligation to ensure that the public receive adequate and
politically balanced information, particularly during election periods.

Principle 14: Private media

1. States shall promote a diverse private media as vehicles for the
development and dissemination of a variety of content in the public interest.
2. States shall encourage broadcast, print and online media to publicly
disclose all forms of media ownership and any subsequent acquisitions or
change in ownership.
3. States shall establish an independent regulatory body to issue broadcasting
licenses and to oversee the observance of license conditions.
4. States shall ensure that licensing processes for private media are fair
and transparent, and promote diversity in broadcasting by:
(a) Mandating full public disclosure of all forms of media ownership and any
subsequent acquisitions or change of ownership; and
(b) Taking preventive measures against the undue concentration of private
broadcasting ownership, including through non-award of licenses and non-
approval of subsequent acquisitions or change of ownership.
(c) States shall ensure that the process of frequency allocation for private
broadcasting use is fair and transparent.
5. States shall ensure that the process for the acquisition of broadcasting
rights imposes such conditions as are necessary for ensuring diversity in the
private broadcasting sector.
6. States shall encourage private broadcasting services to promote
interoperability of platforms and facilities.

Principle 15: Community media

1. States shall facilitate the establishment of community media as
independent non-profit entities, with the objective of developing and
disseminating content that is relevant to the interests of geographic
communities or communities sharing common interests such as language and
culture.
2. The regulation of community broadcasting shall be governed in
accordance with the following principles:
 Resolutions of the African Commission 393

(a) The ownership, management and programming of community

broadcasters shall be representative of the community.
(b) Licensing processes shall be simple, expeditious and cost effective, and
guarantee community participation.
(c) Licensing requirements shall fulfil the objectives of community
broadcasting and shall not be prohibitive.
(d) States shall allocate a fixed percentage of available radio frequency
spectrum to community broadcasters to encourage diversity.

Principle 16: Self-regulation and co-regulation

1. States shall encourage media self-regulation which shall be impartial,
expeditious, cost-effective, and promote high standards in the media.
2. Codes of ethics and conduct shall be developed by the media through
transparent and participatory processes and shall be effectively implemented
to ensure the observance of the highest standards of professionalism by the
media.
3. Co-regulation may also be encouraged by states as a complement to
self-regulation, founded on informed collaboration between stakeholders
including the public regulatory authority, media and civil society.

Principle 17: Regulatory bodies for broadcast, telecommunications and

the internet
1. A public regulatory authority that exercises powers in the areas of
broadcast, telecommunications or internet infrastructure shall be
independent and adequately protected against interference of a political,
commercial or other nature.
2. The appointment process for members of a public regulatory body
overseeing broadcast, telecommunications or internet infrastructure shall be
independent and adequately protected against interference. The process
shall be open, transparent and involve the participation of relevant
stakeholders.
3. Any public regulatory authority that exercises powers in broadcast,
telecommunications or internet infrastructure shall be accountable to the
public.
4. A multi-stakeholder model of regulation shall be encouraged to develop
shared principles, rules, decision-making procedures and programmes to
shape the use and evolution of the internet.
5. The powers of regulatory bodies shall be administrative in nature and
shall not seek to usurp the role of the courts.

Principle 18: Complaints

1. Public complaints systems for print, broadcast, online media and
internet intermediaries shall be widely accessible and determined in
accordance with established rules and codes of conduct.
2. Any regulatory body established to adjudicate complaints about media
content shall be protected against political, commercial or any other undue
interference.

Principle 19: Protection of journalists and other media practitioners

1. The right to express oneself through the media by practising journalism
shall not be subject to undue legal restrictions.
2. Journalists and other media practitioners shall be free to organise
themselves into unions and associations.
394 African Commission on Human and Peoples’ Rights

Principle 20: Safety of journalists and other media practitioners

1. States shall guarantee the safety of journalists and other media
practitioners.
2. States shall take measures to prevent attacks on journalists and other
media practitioners, including murder, extra-judicial killing, torture and
other forms of ill-treatment, arbitrary arrest and detention, enforced
disappearance, kidnapping, intimidation, threats and unlawful surveillance
undertaken by state and non-state actors.
3. States shall take measures to raise the awareness and build the
capacities of journalists and other media practitioners, policy makers and
other stakeholders on laws and standards for ensuring the safety of journalists
and other media practitioners.
4. States shall take effective legal and other measures to investigate,
prosecute and punish perpetrators of attacks against journalists and other
media practitioners, and ensure that victims have access to effective
remedies.
5. States shall be liable for the conduct of law enforcement, security,
intelligence, military and other personnel which threatens, undermines or
violates the safety of journalists and other media practitioners.
6. States shall take specific measures to ensure the safety of female
journalists and media practitioners by addressing gender specific safety
concerns, including sexual and gender-based violence, intimidation and
harassment.
7. In times of armed conflict, states shall respect the status of journalists
and other media practitioners as non-combatants in accordance with
international humanitarian law.

Principle 21: Protecting reputations

1. States shall ensure that laws relating to defamation conform with the
following standards:
(a) No one shall be found liable for true statements, expressions of opinions
or statements which are reasonable to make in the circumstances.
(b) Public figures shall be required to tolerate a greater degree of criticism.
(c) Sanctions shall never be so severe as to inhibit the right to freedom of
expression.
2. Privacy and secrecy laws shall not inhibit the dissemination of
information of public interest.

Principle 22: Criminal measures

1. States shall review all criminal restrictions of content to ensure that
they are justifiable and compatible with international human rights law and
standards.
2. States shall repeal laws that criminalise sedition, insult and publication
of false news.
3. States shall amend criminal laws on defamation and libel in favour of
civil sanctions which must themselves be necessary and proportionate.
4. The imposition of custodial sentences for the offences of defamation
and libel are a violation of the right to freedom of expression.
5. Freedom of expression shall not be restricted on public order or national
security grounds unless there is a real risk of harm to a legitimate interest and
there is a close causal link between the risk of harm and the expression.

Principle 23: Prohibited speech

1. States shall prohibit any speech that advocates for national, racial,
religious or other forms of discriminatory hatred which constitutes incitement
to discrimination, hostility or violence.
 Resolutions of the African Commission 395

2. States shall criminalise prohibited speech as a last resort and only for
the most severe cases. In determining the threshold of severity that may
warrant criminal sanctions, States shall take into account the:
(a) Prevailing social and political context;
(b) Status of the speaker in relation to the audience;
(c) Existence of a clear intent to incite;
(d) Content and form of the speech;
(e) Extent of the speech, including its public nature, size of audience and
means of dissemination;
(f) Real likelihood and imminence of harm.
3. States shall not prohibit speech that merely lacks civility or which
offends or disturbs.

Principle 24: Economic measures

1. States shall promote a conducive economic environment in which all
media can flourish, including through the adoption of policies for the
provision of financial or other public support for the sustainability of all media
through a fair, neutral, independent and transparent process, and based on
objective criteria.
2. States shall ensure that the allocation of funds for public advertising is
transparent and subject to public accountability, and they shall not abuse
their power over the placement of public advertising.
3. States shall adopt effective measures to avoid undue concentration of
media ownership, whether horizontal or vertical. Such measures shall not be
so stringent that they inhibit the development of the media sector as a whole.

Principle 25: Protection of sources and other journalistic material

1. Journalists and other media practitioners shall not be required to reveal
confidential sources of information or to disclose other material held for
journalistic purposes except where disclosure has been ordered by a court
after a full and fair public hearing.
2. The disclosure of sources of information or journalistic material as
ordered by a court shall only take place where:
(a) The identity of the source is necessary for the investigation or
prosecution of a serious crime or the defence of a person accused of a
criminal offence;
(b) The information or similar information leading to the same result cannot
be obtained elsewhere; and
(c) The public interest in disclosure outweighs the harm to freedom of
expression.
3. States shall not circumvent the protection of confidential sources of
information or journalistic material through the conduct of communication
surveillance except where such surveillance is ordered by an impartial and
independent court and is subject to appropriate safeguards.

Part III: Right of Access to Information

Principle 26: The right of access to information

1. The right of access to information shall be guaranteed by law in
accordance with the following principles:
(a) Every person has the right to access information held by public bodies
and relevant private bodies expeditiously and inexpensively.
(b) Every person has the right to access information of private bodies that
may assist in the exercise or protection of any right expeditiously and
inexpensively.
396 African Commission on Human and Peoples’ Rights

2. For the purpose of this part, a relevant private body is a body that would
otherwise be a private body but is owned partially or totally, or is controlled
or financed directly or indirectly by public funds, or a body that carries out a
statutory or public function or a statutory or public service.

Principle 27: Primacy

Access to information laws shall take precedence over any other laws that
prohibit or restrict the disclosure of information.

Principle 28: Maximum disclosure

The right of access to information shall be guided by the principle of
maximum disclosure. Access to information may only be limited by narrowly
defined exemptions, which shall be provided by law and shall comply strictly
with international human rights law and standards.

Principle 29: Proactive disclosure

1. Public bodies and relevant private bodies shall be required, even in the
absence of a specific request, to proactively publish information of public
interest, including information about their functions, powers, structure,
officials, decisions, budgets, expenditure and other information relating to
their activities.
2. Proactive disclosure by relevant private bodies shall apply to activities
for which public funds are utilised or public functions or services are
performed.
3. Information required to be proactively disclosed shall be disseminated
through all available mediums, including digital technologies. In particular,
states shall proactively publish information in accordance with internationally
accepted open data principles.

Principle 30: Duty to create, keep, organise and maintain information

Public bodies, relevant private bodies and private bodies shall create, keep,
organise and maintain information in a manner that facilitates the exercise of
the right of access to information.

Principle 31: Procedure for accessing information

1. Access to information shall be granted as expeditiously and
inexpensively as possible, and in accessible formats and technologies.
2. No one shall be required to demonstrate a specific legal or personal
interest in the information requested or to provide justification for a request.
3. Every person shall be assisted in making requests for information orally
or in writing and in conformity with processing requirements. Appropriate
support shall be provided to non-literate persons and persons with disabilities
to make requests for information on an equal basis with others.
4. No fees shall be payable other than the reasonable reproduction cost of
requested information. The cost of reproduction shall be waived where the
requester is indigent.
5. Any refusal to disclose information shall be provided timeously and in
writing, and it shall be well-reasoned and premised on international law and
standards.

Principle 32: Appeals

Any refusal to disclose information shall be subject to an expeditious internal
appeal process at no cost to the applicant. The right of further appeal against
the outcome of an internal appeal process shall lie to the oversight
mechanism and, ultimately, the courts.
 Resolutions of the African Commission 397

Principle 33: Exemptions

1. Information may only be legitimately withheld where the harm to the
interest protected under the relevant exemption demonstrably outweighs the
public interest in disclosure of the information. Such information may only be
withheld for the period that the harm could occur.
2. Where a portion of a document containing requested information is
exempted from disclosure, the exempted portion shall be severed or redacted
and access granted to the remainder of the document that is not exempted
from disclosure.
3. Laws governing classification of information shall stipulate the
maximum period of the classification and restrict classification only to the
extent necessary, never indefinitely.
4. Information may only be legitimately withheld as an exemption if its
release would:
(a) Result in the unreasonable disclosure of the personal information of a
third party;
(b) Cause substantial prejudice to a legitimate commercial or financial
interest of relevant stakeholders or other third party;
(c) Endanger the life, health or safety of an individual;
(d) Cause substantial prejudice to the national security and defence of the
State;
(e) Cause substantial prejudice to international relations where the
information relates to information required to be held in confidence under
international law, the position of the state with respect to international
negotiations, and diplomatic or official correspondence with states or
international organisations and diplomatic or consular missions;
(f) Cause prejudice to law enforcement, in particular, the prevention and
detection of crime, apprehension or prosecution of offenders and the
administration of justice;
(g) Result in the disclosure of confidential communication between medical
practitioner and patient, lawyer and client, journalist and sources, or is
otherwise privileged from disclosure in legal proceedings; or
(h) Jeopardise the integrity of a professional examination or recruitment
process.

Principle 34: Oversight mechanism

1. An independent and impartial oversight mechanism shall be established
by law to monitor, promote and protect the right of access to information and
resolve disputes on access to information.
2. The independence of the oversight mechanism shall be guaranteed in
law which shall stipulate a transparent and participatory appointment
process, a clear and specific term of office, adequate remuneration and
resourcing, and ultimate accountability to the legislature.
3. Public bodies and relevant private bodies shall recognise decisions of
the oversight mechanism as formally and legally binding in all matters relating
to access to information, including resolving access to information disputes.

Principle 35: Protected disclosures in the public interest

1. No person shall be subject to civil, criminal, administrative or
employment-related or other sanctions or harm, for releasing information on
wrongdoing or which discloses a serious threat to health, safety or the
environment, or whose disclosure is in the public interest, in the honest belief
that such information is substantially true.
2. States shall adopt laws to establish protected disclosure regimes and
independent institutions to oversee the protected disclosure of information in
the public interest.
398 African Commission on Human and Peoples’ Rights

Principle 36: Sanctions

1. The failure of an information holder to proactively disclose information
or to grant a request for information shall be established as offences
punishable by law.
2. The wilful destruction, damage, alteration, concealment or falsification
of information and the obstruction or interference with the performance of
the duties of an information holder or of an oversight mechanism, shall be
established as offences punishable by law.

Part IV: Freedom of expression and access to Information on the

internet

Principle 37: Access to the internet

1. States shall facilitate the rights to freedom of expression and access to
information online and the means necessary to exercise these rights.
2. States shall recognise that universal, equitable, affordable and
meaningful access to the internet is necessary for the realisation of freedom
of expression, access to information and the exercise of other human rights.
3. States shall, in cooperation with all relevant stakeholders, adopt laws,
policies and other measures to provide universal, equitable, affordable and
meaningful access to the internet without discrimination, including by:
(a) Developing independent and transparent regulatory mechanisms for
effective oversight;
(b) Improving information and communication technology and internet
infrastructure for universal coverage;
(c) Establishing mechanisms for regulating market competition to support
lower pricing and encourage diversity;
(d) Promoting local access initiatives such as community networks for
enabling the increased connection of marginalised, unserved or underserved
communities; and
(e) Facilitating digital literacy skills for inclusive and autonomous use.
4. In providing access to the internet, states shall take specific measures
to ensure that marginalised groups have effective exercise of their rights
online.
5. States shall adopt laws, policies and other measures to promote
affordable access to the internet for children that equips them with digital
literacy skills for online education and safety, protects them from online harm
and safeguards their privacy and identity.

Principle 38: Non-interference

1. States shall not interfere with the right of individuals to seek, receive
and impart information through any means of communication and digital
technologies, through measures such as the removal, blocking or filtering of
content, unless such interference is justifiable and compatible with
international human rights law and standards.
2. States shall not engage in or condone any disruption of access to the
internet and other digital technologies for segments of the public or an entire
population.
3. States shall only adopt economic measures, including taxes, levies and
duties, on internet and information and communication technology service
end-users that do not undermine universal, equitable, affordable and
meaningful access to the internet and that are justifiable and compatible
with international human rights law and standards.
 Resolutions of the African Commission 399

Principle 39: Internet intermediaries

1. States shall require that internet intermediaries enable access to all
internet traffic equally without discrimination on the basis of the type or
origin of content or the means used to transmit content, and that internet
intermediaries shall not interfere with the free flow of information by
blocking or giving preference to particular internet traffic.
2. States shall not require internet intermediaries to proactively monitor
content which they have not authored or otherwise modified.
3. States shall require internet intermediaries to ensure that in moderating
or filtering online content, they mainstream human rights safeguards into
their processes, adopt mitigation strategies to address all restrictions on
freedom of expression and access to information online, ensure transparency
on all requests for removal of content, incorporate appeal mechanisms, and
offer effective remedies where rights violations occur.
4. States shall not require the removal of online content by internet
intermediaries unless such requests are:
(a) Clear and unambiguous;
(b) Imposed by an independent and impartial judicial authority, subject to
sub-principle 5;
(c) Subject to due process safeguards;
(d) Justifiable and compatible with international human rights law and
standards; and
(e) Implemented through a transparent process that allows a right of
appeal.
5. Law-enforcement agencies may request intermediaries for the
expedited or immediate removal of online content that poses imminent
danger or constitutes real risk of death or serious harm to a person or child,
provided such removal is subject to review by judicial authority.
6. States shall ensure that the development, use and application of
artificial intelligence, algorithms and other similar technologies by internet
intermediaries are compatible with international human rights law and
standards, and do not infringe on the rights to freedom of expression, access
to information and other human rights.

Principle 40: Privacy and the protection of personal information

1. Everyone has the right to privacy, including the confidentiality of their
communications and the protection of their personal information.
2. Everyone has the right to communicate anonymously or use pseudonyms
on the internet and to secure the confidentiality of their communications and
personal information from access by third parties through the aid of digital
technologies.
3. States shall not adopt laws or other measures prohibiting or weakening
encryption, including backdoors, key escrows and data localisation
requirements, unless such measures are justifiable and compatible with
international human rights law and standards.

Principle 41: Privacy and communication surveillance

1. States shall not engage in or condone acts of indiscriminate and
untargeted collection, storage, analysis or sharing of a person’s
communications.
2. States shall only engage in targeted communication surveillance that is
authorised by law, that conforms with international human rights law and
standards, and that is premised on specific and reasonable suspicion that a
serious crime has been or is being carried out or for any other legitimate aim.
3. States shall ensure that any law authorising targeted communication
surveillance provides adequate safeguards for the right to privacy, including:
400 African Commission on Human and Peoples’ Rights

(a) The prior authorisation of an independent and impartial judicial

authority;
(b) Due process safeguards;
(c) Specific limitation on the time, manner, place and scope of the
surveillance;
(d) Notification of the decision authorising surveillance within a reasonable
time of the conclusion of such surveillance;
(e) Proactive transparency on the nature and scope of its use; and
(f) Effective monitoring and regular review by an independent oversight
mechanism.

Principle 42: Legal framework for the protection of personal information

1. States shall adopt laws for the protection of personal information of
individuals in accordance with international human rights law and standards.
2. The processing of personal information shall by law be:
(a) With the consent of the individual concerned;
(b) Conducted in a lawful and fair manner;
(c) In accordance with the purpose for which it was collected, and
adequate, relevant and not excessive;
(d) Accurate and updated, and where incomplete, erased or rectified;
(e) Transparent and disclose the personal information held; and
(f) Confidential and kept secure at all times.
3. States shall ensure, in relation to the processing of a person’s personal
information, that the person has the rights to:
(a) Be informed in detail about the processing;
(b) Access personal information that has been or is being processed;
(c) Object to the processing; and
(d) Rectify, complete or erase personal information that is inaccurate,
incomplete or prohibited from collection, use, disclosure or storage.
4. Every person shall have the right to exercise autonomy in relation to
their personal information by law and to obtain and reuse their personal
information, across multiple services, by moving, copying or transferring it.
5. Any person whose personal information has been accessed by an
unauthorised person has the right to be notified of this fact within a
reasonable period and of the identity of the unauthorised person, unless such
identity cannot be established.
6. The harmful sharing of personal information, such as child sexual abuse
or the non-consensual sharing of intimate images, shall be established as
offences punishable by law.
7. Every individual shall have legal recourse to effective remedies in
relation to the violation of their privacy and the unlawful processing of their
personal information.
8. Oversight mechanisms for the protection of communication and
personal information shall be established by law as independent entities and
include human rights and privacy experts.

Part V: Implementation

Principle 43: Implementation

1. States shall adopt legislative, administrative, judicial and other
measures to give effect to this Declaration and facilitate its dissemination.
2. When states review or adopt legislation on access to information, they
shall be further guided by the African Commission’s Model Law on Access to
Information for Africa.
 Resolutions of the African Commission 401

3. When states adopt measures related to elections, they shall be further

guided by the African Commission’s Guidelines on Access to Information and
Elections in Africa.
4. In accordance with Article 62 of the African Charter, States shall, in
each periodic report submitted to the African Commission, provide detailed
information on the measures taken to facilitate compliance with the
provisions of this Declaration.

_____________________________________

Resolution on Guidelines and Measures for the Prohibition and

Prevention of Torture, Cruel, Inhuman or Degrading Treatment or
Punishment in Africa (‘Robben Island Guidelines on Torture’)
(2002)

...
Adopts the Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The
Robben Island Guidelines).
Establishes a Follow-up Committee comprising of the African Commission, the
Association for the Prevention of Torture and any prominent African Experts
as the Commission may determine.
Assigns the following mandate to the Follow-up Committee:
• To organise, with the support of interested partners, seminars to
disseminate the Robben Island Guidelines to national and regional
stakeholders.
• To develop and propose to the African Commission strategies to promote
and implement the Robben Island Guidelines at the national and regional
levels.
• To promote and facilitate the implementation of the Robben Island
Guidelines within member states.
• To make a progress report to the African Commission at each ordinary
session.
Urges Special Rapporteurs and members of the African Commission to widely
disseminate the Robben Island Guidelines as part of their promotional
mandate.
Encourages states parties to the African Charter, in their periodic reports to
the African Commission, to bear in mind the Robben Island Guidelines.
Invites NGOs and other relevant actors to widely disseminate and utilise the
Robben Island Guidelines in the course of their work.

_____________________________________

Robben Island Guidelines (2002)

Part I: Prohibition of Torture

A. Ratification of regional and international instruments

1. States should ensure that they are a party to relevant international and
regional human rights instruments and ensure that these instruments are fully
402 African Commission on Human and Peoples’ Rights

implemented in domestic legislation and accord individuals the maximum

scope for accessing the human rights machinery that they establish. This
would include:
a) Ratification of the Protocol to the African Charter of Human and
Peoples’ Rights establishing an African Court of Human and Peoples’ Rights;
b) Ratification of or accession to the UN Convention against Torture, Cruel,
Inhuman and Degrading Treatment or Punishment without reservations, to
make declarations accepting the jurisdiction of the Committee against
Torture under articles 21 and 22 and recognising the competency of the
Committee to conduct inquiries pursuant to article 20;
c) Ratification of or accession to the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil and Political
Rights and the First Optional Protocol thereto without reservations;
d) Ratification of or accession to the Rome Statute establishing the
International Criminal Court;
B. Promote and support co-operation with international mechanisms
2. States should co-operate with the African Commission on Human and
Peoples’ Rights and promote and support the work of the Special Rapporteur
on prisons and conditions of detention in Africa, the Special Rapporteur on
arbitrary, summary and extra-judicial executions in Africa and the Special
Rapporteur on the rights of women in Africa.
3. States should co-operate with the United Nations Human Rights Treaties
Bodies, with the UN Commission on Human Rights’ thematic and country
specific special procedures, in particular, the UN Special Rapporteur on
Torture, including the issuance of standing invitations for these and other
relevant mechanisms.

C. Criminalisation of torture
4. States should ensure that acts, which fall within the definition of
torture, based on article 1 of the UN Convention against Torture, are offences
within their national legal systems.
5. States should pay particular attention to the prohibition and prevention
of gender-related forms of torture and ill-treatment and the torture and ill-
treatment of young persons.
6. National courts should have jurisdictional competence to hear cases of
allegations of torture in accordance with article 5(2) of the UN Convention
against Torture.
7. Torture should be made an extraditable offence.
8. The trial or extradition of those suspected of torture should take place
expeditiously in conformity with relevant international standards.
9. Circumstances such as state of war, threat of war, internal political
instability or any other public emergency, shall not be invoked as a
justification of torture, cruel, inhuman or degrading treatment or
punishment.
10. Notions such as necessity, national emergency, public order, and ordre
public shall not be invoked as a justification of torture, cruel, inhuman or
degrading treatment or punishment.
11. Superior orders shall never provide a justification or lawful excuse for
acts of torture, cruel, inhuman or degrading treatment or punishment.
12. Those found guilty of having committed acts of torture shall be subject
to appropriate sanctions that reflect the gravity of the offence, applied in
accordance with relevant international standards.
13. No one shall be punished for disobeying an order that they commit acts
amounting to torture, cruel, inhuman or degrading treatment or punishment.
 Resolutions of the African Commission 403

14. States should prohibit and prevent the use, production and trade of
equipment or substances designed to inflict torture or ill-treatment and the
abuse of any other equipment or substance to these ends.

D. Non-Refoulement
15. States should ensure no one is expelled or extradited to a country where
he or she is at risk of being subjected to torture.

E. Combating impunity
16. In order to combat impunity states should:
(a) Ensure that those responsible for acts of torture or ill-treatment are
subject to legal process.
(b) Ensure that there is no immunity from prosecution for nationals
suspected of torture, and that the scope of immunities for foreign nationals
who are entitled to such immunities be as restrictive as is possible under
international law.
(c) Ensure expeditious consideration of extradition requests to third states,
in accordance with international standards.
(d) Ensure that rules of evidence properly reflect the difficulties of
substantiating allegations of ill-treatment in custody.
(e) Ensure that where criminal charges cannot be sustained because of the
high standard of proof required, other forms of civil, disciplinary or
administrative action are taken if it is appropriate to do so.

F. Complaints and investigation procedures

17. Ensure the establishment of readily accessible and fully independent
mechanisms to which all persons can bring their allegations of torture and ill-
treatment.
18. Ensure that whenever persons who claimed to have been or who appear
to have been tortured or ill-treated are brought before competent authorities
an investigation shall be initiated.
19. Investigations into all allegations of torture or ill-treatment, shall be
conducted promptly, impartially and effectively, guided by the UN Manual on
the Effective Investigation and Documentation of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol).

Part II: Prevention of Torture

A. Basic procedural safeguards for those deprived of their liberty

20. All persons who are deprived of their liberty by public order or
authorities should have that detention controlled by properly and legally
constructed regulations. Such regulations should provide a number of basic
safeguards, all of which shall apply from the moment when they are first
deprived of their liberty. These include:
(a) The right that a relative or other appropriate third person is notified of
the detention;
(b) The right to an independent medical examination;
(c) The right of access to a lawyer;
(d) Notification of the above rights in a language, which the person
deprived of their liberty understands;

B. Safeguards during the pre-trial process

States should:
21. Establish regulations for the treatment of all persons deprived of their
liberty guided by the UN Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
404 African Commission on Human and Peoples’ Rights

22. Ensure that those subject to the relevant codes of criminal procedure
conduct criminal investigations.
23. Prohibit the use of unauthorised places of detention and ensure that it
is a punishable offence for any official to hold a person in a secret and/or
unofficial place of detention.
24. Prohibit the use of incommunicado detention.
25. Ensure that all detained persons are informed immediately of the
reasons for their detention.
26. Ensure that all persons arrested are promptly informed of any charges
against them.
27. Ensure that all persons deprived of their liberty are brought promptly
before a judicial authority, having the right to defend themselves or to be
assisted by legal counsel, preferably of their own choice.
28. Ensure that comprehensive written records of all interrogations are
kept, including the identity of all persons present during the interrogation and
consider the feasibility of the use of video and/or audio taped recordings of
interrogations.
29. Ensure that any statement obtained through the use of torture, cruel,
inhuman or degrading treatment or punishment shall not be admissible as
evidence in any proceedings except against persons accused of torture as
evidence that the statement was made.
30. Ensure that comprehensive written records of those deprived of their
liberty are kept at each place of detention, detailing, inter alia, the date,
time, place and reason for the detention.
31. Ensure that all persons deprived of their liberty have access to legal and
medical services and assistance and have the right to be visited by and
correspond with family members.
32. Ensure that all persons deprived of their liberty can challenge the
lawfulness of their detention.

C. Conditions of detention
States should:
33. Take steps to ensure that the treatment of all persons deprived of their
liberty are in conformity with international standards guided by the UN
standard minimum rules for the treatment of prisoners.
34. Take steps to improve conditions in places of detention, which do not
conform to international standards.
35. Take steps to ensure that pre-trial detainees are held separately from
convicted persons.
36. Take steps to ensure that juveniles, women, and other vulnerable
groups are held in appropriate and separate detention facilities.
37. Take steps to reduce over-crowding in places of detention by inter alia,
encouraging the use of non-custodial sentences for minor crimes.

D. Mechanisms of oversight
States should:
38. Ensure and support the independence and impartiality of the judiciary
including by ensuring that there is no interference in the judiciary and judicial
proceedings, guided by the UN Basic Principles on the Independence of the
Judiciary.
39. Encourage professional legal and medical bodies, to concern themselves
with issues of the prohibition and prevention of torture, cruel, inhuman and
degrading treatment or punishment.
40. Establish and support effective and accessible complaint mechanisms
which are independent from detention and enforcement authorities and
 Resolutions of the African Commission 405

which are empowered to receive, investigate and take appropriate action on

allegations of torture, cruel, inhuman or degrading treatment or punishment.
41. Establish, support and strengthen independent national institutions
such as human rights commissions, ombudspersons and commissions of
parliamentarians, with the mandate to conduct visits to all places of
detention and to generally address the issue of the prevention of torture,
cruel, inhuman and degrading treatment or punishment, guided by the UN
Paris Principles Relating to the Status and Functioning of National Institutions
for the Protection and Promotion of Human Rights.
42. Encourage and facilitate visits by NGOs to places of detention.
43. Support the adoption of an Optional Protocol to the UNCAT to create an
international visiting mechanism with the mandate to visit all places where
people are deprived of their liberty by a state party.
44. Examine the feasibility of developing regional mechanisms for the
prevention of torture and ill-treatment.

E. Training and empowerment

45. Establish and support training and awareness-raising programmes which
reflect human rights standards and emphasise the concerns of vulnerable
groups.
46. Devise, promote and support codes of conduct and ethics and develop
training tools for law enforcement and security personnel, and other relevant
officials in contact with persons deprived of their liberty such as lawyers and
medical personnel.

F. Civil society education and empowerment

47. Public education initiatives, awareness-raising campaigns regarding the
prohibition and prevention of torture and the rights of detained persons shall
be encouraged and supported.
48. The work of NGOs and of the media in public education, the
dissemination of information and awareness-raising concerning the
prohibition and prevention of torture and other forms of ill-treatment shall
be encouraged and supported.

Part III: Responding to the Needs of Victims

49. Ensure that alleged victims of torture, cruel, inhuman and degrading
treatment or punishment, witnesses, those conducting the investigation,
other human rights defenders and families are protected from violence,
threats of violence or any other form of intimidation or reprisal that may arise
pursuant to the report or investigation.
50. The obligation upon the state to offer reparation to victims exists
irrespective of whether a successful criminal prosecution can or has been
brought. Thus all states should ensure that all victims of torture and their
dependents are:
(a) Offered appropriate medical care;
(b) Have access to appropriate social and medical rehabilitation;
(c) Provided with appropriate levels of compensation and support;
In addition there should also be a recognition that families and communities
which have also been affected by the torture and ill-treatment received by
one of its members can also be considered as victims.

_____________________________________
406 African Commission on Human and Peoples’ Rights

Principles and Guidelines on the Right to a Fair Trial

and Legal Assistance in Africa (2003)

Following the appointment of a Working Group on the Right to a Fair Trial per its
1999 Resolution on the Right to a Fair Trial and Legal Assistance, the Commission
adopted the following principles and guidelines.

...
A. GENERAL PRINCIPLES APPLICABLE TO ALL LEGAL PROCEEDINGS

1. Fair and public hearing

In the determination of any criminal charge against a person, or of a person’s
rights and obligations, everyone shall be entitled to a fair and public hearing
by a legally constituted competent, independent and impartial judicial body.

2. Fair hearing
The essential elements of a fair hearing include:
(a) equality of arms between the parties to a proceeding, whether they be
administrative, civil, criminal, or military;
(b) equality of all persons before any judicial body without any distinction
whatsoever as regards race, colour, ethnic origin, sex, gender, age, religion,
creed, language, political or other convictions, national or social origin,
means, disability, birth, status or other circumstances;
(c) equality of access by women and men to judicial bodies and equality
before the law in any legal proceedings;
(d) respect for the inherent dignity of the human persons, especially of
women who participate in legal proceedings as complainants, witnesses,
victims or accused;
(e) adequate opportunity to prepare a case, present arguments and
evidence and to challenge or respond to opposing arguments or evidence;
(f) an entitlement to consult and be represented by a legal representative
or other qualified persons chosen by the party at all stages of the proceedings;
(g) an entitlement to the assistance of an interpreter if he or she cannot
understand or speak the language used in or by the judicial body;
(h) an entitlement to have a party’s rights and obligations affected only by
a decision based solely on evidence presented to the judicial body;
(i) an entitlement to a determination of their rights and obligations
without undue delay and with adequate notice of and reasons for the
decisions; and
(j) an entitlement to an appeal to a higher judicial body.

3. Public hearing
(a) All the necessary information about the sittings of judicial bodies shall
be made available to the public by the judicial body;
(b) A permanent venue for proceedings by judicial bodies shall be
established by the state and widely publicised. In the case of ad-hoc judicial
bodies, the venue designated for the duration of their proceedings should be
made public;
(c) Adequate facilities shall be provided for attendance by interested
members of the public;
(d) No limitations shall be placed by the judicial body on the category of
people allowed to attend its hearings where the merits of a case are being
examined;
 Resolutions of the African Commission 407

(e) Representatives of the media shall be entitled to be present at and

report on judicial proceedings except that a judge may restrict or limit the
use of cameras during the hearings;
(f) The public and the media may not be excluded from hearings before
judicial bodies except if it is determined to be:
(1) in the interest of justice for the protection of children, witnesses or
the identity of victims of sexual violence
(2) for reasons of public order or national security in an open and
democratic society that respects human rights and the rule of law.
(g) Judicial bodies may take steps or order measures to be taken to protect
the identity and dignity of victims of sexual violence, and the identity of
witnesses and complainants who may be put at risk by reason of their
participation in judicial proceedings.
(h) Judicial bodies may take steps to protect the identity of accused
persons, witnesses or complainants where it is in the best interest of a child.
(i) Nothing in these Guidelines shall permit the use of anonymous witnesses
where the judge and the defence is unaware of the witness’ identity at trial.
Any judgment rendered in legal proceedings, whether civil or criminal, shall
be pronounced in public.

4. Independent tribunal
(a) The independence of judicial bodies and judicial officers shall be
guaranteed by the constitution and laws of the country and respected by the
government, its agencies and authorities;
(b) Judicial bodies shall be established by law to have adjudicative
functions to determine matters within their competence on the basis of the
rule of law and in accordance with proceedings conducted in the prescribed
manner;
(c) The judiciary shall have jurisdiction over all issues of a judicial nature
and shall have exclusive authority to decide whether an issue submitted for
decision is within the competence of a judicial body as defined by law;
(d) A judicial body’s jurisdiction may be determined, inter alia, by
considering where the events involved in the dispute or offence took place,
where the property in dispute is located, the place of residence or domicile
of the parties and the consent of the parties;
(e) Military or other special tribunals that do not use the duly established
procedure of the legal process shall not be created to displace the jurisdiction
belonging to the ordinary judicial bodies;
(f) There shall not be any inappropriate or unwarranted interference with
the judicial process nor shall decisions by judicial bodies be subject to
revision except through judicial review, or the mitigation or commutation of
sentence by competent authorities, in accordance with the law;
(g) All judicial bodies shall be independent from the executive branch;
(h) The process for appointments to judicial bodies shall be transparent and
accountable and the establishment of an independent body for this purpose
is encouraged. Any method of judicial selection shall safeguard the
independence and impartiality of the judiciary;
(i) The sole criteria for appointment to judicial office shall be the
suitability of a candidate for such office by reason of integrity, appropriate
training or learning and ability;
(j) Any person who meets the criteria shall be entitled to be considered for
judicial office without discrimination on any grounds such as race, colour,
ethnic origin, language, sex, gender, political or other opinion, religion,
creed, disability, national or social origin, birth, economic or other status.
However, it shall not be discriminatory for states to:
408 African Commission on Human and Peoples’ Rights

(1) prescribe a minimum age or experience for candidates for judicial

office;
(2) prescribe a maximum or retirement age or duration of service for
judicial officers;
(3) prescribe that such maximum or retirement age or duration of
service may vary with different level of judges, magistrates or other
officers in the judiciary; and
(4) require that only nationals of the state concerned shall be eligible
for appointment to judicial office.
(k) No person shall be appointed to judicial office unless they have the
appropriate training or learning that enables them to adequately fulfil their
functions;
(l) Judges or members of judicial bodies shall have security of tenure until
a mandatory retirement age or the expiry of their term of office;
(m) The tenure, adequate remuneration, pension, housing, transport,
conditions of physical and social security, age of retirement, disciplinary and
recourse mechanisms and other conditions of service of judicial officers shall
be prescribed and guaranteed by law;
(n) Judicial officers shall not be:
(1) liable in civil or criminal proceedings for improper acts or omissions
in the exercise of their judicial functions;
(2) removed from office or subject to other disciplinary or
administrative procedures by reason only that their decision has been
overturned on appeal or review by a higher judicial body; and
(3) appointed under a contract for a fixed term.
(o) Promotion of judicial officials shall be based on objective factors, in
particular ability, integrity and experience;
(p) Judicial officials may only be removed or suspended from office for
gross misconduct incompatible with judicial office, or for physical or mental
incapacity that prevents them from undertaking their judicial duties;
(q) Judicial officials facing disciplinary, suspension or removal proceedings
shall be entitled to guarantees of a fair hearing including the right to be
represented by a legal representative of their choice and to an independent
review of decisions of disciplinary, suspension or removal proceedings;
(r) The procedures for complaints against and discipline of judicial officials
shall be prescribed by law. Complaints against judicial officers shall be
processed promptly, expeditiously and fairly;
(s) Judicial officers are entitled to freedom of expression, belief,
association and assembly. In exercising these rights, they shall always conduct
themselves in accordance with the law and the recognised standards and
ethics of their profession;
(t) Judicial officers shall be free to form and join professional associations
or other organisations to represent their interests, to promote their
professional training and to protect their status;
(u) States may establish independent or administrative mechanisms for
monitoring the performance of judicial officers and public reaction to the
justice delivery processes of judicial bodies. Such mechanisms, which shall be
constituted in equal part of members of the judiciary and representatives of
the Ministry responsible for judicial affairs, may include processes for judicial
bodies receiving and processing complaints against its officers; and
(v) States shall endow judicial bodies with adequate resources for the
performance of its their functions. The judiciary shall be consulted regarding
the preparation of the budget and its implementation.
 Resolutions of the African Commission 409

5. Impartial tribunal
(a) A judicial body shall base its decision only on objective evidence,
arguments and facts presented before it. Judicial officers shall decide
matters before them without any restrictions, improper influence,
inducements, pressure, threats or interference, direct or indirect, from any
quarter or for any reason.
(b) Any party to proceedings before a judicial body shall be entitled to
challenge its impartiality on the basis of ascertainable facts that the fairness
of the judge or judicial body appears to be in doubt.
(c) The impartiality of a judicial body could be determined on the basis of
three relevant facts:
(1) that the position of the judicial officer allows him or her to play a
crucial role in the proceedings;
(2) the judicial officer may have expressed an opinion which would
influence the decision-making;
(3) the judicial official would have to rule on an action taken in a prior
capacity.
(d) The impartiality of a judicial body would be undermined when:
(1) a former public prosecutor or legal representative sits as a judicial
officer in a case in which he or she prosecuted or represented a party;
(2) a judicial official secretly participated in the investigation of a case;
(3) a judicial official has some connection with the case or a party to
the case;
(4) a judicial official sits as member of an appeal tribunal in a case
which he or she decided or participated in a lower judicial body.
In any of these circumstances, a judicial official would be under an obligation
to step down.
(e) A judicial official may not consult a higher official authority before
rendering a decision in order to ensure that his or her decision will be upheld.

B. JUDICIAL TRAINING

(a) States shall ensure that judicial officials have appropriate education
and training and should be made aware of the ideals and ethical duties of
their office, of the constitutional and statutory protections for the rights of
accused persons, victims and other litigants and of human rights and
fundamental freedoms recognised by national and international law.
(b) States shall establish, where they do not exist, specialised institutions
for the education and training of judicial officials and encourage
collaboration amongst such institutions in countries in the region and
throughout Africa.
(c) States shall ensure that judicial officials receive continuous training and
education throughout their career including, where appropriate, in racial,
cultural and gender sensitisation.

C. RIGHT TO AN EFFECTIVE REMEDY

(a) Everyone has the right to an effective remedy by competent national

tribunals for acts violating the rights granted by the constitution, by law or by
the Charter, notwithstanding that the acts were committed by persons in an
official capacity.
(b) The right to an effective remedy includes:
(1) access to justice;
(2) reparation for the harm suffered;
(3) access to the factual information concerning the violations.
410 African Commission on Human and Peoples’ Rights

(c) Every state has an obligation to ensure that:

(1) any person whose rights have been violated, including by persons
acting in an official capacity, has an effective remedy by a competent
judicial body;
(2) any person claiming a right to remedy shall have such a right
determined by competent judicial, administrative or legislative
authorities;
(3) any remedy granted shall be enforced by competent authorities;
(4) any state body against which a judicial order or other remedy has
been granted shall comply fully with such an order or remedy.
(d) The granting of amnesty to absolve perpetrators of human rights
violations from accountability violates the right of victims to an effective
remedy.

D. COURT RECORDS AND PUBLIC ACCESS

(a) All information regarding judicial proceedings shall be accessible to the

public, except information or documents that have been specifically
determined by judicial officials not to be made public.
(b) States must ensure that proper systems exist for recording all
proceedings before judicial bodies, storing such information and making it
accessible to the public.
(c) All decisions of judicial bodies must be published and available to
everyone throughout the country.
(d) The cost to the public of obtaining records of judicial proceedings or
decisions should be kept to a minimum and should not be so high as to amount
to a denial of access.

E. LOCUS STANDI

States must ensure, through adoption of national legislation, that in regard to

human rights violations, which are matters of public concern, any individual,
group of individuals or non-governmental organisation is entitled to bring an
issue before judicial bodies for determination.

F. ROLE OF PROSECUTORS

(a) States shall ensure that:

(1) Prosecutors have appropriate education and training and should be
made aware of the ideals and ethical duties of their office, of the
constitutional and statutory protections for the rights of the suspect and
the victim, and of human rights and fundamental freedoms recognised by
national and international law, including the Charter.
(2) Prosecutors are able to perform their professional functions without
intimidation, hindrance, harassment, improper interference or
unjustified exposure to civil, penal or other liability.
(b) Reasonable conditions of service of prosecutors, adequate
remuneration and, where applicable, tenure, housing, transport, conditions
of physical and social security, pension and age of retirement and other
conditions of service shall be set out by law or published rules or regulations.
(c) Promotion of prosecutors, wherever such a system exists, shall be based
on objective factors, in particular professional qualifications, ability,
integrity and experience, and decided upon in accordance with fair and
impartial procedures.
 Resolutions of the African Commission 411

(d) Prosecutors like other citizens are entitled to freedom of expression,

belief, association and assembly. In exercising these rights, prosecutors shall
always conduct themselves in accordance with the law and the recognised
standards and ethics of their profession.
(e) Prosecutors shall be free to form and join professional associations or
other organisations to represent their interests, to promote their professional
training and to protect their status.
(f) The office of prosecutors shall be strictly separated from judicial
functions.
(g) Prosecutors shall perform an active role in criminal proceedings,
including institution of prosecution and, where authorised by law or
consistent with local practice, in the investigation of crime, supervision over
the legality of these investigations, supervision of the execution of decisions
of judicial bodies and the exercise of other functions as representatives of the
public interest.
(h) Prosecutors shall, in accordance with the law, perform their duties
fairly, consistently and expeditiously, and respect and protect dignity and
uphold human rights, thus contributing to ensuring due process and the
smooth functioning of the criminal justice system.
(i) In the performance of their duties, prosecutors shall:
(1) carry out their functions impartially and avoid all political, social,
racial, ethnic, religious, cultural, sexual, gender or any other kind of
discrimination;
(2) protect the public interest, act with objectivity, take proper
account of the position of the suspect and the victim, and pay attention
to all relevant circumstances, irrespective of whether they are to the
advantage or disadvantage of the suspect;
(3) keep matters in their possession confidential, unless the
performance of duty or needs of justice require otherwise;
(4) consider the views and concerns of victims when their personal
interests are affected and ensure that victims are informed of their rights
in accordance with the provisions below relating to victims.
(j) Prosecutors shall not initiate or continue prosecution, or shall make
every effort to stay proceedings, when an impartial investigation shows the
charge to be unfounded.
(k) Prosecutors shall give due attention to the prosecution of crimes
committed by public officials, particularly corruption, abuse of power, grave
violations of human rights and other crimes recognised by international law
and, where authorised by law or consistent with local practice, the
investigation of such offences.
(l) When prosecutors come into possession of evidence against suspects
that they know or believe on reasonable grounds was obtained through
recourse to unlawful methods, which constitute a grave violation of the
suspect’s human rights, especially involving torture or cruel, inhuman or
degrading treatment or punishment, or other abuses of human rights, they
shall refuse to use such evidence against anyone other than those who used
such methods, or inform the judicial body accordingly, and shall take all
necessary steps to ensure that those responsible for using such methods are
brought to justice.
(m) In order to ensure the fairness and effectiveness of prosecution,
prosecutors shall strive to co-operate with the police, judicial bodies, the
legal profession, paralegals, non-governmental organisations and other
government agencies or institutions.
(n) Disciplinary offences of prosecutors shall be based on law or lawful
regulations. Complaints against prosecutors, which allege that they acted in
a manner that is inconsistent with professional standards, shall be processed
412 African Commission on Human and Peoples’ Rights

expeditiously and fairly under appropriate procedures prescribed by law.

Prosecutors shall have the right to a fair hearing including the right to be
represented by a legal representative of their choice. The decision shall be
subject to independent review.
(o) Disciplinary proceedings against prosecutors shall guarantee an
objective evaluation and decision. They shall be determined in accordance
with the law, the code of professional conduct and other established
standards and ethics.

G. ACCESS TO LAWYERS AND LEGAL SERVICES

(a) States shall ensure that efficient procedures and mechanisms for
effective and equal access to lawyers are provided for all persons within their
territory and subject to their jurisdiction, without distinction of any kind,
such as discrimination based on race, colour, ethnic origin, sex, gender,
language, religion, political, or other opinion, national or social origin,
property, disability, birth, economic or other status.
(b) States shall ensure that an accused person or a party to a civil case is
permitted representation by a lawyer of his or her choice, including a foreign
lawyer duly accredited to the national bar.
(c) States and professional associations of lawyers shall promote
programmes to inform the public about their rights and duties under the law
and the important role of lawyers in protecting their fundamental rights and
freedoms.

H. LEGAL AID AND LEGAL ASSISTANCE

(a) The accused or a party to a civil case has a right to have legal assistance
assigned to him or her in any case where the interest of justice so require,
and without payment by the accused or party to a civil case if he or she does
not have sufficient means to pay for it.
(b) The interests of justice should be determined by considering:
(1) in criminal matters:
(i) the seriousness of the offence;
(ii) the severity of the sentence.
(2) in civil cases:
(i) the complexity of the case and the ability of the party to adequately
represent himself or herself;
(ii) the rights that are affected;
(iii) the likely impact of the outcome of the case on the wider
community.
(c) The interests of justice always require legal assistance for an accused in
any capital case, including for appeal, executive clemency, commutation of
sentence, amnesty or pardon.
(d) An accused person or a party to a civil case has the right to an effective
defence or representation and has a right to choose his or her own legal
representative at all stages of the case. They may contest the choice of his or
her court-appointed lawyer.
(e) When legal assistance is provided by a judicial body, the lawyer
appointed shall:
(1) be qualified to represent and defend the accused or a party to a
civil case;
(2) have the necessary training and experience corresponding to the
nature and seriousness of the matter;
 Resolutions of the African Commission 413

(3) be free to exercise his or her professional judgment in a professional

manner free of influence of the state or the judicial body;
(4) advocate in favour of the accused or party to a civil case;
(5) be sufficiently compensated to provide an incentive to accord the
accused or party to a civil case adequate and effective representation.
(f) Professional associations of lawyers shall co-operate in the organisation
and provision of services, facilities and other resources, and shall ensure that:
(1) when legal assistance is provided by the judicial body, lawyers with
the experience and competence commensurate with the nature of the
case make themselves available to represent an accused person or party
to a civil case;
(2) where legal assistance is not provided by the judicial body in
important or serious human rights cases, they provide legal
representation to the accused or party in a civil case, without any
payment by him or her.
(g) Given the fact that in many states the number of qualified lawyers is
low, states should recognise the role that paralegals could play in the
provision of legal assistance and establish the legal framework to enable them
to provide basic legal assistance.
(h) States should, in conjunction with the legal profession and non-
governmental organisations, establish training, the qualification procedures
and rules governing the activities and conduct of paralegals. States shall
adopt legislation to grant appropriate recognition to paralegals.
(i) Paralegals could provide essential legal assistance to indigent persons,
especially in rural communities and would be the link with the legal
profession.
(j) Non-governmental organisations should be encouraged to establish legal
assistance programmes and to train paralegals.
(k) States that recognise the role of paralegals should ensure that they are
granted similar rights and facilities afforded to lawyers, to the extent
necessary to enable them to carry out their functions with independence.

I. INDEPENDENCE OF LAWYERS

(a) States, professional associations of lawyers and educational institutions

shall ensure that lawyers have appropriate education and training and be
made aware of the ideals and ethical duties of the lawyer and of human rights
and fundamental freedoms recognised by national and international law.
(b) States shall ensure that lawyers:
(1) are able to perform all of their professional functions without
intimidation, hindrance, harassment or improper interference;
(2) are able to travel and to consult with their clients freely both within
their own country and abroad;
(3) shall not suffer, or be threatened with, prosecution or
administrative, economic or other sanctions for any action taken in
accordance with recognised professional duties, standards and ethics.
(c) States shall recognise and respect that all communications and
consultations between lawyers and their clients within their professional
relationship are confidential.
(d) It is the duty of the competent authorities to ensure lawyers access to
appropriate information, files and documents in their possession or control in
sufficient time to enable lawyers to provide effective legal assistance to their
clients. Such access should be provided at the earliest appropriate time.
(e) Lawyers shall enjoy civil and penal immunity for relevant statements
made in good faith in written or oral pleadings or in their professional
appearances before a judicial body or other legal or administrative authority.
414 African Commission on Human and Peoples’ Rights

(f) Where the security of lawyers is threatened as a result of discharging

their functions, they shall be adequately safeguarded by the authorities.
(g) Lawyers shall not be identified with their clients or their clients’ causes
as a result of discharging their functions.
(h) Lawyers shall at all times maintain the honour and dignity of their
profession as essential agents of the administration of justice.
(i) Lawyers, in protecting the rights of their clients and in promoting the
cause of justice, shall seek to uphold human rights and fundamental freedoms
recognised by national and international law and shall at all times act freely
and diligently in accordance with the law and recognised standards and ethics
of the legal profession.
(j) Lawyers shall always loyally respect the interests of their clients.
(k) Lawyers like other citizens are entitled to freedom of expression,
belief, association and assembly. In particular, they shall have the right to
take part in public discussion of matters concerning the law, the
administration of justice and the promotion and the protection of human
rights and to join or form local, national or international organisations and
attend their meetings, without suffering professional restrictions by reason of
their lawful action or their membership in a lawful organisation. In exercising
these rights, lawyers shall always conduct themselves in accordance with the
law and the recognised standards and ethics of the legal profession.
(l) Lawyers shall be entitled to form and join self-governing professional
associations to represent their interests, promote their continuing education
and training and protect their professional integrity. The executive body of
the professional association shall be elected by its members and shall exercise
its functions without external interference.
(m) Codes of professional conduct for lawyers shall be established by the
legal profession through its appropriate organs, or by legislation, in
accordance with national law and custom and recognised international
standards and norms.
(n) Charges or complaints made against lawyers in their professional
capacity shall be processed expeditiously and fairly under appropriate
procedures. Lawyers shall have the right to a fair hearing, including the right
to be assisted by a lawyer of their choice.
(o) Disciplinary proceedings against lawyers shall be brought before an
impartial disciplinary committee established by the legal profession, before
an independent statutory authority, or even before a judicial body, and shall
be subject to an independent judicial review.
(p) All disciplinary proceedings shall be determined in accordance with the
code of professional conduct, other recognised standards and ethics of the
legal profession and international standards.

J. CROSS BORDER COLLABORATION AMONGST LEGAL PROFESSIONALS

(a) States shall ensure that national legislation does not prevent
collaboration amongst legal professionals in countries in their region and
throughout Africa.
(b) States shall encourage the establishment of agreements amongst states
and professional legal associations in their region that permit cross-border
collaboration amongst lawyers including legal representation, training and
education, and exchange of information and expertise.
 Resolutions of the African Commission 415

K. ACCESS TO JUDICIAL SERVICES

(a) States shall ensure that judicial bodies are accessible to everyone within
their territory and jurisdiction, without distinction of any kind, such as
discrimination based on race, colour, disability, ethnic origin, sex, gender,
language, religion, political or other opinion, national or social origin,
property, birth, economic or other status.
(b) States must take special measures to ensure that rural communities and
women have access to judicial services. States must ensure that law
enforcement and judicial officials are adequately trained to deal sensitively
and professionally with the special needs and requirements of women.
(c) In countries where there exist groups, communities or regions whose
needs for judicial services are not met, particularly where such groups have
distinct cultures, traditions or languages or have been the victims of past
discrimination, states shall take special measures to ensure that adequate
judicial services are accessible to them.
(d) States shall ensure that access to judicial services is not impeded
including by the distance to the location of judicial institutions, the lack of
information about the judicial system, the imposition of unaffordable or
excessive court fees and the lack of assistance to understand the procedures
and to complete formalities.

L. RIGHT OF CIVILIANS NOT TO BE TRIED BY MILITARY COURTS

(a) The only purpose of Military Courts shall be to determine offences of a

purely military nature committed by military personnel.
(b) While exercising this function, Military Courts are required to respect
fair trial standards enunciated in the African Charter and in these guidelines.
(c) Military courts should not in any circumstances whatsoever have
jurisdiction over civilians. Similarly, Special Tribunals should not try offences
which fall within the jurisdiction of regular courts.

M. PROVISIONS APPLICABLE TO ARREST AND DETENTION

1. Right to liberty and security

(a) States shall ensure that the right of everyone on its territory and under
its jurisdiction to liberty and security of person is respected.
(b) States must ensure that no one shall be subject to arbitrary arrest or
detention, and that arrest, detention or imprisonment shall only be carried
out strictly in accordance with the provisions of the law and by competent
officials or persons authorised for that purpose, pursuant to a warrant, on
reasonable suspicion or for probable cause.
(c) Each state shall establish rules under its national law indicating those
officials authorised to order deprivation of liberty, establishing the conditions
under which such orders may be given, and stipulating penalties for officials
who, without legal justification, refuse to provide information on any
detention.
(d) Each state shall likewise ensure strict supervision, including a clear
chain of command, of all law enforcement officials responsible for
apprehensions, arrests, detentions, custody, transfers and imprisonment, and
of other officials authorised by law to use force and firearms.
(e) Unless there is sufficient evidence that deems it necessary to prevent a
person arrested on a criminal charge from fleeing, interfering with witnesses
or posing a clear and serious risk to others, states must ensure that they are
416 African Commission on Human and Peoples’ Rights

not kept in custody pending their trial. However, release may be subject to
certain conditions or guarantees, including the payment of bail.
(f) Expectant mothers and mothers of infants shall not be kept in custody
pending their trial, but their release may be subject to certain conditions or
guarantees, including the payment of bail.
(g) States shall ensure, including by the enactment of legal provisions, that
officials or other persons who arbitrarily arrest or detain any person are
brought to justice.
(h) States shall ensure, including by the enactment of legal provisions and
adoption of procedures, that anyone who has been the victim of unlawful
arrest or detention is enabled to claim compensation.

2. Rights upon arrest

(a) Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his or her arrest and shall be promptly informed, in a language he
or she understands, of any charges against him or her.
(b) Anyone who is arrested or detained shall be informed upon arrest, in a
language he or she understands, of the right to legal representation and to be
examined by a doctor of his or her choice and the facilities available to
exercise this right.
(c) Anyone who is arrested or detained has the right to inform, or have the
authorities notify, their family or friends. The information must include the
fact of their arrest or detention and the place the person is kept in custody.
(d) If the arrested or detained person is a foreign national, he or she must
be promptly informed of the right to communicate with his or her embassy or
consular post. In addition, if the person is a refugee or stateless person or
under the protection of an inter-governmental organisation, he or she must
be notified without delay of the right to communicate with the appropriate
international organisation.
(e) States must ensure that any person arrested or detained is provided with
the necessary facilities to communicate, as appropriate, with his or her
lawyer, doctor, family and friends, and in the case of a foreign national, his
or her embassy or consular post or an international organisation.
(f) Any person arrested or detained shall have prompt access to a lawyer
and, unless the person has waived this right in writing, shall not be obliged to
answer any questions or participate in any interrogation without his or her
lawyer being present.
(g) Anyone who is arrested or detained shall be given reasonable facilities
to receive visits from family and friends, subject to restriction and supervision
only as are necessary in the interests of the administration of justice and of
security of the institution.
(h) Any form of detention and all measures affecting the human rights of a
person arrested or detained shall be subject to the effective control of a
judicial or other authority. In order to prevent arbitrary arrest and detention
or disappearances, states should establish procedures that require police or
other officials with the authority to arrest and detain to inform the
appropriate judicial official or other authority of the arrest and detention.
The judicial official or other authority shall exercise control over the official
detaining the person.

3. Right to be brought promptly before a judicial officer

(a) Anyone who is arrested or detained on a criminal charge shall be
brought before a judicial officer authorised by law to exercise judicial power
and shall be entitled to trial within a reasonable time or to release.
(b) The purpose of the review before a judicial or other authority includes
to:
 Resolutions of the African Commission 417

(1) assess whether sufficient legal reason exists for the arrest;
(2) assess whether detention before trial is necessary;
(3) determine whether the detainee should be released from custody,
and the conditions, if any, for such release;
(4) safeguard the well-being of the detainee;
(5) prevent violations of the detainee’s fundamental rights;
(6) give the detainee the opportunity to challenge the lawfulness of his
or her detention and to secure release if the arrest or detention violates
his or her rights.

4. Right of arrested or detained person to take proceedings before a

judicial body
Anyone who is deprived of his or her liberty by arrest or detention shall be
entitled to take proceedings before a judicial body, in order that that judicial
body may decide without delay on the lawfulness of his or her detention and
order release if the detention is not lawful.

5. Right to habeas corpus

(a) States shall enact legislation, where it does not exist, to ensure the right
to habeas corpus, amparo or similar procedures.
(b) Anyone concerned or interested in the well-being, safety or security of
a person deprived of his or her liberty has the right to a prompt and effective
judicial remedy as a means of determining the whereabouts or state of health
of such a person and/or identifying the authority ordering or carrying out the
deprivation of liberty.
(c) In such proceedings, competent national authorities shall have access to
all places where persons deprived of their liberty are being held and to each
part of those places, as well as to any place in which there are grounds to
believe that such persons may be found.
(d) Any other competent authority entitled under law of the state or by any
international legal instrument to which the state is a party may also have
access to such places.
(e) Judicial bodies shall at all times hear and act upon petitions for habeas
corpus, amparo or similar procedures. No circumstances whatever must be
invoked as a justification for denying the right to habeas corpus, amparo or
similar procedures.

6. Right to be detained in a place recognised by law

(a) Any person deprived of liberty shall be held in an officially recognised
place of detention.
(b) Accurate information shall be recorded regarding any person deprived
of liberty including:
(1) his or her identity;
(2) the reasons for arrest;
(3) the time of arrest and the taking of the arrested person to a place of
custody;
(4) the time of his first appearance before a judicial or other authority;
(5) the identity of the law enforcement officials concerned;
(6) precise information concerning the place of custody;
(7) details of the judicial official or other authority informed of the
arrest and detention.
(c) Accurate information on the detention of such persons and their place
or places of detention, including transfers, shall be promptly available to
their family members, their legal representative or to any other persons
having a legitimate interest in the information.
418 African Commission on Human and Peoples’ Rights

(d) An official up-to-date register of all persons deprived of liberty shall be

maintained in every place of detention and shall be made available to any
judicial or other competent and independent national authority seeking to
trace the whereabouts of the a detained person.

7. Right to humane treatment

(a) States shall ensure that all persons under any form of detention or
imprisonment are treated in a humane manner and with respect for the
inherent dignity of the human person.
(b) In particular states must ensure that no person, lawfully deprived of his
or her liberty is subjected to torture or to cruel, inhuman or degrading
treatment or punishment. States shall ensure that special measures are taken
to protect women detainees from ill-treatment, including making certain that
their interrogation is conducted by women police or judicial officials.
(c) Women shall at all times be detained separately from men and while in
custody they shall receive care, protection and all necessary individual
assistance — psychological, medical and physical — that they may require in
view of their sex and gender.
(d) It shall be prohibited to take undue advantage of the situation of a
detained or imprisoned person for the purpose of compelling him or her to
confess, to incriminate himself or herself or to testify against any other
person.
(e) No detained person while being interrogated shall be subject to
violence, threats or methods of interrogation which impair his or her capacity
of decision or his or her judgment.
(f) No detained person shall, even with his or her consent, be subjected to
any medical or scientific experimentation which could be detrimental to his
or her health.
(g) A detained person or his or her legal representative or family shall have
the right to lodge a complaint to the relevant authorities regarding his or her
treatment, in particular in case of torture or other cruel, inhuman or
degrading treatment.
(h) States shall ensure that effective mechanisms exist for the receipt and
investigation of such complaints. The right to lodge complaints and the
existence of such mechanisms should be promptly made known to all arrested
or detained persons.
(i) States shall ensure, including by the enactment of legal provisions, that
officials or other persons who subject arrested or detained persons to torture
or to cruel, inhuman or degrading treatment are brought to justice.
(j) States shall ensure, including by the enactment of legal provisions and
adoption of procedures, that anyone who has been the victim of torture or
cruel, inhuman or degrading treatment or punishment is enabled to claim
compensation.

8. Supervision of places of detention

(a) In order to supervise strict observance of relevant laws and regulations
and international standards applicable to detainees, places of detention shall
be visited regularly by qualified and experienced persons appointed by, and
responsible to, a competent authority distinct from the authority directly in
charge of the administration of the place of detention.
(b) A detained person shall have the right to communicate freely and in full
confidentiality with the persons who visit the places of detention or
imprisonment in accordance with the above principle, subject to reasonable
conditions to ensure security and good order in such places.
 Resolutions of the African Commission 419

N. PROVISIONS APPLICABLE TO PROCEEDINGS RELATING TO CRIMINAL

CHARGES

1. Notification of charge
(a) Any person charged with a criminal offence shall be informed promptly,
as soon as a charge is first made by a competent authority, in detail, and in a
language which he or she understands, of the nature and cause of the charge
against him or her.
(b) The information shall include details of the charge or applicable law and
the alleged facts on which the charge is based sufficient to indicate the
substance of the complaint against the accused.
(c) The accused must be informed in a manner that would allow him or her
to prepare a defence and to take immediate steps to secure his or her release.

2. Right to counsel
(a) The accused has the right to defend him or herself in person or through
legal assistance of his or her own choosing. Legal representation is regarded
as the best means of legal defence against infringements of human rights and
fundamental freedoms.
(b) The accused has the right to be informed, if he or she does not have
legal assistance, of the right to defend him or herself through legal assistance
of his or her own choosing.
(c) This right applies during all stages of any criminal prosecution, including
preliminary investigations in which evidence is taken, periods of
administrative detention, trial and appeal proceedings.
(d) The accused has the right to choose his or her own counsel freely. This
right begins when the accused is first detained or charged. A judicial body
may not assign counsel for the accused if a qualified lawyer of the accused’s
own choosing is available.

3. Right to adequate time and facilities for the preparation of a defence

(a) The accused has the right to communicate with counsel and have
adequate time and facilities for the preparation of his or her defence.
(b) The accused may not be tried without his or her counsel being notified
of the trial date and of the charges in time to allow adequate preparation of
a defence.
(c) The accused has a right to adequate time for the preparation of a
defence appropriate to the nature of the proceedings and the factual
circumstances of the case. Factors which may affect the adequacy of time for
preparation of a defence include the complexity of the case, the defendant’s
access to evidence, the length of time provided by rules of procedure prior to
particular proceedings, and prejudice to the defence.
(d) The accused has a right to facilities which assist or may assist the
accused in the preparation of his or her defence, including the right to
communicate with defence counsel and the right to materials necessary to
the preparation of a defence.
(e) All arrested, detained or imprisoned persons shall be provided with
adequate opportunities, time and facilities to be visited by and to
communicate with a lawyer, without delay, interception or censorship and in
full confidentiality.
(1) The right to confer privately with one’s lawyer and exchange
confidential information or instructions is a fundamental part of the
preparation of a defence. Adequate facilities shall be provided that
preserve the confidentiality of communications with counsel.
420 African Commission on Human and Peoples’ Rights

(2) States shall recognise and respect that all communications and
consultations between lawyers and their clients within their professional
relationship are confidential.
(3) The accused or the accused’s defence counsel has a right to all
relevant information held by the prosecution that could help the accused
exonerate him or herself.
(4) It is the duty of the competent authorities to ensure lawyers access
to appropriate information, files and documents in their possession or
control in sufficient time to enable lawyers to provide effective legal
assistance to their clients. Such access should be provided at the earliest
appropriate time.
(5) The accused has a right to consult legal materials reasonably
necessary for the preparation of his or her defence.
(6) Before judgment or sentence is rendered, the accused and his or her
defence counsel shall have the right to know and challenge all the
evidence which may be used to support the decision. All evidence
submitted must be considered by the judicial body.
(7) Following a trial and before any appellate proceeding, the accused
or the defence counsel has a right of access to (or to consult) the
evidence which the judicial body considered in making a decision and the
judicial body’s reasoning in arriving at the judgment.

4. The right to an interpreter

(a) The accused has the right to the free assistance of an interpreter if he
or she cannot understand or speak the language used before the judicial body.
(b) The right to an interpreter does not extend to the right to express
oneself in the language of one’s choice if the accused or the defence witness
is sufficiently proficient in the language of the judicial body.
(c) The right to an interpreter applies at all stages of the proceedings,
including pre-trial proceedings.
(d) The right to an interpreter applies to written as well as oral
proceedings. The right extends to translation or interpretation of all
documents or statements necessary for the defendant to understand the
proceedings or assist in the preparation of a defence.
(e) The interpretation or translation provided shall be adequate to permit
the accused to understand the proceedings and for the judicial body to
understand the testimony of the accused or defence witnesses.
(f) The right to interpretation or translation cannot be qualified by a
requirement that the accused pay for the costs of an interpreter or translator.
Even if the accused is convicted, he or she cannot be required to pay for the
costs of interpretation or translation.

5. Right to trial without undue delay

(a) Every person charged with a criminal offence has the right to a trial
without undue delay.
(b) The right to a trial without undue delay means the right to a trial which
produces a final judgment and, if appropriate a sentence without undue
delay.
(c) Factors relevant to what constitutes undue delay include the complexity
of the case, the conduct of the parties, the conduct of other relevant
authorities, whether an accused is detained pending proceedings, and the
interest of the person at stake in the proceedings.
 Resolutions of the African Commission 421

6. Rights during a trial

(a) In criminal proceedings, the principle of equality of arms imposes
procedural equality between the accused and the public prosecutor.
(1) The prosecution and defence shall be allowed equal time to present
evidence.
(2) Prosecution and defence witnesses shall be given equal treatment in
all procedural matters.
(b) The accused is entitled to a hearing in which his or her individual
culpability is determined. Group trials in which many persons are involved
may violate the person’s right to a fair hearing.
(c) In criminal proceedings, the accused has the right to be tried in his or
her presence.
(1) The accused has the right to appear in person before the judicial
body.
(2) The accused may not be tried in absentia. If an accused is tried in
absentia, the accused shall have the right to petition for a reopening of
the proceedings upon a showing that inadequate notice was given, that
the notice was not personally served on the accused, or that his or her
failure to appear was for exigent reasons beyond his or her control. If the
petition is granted, the accused is entitled to a fresh determination of
the merits of the charge.
(3) The accused may voluntarily waive the right to appear at a hearing,
but such a waiver shall be established in an unequivocal manner and
preferably in writing.
(d) The accused has the right not to be compelled to testify against him or
herself or to confess guilt.
(1) Any confession or other evidence obtained by any form of coercion
or force may not be admitted as evidence or considered as probative of
any fact at trial or in sentencing. Any confession or admission obtained
during incommunicado detention shall be considered to have been
obtained by coercion.
(2) Silence by the accused may not be used as evidence to prove guilt
and no adverse consequences may be drawn from the exercise of the
right to remain silent.
(e) Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.
(1) The presumption of innocence places the burden of proof during
trial in any criminal case on the prosecution.
(2) Public officials shall maintain a presumption of innocence. Public
officials, including prosecutors, may inform the public about criminal
investigations or charges, but shall not express a view as to the guilt of
any suspect.
(3) Legal presumptions of fact or law are permissible in a criminal case
only if they are rebuttable, allowing a defendant to prove his or her
innocence.
(f) The accused has a right to examine, or have examined, witnesses
against him or her and to obtain the attendance and examination of witnesses
on his or her behalf under the same conditions as witnesses against him or her.
(1) The prosecution shall provide the defence with the names of the
witnesses it intends to call at trial within a reasonable time prior to trial
which allows the defendant sufficient time to prepare his or her defence.
(2) The accused’s right to examine witnesses may be limited to those
witnesses whose testimony is relevant and likely to assist in ascertaining
the truth.
(3) The accused has the right to be present during the testimony of a
witness. This right may be limited only in exceptional circumstances such
422 African Commission on Human and Peoples’ Rights

as when a witness reasonably fears reprisal by the defendant, when the

accused engages in a course of conduct seriously disruptive of the
proceedings, or when the accused repeatedly fails to appear for trivial
reasons and after having been duly notified.
(4) If the defendant is excluded or if the presence of the defendant
cannot be ensured, the defendant’s counsel shall always have the right to
be present to preserve the defendant’s right to examine the witness.
(5) If national law does not permit the accused to examine witnesses
during pre-trial investigations, the defendant shall have the opportunity,
personally or through defence counsel, to cross-examine the witness at
trial. However, the right of a defendant to cross-examine witnesses
personally may be limited in respect of victims of sexual violence and
child witnesses, taking into consideration the defendant’s right to a fair
trial.
(6) The testimony of anonymous witnesses during a trial will be allowed
only in exceptional circumstances, taking into consideration the nature
and the circumstances of the offence and the protection of the security
of the witness and if it is determined to be in the interests of justice.
(g) Evidence obtained by illegal means constituting a serious violation of
internationally protected human rights shall not be used as evidence against
the accused or against any other person in any proceeding, except in the
prosecution of the perpetrators of the violations.

7. Right to benefit from a lighter sentence or administrative sanction

(a) No one shall be held guilty of any criminal offence on account of any act
or omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time when the
criminal offence was committed. If, subsequent to the commission of the
offence, provision is made by law for the imposition of a lighter penalty, the
offender shall benefit therefrom.
(b) A lighter penalty created any time before an accused’s sentence has
been fully served should be applied to any offender serving a sentence under
the previous penalty.
(c) Administrative tribunals conducting disciplinary proceedings shall not
impose a heavier penalty than the one that was applicable at the time when
the offending conduct occurred. If, subsequent to the conduct, provision is
made by law for the imposition of a lighter penalty, the person disciplined
shall benefit thereby.

8. Second trial for same offence prohibited

No one shall be liable to be tried or punished again for an offence for which
he or she has already been finally convicted or acquitted in accordance with
the law and penal procedure of each country.

9. Sentencing and punishment

(a) Punishments constituting a deprivation of liberty shall have as an
essential aim the reform and social re-adaptation of the prisoners.
(b) In countries that have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with the
law in force at the time of the commission of the crime.
(c) Sentence of death shall not be imposed or carried out on expectant
mothers and mothers of infants and young children.
(d) States that maintain the death penalty are urged to establish a
moratorium on executions, and to reflect on the possibility of abolishing
capital punishment.
 Resolutions of the African Commission 423

(e) States shall provide special treatment to expectant mothers and to

mothers of infants and young children who have been found guilty of
infringing the penal law and shall in particular:
(1) ensure that a non-custodial sentence will always be first considered
when sentencing such mothers;
(2) establish and promote measures alternative to institutional
confinement for the treatment of such mothers;
(3) establish special alternative institutions for holding such mothers;
(4) ensure that a mother shall not be imprisoned with her child;
(5) the essential aim of the penitentiary system will be the reformation,
the integration of the mother to the family and social rehabilitation.

10. Appeal
(a) Everyone convicted in a criminal proceeding shall have the right to
review of his or her conviction and sentence by a higher tribunal.
(1) The right to appeal shall provide a genuine and timely review of the
case, including the facts and the law. If exculpatory evidence is
discovered after a person is tried and convicted, the right to appeal or
some other post-conviction procedure shall permit the possibility of
correcting the verdict if the new evidence would have been likely to
change the verdict, unless it is proved that the non-disclosure of the
unknown fact in time is wholly or partly attributable to the accused.
(2) A judicial body shall stay execution of any sentence while the case is
on appeal to a higher tribunal.
(b) Anyone sentenced to death shall have the right to appeal to a judicial
body of higher jurisdiction, and states should take steps to ensure that such
appeals become mandatory.
(c) When a person has by a final decision been convicted of a criminal
offence and when subsequently his or her conviction has been reversed or he
or she has been pardoned on the ground that a new or newly discovered fact
shows conclusively that there has been a miscarriage of justice, the person
who has suffered punishment as a result of such conviction shall be
compensated according to law.
(d) Every person convicted of a crime has a right to seek pardon or
commutation of sentence. Clemency, commutation of sentence, amnesty or
pardon may be granted in all cases of capital punishment.

O. CHILDREN AND THE RIGHT TO A FAIR TRIAL

(a) In accordance with the African Charter on the Rights and Welfare of the
Child, a child is any person under the age of 18. States must ensure that
domestic legislation recognises any person under the age of 18 as a child.
(b) Children are entitled to all the fair trial guarantees applicable to adults
and to some additional special protection.
(c) States must ensure that law enforcement and judicial officials are
adequately trained to deal sensitively and professionally with children who
interact with the criminal justice system whether as suspects, accused,
complainants or witnesses.
(d) States shall establish laws and procedures which set a minimum age
below which children will be presumed not to have the capacity to infringe
the criminal law. The age of criminal responsibility should not be fixed below
15 years of age. No child below the age of 15 shall be arrested or detained on
allegations of having committed a crime.
(e) No child shall be subjected to arbitrary arrest or detention.
424 African Commission on Human and Peoples’ Rights

(f) Law enforcement officials must ensure that all contacts with children
are conducted in a manner that respects their legal status, avoids harm and
promotes the well-being of the child.
(g) When a child suspected of having infringed the penal law is arrested or
apprehended, his or her parent, guardians or family relatives should be
notified immediately.
(h) The child’s right to privacy shall be respected at all times in order to
avoid harm being caused to him or her by undue publicity and no information
that could identify a child suspected or accused of having committed a
criminal offence shall be published.
(i) States shall consider, wherever appropriate, with the consent of the
child and his or parents or guardians, dealing with a child offender without
resorting to a formal trial, provided the rights of the child and legal
safeguards are fully respected. Alternatives to criminal prosecution, with
proper safeguards for the protection of the well-being of the child, may
include:
(1) The use of community, customary or traditional mediation;
(2) Issuing of warnings, cautions and admonitions accompanied by
measures to help the child at home with education and with problems
and difficulties.
(3) Arranging a conference between the child, the victim and members
of the community;
(4) Making use of community programmes such as temporary supervision
and guidance, restitution and compensation to victims.
(j) Detention pending trial shall be used only as a measure of last resort and
for the shortest possible period of time. Any child who has been arrested for
having committed a crime shall be released into the care of his or her parents,
legal guardians or family relatives unless there are exceptional reasons for his
or her detention. The competent authorities shall ensure that children are not
held in detention for any period beyond 48 hours.
(k) Children who are detained pending trial shall be kept separate from
adults and shall be detained in a separate institution or in a separate part of
an institution also holding adults.
(l) Every child arrested or detained for having committed a criminal
offence shall have the following guarantees:
(1) to be treated in a manner consistent with the promotion of the
child’s dignity and worth;
(2) to have the assistance of his or her parents, a family relative or legal
guardians from the moment of arrest;
(3) to be provided by the state with legal assistance from the moment
of arrest;
(4) to be informed promptly and directly, in a language he or she
understands, of the reasons for his or her arrest and of any charges
against him or her, and if appropriate, through his or her parents, other
family relative, legal guardians or legal representative;
(5) to be informed of his or her rights in a language he or she
understands;
(6) not to be questioned without the presence of his or her parents, a
family relative or legal guardians, and a legal representative;
(7) not to be subjected to torture or any other cruel, inhuman or
degrading treatment or punishment or any duress or undue pressure;
(8) not to be detained in a cell or with adult detainees.
(m) States shall establish separate or specialised procedures and institutions
for dealing with cases in which children are accused of or found responsible
for having committed criminal offences. The establishment of such
procedures and institutions shall be based on respect for the rights of the
 Resolutions of the African Commission 425

child, shall take into account the vulnerability of children and shall promote
the child’s rehabilitation.
(n) Every child accused of having committed a criminal offence shall have
the following additional guarantees:
(1) to be presumed innocent until proven guilty according to the law;
(2) to be informed promptly and directly, and in a language that he or
she understands, of the charges, and if appropriate, through his or her
parents or legal guardians;
(3) to be provided by the state with legal or other appropriate
assistance in the preparation and presentation of his or her defence;
(4) to have the case determined expeditiously by a competent,
independent and impartial authority or judicial body established by law
in a fair hearing;
(5) to have the assistance of a legal representative and, if appropriate
and in the best interests of the child, his or her parents, a family relative
or legal guardians, during the proceedings;
(6) not to be compelled to give testimony or confess guilt; to examine
or have examined adverse witnesses and to obtain the participation of
witnesses on his or her behalf under conditions of equality;
(7) if considered to have infringed the penal law, to have this decision
and any measures imposed in consequence thereof reviewed by a higher
competent, independent and impartial authority or judicial body
according to law;
(8) to have the free assistance of an interpreter if he or she cannot
understand or speak the language used;
(9) to have his or her privacy fully respected at all stages of the
proceedings.
(o) In disposing of a case involving a child who has been found to be in
conflict with the law, the competent authority shall be guided by the
following principles:
(1) The action taken against the child shall always be in proportion not
only to the circumstances and gravity of the offence but also the best
interest of the child and the interests of society;
(2) Non-custodial options which emphasise the value of restorative
justice should be given primary consideration and restrictions on the
personal liberty of a child shall only be imposed after careful
consideration and shall be limited to the possible minimum. Non-
custodial measures could include:
(i) Care, guidance and supervision orders;
(ii) Probation;
(iii) Financial penalties, compensation and restitution;
(iv) Intermediate treatment and other treatment orders
(v) Orders to participate in group counselling and similar activities;
(vi) Orders concerning foster care, living communities or other
educational settings;
(3) A child shall not be sentenced to imprisonment unless the child is
adjudicated of having committed a serious act involving violence against
another person or of persistence in committing other serious offences
and unless there is no other appropriate response;
(4) Capital punishment shall not be imposed for any crime committed
by children and children shall not be subjected to corporal punishment.
(p) States shall ensure that child witnesses are able to give their best
evidence with the minimum distress. Investigation and practices of judicial
bodies should be adapted to afford greater protection to children without
undermining the defendant’s right to a fair trial. States are required, as
appropriate, to adopt the following measures in regard to child witnesses:
426 African Commission on Human and Peoples’ Rights

(1) Child witnesses shall not be questioned by the police or any

investigating official without the presence of his or her parents, a family
relative or legal guardians, or where the latter are not traceable in the
presence of a social worker;
(2) Police and investigating officials shall conduct their questioning of
child witnesses in a manner that avoids any harm and promotes the well-
being of the child;
(3) Police and investigating officials shall ensure that child witnesses,
especially those who are victims of sexual abuse, do not come into
contact with or be made to confront the alleged perpetrator of the
crime;
(4) The child’s right to privacy shall be respected at all times and no
information that could identify a child witness shall be published;
(5) Where necessary, a child witness shall be questioned by law
enforcement officials through an intermediary;
(6) A child witness should be permitted to testify before a judicial body
through an intermediary, if necessary;
(7) Where resources and facilities permit, video-recorded pre-trial
interviews with child witnesses should be presented;
(8) Screens should be set up around the witness box to shield the child
witness from viewing the defendant;
(9) The public gallery should be cleared, especially in sexual offence
cases and cases involving intimidation, to enable evidence to be given in
private;
(10) Judicial officers, prosecutors and lawyers should wear ordinary dress
during the testimony of a child witness;
(11) Defendants should be prevented from personally cross-examination
child witnesses;
(12) The circumstances in which information about the previous sexual
history of alleged child victims may be sought or presented as evidence in
trials for sexual offences must be restricted.

P. VICTIMS OF CRIME AND ABUSE OF POWER

(a) Victims should be treated with compassion and respect for their dignity.
They are entitled to have access to the mechanisms of justice and to prompt
redress, as provided for by national legislation and international law, for the
harm that they have suffered.
(b) States must ensure that women who are victims of crime, especially of
a sexual nature, are interviewed by women police or judicial officials.
(c) States shall take steps to ensure that women who are complainants,
victims or witnesses are not subjected to any cruel, inhumane or degrading
treatment.
(d) Judicial and administrative mechanisms should be established and
strengthened where necessary to enable victims to obtain redress through
formal or informal procedures that are expeditious, fair, inexpensive and
accessible. Victims should be informed of their rights in seeking redress
through such mechanisms.
(e) States are required to investigate and punish all complaints of violence
against women, including domestic violence, whether those acts are
perpetrated by the state, its officials or agents or by private persons. Fair and
effective procedures and mechanisms must be established and be accessible
to women who have been subjected to violence to enable them to file
criminal complaints and to obtain other redress for the proper investigation
of the violence suffered, to obtain restitution or reparation and to prevent
further violence.
 Resolutions of the African Commission 427

(f) Judicial officers, prosecutors and lawyers, as appropriate, should

facilitate the needs of victims by:
(1) Informing them of their role and the scope, timing and progress of
the proceedings and the final outcome of their cases;
(2) Allowing their views and concerns to be presented and considered at
appropriate stages of the proceedings where their personal interests are
affected, without prejudice to the accused and consistent with the
relevant national criminal justice system;
(3) Providing them with proper assistance throughout the legal process;
(4) Taking measures to minimise inconvenience to them, protect their
privacy, when necessary, and ensure their safety, as well as that of their
families and witnesses on their behalf, from intimidation and retaliation;
(5) Avoiding unnecessary delay in the disposition of cases and the
execution of orders or decrees granting awards to victims.
(g) Informal mechanisms for the resolution of disputes, including
mediation, arbitration and traditional or customary practices, should be
utilised where appropriate to facilitate conciliation and redress for victims.
(h) Offenders or third parties responsible for their behaviour should, where
appropriate, make fair restitution to victims, their families or dependants.
Such restitution should include the return of property or payment for the
harm or loss suffered, reimbursement of expenses, the provision of services
and the restoration of rights.
(i) States should review their practices, regulations and laws to consider
restitution as an available sentencing option in criminal cases, in addition to
other criminal sanctions.
(j) Where public officials or other agents acting in an official or quasi-
official capacity have violated national criminal laws or international law, the
victims should receive restitution from the state whose officials or agents
were responsible for the harm inflicted.
(k) When compensation is not fully available from the offender or other
sources, states should endeavour to provide financial compensation to:
(1) Victims who have sustained significant bodily injury or impairment
of physical or mental health as a result of serious crimes;
(2) The family, in particular dependants of persons who have died or
become physically or mentally incapacitated.
(l) States are encouraged to establish, strengthen and expand national
funds for compensation to victims.
(m) States must ensure that:
(1) Victims receive the necessary material, medical, psychological and
social assistance through state, voluntary, non-governmental and
community-based means.
(2) Victims are informed of the availability of health and social services
and other relevant assistance and be readily afforded access to them.
(3) Police, justice, health, social service and other personnel concerned
receive training to sensitise them to the needs of victims, and guidelines
are adopted to ensure proper and prompt aid.

Q. TRADITIONAL COURTS

(a) Traditional courts, where they exist, are required to respect

international standards on the right to a fair trial.
(b) The following provisions shall apply, as a minimum, to all proceedings
before traditional courts:
(1) equality of persons without any distinction whatsoever as regards
race, colour, sex, gender, religion, creed, language, political or other
428 African Commission on Human and Peoples’ Rights

opinion, national or social origin, means, disability, birth, status or other

circumstances;
(2) respect for the inherent dignity of human persons, including the
right not to be subject to torture, or other cruel, inhuman or degrading
punishment or treatment;
(3) respect for the right to liberty and security of every person, in
particular the right of every individual not to be subject to arbitrary
arrest or detention;
(4) respect for the equality of women and men in all proceedings;
(5) respect for the inherent dignity of women, and their right not to be
subjected to cruel, inhuman or degrading treatment or punishment;
(6) adequate opportunity to prepare a case, present arguments and
evidence and to challenge or respond to opposing arguments or evidence;
(7) an entitlement to the assistance of an interpreter if he or she
cannot understand or speak the language used in or by the traditional
court;
(8) an entitlement to seek the assistance of and be represented by a
representative of the party’s choosing in all proceedings before the
traditional court;
(9) an entitlement to have a party’s rights and obligations affected only
by a decision based solely on evidence presented to the traditional court;
(10) an entitlement to a determination of their rights and obligations
without undue delay and with adequate notice of and reasons for the
decisions;
(11) an entitlement to an appeal to a higher traditional court,
administrative authority or a judicial tribunal;
(12) all hearings before traditional courts shall be held in public and its
decisions shall be rendered in public, except where the interests of
children require or where the proceedings concern matrimonial disputes
or the guardianship of children;
(c) The independence of traditional courts shall be guaranteed by the laws
of the country and respected by the government, its agencies and authorities:
(1) they shall be independent from the executive branch;
(2) there shall not be any inappropriate or unwarranted interference
with proceedings before traditional courts.
(d) States shall ensure the impartiality of traditional courts. In particular,
members of traditional courts shall decide matters before them without any
restrictions, improper influence, inducements, pressure, threats or inter-
ference, direct or indirect, from any quarter.
(1) the impartiality of a traditional court would be undermined when
one of its members has:
(1.1)expressed an opinion which would influence the decision-making;
(1.2)some connection or involvement with the case or a party to the
case;
(1.3)a pecuniary or other interest linked to the outcome of the case.
(2) Any party to proceedings before a traditional court shall be entitled
to challenge its impartiality on the basis of ascertainable facts that the
fairness of any of its members or the traditional court appears to be in
doubt.
(e) The procedures for complaints against and discipline of members of
traditional courts shall be prescribed by law. Complaints against members of
traditional courts shall be processed promptly and expeditiously, and with all
the guarantees of a fair hearing, including the right to be represented by a
legal representative of choice and to an independent review of decisions of
disciplinary, suspension or removal proceedings.
 Resolutions of the African Commission 429

R. NON-DEGORABILITY CLAUSE

No circumstances whatsoever, whether a threat of war, a state of

international or internal armed conflict, internal political instability or any
other public emergency, may be invoked to justify derogations from the right
to a fair trial.

S. USE OF TERMS

For the purpose of these Principles and Guidelines:

(a) ‘Arrest’ means the act of apprehending a person for the alleged
commission of an offence or by the action of an authority.
(b) ‘Criminal charge’ is defined by the nature of the offence and the nature
and degree of severity of the penalty incurred. An accusation may constitute
a criminal charge although the offence is not classified as criminal under
national law.
(c) ‘Detained person’ or ‘detainee’ means any individual deprived of
personal liberty except as a result of conviction for an offence.
(d) ‘Detention’ means the condition of a detained person.
(e) ‘Imprisoned person’ or ‘prisoner’ means any individual deprived of
personal liberty as a result of conviction for an offence.
(f) ‘Imprisonment’ means the condition of imprisoned persons.
(g) ‘Suspect’ means a person who has been arrested but not arraigned or
charged before a judicial body.
(h) ‘Judicial body’ means a dispute resolution or adjudication mechanism
established and regulated by law and includes courts and other tribunals.
(i) ‘Judicial office’ means a position on a judicial body.
(j) ‘Judicial officer’ means a person who sits in adjudication as part of a
judicial body.
(k) ‘Legal proceeding’ means any proceeding before a judicial body brought
in regard to a criminal charge or for the determination of rights or obligations
of any person, natural or legal.
(l) ‘Traditional court’ means a body which, in a particular locality, is
recognised as having the power to resolve disputes in accordance with local
customs, cultural or ethnic values, religious norms or tradition.
(m) ‘Habeas corpus’, ‘amparo’ is a legal procedure brought before a judicial
body to compel the detaining authorities to provide accurate and detailed
information regarding the whereabouts and conditions of detention of a
person or to produce a detainee before the judicial body.
(n) ‘Victim’ means persons who individually or collectively have suffered
harm, including physical or mental injury, emotional suffering, economic loss
or substantial impairment of their fundamental rights, through acts or
omissions that are in violation of criminal laws or that do not yet constitute
violations of national criminal laws but of internationally recognised norms
relating to human rights. The term ‘victim’ also includes, where appropriate,
the immediate family or dependants of the direct victim and persons who
have suffered harm in intervening to assist victims in distress.

_____________________________________
430 African Commission on Human and Peoples’ Rights

Resolution on Access to Health and Needed Medicines in Africa

(2008)

Reaffirming that article 16 of the African Charter on Human and Peoples’

Rights guarantees the right to enjoy the best attainable state of physical and
mental health and that States must ensure that everyone has access to
medical care;
Alarmed that essential medicine, were available in only 38% of all public and
private health care facilities in Africa between 2001 and 2007;
Stressing that the right to health is not confined to a right to health care but
embraces all underlying aspects of health;
Recognising that access to needed medicines for treatment, prevention and
palliative care is a necessary condition for leading a healthy and dignified life;
Recognising that access to needed medicines is a fundamental component of
the right to health and that states parties to the African Charter have an
obligation to provide where appropriate needed medicines, or facilitate
access to them;
Recognising further that the United Nations Special Rapporteur on the Right
to Health has explained that ‘access to medicines forms an indispensable part
of the right to the highest attainable standard of health’ and that, therefore,
the right to health mandates that states promote ‘the realisation of the right
to medicines for all’;
Urges states to guarantee the full scope of access to needed medicines,
including:
• The availability in sufficient quantities of needed medicines, including
existing medicines and the development of new medicines needed for
the highest attainable level of health;
• The accessibility of needed medicines to everyone without
discrimination, including
• Physical accessibility of needed medicines to all;
• Economic accessibility (affordability) of needed medicines to all;
• Information accessibility about the availability and efficacy of
medicines;
• The acceptability of medicine supplies, being respectful of cultural
norms and medical ethics;
• The quality of medicine supplies, ensuring that available medicines are
safe, effective and medically appropriate;
Calling on states to fulfil their duties with respect to access to medicines, in
particular:
• To promote access to medicines by refraining from measures that
negatively affect access, such as:
• Denying or limiting equal access to medicines for marginalised individuals or
communities;
• Prohibiting or impeding the use of traditional medicines and healing practices
that are scientifically sound and medically appropriate;
• Interfering with the provision of humanitarian aid that facilitates the supply of
necessary medicines;
• Implementing intellectual property policies that do not take full advantage of all
flexibilities in the WTO Agreement on Trade Related Aspects of Intellectual
Property that promote access to affordable medicines, including entering ‘TRIPS
Plus’ free trade agreements;
• To protect access to needed medicines from actions by third parties
through regulatory systems that:
• Ensure that only medicines that have met scientifically appropriate standards for
quality, safety and efficacy are available;
 Resolutions of the African Commission 431

• Promote the rational use of medicines, through treatment guidelines based on

the best available evidence;
• Prevent unreasonably high prices for needed medicines in both the public and
private sectors, through promotion of equity pricing in which the poor are not
required to pay a disproportionate amount of their income for access;
• Ensure that medical practitioners and patients have ready access to reliable,
complete and unbiased information on the safety and efficacy of medicines;
• Stimulate and promote competition, intellectual property, consumer protection
and other laws to promote access to medicines;
• To fulfil access to medicines by adopting all necessary and appropriate
positive measures to the maximum of its available resources to promote,
provide and facilitate access to needed medicines, including:
• Immediately meeting the minimum core obligations of ensuring availability and
affordability to all of essential medicines as defined by the country’s essential
medicines list and the WHO Action Programme on Essential Drugs;
• Immediately creating a national medicine strategy monitoring systems to ensure
compliance with human rights obligations;
• Promoting meaningful participation by affected individuals and groups in
decisions that affect access to medicines, including regulatory, pricing and
patent decisions;
• Creating systems in which patent information and registration status for
medicines is readily and publicly accessible;
• Expediting the regulatory review and registration of needed medicines and
creating incentives for companies to register needed medicines expeditiously;
• Individually and together with other states and non-governmental entities,
developing and implementing need-based research and development
programmes to address currently neglected diseases and conditions.
Mandates the Working Group on Economic, Social and Cultural Rights to
further define state obligations related to access to medicines and to develop
model monitoring and assessment guidelines.

_____________________________________

Resolution on protection against violence and other human rights

violations against persons on the basis of their real or imputed
sexual orientation or gender identity
(2015)

Adopted by the African Commission at its 55th ordinary session, Luanda, Angola,
28 April to 12 May 2014. This resolution is commonly known as resolution 275.

Recalling that article 2 of the African Charter on Human and Peoples’ Rights
(the African Charter) prohibits discrimination of the individual on the basis of
distinctions of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune,
birth or any status;
Further recalling that article 3 of the African Charter entitles every individual
to equal protection of the law;
Noting that articles 4 and 5 of the African Charter entitle every individual to
respect of their life and the integrity of their person, and prohibit torture and
other cruel, inhuman and degrading treatment or punishment;
432 African Commission on Human and Peoples’ Rights

Alarmed that acts of violence, discrimination and other human rights

violations continue to be committed on individuals in many parts of Africa
because of their actual or imputed sexual orientation or gender identity;
Noting that such violence includes ‘corrective’ rape, physical assaults,
torture, murder, arbitrary arrests, detentions, extra-judicial killings and
executions, forced disappearances, extortion and blackmail;
Further alarmed at the incidence of violence and human rights violations and
abuses by state and non-state actors targeting human rights defenders and
civil society organisations working on issues of sexual orientation or gender
identity in Africa;
Deeply disturbed by the failure of law enforcement agencies to diligently
investigate and prosecute perpetrators of violence and other human rights
violations targeting persons on the basis of their imputed or real sexual
orientation or gender identity;
1. Condemns the increasing incidence of violence and other human rights
violations, including murder, rape, assault, arbitrary imprisonment and other
forms of persecution of persons on the basis of their imputed or real sexual
orientation or gender identity;
2. Specifically condemns the situation of systematic attacks by state and
non-state actors against persons on the basis of their imputed or real sexual
orientation or gender identity;
3. Calls on state parties to ensure that human rights defenders work in an
enabling environment that is free of stigma, reprisals or criminal prosecution
as a result of their human rights protection activities, including the rights of
sexual minorities; and
4. Strongly urges states to end all acts of violence and abuse, whether
committed by state or non-state actors, including by enacting and effectively
applying appropriate laws prohibiting and punishing all forms of violence
including those targeting persons on the basis of their imputed or real sexual
orientation or gender identities, ensuring proper investigation and diligent
prosecution of perpetrators, and establishing judicial procedures responsive
to the needs of victims.

_____________________________________

General Comment No. 3 on the African Charter on Human and

Peoples’ Rights: The Right to Life (Article 4)
(2015)

Adopted during the 57th Ordinary Session of the African Commission on Human and
Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia.

Introduction

(1) The African Commission on Human and Peoples’ Rights (the Commission)
has described the right to life as the fulcrum of all other rights. It is non-
derogable, and applies to all persons at all times. In General Comment No. 3,
the Commission clarifies the nature of the right to life as recognised in article
4 of the African Charter on Human and Peoples’ Rights (the Charter) and the
extent of the obligation it imposes upon States Parties. It is designed to guide
the interpretation and application of the right to life under the Charter and
to ensure its coherent application to a range of situations, including its
 Resolutions of the African Commission 433

implementation at the domestic level. The General Comment does not put in
place new standards or highlight best practices but rather sets out the
Commission’s perspective on dimensions of this universally recognised right.
(2) The Charter imposes on States a responsibility to prevent arbitrary
deprivations of life caused by its own agents, and to protect individuals and
groups from such deprivations at the hands of others. It also imposes a
responsibility to investigate any killings that take place, and to hold the
perpetrators accountable. This intersects with the general duty, recognised
in the Charter, of all individuals to exercise their rights and freedoms with
due regard to the rights of others. Organised crime and terrorism can pose
significant threats to the enjoyment of the right to life and require a robust
State response, but one that at all times takes into account the requirements
of international human rights law.
(3) The General Comment proceeds from an understanding that the Charter
envisages the protection not only of life in a narrow sense, but of dignified
life. This requires a broad interpretation of States’ responsibilities to protect
life. Such actions extend to preventive steps to preserve and protect the
natural environment and humanitarian responses to natural disasters,
famines, outbreaks of infectious diseases, or other emergencies. The State
also has a responsibility to address more chronic yet pervasive threats to life,
for example with respect to preventable maternal mortality, by establishing
functioning health systems. Such an approach reflects the Charter’s ambition
to ensure a better life for all the people and peoples of Africa through its
recognition of a wide range of rights, including the right to dignity, economic,
social and cultural rights, and peoples’ rights such as the right to existence
and the right to peace. It is also rooted in widely shared communal values of
the continent, according to which the value of one person’s life is tied to the
value of the lives of others.
(4) Article 4 of the Charter enshrines the right to life as follows: ‘Human
beings are inviolable. Every human being shall be entitled to respect for his
life and the integrity of his person. No one may be arbitrarily deprived of this
right.’ Other African legal instruments protecting the right to life include:
Article 4 of the Protocol to the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa; and articles 5 and 30 of the African Charter
on the Rights and Welfare of the Child.

A. The nature of the right and of the obligations of the State in

respect of the right to life
(5) The right to life is universally recognised as a foundational human right.
It is guaranteed by article 4 of the African Charter and all of the other main
global and regional human rights instruments. The right not to be arbitrarily
deprived of one’s life is recognised as part of customary international law and
the general principles of law, and is also recognised as a jus cogens norm,
universally binding at all times. The right to life is contained in the
constitutions and other legal provisions of the vast majority of African and
other States. All national legal systems criminalise murder, and arbitrary
killings committed or tolerated by the State are a matter of the utmost
gravity.
(6) The right to life should not be interpreted narrowly. In order to secure
a dignified life for all, the right to life requires the realisation of all human
rights recognised in the Charter, including civil, political, economic, social
and cultural rights and peoples’ rights, particularly the right to peace.
(7) States have a responsibility under the Charter to develop and implement
a legal and practical framework to respect, protect, promote and fulfil the
right to life. States must take steps both to prevent arbitrary deprivations of
life and to conduct prompt, impartial, thorough and transparent
434 African Commission on Human and Peoples’ Rights

investigations into any such deprivations that may have occurred, holding
those responsible to account and providing for an effective remedy and
reparation for the victim or victims, including, where appropriate, their
immediate family and dependents. States are responsible for violations of this
right by all their organs (executive, legislative and judicial), and other public
or governmental authorities, at all levels (national, regional or local).
Derogation from the right to life is not permissible in a time of emergency,
including a situation of armed conflict, or in response to threats such as
terrorism.
(8) Where a State or its agent has attempted unlawfully to kill a person, but
that person survives, where it has unlawfully threatened the life of a person,
or where it has forcibly caused a person to disappear and that person’s fate
remains unknown, in addition to the violation of other rights, a violation of
the right to life has occurred.
(9) A State can be held responsible for killings by non-State actors if it
approves, supports or acquiesces in those acts or if it fails to exercise due
diligence to prevent such killings or to ensure proper investigation and
accountability.
(10) Building blocks of a proper State system for the protection of the right
to life will include the enactment of appropriate domestic laws that protect
the right to life and define any limitations on the right in accordance with
international standards, a law enforcement system with the necessary
equipment and training, and a competent, independent and impartial
judiciary and legal profession based on the rule of law. States should
continuously update their laws and practices to comply with international
standards. States should take steps to raise awareness of the human rights
implications of the applicable legal framework through professional training
and other measures.
(11) As part of their broader duty to secure the conditions for dignified life,
States have a particular responsibility to protect the human rights, including
the right to life, of individuals or groups who are frequently targeted or
particularly at risk, including on the grounds listed in article 2 of the Charter
and those highlighted in resolutions of the Commission.

B. The scope of the prohibition on the ‘arbitrary’ deprivation of

life
(12) A deprivation of life is arbitrary if it is impermissible under international
law, or under more protective domestic law provisions. Arbitrariness should
be interpreted with reference to considerations such as appropriateness,
justice, predictability, reasonableness, necessity and proportionality. Any
deprivation of life resulting from a violation of the procedural or substantive
safeguards in the African Charter, including on the basis of discriminatory
grounds or practices, is arbitrary and as a result unlawful.
(13) The right to life continues to apply during armed conflict. During the
conduct of hostilities, the right to life needs to be interpreted with reference
to the rules of international humanitarian law. In all other situations the
intentional deprivation of life is prohibited unless strictly unavoidable to
protect another life or other lives.
(14) A State shall respect the right to life of individuals outside its territory.
A State also has certain obligations to protect the right to life of such
individuals. The nature of these obligations depends for instance on the
extent that the State has jurisdiction or otherwise exercises effective
authority, power, or control over either the perpetrator or the victim (or the
victim’s rights), or exercises effective control over the territory on which the
victim’s rights are affected, or whether the State engages in conduct which
could reasonably be foreseen to result in an unlawful deprivation of life. In
 Resolutions of the African Commission 435

any event, customary international law prohibits, without territorial

limitation, arbitrary deprivation of life.

C. The requirement of accountability

(15) The failure of the State transparently to take all necessary measures to
investigate suspicious deaths and all killings by State agents and to identify
and hold accountable individuals or groups responsible for violations of the
right to life constitutes in itself a violation by the State of that right. This is
even more the case where there is tolerance of a culture of impunity. All
investigations must be prompt, impartial, thorough and transparent.
(16) Effective systems and legal processes of police investigation (including
capacity to collect and analyse forensic evidence) and accountability
(including independent oversight mechanisms) should be established where
they are not in place.
(17) Accountability, in this sense, requires investigation and, where
appropriate criminal prosecution. In certain circumstances, independent,
impartial and properly constituted commissions of inquiry or truth
commissions can play a role, as long as they do not grant or result in impunity
for international crimes. Accountability also encompasses measures such as
reparation, ensuring non-repetition, disciplinary action, making the truth
known, institutional review and, where applicable, reform. States must
ensure that victims have access to effective remedies for such violations.
States should cooperate with international mechanisms so as to ensure
accountability.
(18) States must hold to account private individuals and corporations,
including private military and security companies, that are responsible for
causing or contributing to arbitrary deprivations of life in the State’s territory
or jurisdiction. Home States also should ensure accountability for any
extraterritorial violations of the right to life, including those committed or
contributed to by their nationals or by businesses domiciled in their territory
or jurisdiction.
(19) Reparation should be proportional to the gravity of the violations and
the harm suffered. Victims should be treated with respect and appropriate
measures should be taken to ensure their safety. Those who have suffered
violence or trauma should benefit from consideration to avoid re-
traumatisation. Full and effective reparation to address the harm suffered by
victims, including by their family and dependents, should include the
implementation of guarantees of non-repetition.
(20) Although States may face particular practical challenges in achieving
accountability in situations of armed conflict, they must undertake all
feasible measures of accountability to ensure respect for the right to life.
Appeals to national security or State secrecy can never be a valid basis for
failing to meet the obligation to hold those responsible for arbitrary
deprivations of life to account, including during armed conflict or counter-
terrorism operations.
(21) Transparency is a necessary part of accountability. Trans-parency about
laws, policies, practices and the circumstances of any limitations of the right
to life as well as about the process and outcomes of investigations is a
necessary element in fulfilling the right to life.

D. The abolition of the death penalty

(22) The African Charter does not include any provision recognising the death
penalty, even in limited circumstances, and the Commission has on several
occasions passed resolutions calling on States to abolish the death penalty, or
to establish a moratorium in line with the continental and global trend. The
vast majority of African States have now abolished the death penalty in law
436 African Commission on Human and Peoples’ Rights

or in practice. International law requires those States that have not yet
abolished the death penalty to take steps towards its abolition in order to
secure the rights to life and to dignity, in addition to other rights such as the
right to be free from torture, and cruel, inhuman or degrading treatment.
(23) Those States which have abolished the death penalty in law shall not
reintroduce it, nor facilitate executions in retentionist States through
refoulement, extradition, deportation, or other means including the
provision of support or assistance that could lead to a death sentence. Those
States with moratoria on the death penalty must take steps to formalise
abolition in law, allowing no further executions. Beyond the cessation of
executions, a comprehensive moratorium on the death penalty would also
encompass sentencing, whereby prosecutors would refrain from seeking the
death penalty or judges would choose not to impose it.
(24) In those States which have not yet abolished the death penalty it is vital
that it is used for only the most serious crimes –understood to be crimes
involving intentional killing. If, for any reason, the criminal justice system of
a State does not, at the time of trial or conviction, meet the criteria of article
7 of the African Charter or if the particular proceedings in which the penalty
is imposed have not stringently met the highest standards of fairness, then
the subsequent application of the death penalty will be considered a violation
of the right to life. Those sentenced to death have the right to seek clemency,
pardon or commutation through a transparent process with due process of
law. Mass trials resulting in the death penalty without due consideration to
fair trial standards are illegal and should not take place. In no circumstances
shall the imposition of the death penalty be mandatory for an offence. The
death penalty shall not be imposed for crimes committed by children, and the
burden of proof rests upon the State to prove the age of the defendant.
Military courts shall not have the power to impose the death penalty.
(25) Whatever the offense or the circumstances of the trial, the execution of
pregnant or nursing women, children, elderly persons or persons with psycho-
social or intellectual disabilities, will always amount to a violation of the right
to life.
(26) Where the death penalty has not yet been abolished, it shall be used in
a completely transparent manner, with States giving reasonable advance
notice of the timing, manner, and number of executions to those involved,
including those under sentence of death, their families and lawyers, and to
the public at large. States shall not conduct executions in public, nor use
methods that cause unnecessary physical or mental suffering. After an
execution, the body should be treated with respect, and, where requested,
be returned to the family for burial or other funeral rites, or information
about the burial or cremation should be provided.

E. The use of force in law enforcement

(27) The primary duty of law enforcement officials – meaning any actor
officially tasked with exercising a law enforcement function, including police,
gendarmerie, military or private security personnel – is to protect the safety
of the public. The State must take all reasonable precautionary steps to
protect life and prevent excessive use of force by its agents, including but not
limited to the provision of appropriate equipment and training as well as,
wherever possible, careful planning of individual operations. States must
adopt a clear legislative framework for the use of force by law-enforcement
and other actors that complies with international standards, including the
principles of necessity and proportionality. Force may be used in law
enforcement only in order to stop an imminent threat. The intentional lethal
use of force by law enforcement officials and others is prohibited unless it is
 Resolutions of the African Commission 437

strictly unavoidable in order to protect life (making it proportionate) and all

other means are insufficient to achieve that objective (making it necessary).
(28) The right to assemble and to demonstrate is integral to democracy and
human rights. Even if acts of violence occur during such events participants
retain their rights to bodily integrity and other rights and force may not be
used except in accordance with the principles of necessity and
proportionality. Firearms may never be used simply to disperse an assembly
(29) Members of the armed forces can only be used for law enforcement in
exceptional circumstances and where strictly necessary. Where this takes
place all such personnel must receive appropriate instructions, equipment
and thorough training on the human rights legal framework that applies in
such circumstances.
(30) Particular attention should be paid to ensuring the availability and use
of weapons less likely to cause death or serious injury than are firearms.
However such weapons should not be abused — they can also cause death or
serious injury. Special training concerning the use of such weapons should be
provided.
(31) Where advanced technology is employed, law enforcement officials
must remain personally in control of the actual delivery or release of force,
in a manner capable of ensuring respect for the rights of any particular
individual, as well as the general public.

F. The use of force in armed conflict

(32) In armed conflict, what constitutes an ‘arbitrary’ deprivation of life
during the conduct of hostilities is to be determined by reference to
international humanitarian law. This law does not prohibit the use of force in
hostilities against lawful targets (for example combatants or civilians directly
participating in hostilities) if necessary from a military perspective, provided
that, in all circumstances, the rules of distinction, proportionality and
precaution in attack are observed. Any violation of international
humanitarian law resulting in death, including war crimes, will be an arbitrary
deprivation of life.
(33) International humanitarian law on the conduct of hostilities must only
be applied during an armed conflict and where the use of force is part of the
armed conflict. In all other situations of violence, including internal
disturbances, tensions or riots, international human rights rules governing law
enforcement operations apply.
(34) Where military necessity does not require parties to an armed conflict
to use lethal force in achieving a legitimate military objective against
otherwise lawful targets, but allows the target for example to be captured
rather than killed, the respect for the right to life can be best ensured by
pursuing this option.
(35) The use during hostilities of new weapons technologies such as remote
controlled aircraft should only be envisaged if they strengthen the protection
of the right to life of those affected. Any machine autonomy in the selection
of human targets or the use of force should be subject to meaningful human
control. The use of such new technologies should follow the established rules
of international law.

G. State obligations with respect to persons held in custody

(36) When the State deprives an individual of liberty, its control of the
situation yields a heightened level of responsibility to protect that
individual’s rights. This includes a positive obligation to protect all detained
persons from violence or from emergencies that threaten their lives, as well
as to provide the necessary conditions of a dignified life, including food,
water, adequate ventilation, an environment free from disease, and the
438 African Commission on Human and Peoples’ Rights

provision of adequate healthcare (including maternal healthcare and the

provision of antiretroviral drugs). The State should provide necessary
information on places of detention, the identity and age of those detained,
as well as the authorities responsible.
(37) Where a person dies in State custody, there is a presumption of State
responsibility and the burden of proof rests upon the State to prove otherwise
through a prompt, impartial, thorough and transparent investigation carried
out by an independent body. This heightened responsibility extends to
persons detained in prisons, in other places of detention (official and
otherwise), and to persons in other facilities where the State exercises
heightened control over their lives.

H. Responsibility for violations by non-State actors

(38) The State also has an obligation to protect individuals from violations or
threats at the hands of other private individuals or entities, including
corporations. The State should ensure that all individuals are able to exercise
their rights and freedoms, for example, by promoting tolerance, non-
discrimination, and mutual respect. Moreover, the State has a responsibility
for those deaths where authorities knew or ought to have known of an
immediate threat and failed to take measures that might have been expected
to avoid those deaths. States shall take appropriate measures to investigate
cases of enforced disappearances committed by persons or groups acting
without the authorisation, support or acquiescence of the State, and to bring
those responsible to justice.
(39) The State is responsible for killings by private individuals which are not
adequately prevented, investigated or prosecuted by the authorities. These
responsibilities are heightened when an observable pattern has been
overlooked or ignored, such as is often the case with respect to mob-justice,
gender-based violence, femicide, or harmful practices. States must take all
appropriate measures effectively to respond to, prevent and eliminate such
patterns or practices.
(40) The right to life cannot be enjoyed fully by individuals whose lives are
threatened. In the case of death threats this implies that the State must
investigate and take all reasonable steps to protect the threatened
individuals. Similarly, States should not violate the principle of non-
refoulement, through extradition or other mechanisms, by transferring or
returning individuals to circumstances where their lives might be endangered.

I. Interpreting the right to life broadly

(41) The right to life should be interpreted broadly. The State has a positive
duty to protect individuals and groups from real and immediate risks to their
lives caused either by actions or inactions of third parties. In cases where the
risk has not arisen from malicious or other intent then the State’s actions may
not always be related to criminal justice. Such actions include, inter alia,
preventive steps to preserve and protect the natural environment and
humanitarian responses to natural disasters, famines, outbreaks of infectious
diseases, or other emergencies.
(42) Attention is also required to address more chronic yet pervasive threats
to life, for example with respect to preventable maternal mortality, by
establishing functioning health systems and eliminating discriminatory laws
and practices which impact on individuals’ and groups’ ability to seek
healthcare.
(43) Given the role of the State in the enjoyment of a number of other rights
which might, collectively, be constitutive of the condition of life, especially
a dignified life, its progressive realisation of various economic, social and
cultural rights will contribute to securing a full and dignified life. Violations
 Resolutions of the African Commission 439

of such rights may in certain circumstances therefore also entail violations of

the right to life.
 AFRICAN
COMMITTEE ON
THE RIGHTS AND
WELFARE OF THE
CHILD
442 African Committee on the Rights and Welfare of the Child

Recommendations and observations sent to the

government of the Republic of Uganda by the
African Committee of Experts on the Rights and
Welfare of the Child on the Initial Implementation
Report of the African Charter of the Rights and
Welfare of the Child (2010)

The African Committee of Experts on the Rights and Welfare of the Child
extends its greetings to the government of the Republic of Uganda and wishes
to express its acknowledgement for submitting its initial report on the
implementation status of the African Charter on the Rights and Welfare of the
Child.
The Committee congratulates the state party for being represented by an
important high level inter ministerial delegation led by the Minister of State
for Youth and Children Affairs to discuss the report during its fifteenth session
held from 15-19 March 2010, in Addis Ababa Ethiopia.
At the conclusion of the review of the report, the Committee is honoured to
send to the government of the Republic of Uganda the following observations
and recommendations:

Article 1: Obligation of states parties

The Committee congratulates the state party for adopting the legal texts and
other measures for protecting and promoting the rights of the child, however
efforts remain to be made in the sector of popularisation of the Charter.

Article 2: Definition of child

The Committee observes that even though the law on the child recognises the
child as any person under 18 years of age, in the employment sector, the age
of work on the other hand varies from 14 to 16 years according to the type of
work and with regard to the law, the age of penal responsibility is set at 12
years. Concerning marriage, the Committee notes that the Constitution sets
the age of marriage at 18 years, but there are laws on customary marriage,
African marriage and the law on the marriage of Moslems which sets the age
of marriage at 16 years or below.

For a better protection of the child, the Committee recommends to the state
party the harmonisation of these texts with the definition of the child as
stated in the African Charter on the Rights and Welfare of the Child.

Article 3: Non-discrimination
The Committee points out discriminations against handicapped children but
also certain discriminations based on gender with practices which lead girls
to stay at home to look after their little sisters and brothers or the denial of
pregnant girls or girl mothers to continue their schooling compromising their
right to education.
The Committee recommends the state party to raise the awareness of the
population about giving up socio cultural practices or other behaviours which
are harmful to the rights and welfare of the child.
The Committee also recommends the multiplication of day-care centres for
early childhood (mentioned in the report) in zones where girls are forced to
stay at home to look after the younger children.
 Initial Implementation Report of the African Charter 443

Article 4: Best interests of the child

The Committee notes with satisfaction the recognition of the right to
participation of children, in particular, in the field of juvenile justice, by the
government of the Republic of Uganda. However, it regrets that this right is
not clearly recognised in the national legal instruments. This poses some
problems when taking into account the best interests of the child and for the
children to become more engaged on issues affecting their survival and
development.

The Committee recommends the state party to pursue the activities of GEM
clubs and the Sara Initiative; it encourages the promotion of the manual
designed in synergy by the government, UNICEF, the civil society, in favour of
children, on the participation of children, with the establishment of a child
representative leadership.
...
Article 6: Name and nationality
Even though article 18 of the Ugandan Constitution provides for the
registration of births, the Committee finds that the rate of births and deaths
declarations is low.
The Committee recommends the state party to ensure that registration of
children at birth is mandatory and free. The Committee also urges the
government to raise the awareness of local authorities and populations about
the future consequences of the non registration of children on the civil status
registry.
The Committee further urges the government to include the registration of
births and deaths, if it has not already done so, in the Investment Plan, the
budgets of the Justice and Law Enforcement Sectors, as wished for by the
recommendations of the review of the justice sector.

Article 7: Freedom of expression

The right to participation requires the actual presence and hearing of the
children. The committee notes significant progress made by the government
in the area of the right to expression, which could have been otherwise
presented in section 4-2 of the report, through weekly columns specially
reserved for children and children programs by children.
The Committee encourages the ‘Young Talk’ (young people talk) and
recommends the continuation of the facilities granted to children in terms of
access to media freedom of speech, right of access to information, which are
rights provided in the constitution and which allow children to express their
points of view, outside the family boundaries.
...
Article 11: Education
The Committee congratulates the Ugandan Government for the efforts made
in the education sector, notably:
- the construction programs of classrooms for primary schools;
- the provision of education material for students;
- the prohibition of corporal punishment;
- the establishment of primary universal education;
- the introduction of free tuition at the kindergarten level.

The Committee observes with satisfaction the notable rate of enrolment of

girls, in fact of a total of 7,377,292 children enrolled in primary school in
2004, 3,644,364 are girls; that is 49,39%. With a total of 141,461 primary
teachers.

Despite encouraging results at the primary level, the Committee observes

that:
444 African Committee on the Rights and Welfare of the Child

- the number of students enrolled at secondary level is very low (697,507

enrolled for 37,313 teachers);
- the net rates of enrolment and admission at the secondary level are 14,55%
and 6,06% whereas the rates of gross enrolment at the primary school are 129,88%
and 125,05% (2003) respectively for boys and girls;
- a high proportion of young people of the age to attend the secondary are
outside of the education system.

The Committee notes that the efforts made at the primary level risk not
bringing the desired effects at the secondary level and that the enrolment
capacity of the public secondary level may not be able to take in the
acceptable proportion of 7 million children registered in the primary and that
the present number of teachers may not be sufficient for the future number
of students in the secondary.

The Committee urges the Ugandan Government to:

- continue the school enrolment policies of girls;
- continue universal primary education (UPE);
- liberalise the education sector so as to increase the proportion of private
institutions which can compensate the shortage of public institutions.

The Committee further recommends to the Ugandan Government:

- to Invest more resources in the secondary so as to anticipate the massive
influx of children from the primary to the secondary;
- to emphasise the training of teachers, the increase of their number and to
ensure their equitable distribution across the country
- to create motivation conditions of teachers;
- to create conditions of completion of the primary cycle to increase the rates
of enrolment in the secondary;
- to put in place a subsidy policy in favour of private schools so as to be able to
take in students of the public schools to solve the problem of shortage of public
institutions;
- to give greater attention to children from disadvantaged zones;
- to emphasise measures for fighting against poverty.
...
Article 13: Handicapped children
The Committee notes with satisfaction that disability issue is the focus of
concerns by the Ugandan Government with notably:
- the existence of the Uganda National Council of Disabled Persons;
- the representation of disabled persons in the Parliament for the consideration
of the concerns of disabled persons at the legislative level;
- the existence of a Uganda National Institute for Special Needs in Education
(UNISE);
- the support given by the state to schools with the provision of wheelchairs and
Braille material.

However the Committee observes that there is some need of specialised

teachers and suggests to the government to kindly take the necessary
measures to cover the needs for teachers.

The Committee recommends to the Ugandan Government to put in place a

policy of integration of disabled persons with degree in the administration and
to build the capacity of specialised institutions and associations which strive
for the wellbeing of disabled children.

Article 14: Health and health services

The Committee congratulates the government for its efforts in health matters
and the care for people infected and affected by HIV/AIDS, in particular
orphans and vulnerable children.

However the Committee regrets the absence of data which could enable it to
evaluate the health status in the state party, among others:
 Initial Implementation Report of the African Charter 445

- data on the numbers of doctors, of midwives and nurses per inhabitant;

- the number of public, private and community health centres by district;
- the situation of prenatal and infant mortality;
- the vaccination coverage;
- the accessibility of health care and health centres.

The Committee recommends to the state party to kindly include these data
in the next reports.

Article 15: Child labour

The Committee observes that the minimum age required to take a job in
Uganda is 14 years and that in addition the children are exploited by their
employers. Also children are used in activities such as babysitting,
agriculture, fishing, animal herding, protection of crops against birds and
other household chores which deny them any possibility of going to school.

The Committee recommends to the state party to carry out a campaign of

awareness raising taking into account employers, trade unions, NGOs, parents
and other stakeholders on detrimental effects of child labour.

The Committee further recommends the state party to use the media for
information and awareness raising campaigns and to bring its support to
institutions and organisations fighting against the phenomenon of child
labour.

Article 16: Protection against child abuse and torture

The Committee observes that the report doesn’t provide any data pertaining
to cases of child rape or sexual abuse and recommends that these data be
included in the next reports.

Article 17: Administration of juvenile justice

The Committee congratulates the state party for efforts made under the
framework of taking in charge of children in conflict with the law notably
with:
- the setting up of Family and Juvenile Courts (FCC) in each constituency placed
under the jurisdiction of a lawyer who will consider cases involving children;
- the establishment of reform centres for children at district level;
- the establishment of a National Rehabilitation Center;
- the possibility provided to amicably solve cases concerning children in conflict
with the law.

These measures show that the fundamental goal of the judiciary procedure
against a child is his amendment and his reintegration in the family and the
society.

However the Committee notes that:

- several districts do not always have provisional detention centres for children
and the number of functional re-education centres is limited;
- in some cases, children are held with adults in police detention centres.

The Committee urges the government to make additional efforts to extend

the reform centres for children at districts which do not have them and
recommends the training of lawyers and judges on the rights of the child.
...
Article 21: Protection against harmful social and cultural practices
Despite the denunciation of negative cultural practices, some cultures
violating the provisions of the Charter persist in communities among which:
- the practice of female genital mutilation especially among the Sabiny ethnic
groups in the Kapchorwa and Bukwa districts in the North/East of Uganda;
446 African Committee on the Rights and Welfare of the Child

- the growing threat of child sacrifices;

- child trafficking;
- discrimination against girls in the field of education;
- early marriage which not only affects the health of the girl but also drives her
to abandoning her education. There is a need to observe that the law heightens
this phenomenon by authorising marriage under 16 years of age.
- the fact of parents forcing their pregnant daughters to marry the perpetrator
of the sexual abuse.

The Committee observes that the government in collaboration with Partners

such as UNFPA has intensified its efforts to make the general public aware of
the risks linked to these practices. Studies have been undertaken on human
sacrifices and child trafficking. The liberalisation of the media space has
helped to reveal these practices and customs which hamper the rights and
welfare of children. The media have also been used by the government and
the other actors to raise the awareness of the masses on issues related to
children’s rights.

The Committee congratulates the state party for its actions, requests it to
redouble its efforts in the fight against these practices and recommends it to
take urgent measures to:
- prohibit harmful practices;
- severely suppress the perpetrators;
- train police officers and judges on the issue;
- raise the awareness of the population for a change of mentality which can lead
to the renunciation of these practices.

The Committee further recommends to the state party the adoption of a

family code to standardise marriage practices, applicable to all Ugandans and
which should take into account the rights and welfare of the child.

Article 22: Armed conflicts

The Committee observes that the report doesn’t provide enough data on the
status of child soldiers in Uganda, it recommends consequently that more
information should be mentioned in the next reports.
...
Article 28: Drug abuse
The Committee observes that the report doesn’t consider the appropriate
measures taken to protect children against the illegal use of drugs and
recommends that the situation of abuse of illicit substances and drugs by
children as well as the data and arrangements taken to block this scourge be
mentioned in the next reports.

Article 29: Sale, trafficking and abduction

The Committee notes with satisfaction the efforts made by the government
of the Republic of Uganda to find the children abducted by the LRA and ADF
rebels, by ensuring their return, rehabilitation and reintegration within their
families.

The Committee urges the state party to continue with the implementation of
the measures taken for the settlement of the issue of the abduction of
children and recommends it to persevere in its efforts to put a final end to
this phenomenon.

Article 30: Children of emprisoned mothers

The Committee observes that the report doesn’t provide information
pertaining to the treatments given to incarcerated pregnant mothers and
incarcerated mothers of babies and young children and recommends that this
information be included in the next reports.
 Initial Implementation Report of the African Charter 447

Article 31: Responsibility of child

The Committee observes the non existence of a children’s Parliament for the
expression of their rights of participation and recommends therefore its
establishment. It suggests further that substantial resources be put at its
disposal so as to enable it to exercise its mandate.

General observations and comments:

The African Committee of Experts on the Rights and Welfare of the Child
congratulates the Republic of Uganda for all the efforts made towards the
protection of the rights of the child. However the Committee observes that
the Charter is not very well known by the population in particular the
authorities in charge of implementing these laws, teachers, health personnel,
social workers and those in charge of children.

To this end, the Committee recommends the state party to take all necessary
arrangements to popularise the Charter across the whole country and if
possible translating the Charter in national languages and to undertake the
training of stakeholders regarding the Provisions of the Charter at a national
level.

The Committee observes that each year, the Human Rights Commission of
Uganda publishes an Annual Report on the status of rights with a specific
section on the violations of the rights and welfare of children. The Committee
suggests that the data contained in this specific section be mentioned in the
next reports.

Finally the Committee recommends to the state party to grant a sufficient

budget to the different programs and sectors related to the implementation
of the rights and welfare of the child.

The African Committee of Experts on the Rights and Welfare of the Child takes
this opportunity to renew to the government of the Republic of Uganda the
assurance of its highest esteem.
448 African Committee on the Rights and Welfare of the Child

IHRDA and Open Society Justice Initiative (OSJI) (on behalf of

children of Nubian descent in Kenya) v Kenya
(2011) AHRLR 181 (ACERWC 2011)

This is the first decision of the African Children’s Rights Committee on a

communication. See also the decision of the African Commission in The Numbian
Community in Kenya v Kenya (extracts reprinted above).

Excerpts
...
3. The complainants allege that the British colonial authorities allocated
land for the Nubians, including in the settlement known as Kibera, but did not
grant them British citizenship. At Kenyan independence (1963), the
complainants argue, the citizenship status of the Nubians was not directly
addressed, and for a long period of time they were consistently treated by the
government of Kenya as ‘aliens’ since they, according to the government, did
not have any ancestral homeland within Kenya, and as a result could not be
granted Kenyan nationality. The complainants allege that the refusal by the
Kenyan government to recognise the Nubians’ claim to land is closely linked
with the government’s denial of Nubians to Kenyan citizenship.
4. A major difficulty in making the right to nationality effective for Nubian
children is the fact that many Nubian descents in Kenya who are parents have
difficulty in registering the birth of their children. For instance, the fact that
many of these parents lack valid identity documents further complicates their
efforts to register their children’s births. It is further alleged birth
registration certificate in Kenya explicitly indicates that it is not proof of
citizenship, thereby leaving registered children in an ambiguous situation
contrary to article 6 of the African Children’s Charter.
5. In connection to this, the communication further alleges that while
children in Kenya have no proof of their nationality, they have legitimate
expectation that they will be recognised as nationals when they reach the age
of 18. However, for children of Nubian descent in Kenya, since many persons
of Nubian descent are not granted the ID cards that are essential to prove
nationality, or only get them after a long delay, this uncertainty means that
the future prospects of children of Nubian descent are severely limited and
often leaves them stateless. The complainants further allege that a vetting
process that is applicable to children of Nubian decent is extremely arduous,
unreasonable, and de facto discriminatory.
6. The complainants allege and attempt to substantiate that the facts
submitted by them are supported by reports from the United Nations bodies,
non-governmental organisations, independent researchers, academicians,
and adults and children of Nubian descent living in Kenya.
...
29. In a clear distinction from other cases declared inadmissible by the
African Commission, the complainants did not operate on the basis of
anticipating the effectiveness or otherwise of local remedies in theory and
argued an exception to the rule. Rather, they in fact engaged the judicial
system in Kenya, but with no success so far to have the case heard on its
merits. Furthermore, there are unconfirmed indications that the case in the
High Court is still pending as a result of some procedural technicalities that
may need to be fulfilled under Kenyan law. Even then, it cannot be in these
children’s best interests (a principle domesticated by the Children’s Act of
2001) to leave them in a legal limbo for such a long period of time in order to
 Cases 449

fulfil formalistic legal procedures. As an upper guardian of children, the state

and its institutions should have proactively taken the necessary legislative,
administrative and other appropriate measures in order to bring to an end the
current situation children of Nubian descent in Kenya find themselves in.
...
38. It is rightly said that birth registration is the state’s first official
acknowledgment of a child’s existence, and a child who is not registered at
birth is in danger of being shut out of society — denied the right to an official
identity, a recognised name and a nationality. The complainants allege that
the treatment of children of Nubian descent violates their right to be
registered at the time of their birth, because some parents have difficulty
having their children registered especially since many public hospital officials
refuse to issue birth certificates to children of Nubian descent. Such a
limitation is confirmed by the Kenya National Commission on Human Rights
(KNHCR) that identified and recorded practices indicating discrimination
against certain population groups, including persons of Nubian descent, in the
grant of birth registration and identity documents.
...
41. The complainants have further alleged that even when birth certificates
are issued, they do not confer a nationality. They allege that children of
Nubian descent are often left to wait until they turn 18 to apply to acquire a
nationality.
42. In this respect, the African Committee is of the view that there is a
strong and direct link between birth registration and nationality. This link is
further reinforced by the fact that both rights are provided for in the same
article under the African Children’s Charter (as well as the UN Convention on
the Rights of the Child). The African Committee notes that article 6(3) does
not explicitly read, unlike the right to a name in article 6(1), that ‘every child
has the right from his birth to acquire a nationality’. It only says that ‘every
child has the right to acquire a nationality’. Nonetheless, a purposive reading
and interpretation of the relevant provision strongly suggests that, as much
as possible, children should have a nationality beginning from birth. This
interpretation is also in tandem with article 4 of the African Children’s
Charter that requires that ‘in all actions concerning the child undertaken by
any person or authority the best interests of the child shall be the primary
consideration’. Moreover, this interpretation is further supported by the UN
Human Rights Committee that indicated: ‘States are required to adopt every
appropriate measure, both internally and in cooperation with other states, to
ensure that every child has a nationality when he is born’ (African
Committee’s emphasis). Moreover, by definition, a child is a person below the
age of 18 (article 2 of the African Children’s Charter), and the practice of
making children wait until they turn 18 years of age to apply to acquire a
nationality cannot be seen as an effort on the part of the state party to
comply with its children’s rights obligations. Therefore, the seemingly routine
practice (which is applied more of as rule than in highly exceptional
instances) of the state party that leaves children of Nubian descent without
acquiring a nationality for a very long period of 18 years is neither in line with
the spirit and purpose of article 6, nor promotes children’s best interests, and
therefore constitutes a violation of the African Children’s Charter.
43. The complainants allege that birth registration certificate in Kenya
explicitly indicates that it is not proof of nationality thereby leaving even
registered children stateless. Furthermore, the communication further
alleges that while children in Kenya have no proof of their nationality, they
have legitimate expectation that they will be recognised as nationals when
they reach the age of 18. However, for children of Nubian descent in Kenya,
since many persons of Nubian descent are not granted the ID cards that are
450 African Committee on the Rights and Welfare of the Child

essential to prove nationality, or only get them after a long delay, this
uncertainty means that the future prospects of children of Nubian descent are
severely limited, and often leaves them stateless. The complainants further
allege that a vetting process that is applicable to children of Nubian decent
is extremely arduous, unreasonable, and de facto discriminatory.
44. Therefore, central to the present communication is the issue of
statelessness. One of the main purposes of article 6, in particular article 6(4)
of the African Children’s Charter, is to prevent and/or reduce statelessness.
A ‘stateless person’, according to the 1954 UN Convention relating to the
Status of Stateless Persons, http://www2.ohchr.org/english/law/stateless.
htm means ‘a person who is not considered as a national by any state under
the operation of its law’. There is evidence that this universal definition of a
‘stateless person’ is accepted as part of customary international law.
Therefore, a ‘stateless child’ is a child who is not considered as a national by
any state under the operation of its laws.
45. While complex issues of parentage, race, ethnicity, place of birth, and
politics all play a role in determining an individual’s nationality, the root
causes of statelessness are complex and multifaceted including state
succession, decolonisation, conflicting laws between states, domestic
changes to nationality laws, and discrimination.
46. Whatever the root cause(s), the African Committee cannot
overemphasise the overall negative impact of statelessness on children. While
it is always no fault of their own, stateless children often inherits an uncertain
future. For instance, they might fail to benefit from protections and
constitutional rights granted by the state. These include difficulty to travel
freely, difficulty in accessing justice procedures when necessary, as well as
the challenge of finding oneself in a legal limbo vulnerable to expulsion from
their home country. Statelessness is particularly devastating to children in the
realisation of their socio-economic rights such as access to health care, and
access to education. In sum, being stateless as a child is generally antithesis
to the best interests of children.
47. At the global level, a range of instruments recognise the right to acquire
a nationality, albeit with varying formulations. Here, it is worth mentioning
that, as Doek rightly explains, international human rights law has shifted from
the position that ‘the child shall be entitled from his birth ... to a nationality’,
to one mandating that the child ‘shall acquire a nationality’ (article 7(1) of
CRC, article 24(3) of ICCPR). The same wording and position is transparent
under article 6 of the African Children’s Charter. The reason for such a shift
is because it is felt that ‘a state could not accept an unqualified obligation to
accord its nationality to every child born on its territory regardless the
circumstances’.
48. Therefore, under general international law, states set the rules for
acquisition, change and loss of nationality as part of their sovereign power.
However, although states maintain the sovereign right to regulate nationality,
in the African Committee’s view, state discretion must be and is indeed
limited by international human rights standards, in this particular case the
African Children’s Charter, as well as customary international law and general
principles of law that protect individuals against arbitrary state actions. In
particular, states are limited in their discretion to grant nationality by their
obligations to guarantee equal protection and to prevent, avoid, and reduce
statelessness.
49. This as a backdrop, the government of Kenya has adopted its rules that
provide for conditions by which a person can become a Kenyan citizen.
Pursuant to Chapter IV of the former Constitution of Kenya and the Kenya
Citizenship Act, Cap 170 of the Laws of Kenya, the four ways through which a
person may acquire Kenyan citizenship are birth, descent, registration, and
 Cases 451

naturalisation. The African Committee has found sufficient evidence that

indeed some persons (including children) of Nubian descent in Kenya have
acquired Kenyan nationality through one of these four ways. Therefore,
neither the communication alleges nor the African Committee believes that
all children of Nubian descent in Kenya have been left stateless. However, the
crux and truth of the matter is that, even with the application of these (fairly
restrictive) four ways through which a person can become a Kenyan national,
a significant number of children of Nubian descent in Kenya have been left
stateless.
50. As a result, the duty in article 6(4) of the African Children’s Charter to
ensure that a child ‘acquire the nationality of the state in the territory of
which he has been born if, at the time of the child’s birth, he is not granted
nationality by any other state in accordance with its laws’ is squarely
applicable to the present communication as an obligation of the government
of Kenya. This, by no means, is an attempt by the African Committee to be
prescriptive about the choice states make in providing for laws pertaining to
the acquisition of nationality. Therefore, while the African Committee is not
suggesting that states parties to the Charter should introduce the jus soli
approach, in line with the best interests of the child principle, it is explaining
the intent of article 6(4) of the African Children’s Charter that if a child is
born on the territory of a state party and is not granted nationality by another
state, the state in whose territory the child is born, in this particular case
Kenya, should allow the child to acquire its nationality.
51. It may have been further argued (by the government of Kenya), perhaps
rather loosely, that the children of Nubian descent in Kenya may be entitled
to the nationality of the Sudan, and, as a result, the government does not
have to provide them with Kenyan nationality. However, such a line of
argument would be remiss of the fact that, implied in article 6(4) is the
obligation to implement the provision proactively in cooperation with other
states, particularly when the child may be entitled to the nationality of
another state. In the communication at hand, nothing has transpired that
indicates that the government, if it holds such view, has undertaken any
meaningful efforts to ensure that these children acquire the nationality of any
other state.
52. In this regard, it is apposite to further highlight the nature of the state
party obligation that article 6(4) of the Charter provides, which is ‘undertake
to ensure’. As such, the obligation that states parties including Kenya have
under article 6(4) of the Charter is not an obligation of conduct but an
obligation of result. States parties need to make sure that all necessary
measures are taken to prevent the child from having no nationality.
53. The African Committee notes and commends the new constitutional
dispensation introduced in 2010 in Kenya which ushers a number of
advancements in promoting and protecting children’s rights, including their
right to acquire a nationality. In particular, article 14(4) of the 2010
Constitution entrenches that a child less than eight years of age whose
parents are not known is presumed to be a citizen by birth. While the African
Committee lauds the effort of the state party in providing for this provision in
its Constitution, it would like to draw the attention of the state party that this
provision is still not a sufficient guarantee against statelessness, let alone
address the crux of the present communication, namely, children born in
Kenya of stateless parent(s) or who would otherwise be stateless, to acquire
a nationality by birth.
54. As a result of the above, the African Committee finds violations of
articles 6(2), 6(3) and 6(4) of the African Children’s Charter by the
government of Kenya.
452 African Committee on the Rights and Welfare of the Child

Alleged violation of article 3

55. The complainants allege that children of Nubian descent in Kenya are
treated differently from other children in Kenya, for which there is no
legitimate justification, amounting to unlawful discrimination and a violation
of article 3 of the African Children’s Charter. They further allege that the fact
that children of Nubian descent are expected to go through a lengthy and
arduous process of vetting (including requiring them to demonstrate the
nationality of their grandparents, as well as the need to seek and gain the
approval of Nubian elders and governmental officials, etc) is discriminatory,
and depriving them of any legitimate expectation of nationality, and leaving
them effectively stateless.
56. Racial and ethnic discrimination are prohibited as binding jus cogens
norm of international law. The African Children’s Charter is no exception.
Article 3 provides in full that:
[e]very child shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in this Charter irrespective of the child’s or his/her
parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion,
political or other opinion, national and social origin, fortune, birth or other status.
The current facts in relation to children of Nubian descent in Kenya indicate
a prima facie case of discrimination and violation of article 3 of the Charter.
As a result, the burden shifts to the state to justify the difference in
treatment indicating how such a treatment falls within the notion of fair
discrimination. The failure of the state to be present for a consideration of
this communication makes such an engagement impossible. However, the
African Committee weighed whether the treatment of the children of Nubian
descent in Kenya can be considered to be a fair discrimination, but found
otherwise. For instance, in a very similar case involving children of Haitian
descent in Dominican Republic, it was held that the refusal and placing of
unfair obstacles by local officials to deny birth certificate and recognition of
the nationality of Dominicans of Haitian descent as part of a deliberate policy
which effectively made the children stateless constituted racial
discrimination. Moreover, after a thorough investigation of the situation of
children of Nubian descent in Kenya, the Kenya National Commission on
Human Rights has concluded that ‘the process of vetting ... Nubians ... is
discriminatory and violates the principle of equal treatment. Such a practice
has no place in a democratic and pluralistic society’.
57. The current practice applied to children of Nubian descent in Kenya,
and in particular its subsequent effects, is a violation of the recognition of the
children’s juridical personality, and is an affront to their dignity and best
interests. For a discriminatory treatment to be justified, the African
Commission has rightly warned that ‘the reasons for possible limitations must
be founded in a legitimate state interest and … limitations of rights must be
strictly proportionate (sic) with and absolutely necessary for the advantages
which are to be obtained’. The African Committee is not convinced,
especially in relation to a practice that has led children to be stateless for
such a long period of time, that the current discriminatory treatment of the
government of Kenya in relation to children of Nubian descent is ‘strictly
proportional with’ and equally importantly ‘absolutely necessary’ for the
legitimate state interest to be obtained. The Committee is of the view that
measures should be taken to facilitate procedures for the acquisition of a
nationality for children who would otherwise be stateless, and not the other
way round. As a result of all the above, the African Committee finds a
violation of article 3 of the African Children’s Charter.
 Cases 453

Consequential violations
58. The indivisibility of rights in the African Children’s Charter is
underscored by the consequential impact of the denial of nationality to
children of Nubian descent by the government of Kenya. All Charter rights
generate obligations to respect, protect, promote and fulfil. This is no less so
in respect of the rights implicated when nationality and identity rights are
violated. The complaint in the instant communication has primarily resulted
in an infringement of article 3 which fundamentally proscribes discrimination
against the child so as to limit the enjoyment by the child of the rights and
freedoms recognised and guaranteed in the Charter. In the instant case, the
discriminatory treatment of the children affected by the conduct of the
government of Kenya based on their and their parents’ and legal guardians’
social origin has had long standing and far reaching effects on the enjoyment
of other Charter rights. And, as the African Commission on Human and
Peoples’ rights has confirmed, in the African context, collective rights and
economic and social rights are essential elements of human rights in Africa.

Alleged violation of article 14

59. In the first place, a case had been made out that the affected children
have suffered denial and unwarranted limitation of their rights to health. The
Charter provides in article 14 for the children to enjoy the right to the highest
attainable standard of health. Minimal access to health facilities, a lower
level of contact with health promoting measures and medical assistance, and
a lack of provision of primary and therapeutic health resources and
programmes is inconsistent with respect for the child’s right to the highest
attainable standard of health. African jurisprudence places a premium on
both the right to health care and the right to the underlying conditions of
health. In the Purohit case, the African Commission held that the right to
health in the African Charter on Human and Peoples’ Rights includes the right
to health facilities, access to goods and services to be guaranteed to all
without discrimination of any kind. It has been confirmed that the underlying
conditions for achieving a healthy life are protected by the right to health.
Thus lack of electricity, drinking water and medicines amount to a violation
of the right to health. The Zaire case [Free Legal Assistance Group and Others
v Zaire (2000) AHRLR 74 (ACHPR 1995)], concerning article 16 of the African
Charter on Human and Peoples’ Rights, confirmed that the failure of the
government of Zaire to provide the mentioned basic services amounted to an
infringement of the right to health.
60. In the communication regarding the children affected by the denial of
their nationality and Kenyan identity, a case was made out that the state
party had violated in particular the right enshrined in article 14(2)(b) (the
duty to ensure the provision of necessary medical assistance and heath care
to all children with the emphasis on the development of primary health care)
and article 14(2)(c) (the duty to ensure the provision of adequate nutrition
and safe drinking water). These provisions being similar in content to the
equivalent provisions in the African Charter on Human and Peoples’ Rights, it
can be deduced that the findings of the African Commission bear significant
relevance.
61. It is incumbent upon states parties to the African Children’s Charter to
ensure that article 14(2)(g) is given full implementation, within available
resources. Integrated health service programmes must be fully incorporated
national development programmes, including those pertaining to the most
vulnerable who lived in overcrowded and underserviced slum areas or camps.
Where the underlying conditions, such as conditions in informal settlement
and slum areas, present a heightened risk to the child’s enjoyment of her
right to health, the duty bearer must accept that there is a correspondingly
454 African Committee on the Rights and Welfare of the Child

more urgent responsibility to plan and provide for basic health service
programmes under article 14(2)(g). The states parties to the African
Children’s Charter are encouraged in giving effect to their article 14(2)(g)
obligations, to ensure that national development plans reflect the need to
prioritise health services and to intensify such planning for services to
otherwise disadvantaged communities where child beneficiaries live.
62. The affected children had less access to health services than
comparable communities who were not comprised of children of Nubian
descent. There is de facto inequality in their access to available health care
resources, and this can be attributed in practice to their lack of confirmed
status as nationals of the Republic of Kenya. Their communities have been
provided with fewer facilities and a disproportionately lower share of
available resources as their claims to permanence in the country have
resulted in health care services in the communities in which they live being
systematically overlooked over an extended period of time. Their health
needs have not been effectively recognised and adequately provided for,
even in the context of the resources available for the fulfilment of this right.

Alleged violation of article 11(3)

63. The Committee notes that the violation includes an infringement of the
rights enshrined especially in article 11(3) of the African Children’s Charter,
which provides for the right to education. Ratifying states parties undertake
to take all appropriate measures, with a view to achieving full realisation of
this right. Article 11(3)(a) requires in particular the provision of free and
compulsory basic education, which necessitate the provision of schools,
qualified teachers, equipment and the well-recognised corollaries of the
fulfilment of this right.
64. The African Commission on Human and Peoples’ Rights has emphasised
that the failure to provide access to institutions of learning would amount to
a violation of the right to education under the African Charter on Human and
Peoples’ Rights.
65. The affected children had less access to educational facilities for the
fulfilment of their right to free and compulsory primary education than
comparable communities who were not comprised of children of Nubian
descent. There is de facto inequality in their access to available educational
services and resources, and this can be attributed in practice to their lack of
confirmed status as nationals of the Republic of Kenya. Their communities
have been provided with fewer schools and a disproportionately lower share
of available resources in the sphere of education, as the de facto
discriminatory system of resource distribution in education has resulted in
their educational needs being systematically overlooked over an extended
period of time. Their right to education has not been effectively recognised
and adequately provided for, even in the context of the resources available
for this fulfilment of this right.
...
 Cases 455

The Centre for Human Rights (University of Pretoria) and

Another v Senegal
[Communication 1/2012 (2014)]

This case deals with the situation of children (talibés) forced into begging in
Senegal.

...
23. The Committee also finds the avenue to petition the Chief Prosecutor to
bring a claim to court on behalf of the talibes victims of violations of their
rights by marabouts in the daaras to be ineffective because the Chief
Prosecutor’s decision is made discretionary and in consultation with the
Minister responsible for justice, which does not amount to a remedy that is
judicial in nature. Another avenue that the Complainants also have indicated
to be in place in the Respondent State is the requirement that only the victim
talibes or someone directly affected by the alleged violations can bring cases
in domestic courts. In practice, this would entail each of the estimated
100,000 talibes would bring their own claim in courts. The Committee
concurs with Complainants’ submission that this avenue is so impractical as
to be virtually impossible . Therefore, the Committee is of the view that the
Complainants should avail from the exceptions of the requirement of
exhaustion of local remedies as there is no effective and sufficient remedy for
the talibes.
…
37. The respondent state, being a state party to the Charter, accepts the
explicit prohibition of child begging under article 29(b) and it has complied
with this obligation through its prohibition of child begging as provided for
under article 245 to 247(b) of its Penal Code. However, the respondent state
has failed to discharge its obligation to enforce these provisions by not taking
the necessary administrative measures, including supervision of the daaras
and bringing to justice the marabouts who force talibés into begging. The
state party has the obligation to protect the rights enshrined in the Charter,
which requires measures by the state to ensure that third parties (individuals,
institutions, etc.) do not deprive of children’s rights. In this regard the
Committee refers to the jurisprudence as established by the African
commission on Humans and Peoples’ Rights. …
38. In the case at hand, despite the obligation set under the principle of the
best Interests of the child, the Committee notes that the Government of
Senegal has failed to enforce current national, regional, and international
laws and agreements already in place by taking measures, including
prosecuting, against perpetrators and abusive religious leaders; and hence
the respondent state has failed its responsibility to protect.
39. Therefore, the respondent state is responsible under article 4 of the
Charter for not taking necessary administrative and other measures against
the daaras, marabouts as well as parents who send their children to the
daaras.
…
50. The government must enforce its own laws to protect talibés from this
abuse and ensure that the education received in daaras equips these children
with a rounded education, and does not allow forced begging. The Senegalese
government enacted legislation in 2005 that criminalized forcing others into
begging for personal financial gain. But the authorities have largely failed to
take concrete steps to enforce the law and end the exploitation and abuse of
456 African Committee on the Rights and Welfare of the Child

the talibés. Therefore, the Government of Senegal has violated the right to
education of the talibés by failing to ensure the availability, accessibility and
acceptability of the education and supervising the daaras.
…
82. Because of the foregoing reasons, the Committee finds multiple
violations of the African Children’s Charter as follows: Article 4 (best interest
of the child); article 5 (survival and development); article 11 (the right to
education); article 14 (health and health services); article 15 (child labour);
article 29 (sale, trafficking and abduction); article 16 (protection against
child abuse and torture); and article 21 (protection against harmful social and
cultural practices). Therefore, the Committee recommends that the
respondent state should, in accordance with its obligations under the African
Children’s Charter, undertake the necessary measures:
(a)To ensure that all talibés are immediately taken back from the streets to their
families;
(b)Through cooperation with the neighboring countries (from where some of the
children are coming), international and national organisations, facilitate the
reunion of the talibés with their families; [[/li]]
(c)To establish functioning and effective institutions and mechanisms to provide
the talibés with short- and long-term, appropriate psychological, medical and
social assistance in order to promote their full recovery;
(d)To establish minimum norms and standards for all daaras relating to health,
safety, hygiene, education content and quality, and accommodation;
(e)To integrate the daaras into the formal education system;
(f)To inspect the daaras regularly to ensure that standards set out in the Charter
and local legislation are complied with and close all the daaras which are not in
compliance with the required standards;
(g)With a view of fighting impunity and preventing forced begging, sale, abduction
and trafficking of children, ensure that all the perpetrators are brought to justice
and held accountable for their actions with penalties commensurate with the
severity of their crimes;
(h)On the talibés right to education: (i) Make sure that education contributes in
promoting and developing their personality, talents and their physical and mental
abilities to their fullest potential, (ii) The Government’s education policy should
be reviewed in light of fostering respect for human rights and fundamental
freedoms, and (iii) Ensure the provision of free and compulsory basic education.
(i)To train law enforcement and judicial personnel, social workers, traditional and
religious leaders, parents and the community at large on children’s rights in
general and prohibitions of child begging in particular;
(j)To conduct joint studies with the concerned neighboring State Parties on the
situation of talibés’ children in Senegal and countries of origin;
(k)To fully recognize and implement the rights included in the African Children’s
Charter and in other international instruments;
(l)While complying with its reporting obligation in accordance with article 43 of
the African Children’s Charter, the State Party should provide the Committee with
sufficient information on the progress of implementation of the current decision
(m)To cooperate with the African Union, International and National Organisations,
the UN Agencies, particularly UNICEF, ILO, World Health organisation (WHO), with
a view to fully implement these recommendations and alleviate the challenges
of talibés in Senegal; and
AFRICAN COURT ON
HUMAN AND
PEOPLES’ RIGHTS
458 African Court on Human and Peoples’ Rights

Rules of Court (2020)

These rules replaced the 2010 Rules reprinted in earlier editions of this
Compendium.

Preamble

The Court,
Considering the African Charter on Human and Peoples' Rights adopted on 27
June 1981, and which came into force on 21 October 1986,
Considering the Protocol to the African Charter on Human and Peoples’ Rights
on the Establishment of an African Court on Human and Peoples’ Rights (the
Protocol) adopted on 9 June 1998, and which came into force on 25 January
2004,
Considering the ‘Interim Rules of Court’ adopted on 20 June2008,
Considering the ‘Rules of Court’ adopted on 2 June 2010,
In accordance with article 33 of the Protocol,
Adopts these Rules of Court (the Rules):

PART I: GENERAL

Rule 1: Definitions
For the purposes of these Rules, unless the context otherwise indicates:
(a) ‘Applicant’ means any entity or individual who initiates proceedings
before the African Court on Human and Peoples’ Rights (the Court) under
article 5 of the Protocol;
(b) ‘Assembly’ means the Assembly of Heads of State and Government of
the African Union;
(c) ‘Bureau’ means the President and Vice President of the Court;
(d) ‘AU Commission’ means the African Union Commission;
(e) ‘Charter’ means the African Charter on Human and Peoples' Rights;
(f) ‘Commission’ means the African Commission on Human and Peoples’
Rights;
(g) ‘Constitutive Act’ means the Constitutive Act of the African Union;
(h) ‘Counsel’ means lawyers registered on the Court’s Legal Aid Roster and
any other lawyer representing a party before the Court;
(i) ‘Court’ means the African Court on Human and Peoples’ Rights;
(j) ‘Dean of Judges’ means the longest serving judge of the Court who is
not a member of the Bureau;
(k) ‘Decision’ means any pronouncement of the Court, in the exercise of its
judicial powers, which is in the form of a judgment, ruling, opinion or order;
(l) ‘Deliberation’ means the consideration of issues arising in a case based
on the facts and applicable law after close of pleadings and before the Court
renders its decision;
(m) ‘Executive Council’ means the Executive Council of the African Union;
(n) ‘Judge’ means a judge elected pursuant to Article 11 of the Protocol;
(o) ‘Member state’ means a member state of the African Union;
(p) ‘Parties’ means an Applicant, Respondent State and intervener;
(q) ‘Person’ means a natural or legal person;
(r) ‘Pilot judgment’ means a judgment of the Court that deals with a group
of similar cases which arise from identical causes of action or problems of a
systematic or structural nature.
(s) ‘Pleadings’ means written or oral submissions of parties;
 Rules of Court 2020 459

(t) ‘President’ means the President of the Court;

(u)
(v) ‘Protocol’ means the Protocol to the African Charter on Human and
Peoples' Rights on the Establishment of an African Court on Human and
Peoples' Rights;
(w) ‘Registrar’ means the Registrar of the Court;
(x) ‘Registry’ means the Registry of the Court;
(y) ‘Respondent’ means any party against which an application has been
filed with the Court;
(z) ‘Rules’ mean the present Rules of Court;
(aa) ‘Session’ means the statutory meetings of the Court as provided under
rules 22 and 23 of these Rules.
(ab) ‘Sittings’ means the meeting of the Court on each day of a particular
session;
(ac) ‘State Party’ means a state party to the Protocol to the African Charter
on Human and Peoples' Rights on the Establishment of an African Court on
Human and Peoples' Rights;
(ad) ‘Vice President’ means the Vice President of the Court.

Chapter 1: Members of the Court

Rule 2: Assumption of duty and term of office

1. Newly elected judges shall assume duty on the first day of the first
session following their election, except in unforeseen circumstances, in which
case, they shall assume duty as soon as practically possible.
2. Before assuming duty, the elected judges shall take an oath of office or
make a declaration in accordance with article 16 of the Protocol and rule 4 of
these rules.
3. The term of office of judges shall be six (6) years or any other applicable
period in accordance with article 15 of the Protocol.
4. Judges shall participate in the deliberations of all cases after
assumption of duty unless the Court determines otherwise, taking into
account the stage of deliberations, and the quorum required under article 23
of the Protocol.

Rule 3: Oath of office or solemn declaration

1. Pursuant to article 16 of the Protocol, each judge shall make the
following oath or solemn declaration:
‘I …… (full name of judge) do swear/or solemnly declare that I will
perform my duties and exercise my powers as a Member of the Court
honourably, faithfully, independently, impartially and conscientiously,
and that I shall preserve the confidentiality of its deliberations even after
my term of office has expired’.
2. This oath/declaration shall be taken/made in a public sitting as soon as
possible after the election of the new judge. If necessary, a special public
sitting shall be held for this purpose.

Rule 4: Precedence
1. Judges, in the exercise of their functions, are of equal status,
irrespective of age, date of election or length of service.
2. Judges shall, except as provided in sub-rules 4 and 5 of this rule, take
precedence according to the date on which their terms of office respectively
began, pursuant to rule 2 of these rules.
3. Judges who assume office on the same date shall take precedence, in
relation to one another, according to seniority of age.
460 African Court on Human and Peoples’ Rights

4. A judge who is re-elected to a new term of office which is continuous

with his/her previous term shall retain his/her precedence.
5. The President and the Vice-President of the Court shall take precedence
before all other judges.
6. The judge who is, in accordance with the foregoing sub-rules, next in
precedence after the President and the Vice-President, is designated as ‘the
Dean of Judges’. Whenever that member is unable to act, the judge who is
next after him or her in precedence shall be considered the Dean of Judges.

Rule 5: Incompatibility
1. In accordance with the terms of article 18 of the Protocol, during their
term in office, judges shall not participate in any other activity of a nature
that may compromise their independence and impartiality or the demands of
their office.
2. Judges may not, in particular, hold political, diplomatic or
administrative positions or function as government legal advisers.
3. Each judge shall declare any activity to the Court, which may raise
issues of incompatibility.

Rule 6: Vacancies
1. A vacancy of a seat of a judge may arise as a result of death, permanent
incapacitation, resignation or removal from office.
2. The effective date on which a seat becomes vacant shall be determined
by the Chairperson of the African Union Commission in accordance with
article 20 of the Protocol.

Rule 7: Resignation
1. A judge who decides to resign shall tender his/her notice of resignation
to the President, who shall, as soon as possible, inform the other judges.
2. In accordance with article 20 of the Protocol, the President shall
thereafter notify the Chairperson of the African Union Commission.
3. Where the President decides to resign, he/she shall inform the Vice-
President and other judges. The Vice-President shall, in turn, notify the
Chairperson of the African Union Commission.

Rule 8: Suspension or removal

1. Where the application of article 19(1) of the Protocol is under
consideration, the President or, if the circumstances so require, the Vice-
President, shall inform the concerned judge, by a written statement, of the
grounds thereof and any relevant evidence.
2. The concerned judge shall, subsequently, at a closed sitting of the Court
specially convened for the purpose, be afforded an opportunity of making a
statement, of furnishing any information or explanations he/she wishes to
give, and of supplying answers, orally or in writing, to any questions put to
him/her.
3. At a further closed sitting, at which the judge concerned shall not be
present, the matter shall be considered, each judge shall state his/her
opinion and, if required, a vote shall be taken.
4. Any decision to suspend or remove a judge shall be communicated to the
Chairperson of the African Union Commission.

Rule 9: Inability to sit, exemption and withdrawal

1. Any judge who is unable to attend one or more sitting(s) of the Court
shall notify the President well in advance of the sitting(s).
2. In accordance with article 22 of the Protocol, a judge who is a national
of a state that is party to a case shall not hear that case.
 Rules of Court 2020 461

3. A judge shall also not hear cases in which the state, which nominated
him/her for election, is a party.
4. No judge shall hear any case if:
(a) he/she has previously acted, in relation to the case, as agent, counsel
or advocate for one of the parties, or as a member of a national or
international court or a commission of inquiry or in any other capacity;
(b) he/she has a personal interest in the case, including a spousal, parental
or other close family, personal or professional relationship, or a subordinate
relationship with any of the parties;
(c) he/she has expressed opinions publicly, through the media, in writing,
through his or her public actions or otherwise, that may, objectively adversely
affect his or her impartiality;
(d) for any other reason, his/her independence or impartiality may
legitimately, be called into doubt;
5. If a judge intends to withdraw for any of the reasons under sub-rule 4
hereof, he/she shall notify the President, who upon consideration of the
request, may exempt such a judge from participation.
6. In the event of any doubt as to the existence of a ground for withdrawal,
the President or the concerned judge shall bring this to the attention of the
Court. The Court shall decide on the matter in the absence of the Judge after
having heard him/her, if he/she so wishes.

Chapter II: The Bureau

Rule 10: Composition of the Bureau

1. The Bureau of the Court shall be composed of the President and the
Vice-President.
2. In the composition of the Bureau, the principles of gender parity,
representation of the principal legal traditions and main regions of the
continent and a rotation system, shall, as far as possible, be observed.

Rule 11: Nomination for election

1. Prior to the expiration of the term of office of the Bureau, the Registrar
shall:
(a) at least forty-five (45) days before the session at which the election of
the next Bureau will be held, notify all judges of the end of term of the
President and Vice-President, as applicable.
(b) by that notice, request judges wishing to nominate members for
election or re-election for the position of President or Vice-President to notify
the Registrar in writing of their nominees, at least fifteen (15) days from the
date of notification.
2. The Registrar shall inform the nominees and shall invite them to send to
the Registrar their written acceptance or otherwise of the nomination, at
least seven (7) days from the date of being notified of the nomination. The
acceptance of nomination for the position of President shall be accompanied
by an undertaking to take up residence at the seat of the Court.
3. The Registrar shall circulate the list of nominees for the position of
President and Vice- President at least fifteen (15) days before the session at
which the election is scheduled to be held.
4. All nominations or acceptance thereof shall be properly registered,
indicating the time and date of receipt by the Registrar.
5. Nominations or acceptance thereof received after the deadline
provided in the present rule shall not be accepted.
6. The election of the President and Vice-President shall be held on the
first day of the session or soon thereafter during the course of the session.
462 African Court on Human and Peoples’ Rights

Rule 12: Elections

1. Where on the date of the election of the President, the outgoing
President is still a judge, he/she shall conduct the election. Where he/she has
ceased to be a judge, is unable to act, or is himself/herself a candidate, the
election shall be conducted by the Vice-President, if not a candidate, or the
most senior judge who is not a candidate.
2. The vote shall be taken by secret ballot.
3. The candidate who obtains at least six (6) votes shall be declared
elected.
4. Where no candidate obtains at least six (6) votes during the first ballot,
the candidate who obtained the least number of votes shall withdraw. If
during the second ballot no candidate receives at least six (6) votes, a third
round shall take place between the two candidates who obtained the highest
number of votes. An additional round or additional rounds shall take place
until one candidate has achieved the required majority. In the event of a tied
vote, preference shall be given to the candidate having precedence under
rule 4 of the rules.
5. The President shall preside over the election of the Vice-President. The
provisions of sub-rule 2 to 4 above shall also apply to this election.
6. The judge who is elected President or Vice-President shall take office
immediately.
7. In the event of there being only one candidate for the post of President
or Vice- President, the provisions of the preceding sub-rules shall apply.

Rule 13: Term of office

1. The President and Vice-President shall be elected for a period of two (2)
years and may be re-elected only once.
2. The term of office of the President and Vice-President shall begin to run
as provided for in rule 12(6) of these rules.
3. The President or Vice-President, if still a judge, shall continue to hold
office until he/she is re-elected or his/her successor takes office.
4. Where for any reason, the President or the Vice-President ceases to be
a judge before the expiry of his/her term of office, the Court shall elect a
replacement in accordance with sub-rule 1 of this rule.

Rule 14: Functions

1. The functions of the President are to:
(a) represent the Court;
(b) preside at the sittings of the Court;
(c) direct the work and supervise the administration of the Court;
(d) promote the activities of the Court;
(e) conduct annual performance assessment for Judges based on criteria
adopted by the Court;
(f) present a detailed Annual Report to the Court on the Court’s activities
and on his/her own activities as President;
(g) pursuant to article 31 of the Protocol, prepare and present the periodic
activity reports of the Court to the Assembly;
(h) carry out any other duties assigned to him/her by the Protocol or the
present rules or entrusted to him/her by the Court.
2. The Vice-President shall assist the President in performing his/her
functions.

Rule 15: Exercise of functions

1. In the event of the office of the President becoming vacant or the
President being unable to act, his/her functions shall be performed by the
Vice-President and, in default, by the Dean of Judges.
 Rules of Court 2020 463

2. When the President is precluded from hearing a case under the terms of
article 22 of the Protocol and rule 9 of these rules, he/she shall continue to
act as President for all purposes save in respect of the said case; the same
shall apply to the Vice-President.
3. The President shall take the necessary measures to ensure the
continuous exercise of his /her functions at the seat of the Court. In the event
of his/her absence, he/she may arrange for these functions to be exercised
by the Vice- President or in default, by the Dean of Judges.

Chapter III: The Registry

Rule 16: Composition and organisation of the Registry

1. The Registry shall comprise the Registrar, the Deputy Registrar and such
other staff as the Court may require for the effective exercise of its functions.
2. In the composition of the Registry, gender parity and representation of
different regions and legal traditions shall be observed. In appointing the
Registrar and Deputy Registrar in accordance with rule 17 and 18 of these
rules, the Court shall, as far as possible, consider gender and language.
3. The Court shall prescribe the organisation of the Registry.
4. Instructions to the Registry shall be issued by the Court, the Bureau or
the President.
5. Staff of the Registry are subject to the staff Regulations and Rules and
any other applicable instruments of the African Union.

Rule 17: Appointment of the Registrar

1. The Court shall appoint its Registrar in accordance with African Union
Staff Regulations and Rules.
2. Candidates for the position of Registrar shall be of the highest moral
standing and shall possess the necessary legal, managerial, administrative and
linguistic knowledge and experience for the discharge of the functions linked
to the post.
3. The process of recruiting the Registrar shall be conducted in accordance
with the procedure established by the Court and consistent with the norms of
the African Union.
4. The application(s) shall include all relevant information concerning the
applicant, and in particular, information as to age, nationality, sex, current
5. occupation, academic qualifications as well as the knowledge and
experience required in sub-rule 2 above.

Rule 18: Appointment of the Deputy Registrar

1. The Court shall appoint a Deputy Registrar.
2. The provisions of rule 17 of these rules shall apply to the appointment
of the Deputy Registrar.

Rule 19: Oath/solemn declaration

1. The Registrar shall, upon assumption of office, take the following oath/
make the following declaration before the Court: ‘I … (full names of Registrar)
do swear/solemnly declare that I will discharge the duties incumbent upon
me as Registrar of the African Court on Human and Peoples' Rights diligently
with all loyalty, discretion and good conscience; that I will preserve the
confidentiality of the information to which I have access in the exercise, or
due to the exercise of my functions, and that I will faithfully observe all the
provisions of the Protocol and of the Rules of the Court.’
2. Upon assumption of office, the Deputy Registrar shall take a similar oath
or make a similar declaration before the Court.
3. These oaths/declarations shall be recorded in the minutes of the Court.
464 African Court on Human and Peoples’ Rights

Rule 20: Appointment of the other staff of the Registry

1. Other staff members of the Registry shall be appointed by the Court
under such terms and conditions as it shall determine in accordance with the
norms of the African Union. Appointments to such other positions as the Court
shall determine may, however, be made by the Registrar with the approval of
the President.
1. Every staff member shall, upon assumption of duty, take the following
oath/make the following declaration before the President, in the presence of
the Registrar: ‘I … (full names of official) do swear/solemnly declare that I
will discharge the duties incumbent upon me as (State the appointment, e.g.
Legal Officer) of the African Court on Human and Peoples’ Rights diligently,
with all loyalty, discretion and good conscience; that I will preserve the
confidentiality of the information to which I have access in the exercise or due
to the exercise of my functions, and that I will faithfully observe all the
provisions of the Protocol and the Rules of the Court.’

Rule 21: Functions of the Registrar

1. The Registrar shall assist the Court in the exercise of its judicial function
and shall be in charge of the general administration of the Court’s Registry.
He or she shall be responsible for the supervision and coordination of all the
operations and activities of the Registry.
2. In the discharge of his/her duties, the Registrar shall:
(a) Keep, in such form as may be prescribed by the Court, a General List of
all cases, entered and numbered in the order in which the documents
instituting proceedings or requesting an advisory opinion are received at the
Registry, and he/she shall publish such General List on the website of the
Court;
(b) be the regular channel of communication to and from the Court, and in
particular, effect all communications, notifications and transmission of
documents required by the Protocol or by these rules and ensure that the date
of dispatch and receipt thereof are readily verifiable;
(c) transmit to the parties copies of all pleadings and documents annexed
thereto upon receipt thereof in the Registry;
(d) be present, in person or by his/her duly qualified representative, during
the sessions of the Court, and be responsible for the preparation of minutes
of such sessions;
(e) sign the minutes referred to in subparagraph (d) above;
(f) inspect documentation submitted to the Court to establish authenticity
thereof;
(g) have custody of the seal, the official stamp and all the records and
archives of the Court;
(h) make arrangements for such provision or verification of translations and
interpretations into the Court's official languages as the Court may require;
(i) manage the Legal Aid program of the Court, including maintaining an
updated list of counsel on the Court’s roster and entities providing legal aid
services as well as management of the Legal Aid fund;
(j) be responsible, among others, for the printing and publication of the
Court's judgments, advisory opinions and orders, the pleadings and
statements, uploading documents on the Court’s website, and minutes of
public sittings in each case, and of such other documents as the Court may
direct to be published;
(k) communicate to the government of the country in which the Court is
sitting, and any other governments which may be concerned, necessary
information as to the persons from time to time entitled, under the Protocol
and any relevant agreements, to privileges, immunities or facilities, and
 Rules of Court 2020 465

publish all such documents of a public nature, including the Court’s annual
report on the website of the Court;
(l) transmit documents to judges, state parties to the Protocol and to the
Chairperson of the African Union Commission as well as other organs of the
African Union where required;
(m) deal with enquiries concerning the Court and its work;
(n) prepare the draft budget of the Court;
(o) be responsible for the sound management of all accounts and financial
administration in accordance with the applicable financial rules of the African
Union and the financial regulations of the Court;
(p) assist in maintaining relations between the Court and the departments
of the African Union Commission as well as those of the other organs of the
African Union;
ensure that information concerning the Court and its activities is made
accessible to governments, national courts, professional associations,
faculties and schools of law, and the media; in particular, the Registrar
should, in cooperation with the African Union Commission, keep, and publish
on the Court’s website, an updated list of state parties to the Protocol and
relevant treaties as well as the states which have made a declaration under
article 34(6) of the Protocol;
(q) develop and keep updated, a list of non-governmental Organisations
(NGOs) and pro bono lawyers that can assist applicants who are parties to
matters before the Court.
3. The Court may entrust additional duties to the Registrar.
4. In the exercise of his/her functions, the Registrar shall work under the
direction and supervision of the President and be answerable to the Court.

PART II: INTERNAL FUNCTIONING OF THE COURT

Rule 22: Ordinary sessions

1. The Court shall hold four ordinary sessions per annum, each of which
shall last for at least four (4) weeks.
2. The sessions of the Court shall be held on the dates set by the Court
during its previous session. Under exceptional circumstances, the President
may, in consultation with the other members of the Court, change the dates
of a session.
3. The President shall send the invitation to judges at least thirty (30)
calendar days before the session is held. The invitation letter shall indicate
the dates, agenda, duration and venue of the session as well as any other
relevant information.

Rule 23: Extraordinary sessions

1. Extraordinary sessions may be convened by the President on his/her own
initiative or at the request of a majority of the judges.
2. The President shall send the invitation to Judges at least fifteen (15)
calendar days before the session is held. The invitation letter shall indicate
the dates, agenda, duration and venue of the session as well as any other
relevant information.

Rule 24: Holding of sessions

The sessions shall take place at the Seat of the Court. However, the Court
may, pursuant to article 25(1) of the Protocol, decide to sit in the territory of
any other member state of the African Union, or in exceptional circumstances
or force majeure, hold a virtual session.
466 African Court on Human and Peoples’ Rights

Rule 25: Quorum

1. The quorum of seven (7) judges stipulated under article 23 of the
Protocol shall apply to all sittings of the Court.
2. The quorum of the Court shall be constituted at the beginning of every
sitting.

Rule 26: Committees and working groups

1. The Court may establish such committees and working groups to
facilitate its work as it deems necessary, taking into account, as much as
possible, representation of gender, language and regions.
2. Where the Court establishes a committee or a working group pursuant
to sub-rule 1 of this rule, any recommendation adopted by the committee or
the working group shall be submitted to the Court for its endorsement.

Rule 27: Official and working languages

1. The official languages of the Court shall be Arabic, English, French,
Portuguese, Spanish, Kiswahili and any other African language.
2. The working languages of the Court shall be Arabic, English, French and
Portuguese.
3. Notwithstanding the provisions of sub-rules 1 and 2 of this rule, the
Court may permit any person appearing before it to use a language of his or
her choice, if it is shown that he or she does not have sufficient knowledge of
any of the working languages of the Court. In such instance, the Court shall
make the necessary interpretation and translation arrangements. The costs
for such interpretation and translation shall be borne by the Court.
4. Any interpreter or translator used for the implementation of sub-rule 3
of this rule or any other outsourced interpretation or translation services
under rule 27 shall take an oath or make a solemn declaration undertaking to
discharge his or her duties faithfully and effectively, and to respect the
confidential nature of the information that come to his or her knowledge in
the exercise of his or her duties.

Rule 28: Internal judicial practice and practice directions

Subject to the provisions of the Protocol and the rules the Court shall adopt
its internal judicial practice and procedures and shall also formulate practice
directions for parties before the Court.

PART III: JURISDICTION

Rule 29: Jurisdiction

1. Pursuant to articles 3 and 4 of the Protocol, the Court shall have
jurisdiction in contentious cases and advisory matters. In this regard, it shall:
(a) deal with all cases and all disputes submitted to it concerning the
interpretation and application of the Charter, the Protocol and any other
relevant human rights instrument ratified by the states concerned;
(b) render advisory opinions on any legal matter relating to the Charter or
any other relevant human rights instruments.
2. In the exercise of its contentious jurisdiction, the Court may:
(a) promote amicable settlement in cases pending before it in accordance
with the provisions of the Charter and the Protocol;
(b) interpret a judgment rendered by itself;
(c) review its own judgment.
3. In the event of a dispute as to whether the Court has jurisdiction, the
Court shall decide.
 Rules of Court 2020 467

PART IV: CONTENTIOUS PROCEDURES

Chapter I: General provisions

Rule 30: Phases of proceedings

1. The procedure before the Court shall consist of written, and if
necessary, oral proceedings.
2. The written procedure shall consist of a communication to the Court,
and the parties’ pleadings, as well as any supporting documents.
3. The oral proceedings shall consist of a hearing of the parties, their
representatives, witnesses, experts or such other persons as the Court may
decide to hear.

Rule 31: Representation and legal assistance

1. Every party to a case shall be entitled to be represented or to be
assisted by counsel and/or by any other person of the party’s choice.
2. Pursuant to article 10(2) of the Protocol, the Court may, upon request
or suo motu, decide to provide, in the interest of justice and within the limits
of the financial resources available, free legal assistance to any party at any
stage of the proceedings.
3. The Court shall maintain a Legal Aid Scheme for the purpose of
implementing this Rule.
4. The Court shall collaborate with the African Union Commission in the
management of the African Union Legal Aid Fund for African Union Human
Rights Organs.

Rule 32: Legal costs

1. The Court shall not charge any fees for filing or processing an
application.
2. Unless otherwise decided by the Court, each party shall bear its own
costs, if any.

Rule 33: Cooperation of the states

1. The state parties to a case have the obligation to cooperate so as to
ensure that all notices, communications or summonses addressed to persons
residing in their territory or falling under their jurisdiction are duly executed.
2. Pursuant to article 10(3) of the Protocol, the Court shall, whenever
necessary, request that state parties take special measures to guarantee the
security of parties, witnesses, experts and other persons appearing before it.
3. The same rule shall apply to any proceeding that the Court decides to
conduct or order in the territory of any member state of the African Union.
4. When the performance of any of the measures referred to in the
preceding paragraphs requires the co-operation of any other state, the
President shall request the government concerned to provide the requisite
assistance.

Chapter II: Complementarity between the Court and the

Commission

Rule 34: Meeting of the Court and the Commission

1. In order to enhance the complementarity envisaged under article 2 of
the Protocol, the Court and the Commission shall meet at least once a year
and whenever necessary.
2. The Bureau of the Court may meet the Bureau of the Commission as
often as necessary.
468 African Court on Human and Peoples’ Rights

Rule 35: Harmonization of the rules

In accordance with article 33 of the Protocol, the Court shall consult the
Commission, as appropriate, on any amendment of its rules, and on any issues
of procedure, governing the relationship between the two institutions.

Rule 36: Seizure of the Court by the Commission

1. In a case brought before the Court by the Commission under article
5(1)(a) of the Protocol, its application shall be accompanied by its report as
well as all documents pertaining to the proceedings.
2. The Court may, pursuant to rule 52 of these rules, hear the Commission
as the applicant in a case filed before it, whose legal team may comprise of
Commissioners, members of the Secretariat, experts and/or counsel, as it
may designate or appoint.
3. The Court may also, if it deems it necessary, hear, under rule 56 of the
rules, the individual or NGO that initiated the communication before the
Commission pursuant to article 55 of the Charter.
4. The Court may, while considering cases that require fact-finding or in
situ investigations, and in which the Commission is not a party, request the
Commission to conduct such investigations.
5. The Court, while considering a case in which the Commission has made
a determination, in application of the Protocol and the rules, may review the
decision of the Commission. In such circumstances, the Court may seek
clarifications from the Commission as necessary.

Rule 37: Lis pendens and Court’s request for opinion on admissibility
1. The Court shall, not consider any application or request for advisory
opinion relating to a matter pending before the Commission, unless the
matter has been formally withdrawn.
2. Where, pursuant to article 6(1) of the Protocol, the Court decides to
solicit the opinion of the Commission on the admissibility of an application
before it, it shall transmit to the Commission a copy of the pertinent sections
of the file, indicating the time limit within which it wishes to receive the
opinion.

Rule 38: Transfer of cases to the Commission

1. Where the Court, after consulting the parties decides to transfer a case
to the Commission pursuant to article 6(3) of the Protocol, it shall transmit
all the pleadings in the matter accompanied by a summary report to the
Commission.
2. Where the Court receives an application involving a state that has
neither ratified the Protocol nor made the declaration required under article
34(6) of the Protocol, the Registry shall inform the applicant that the Court
lacks jurisdiction to examine the application. In such instance, the Registry
shall inform the applicant that he/she may file his/her matter before the
Commission.

Chapter II: Written proceedings

Rule 39: Access to the Court

1. Pursuant to the provisions of article 5(1) and (3) of the Protocol, the
following are entitled to submit cases to the Court:
(a) The Commission;
(b) The state party which has lodged an application to the Commission;
(c) The state party against which an application has been lodged at the
Commission;
(d) The state party whose citizen is a victim of a human rights violation;
 Rules of Court 2020 469

(e) An African intergovernmental organisation;

(f) An individual or a non-governmental organisation which has observer
status before the Commission provided the requirements of article 34(6) of
the Protocol are met.
2. In accordance with article 5(2) of the Protocol, a state party which has
an interest in a case may submit a request to the Court to be permitted to
join in accordance with the procedure established under rule 61 of these
rules.

Rule 40: Commencement of proceedings

1. Applications filed before the Court shall be written in one of the official
languages of the Court and filed in one (1) original application containing a
summary of the facts and of the evidence intended to be adduced. The said
application shall be signed by the applicant or by his/her representative.
2. The application shall specify the alleged violation, evidence of
exhaustion of local remedies or of the inordinate delay or ineffectiveness of
such local remedies as well as the orders or the injunctions sought. All
applications filed by individuals and non-governmental organisation shall
meet the other admissibility conditions as set out in article 56 of the Charter
and rule 50 of these rules.
3. The application shall be accompanied by copies of any relevant
documents and in particular the decisions relating to the object of the
application and serving as confirmation of exhaustion of local remedies.
4. Any applicant who on his/her own behalf or on behalf of the victim
wishes to be granted reparation pursuant to article 27(1) of the Protocol shall
include the request for reparation in the application in accordance with sub-
rule 2 above. The supporting documents and evidence relating thereto shall
be submitted together with the application or within a time limit set by the
Court.
5. In the event that an applicant is unable to file his/her original
application in the Registry, he/she shall file a certified copy, or scanned copy
or electronic copy of his/her application, provided that the original shall be
delivered to the Registry before the date of set by the Court.
6. The Registrar shall effect service of the application on the other party
by courier or registered post, together with a request to acknowledge receipt.
7. The Registrar shall, as soon as possible, acknowledge receipt of the
application, and inform the applicant of any missing information or
documentation required by the rules and seek clarification, where necessary.

Rule 41: Content of an application in contentious cases

1. An application shall be made on the application form provided by the
Registry, unless the Court decides otherwise. It shall contain all of the
information requested in the relevant parts of the application form and set
out:
(a) The name, date of birth, nationality and address of the applicant and,
where the applicant is a legal person, the full name, date of incorporation or
registration, the official registration number (if any) and the official address;
(b) The name, address, telephone and fax numbers and e-mail address of
the representative, if any;
(c) Where the applicant has more than one representative, only one will be
designated for purposes of communication with the Registry;
(d) The name of the state party or parties against which the application is
made;
(e) A concise and legible statement of the facts;
(f) A concise and legible statement of the alleged violation(s) of specified
human rights instruments and the relevant arguments; and
470 African Court on Human and Peoples’ Rights

(g) A concise and legible statement confirming the applicant’s compliance

with the admissibility criteria laid down in article 56 of the Charter and rule
50 of the rules.
2. (a) All of the information referred to in paragraphs 1 (e) to (g) above,
that is set out in the relevant part of the application form, should be
sufficient to enable the Court to determine the nature and scope of the
application without recourse to any other document. (b) The applicant may
however supplement the information by appending to the application form
further details on the facts, alleged violations of the specified human rights
instruments and the relevant arguments.
3. The application form shall be signed by the applicant or the applicant’s
representative, as the case may be and shall be accompanied by:
(a) Copies of documents relating to the decisions or measures complained
of, judicial or otherwise;
(b) Copies of documents and decisions showing that the applicant has
complied with the exhaustion of domestic remedies requirement under
article 56(5) of the Charter and rule 50(2)(e) of the rules or where the
applicant claims an exception to this requirement, copies of documents
supporting this claim.
(c) Where appropriate, copies of documents relating to any other
procedure of international investigation or settlement relating to the claim.
(d) Where the applicant is a legal person, a document or documents
showing that the individual who lodged the application has the standing or
authority to represent the applicant.
(e) where the applicant is a non-governmental organisation a document
showing that it has observer status with the Commission.
4. Documents submitted in support of the application shall be listed in
order by date, numbered consecutively and be identified clearly.
5. An applicant, who does not want his identity to be disclosed to the
public, shall make a request to the Court in writing and give reasons why his
identity should not be disclosed.
6. Where the Court decides that the reasons for the request are justified,
it shall grant the request for non-disclosure of identity. If the request is not
justified, the Court shall inform the applicant in writing, who will then
indicate whether the Court should proceed with the application or not.
7. In any instance where an applicant is also the victim of a human rights
violation and requests that his identity be kept anonymous, the Court will
disclose his identity to the respondent and not to the public.
8. Where the request for anonymity has been granted, all Court documents
to the public shall refer to the applicant in pseudonyms.
9. Failure to comply with the requirements set out in paragraphs 1 to 3 of
this rule will result in the application not being examined by the Court,
unless:
(a) The applicant has provided an adequate explanation for the failure to
comply;
(b) The application concerns a request for provisional measures;
(c) The Court directs otherwise of its own motion or at the request of an
applicant.
10. The Court may, in any case, request an applicant to provide information
or documents in any form or manner which may be appropriate within a fixed
time- limit.
11. The date of receipt of the application shall be the date on which an
application form satisfying the requirements of this rule is received at the
Registry.
12. Parties shall keep the Court informed of any change of address and of
all circumstances relevant to the application.
 Rules of Court 2020 471

Rule 42: Transmission of applications

1. Upon receipt of an application filed in accordance with article 5(1) and
(3) of the Protocol, the Registrar shall transmit a copy thereof, together with
any annexes, to the President and other members of the Court.
2. In consultation with the Bureau, subject to rule 48(2) these rules, the
Registrar shall forward copies of the application, where applicable to the:
3. state party against which the application has been filed;
4. state party whose citizen is a victim of the alleged violation;
5. Where the Bureau decides that an application should not be served in
accordance with sub-rule 2 above, the Registrar shall immediately inform the
applicant of the reasons thereof.
6. Subject to rule 48(2) of these rules, the Registrar shall also inform the
Commission, the Chairperson of the African Union Commission and through
him/her, the Executive Council of the African Union, and all the other state
parties to the Protocol, of the filing of the application.
7. In transmitting applications as stipulated in sub-rules 2 and 4 of this
rule, the Registrar shall invite:
(a) The respondent state to indicate, within thirty (30) days of receipt of
the application, the names and addresses of its representatives;
(b) Any other state party that may wish to intervene in the proceedings
under article 5(2) of the Protocol, to inform the Registrar accordingly, within
the time stipulated in rule 61.

Rule 43: Receipt and transmission of pleadings

1. All pleadings received by the Registry shall be stamped, registered and
a copy thereof transmitted to the other party and all other relevant
participants to a case.
2. The Registrar shall acknowledge receipt of all such pleadings.

Rule 44: Time limit for pleadings

1. The state party against which an application has been filed shall respond
thereto within ninety (90) days of being served with the application. The
response shall cover submissions on jurisdiction, admissibility, merits and
reparations.
2. After the respondent state has filed its Response, the applicant may file
a reply thereto within forty-five (45) days.
3. Where a party is unable to comply with any time limit prescribed in
these rules, the President may grant an extension of thirty (30) upon
application being made, giving reasonable explanation for the inability to
comply.
4. A request for extension of time shall be communicated to the other
party to the case, and the latter may be given fifteen (15) days within which
to react to the request.
5. Any further extension of time may only be granted by decision of the
Court taking into account the particular circumstances of the case.
6. The decision to extend time is at the discretion of the Court.
7. If any party fails to file its pleadings and does not make a request for
extension, its attention shall be drawn to rule 63 of the rules. In such
instance, the defaulting party shall be granted not more than 45 days to file
its pleadings.
8. In any case, where time limits are prescribed in these rules, the
reckoning of time shall be from the date of receipt of pleadings, notices or
other communications from the Registry, informing the parties of the same.
Receipt shall be presumed on the date that an electronic mail is sent, and
where pleadings, notices or other communication are sent by registered mail
or courier, receipt shall be upon delivery.
472 African Court on Human and Peoples’ Rights

9. The provisions of this rule shall apply to any other participant in the
proceedings before the Court.

Rule 45: Filing out of time

1. Pleadings filed out of the time limits set out in these rules shall not be
considered unless the Court decides otherwise.
2. Where a party seeks to file pleadings out of time, the request shall be
made within a reasonable time, giving reasons for the failure to comply with
the time limit. Such request shall be communicated to the other party, and
the latter shall be given fifteen (15) days within which to react to the request.
3. The decision to extend time is at the discretion of the Court.

Rule 46: Close of pleadings

1. The written pleadings shall be considered to have closed when the
applicant replies to the respondent state’s response to the application or
when the Court so decides.
2. Each party reserves the right to apply for leave to present additional
submissions after close of pleadings. Such application shall be communicated
to the other party, and the latter shall be given fifteen (15) days within which
to react.
3. The Court has the discretion to determine whether or not to reopen
pleadings.
4. No party may file additional evidence after the close of pleadings
except by leave of Court.

Rule 47: Amendment of pleadings

1. A party may, subject to the approval of the Court, amend its pleadings
before the close of pleadings.
2. A request for amendment of pleadings shall be made by a written notice
explaining the specific part of the pleadings to be amended. The request shall
also state the reasons thereof.
3. If the request is made after the close of pleadings, the Court may grant
leave on exceptional basis.

Rule 48: Dismissal of application without merit

1. Where the Court considers that the application is manifestly unfounded,
it shall dismiss it, giving reasons for its decision without having to summon the
parties to appear, and the parties shall be duly notified of that decision.
2. In any case, where the Registry receives an application from an
individual or non-governmental organisation, the Registrar shall verify with
the African Union Commission whether the state against which the application
has been filed is a party to the Protocol or has deposited the declaration in
terms of article 34(6) of the Protocol. Where the Protocol has not been
ratified or the declaration has not been deposited, the Registrar shall not
register the application, and shall inform the applicant of the reason(s)
thereof.

Rule 49: Examination of jurisdiction and admissibility

1. The Court shall ascertain its jurisdiction and the admissibility of an
application in accordance with the Charter, the Protocol and these rules.
2. Pursuant to sub-rule 1 of this rule, the Court may request the parties to
submit any factual information, documents or other material considered by
the Court to be relevant.
 Rules of Court 2020 473

Rule 50: Admissibility of applications

1. The Court shall ascertain the admissibility of an application filed before
it in accordance with article 56 of the Charter, article 6(2) of the Protocol and
these rules.
2. Applications filed before the Court shall comply with all of the following
conditions:
(a) Indicate their authors even if the latter request anonymity,
(b) Are compatible with the Constitutive Act of the African Union and with
the Charter,
(c) Are not written in disparaging or insulting language directed against the
state concerned and its institutions or the African Union,
(d) Are not based exclusively on news disseminated through the mass
media,
(e) Are sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged,
(f) Are submitted within a reasonable time from the date local remedies
were exhausted or from the date the Commission is seized with the matter,
and
(g) Do not deal with cases which have been settled by those states involved
in accordance with the principles of the Charter of the United Nations, or the
Charter of the Organisation of African Unity or the provisions of the Charter.

Rule 51: Filing of documents

1. The Court may, during the course of the proceedings and at any other
time the Court deems it appropriate, call upon the parties to file any
pertinent document or to provide any relevant explanation. The Court shall
formally take note of any failure to comply.
2. All documents filed before the Court and transmitted to the parties shall
be signed by their authors.

Chapter III: Oral proceedings

Rule 52: Hearings

1. Subject to the provisions of rule 30(1) of these rules, the Court may hold
a hearing on its own accord or upon a request of a party.
2. Pursuant to article 10(1) of the Protocol, the Court shall conduct its
proceedings in public. However, the Court may hold its hearings in camera if,
in its opinion, it is in the interest of public morality, public order or the
physical and moral integrity of the parties and witnesses.
3. Cases where the disclosure of the identity of a child may compromise its
best interests and wellbeing shall also be heard in camera.
4. Whenever the Court orders that any proceedings shall not be conducted
in public, the Court shall give reasons. The parties or their legal
representatives shall be permitted to be present and heard in camera.

Rule 53: Fixing the date of hearing

Where the Court decides to have a hearing, the President shall fix the date
for the hearing. The Registrar shall notify the parties accordingly.

Rule 54: Conduct of hearings

1. The hearings shall be presided over by the President or, in his absence,
the Vice- President, the Dean of Judges or any other judge as the Court may
decide.
2. The Presiding judge shall prescribe the order in which the parties or
their representatives are to be heard.
474 African Court on Human and Peoples’ Rights

3. Prior to the public hearing, the Registry shall send the parties the
Programme of the hearing and may also send a list of issues for clarifications.
4. The President or any judge, may put questions to the parties, and/or
their representative, the witnesses, experts or other persons appearing
before the Court.
5. Expert witnesses and other persons appearing before the Court may be
subject to examination and cross-examination as appropriate.
6. The Court may, of its own motion or on request by a party, adjourn any
public hearing.
7. Whenever one of the parties does not appear before the Court for a
scheduled public hearing, the Court may proceed in the absence of that party,
after having satisfied itself that the said party was properly served with the
notice of the hearing.

Rule 55: Measures for taking evidence

1. The Court may, of its own accord or at the request of a party, obtain
any evidence which in its opinion may provide clarification of the facts of a
case. The Court may decide to hear a witness, an expert or any other person
whose evidence, assertions or statements it deems likely to assist it in
carrying out its task.
2. The Court may, for purposes of obtaining information, request any
person or institution of its choice to express an opinion or submit a report to
it on any specific point.
3. The Court may, at any time during the proceedings, assign one or more
judges to conduct an enquiry, carry out a visit to the scene or take evidence
in any other manner, including to take testimony on oath using appropriate
means.

Rule 56: Witnesses, experts and other persons

1. The Registrar shall issue summons to witnesses and invite experts or any
other persons the Court decides to hear.
2. After verification of his/her identity and before giving evidence, every
witness shall take the following oath or make the following solemn
declaration:
“I swear/solemnly declare upon my honour and conscience that I will tell
the truth, the whole truth and nothing but the truth.”
3. After verification of his/her identity and before carrying out his/her
task, every expert shall take the following oath or make the following solemn
declaration: “I swear/solemnly declare that I will, on my honour and
conscience, discharge my functions as expert independently and impartially.”
4. The oath or declaration referred to in sub-rules 2 and 3 of this rule shall
be taken or made before the Court and the Court shall take notice of the
same.
5. The Court shall rule on any challenge arising from an objection to a
witness or expert.

Rule 57: Recording of public hearings

The proceedings of the public hearing shall be recorded and such recordings
shall be conserved in the archives of the Court.

Rule 58: Verbatim transcript record of hearings

1. The Registrar shall be responsible for making a verbatim transcript
record of each hearing. The verbatim record shall be sent to the parties
within five (5) working days of the public hearing. The verbatim transcript
record shall include the:
(a) Composition of the Court at the hearing;
 Rules of Court 2020 475

(b) List of the persons appearing before the Court;

(c) Text of statements and/or submissions made, questions put and replies
given;
(d) Text of any decision delivered by the Court during the hearing.
2. The parties or their representatives shall receive the verbatim
transcript record of their arguments, statements or evidence, in order that
they may, under the responsibility of the Registrar, make corrections,
provided that such corrections do not affect the substance of what was said.
The parties shall respond within twenty one (21) days from the date of
receipt.
3. Once corrected, the verbatim transcript record shall be signed by the
President and the Registrar; and shall then constitute a true reflection of the
proceedings.

Chapter IV: Specific procedures

Rule 59: Provisional measures

1. Pursuant to article 27(2) of the Protocol, the Court may, at the request
of a party, or on its own accord, in case of extreme gravity and urgency and
where necessary to avoid irreparable harm to persons, adopt such provisional
measures as it deems necessary, pending determination of the main
application.
2. In case of extreme urgency, the President shall, by all appropriate
means, obtain the views of the judges.
3. The Court shall duly notify the parties to the case, the Assembly, the
Executive Council and the African Union Commission of the aforesaid
provisional measures.
4. In the annual report submitted by the Court to the Assembly pursuant to
article 31 of the Protocol, the Court shall disclose the provisional measures it
ordered during the period under review. In the event of non-compliance with
these measures by the State concerned, the Court shall make such
recommendations as it deems appropriate.
5. The Court may invite the parties to provide it with information on any
issue relating to the implementation of the provisional measures adopted by
it.
6. Orders for provisional measures shall be binding on the parties
concerned.

Rule 60: Preliminary objections

1. Any party served with an application may raise preliminary objections
within the time limit set by the Court.
2. The submission of preliminary objections shall not cause the
proceedings on the substantive case to be suspended unless the Court so
decides. In any case, the Court shall rule on the objections or incorporate its
ruling in its decision on the substantive case.
3. Every preliminary objection shall set out the facts and the law on which
the objection is based as well as the submissions and a list of the documents
in support, if any; it shall also specify any evidence which the party intends
to adduce.
4. Where a party raises a preliminary objection, the Court shall invite the
other party to submit its written observations in reply.
5. The Court may, on the request of a party or of its own accord, before
deciding on the preliminary objection, decide to hold a hearing if it deems it
necessary.
476 African Court on Human and Peoples’ Rights

Rule 61: Intervention

1. A State Party may, in accordance with article 5(2) of the Protocol, seek
to intervene in a case.
2. The Court may, in the interest of justice, authorise any other person
who has interest in a case to intervene.
3. An application to intervene shall indicate:
(a) The names and addresses of the Applicant or his/her representatives, if
any;
(b) The Applicant’s interest in the case;
(c) The purpose of the intervention; and
(d) A list of all supporting documents.
4. An application for leave to intervene shall be filed as soon as possible,
and, in any case, before the close of the written pleadings. However, under
exceptional circumstances, the Court may grant leave for an application for
intervention to be filed after the close of pleadings.
5. Copies of the application for leave to intervene shall be communicated
forthwith to the parties to the case, who shall be entitled to submit their
written submissions within a time-limit fixed by the President. The Registrar
shall also transmit copies of the application to any other concerned entity
mentioned under rule 39 of these Rules.
6. Where the Court rules that the application is admissible, it shall fix a
time limit within which the intervening party shall submit its written
observations. Such submissions shall be forwarded by the Registrar to the
parties to the case, who may file written submissions in reply within a
deadline set by the Court.
7. The intervening party shall be entitled, in the course of the oral
proceedings, if the Court decides to hold any, to present submissions in
respect of the subject of the intervention.

Rule 62: Joinder and disjoinder of cases and pleadings

1. The Court may, at any stage of the proceedings, either on its own accord
or upon an application by any of the parties, order the joinder or disjoinder
of cases and pleadings as it deems appropriate.
2. The Court, when it deems necessary, may seek the opinion of the Parties
on the joinder and disjoinder.

Rule 63: Judgment in default

1. Whenever a party does not appear before the Court, or fails to defend
its case within the period prescribed by the Court, the Court may, on the
application of the other party, or on its own motion, enter judgment in
default after it has satisfied itself that the defaulting party has been duly
served with the application and all other documents pertinent to the
proceedings.
2. The Court may, upon an application from the defaulting party showing
good cause, and within a period not exceeding one year from the date of
notification of the judgment, set aside a judgment entered in default in
accordance with sub-rule 1 of this rule.
3. Prior to considering the application for setting aside the said judgment,
the Court shall notify the application to the other party giving the latter thirty
(30) days within which to submit written observations.

Rule 64: Amicable settlement

1. Pursuant to article 9 of the Protocol, the Court may promote amicable
settlement of cases pending before it. To that end, it may invite the parties
and take appropriate measures to facilitate amicable settlement of the
dispute.
 Rules of Court 2020 477

2. Parties to a case before the Court, may on their own initiative, solicit
the Court’s intervention to settle their dispute amicably at any time before
the Court gives its judgment.
3. Any negotiations with a view to reaching an amicable settlement shall
be confidential and without prejudice to the parties’ observations in the
proceedings before the Court. No written or oral communication and no offer
or concession made as part of such negotiations shall be mentioned or
referred to in the proceedings before the Court.
4. In the event of an amicable settlement of a case, the Court shall render
judgment limited only to the facts and the solution adopted.
5. The Court may, having regard to its discretion under the Protocol and in
the interest of justice or to preserve public interest or order, decide to
proceed with a case notwithstanding that an amicable settlement has been
reached by the parties.

Rule 65: Strike out and restoration of an application

1. The Court may at any stage of the proceedings decide to strike out an
application from its cause list where:
(a) An applicant notifies the Court of his/her intention not to proceed with
the case;
(b) An applicant fails to pursue his case within the time limit provided by
the Court;
(c) It, for any other reason, concludes that it is no longer justified to
continue with the examination of the application.
3. Any decision to strike out an application shall be rendered in the form
of an order.
4. Upon a request from an applicant, the Court may restore an application
which was struck out to its cause-list if exceptional circumstances so justify.

Rule 66: Pilot-judgment procedure

1. The Court, on its own accord or upon a request from the parties, may
initiate a pilot-judgment procedure where a number of applications filed
against the same respondent(s) reveal the existence of a structural or
systemic problem in the respondent state(s).
(a) The Registrar shall, before initiating a pilot-judgment procedure,
submit a report to the Court that identifies the applications that may
constitute the subject of a pilot-judgment and in particular, specify the
nature of the structural and systemic problem contained in each of the
Applications. The Court shall consider the said report, and where it decides
to institute the procedure, seek the consent of the parties.
(b) Any application selected for pilot-judgment procedure shall be
processed as a matter of priority.
(c) The Court may adjourn the examination of all similar applications
pending the adoption of the remedial measures required by virtue of the
operative provisions of the pilot judgment.
(d) The applicants concerned shall be informed of the decision to adjourn.
They shall be notified as appropriate of all relevant developments concerning
their cases.
(e) The Court may, at any time, examine an adjourned application where
the interests of justice so requires.
2. When adopting a pilot judgment procedure, the Court reserves the right
to initiate a friendly-settlement agreement to resolve the disputes between
the parties.
3. The Court shall, in its pilot judgment, identify both the nature of the
structural or systemic problem, as well as the type of remedial measures
which the respondent state is required to take at the domestic level by virtue
478 African Court on Human and Peoples’ Rights

of the operative provisions of the judgment and the time within which the
measures shall be implemented.
4. Subject to any decision to the contrary, in the event of the failure of the
respondent state to comply with the operative provisions of a pilot judgment,
or failure to implement a friendly settlement agreement, the Court shall
resume its examination of the applications which have been adjourned in
accordance with paragraph 1(e) above
5. The pilot judgment or any friendly settlement shall be published in
accordance with the rules.

Chapter V: Deliberations and decisions

Rule 67: Deliberations

1. The Court shall, upon the close of pleadings, proceed to deliberations.
2. The deliberations of the Court shall be held in camera and shall remain
confidential. The Registrar or his/her Deputy, as well as other legal officers
of the Registry and interpreters, whose assistance is deemed necessary, shall
be present.
3. The Court's deliberations on an application shall be completed within
two consecutive ordinary sessions of the Court following the close of
pleadings.

Rule 68: Forms of decisions

In the exercise of judicial functions, the Court will render its decisions in the
form of a judgment, ruling, order, opinion, instruction, direction or any other
form of pronouncement as the Court deems necessary.

Rule 69: Judgment

1. Pursuant to article 28(1) of the Protocol, the judgment of the Court shall
be delivered within ninety days of having completed deliberations.
2. The judgment shall be made by a majority of the members of the bench
present. Abstentions shall not be allowed in the final votes of cases.
3. The Court shall rule on the request for reparation, submitted in
accordance with rule 40(4) of these rules, by the same decision establishing
the violation of a human and/or peoples’ right or, if the circumstances so
require, by a separate decision.
4. In the event of a tied vote, the presiding judge shall have a casting vote.

Rule 70: Separate opinions, dissenting opinions or declarations

1. Any judge who heard the case may append the text of his/her separate
or dissenting opinion.
2. A separate or dissenting opinion shall be published along with the
decision of the Court.
3. A judge who wishes to differ with the majority without providing the
reasons thereof may do so in the form of a declaration.

Rule 71: Content of a judgment

1. The judgment of the Court shall contain:
(a) The date on which it was delivered;
(b) The names of the parties;
(c) The names of the representatives of the parties, if applicable;
(d) A summary of the procedure of the proceedings;
(e) The submissions and prayers of the parties,
(f) The submissions of amicus curiae, where applicable;
(g) A summary of the facts of the case;
(h) The legal reasoning;
 Rules of Court 2020 479

(i) The decision, if any, on reparations and costs;

(j) The operative provisions of the judgment;
(k) The names and number of Judges who took part in the deliberations;
2. The judgment shall specify the authoritative language version.

Rule 72: Binding nature of the judgment

1. Subject to article 28(2) of the Protocol, the judgment of the Court shall
be final.
2. The judgment shall be binding on the parties and is enforceable as
provided under article 30 of the Protocol.

Rule 73: Notification of judgment

1. In accordance with article 29 of the Protocol, the Court shall duly notify
the parties to the case, the Commission, the Assembly, the African Union
Commission and any person or institution concerned with the judgment by
certified true copies thereof.
2. The Executive Council shall also be notified of the judgment.

Rule 74: Signing of decisions

1. The decisions of the Court shall be signed by all the judges and certified
by the Registrar.
2. Notwithstanding sub-rule 1 of this rule, the Court may mandate the
President and the Registrar to sign certain decisions.
3. Signing shall take place before the delivery of the judgment unless the
Court decides otherwise.
4. The original text of any decision, duly signed and sealed, shall be
archived.

Rule 75: Delivery of decisions

Delivery of the decisions of the Court shall be in public, or in exceptional
circumstances, in a virtual manner, due notice having been given to the
parties.

Rule 76: Publication of decisions

1. Decisions of the Court shall be published in accordance with rule 21(2)
(i), under the authority of the Registrar.
2. Decisions shall be published in the working languages of the Court.

Rule 77: Application for interpretation of a judgment

1. Pursuant to article 28(4) of the Protocol, any party may, for the purpose
of executing a judgment, apply to the Court for an interpretation of the
judgment within twelve months from the date of notification of the
judgment, unless the Court, in the interest of justice, decides otherwise.
2. The application shall state the point(s) in the operative provisions of the
judgment on which interpretation is sought.
3. The Registrar shall, upon the instruction of the Court, transmit the
application for interpretation to any other party concerned and shall invite
them to submit their written comments, if any, within the time limit
established by the President. The President shall also fix the date for the
hearing of the application, in the event the Court decides to hold one.
4. An application for interpretation shall not stay the execution of the
judgment unless the Court decides otherwise.
5. The Court’s decision shall take the form of a judgment.
480 African Court on Human and Peoples’ Rights

Rule 78: Request for review of a judgment

1. A party may, in the event of the discovery of a new fact or evidence,
which by its nature, has a decisive influence and which, when the judgment
was delivered, was unknown to the party and could not with due diligence
have been known to that party, request the Court, within a period of six
months after that party acquired knowledge of the fact (or evidence), apply
to the Court to revise that judgment. The Court shall not accept any request
for review of its judgment after five (5) years of the delivery of the same.
2. The application shall specify the judgment in respect of which review is
requested, contain information necessary to show that the conditions laid
down in sub-rule 1 of this rule have been met, and be accompanied by a copy
of all relevant supporting documents.
3. Upon the instructions of the Court, the Registrar shall transmit a copy
of the application to any other party concerned and shall invite them to
submit written observations, if any, within the time limit set by the President.
The President shall also fix the date of the hearing should the Court decide to
hold one. The Court shall rule on the admissibility of such application and its
decision shall take the form of a judgment.
4. If the application is declared admissible, the Court shall, determine the
time limit for all future proceedings on the substance of the Application.
5. An application for review shall not stay the execution of a judgment
unless the Court decides otherwise.

Rule 79: Rectification of clerical errors

1. The Court may, of its own motion or at the request of a party, rectify
clerical errors in its decision.
2. A party making a request for rectification of an error shall do so within
one (1) month of the date of receipt of the decision.

Chapter VI: Enforcement of decisions of the Court

Rule 80: Compliance with the decisions of the Court

1. Pursuant to article 30 of the Protocol, state parties shall fully comply
with the decisions of the Court and guarantee their execution within the time
limits set by the Court.
2. All parties shall comply with the decisions of the Court.

Rule 81: Procedure for monitoring compliance with decisions of the

Court
1. State parties concerned shall submit reports on compliance with the
decisions of the Court and these reports shall, unless otherwise decided by
the Court, be transmitted to the applicant(s) for observations.
2. The Court may obtain relevant information from other credible sources
in order to assess compliance with its decisions.
3. In case of a dispute as to compliance with its decisions, the Court may,
among others, hold a hearing to assess the status of implementation of its
decisions. At the end of the hearing, the Court shall make a finding and where
necessary, issue an order to ensure compliance with its decisions.
4. Where a state party has failed to comply with its decision, the Court
shall, in accordance with article 31 of the Protocol, report the non-
compliance to the Assembly.
5. The Court will make available to the Assembly, all relevant information
it may deem useful for the purpose of execution.
 Rules of Court 2020 481

PART V: ADVISORY PROCEDURE

Rule 82: Request for advisory opinion

1. A request for advisory opinion pursuant to article 4 of the Protocol may
be filed before the Court by a member State, the African Union, any organ of
the African Union or an African Organisation recognized by the African Union.
2. Any request for advisory opinion shall be on legal matters and shall
specify the provisions of the Charter or of any other international human
rights instrument in respect of which the advisory opinion is being sought, the
context or background giving rise to the request as well as the names and
addresses of the representatives of the entities making the request.
3. The subject matter of the request for advisory opinion shall not relate
to a communication pending before the Commission.

Rule 83: Transmission of a request for advisory opinion

1. Upon receipt of a request for advisory opinion, the Registrar shall
forward a copy, together with any annexes, to the President and other
members of the Court.
2. The Registrar shall, unless otherwise decided by the President, publish
the request on the website of the Court, transmit copies to and invite
observations from:
(a) Member states of the African Union;
(b) The Commission;
(c) Relevant African Union organs; and
(d) Any other relevant entities.

Rule 84: Written submissions

1. The entities mentioned under rule 83 of these rules shall file their
submissions, within ninety (90) days, from the date of receipt of the request,
unless the Court decides otherwise.
2. Any other interested entity may be authorized by the Court to do the
same.

Rule 85: Oral proceedings

On exceptional basis, the Court, after consideration of the written
submissions, shall decide whether to hold a public hearing and fix a date for
such hearing.

Rule 86: Delivery of advisory opinion

1. Pursuant to article 4(2) of the Protocol, the Court’s advisory opinion
shall be accompanied by reasons, and any judge who has participated in a
hearing of a request for an advisory opinion shall be entitled to append to the
opinion, the text of a separate or dissenting opinion or issue a declaration.
2. The delivery of an advisory opinion shall take place in public. However,
where the circumstances so require, the Court may decide otherwise.
3. A copy of the advisory opinion shall be transmitted to the author(s) of
the request, member states, the Commission, relevant African Union organs
and any other interested entity.

Rule 87: Application of provisions relating to contentious procedure

The Court shall apply, mutatis mutandis, the provisions of Part V of these
rules to the extent that it deems appropriate to advisory proceedings.
482 African Court on Human and Peoples’ Rights

PART VI: MISCELLANEOUS

Rule 88: Amendments

1. These rules may be amended by the Court, in accordance with article
33 of the Protocol.
2. A proposal to amend any rule shall be submitted in writing by any judge,
to the President, who shall, accordingly, direct the Registrar to notify all
other judges.
3. The proposal to amend shall indicate the rule to be amended and its
proposed amendment.
4. Judges shall be notified of the date and venue of the meeting at which
the proposed amendment shall be discussed, at least thirty (30) days prior to
the date of the said meeting.
5. No amendment of a rule shall be adopted unless it is supported by at
least seven members of the Court.

Rule 89: Force Majeure

The Court may, in the event of force majeure, and in the interest of justice,
derogate from any of the provisions of these Rules. Any decision to this effect
shall be communicated to all concerned parties.

Rule 90: Inherent power of the Court

Nothing in these rules shall limit or otherwise affect the inherent power of
the Court to adopt such procedure or decisions as may be necessary to meet
the ends of justice.

Rule 91: Adoption

1. The rules shall be adopted by at least seven members of the Court.
2. The adopted rules shall be signed by the President and the Registrar.

Rule 92: Entry into force

The rules, drawn up in four (4) original texts in the Arabic, English, French
and Portuguese languages, all four (4) being equally authoritative, shall enter
into force on 25 September 2020.

Rule 93: Application

1. All cases pending resolution shall be processed according to the
provisions of these rules.
2. For cases filed before the entry into force of these rules, the Court may
allow parties to file additional submissions to ensure compliance with these
rules.
 Cases 483

Konaté v Burkina Faso, order of provisional measures

[Application 004/2013 (2013)]

The Court can adopt provisional measures in cases where there is a risk of
irreparable harm. This order deals with a request for provisional measures in a case
dealing with imprisonment for criminal defamation.

...
4. The applicant submits that his sentence to a one-year term of
imprisonment and to the payment of a substantial fine as damages and costs
are in breach of his right to freedom of expression …
…
19. The Court observe that consideration of the measure sought here
corresponds in substance to one of the reliefs sought in the substantive case
namely that the punishment of imprisonment is in essence a violation of the
right to freedom of expression, in the opinion of the Court, consideration of
this prayer would adversely affect consideration of the substantive case.
20. For this reason, the Court cannot grant the applicant’s request for his
immediate release within the framework of a provisional measure.
21. The second provisional measure sought by the applicant is that, in the
event his immediate release is denied, the respondent be ordered to provide
him with adequate medical case. He states that his health had deteriorated
since his detention and that he needed medication and adequate medical
care.
22. The Court observes, that the respondent, having been duly informed of
these allegations, has not raised any objection. In the opinion of the Court,
the situation in which the applicant finds himself appears to be a situation
that can cause irreparable harm. The Court is therefore of the opinion that
the applicant is entitled to access all medical care that his health condition
requires.

_____________________________________

Konaté v Burkina Faso, judgment on merits

[Application 004/2013 (2014)]

This merits judgment of the Court considers a sentence of imprisonment imposed

on a journalist for his writings.

...
163. In essence, the Court notes that, for now, defamation is an offense
punishable by imprisonment in the legislation of the respondent state, and
that the latter failed to show how a penalty of imprisonment was a necessary
limitation to freedom of expression in order to protect the rights and
reputation of members of the judiciary.
164. Accordingly, the Court opines that sections 109 and 110 of the
Information Code and section 178 of the Penal Code of Burkina Faso on the
basis of which the applicant was sentenced to a custodial sentence is contrary
to requirements of article 9 of the Charter and article 19 of the Covenant [on
Civil and Political Rights]. The applicant having also mentioned article
66(2)(c) of the revised ECOWAS Treaty under which states parties undertake
to ‘respect the rights of journalists’, the Court finds that the respondent state
484 African Court on Human and Peoples’ Rights

also failed in its duty in this regard in that the custodial sentence under the
above legislation constitutes a disproportionate interference in the exercise
of the freedom of expression by journalists in general and especially in the
applicant’s capacity as a journalist.
165. Apart from serious and very exceptional circumstances for example,
incitement to international crimes, public incitement to hatred,
discrimination or violence or threats against a person or a group of people,
because of specific criteria such as race, colour, religion or nationality, the
Court is of the view that the violations of laws on freedom of speech and the
press cannot be sanctioned by custodial sentences, without going contrary to
the above provisions.
166. The Court further notes that other criminal sanctions, be they (fines),
civil or administrative, are subject to the criteria of necessity and
proportionality; which therefore implies that if such sanctions are
disproportionate, or excessive, they are incompatible with the Charter and
other relevant human rights instruments.

_____________________________________

Mtikila v Tanzania
[Applications 9/2011 & 11/2011 (2013)]

This is the first judgment of the Court on the merits. The case deals with the right
to stand for election and was submitted separately by the aggrieved candidate,
after exhaustion of local remedies, and two Tanzanian NGOs.

...
75. As the municipal legal order currently stands in the United Republic of
Tanzania, candidates who are not members of or sponsored by a political
party cannot run in presidential, parliamentary or local government
elections.
...
The Court’s ruling on admissibility
82. Lack of exhaustion of local remedies
...
82.3 The term local remedies is understood in human rights jurisprudence to
refer primarily to judicial remedies as these are the most effective means of
redressing human rights violations. That the second applicant has exhausted
local judicial remedies is not in dispute. The respondent, having not joined
issue on the first applicants’ argument that they need not have instituted an
action challenging the prohibition of independent candidates, is deemed to
have admitted the position of the first applicants.
In the circumstances, the Court accepts that there was no need for the first
applicants to go through the same local judicial process the outcome of which
was known. The parliamentary process, which the respondent states should
also be exhausted is a political process and is not an available, effective and
sufficient remedy because it is not freely accessible to each and every
individual; it is discretionary and may be abandoned anytime; moreover, the
outcome thereof depends on the will of the majority. No matter how
democratic the parliamentary process will be, it cannot be equated to an
independent judicial process for the vindication of the rights under the
Charter. In conclusion, we find that the applicants have exhausted local
 Cases 485

remedies as is envisaged by article 6(2) of the Protocol read together with

article 56(5) of the Charter.
83. Alleged delay in filing the applications
The Court agrees with the applicants that there has not been an inordinate
delay in filing the applications; because after the judgment of the Court of
Appeal, the applicants were entitled to wait for the reaction of Parliament to
the judgment. In the circumstances, the period of about 360 days which is
about one year from the date of the judgment of the Court of Appeal until the
applications were filed was not unreasonably long.
The Court’s ruling on the preliminary objection on jurisdiction
Temporal jurisdiction of the Court
84. The only point on which the Court’s jurisdiction is challenged is based
on the fact that the conduct complained of, namely, the barring of
independent candidates, occurred before the Protocol came into operation.
This argument cannot be upheld. The rights alleged to be violated are
protected by the Charter. By the time of the alleged violation, the respondent
had already ratified the Charter and was therefore bound by it, The Charter
was operational, and there was therefore already a duty on the respondent as
at the time of the alleged violation to protect those rights.
...
The decision of the Court on the merits
The right to participate freely in the government of one’s country
...
99. In view of the patently clear terms of article 13(1) of the Charter, which
gives to the citizen the option of participating in the governance of her
country directly or through representatives, a requirement that a candidate
must belong to a political party before she is enabled to participate in the the
governance of Tanzania surely derogates from the rights enshrined in article
13(1) of the Charter. Although, the exercise of this right must be in
accordance with the law.
100. The enjoyment of this right is also restricted by article 27(2) of the
Charter which provides that: ‘The rights and freedoms of each individual shall
be exercised with due regard to the rights of others, collective security,
morality and common interest.’
Further, the duty set out in article 29(4) of the Charter which requires
individuals, ‘To preserve and strengthen social and national solidarity,
particularly when the latter is threatened’; also limits the enjoyment of this
right.
...
106. Jurisprudence
106.1 Jurisprudence regarding the restrictions on the exercise of rights has
developed the principle that, the restrictions must be necessary in a
democratic society; they must be reasonably proportionate to the legitimate
aim pursued. Once the complainant has established that there is a prima facie
violation of a right, the respondent state may argue that the right has been
legitimately restricted by ‘law’, by providing evidence that the restriction
serves one of the purposes set out in article 27(2) of the Charter. In
communications 105/93, 128/94, 130/94, 152/96, Media Rights Agenda and
Others v Nigeria and communication 255/2002, Prince v South Africa, the
Commission has stated that the ‘only legitimate reasons for limitations to the
rights and freedoms of the African Charter’ are found in article 27(2) of the
Charter. After assessing whether the restriction is effected through a ‘law of
general application’, the Commission applies a proportionality test, in terms
of which it weighs the impact, nature and extent of the limitation against the
legitimate state interest serving a particular goal. The legitimate interest
486 African Court on Human and Peoples’ Rights

must be ‘proportionate with and absolutely necessary for the advantages

which are to be obtained.’
...
The Court’s finding
107.1 The Court agrees with the African Commission, that the limitations to
the rights and freedoms in the Charter are only those set out in article 27(2)
of the Charter and that such limitations must take the form of ‘law of general
application’ and these must be proportionate to the legitimate aim pursued.
...
107.3 The respondent has relied heavily on the Castañeda Gutman v Mexico
case. In that case, the Inter-American Court found that individuals had other
options if they wished to seek public elective office. Thus, apart from having
to be a member of and being sponsored by a political party, one could be
sponsored by a political party without being a member of that party and also
one could form one’s own political party particularly since the requirements
for doing so were not arduous. In the instant case, Tanzanian citizens can only
seek public elective office by being members of and being sponsored by
political parties; there is no other option available to them.
107.4 The United Nation’s Human Rights Committee’s General Comment No
25 on [T]he right to participate in public affairs, voting rights and the right
of equal access to public service (art 25), at paragraph 17 thereof, provides
that:
The right of persons to stand for election should not be limited
unreasonably by requiring candidates to be members of parties or of
specific parties. If a candidate is required to have a minimum number of
supporters for nomination this requirement should be reasonable and not
act as a barrier to candidacy. Without prejudice to paragraph (1) of
article 5 of the Covenant, political opinion may not be used as a ground
to deprive any person of the right to stand for election.
The Court agrees with this General Comment, as it is an authoritative
statement of interpretation of article 25 of the ICCPR, which reflects the
spirit of article 13 of the Charter and which, in accordance with article 60 of
the Charter, is an ‘instrument adopted by the United Nations on human and
peoples’ rights’ that the Court can ‘draw inspiration from’ in its
interpretation of the Charter.
...
110. Finally on the issue that the second applicant has now formed his own
political party, the Court finds that it does not in any way absolve the
respondent from any of its obligations. If the second applicant in his eagerness
to participate in politics as a responsible citizen forms his own party to cross
the hurdle set up by the respondent, he should not be forced to continue if
he finds himself unable to cope with the burden of establishing and
maintaining a political party. It cannot be said he has not been prevented
from freely participating in the government of his country. He tried it once
and if he no longer wishes to go that route, he has the right to seek to insist
on the strict observance of his Charter rights. And having chosen not to form
his own party, must he be excluded? Certainly not. Indeed, it is even arguable
that, even if the applicant has successfully formed a political party, he cannot
be stopped from challenging the validity of the laws in question and from
asserting that the same amounts to a violation of the Charter. A matter such
as this one cannot and must not be dealt with as though it were a personal
action, and it would be inappropriate for this Court to do so. If there is
violation, it operates to the prejudice of all Tanzanians; and if the applicants’
application succeeds, the outcome inures to the benefit of all Tanzanians.
111. The Court therefore finds a violation of the right to participate freely in
the government of one’s country since for one to participate in presidential,
 Cases 487

parliamentary or local government elections in Tanzania one must belong to

a political party. Tanzanians are thus prevented from freely participating in
the government of their Country directly or through freely chosen
representatives.
...
114. The Court therefore finds that by requiring individuals to belong to and
to be sponsored by a political party in seeking election in the presidential,
parliamentary and local government posts, the respondent has violated the
right to freedom of association. This is because individuals are compelled to
join or form an association before seeking these elective positions.
...
119. ... To justify the difference in treatment between Tanzanians, the
respondent has, as already mentioned, invoked the existence of social needs
of the people of Tanzania based, inter alia, on the particular structure of the
state (union between mainland Tanzania and Tanzania Zanzibar) and the
history of the country, all requiring a gradual construction of a pluralist
democracy in unity.
The question then arises whether the grounds raised by the respondent state
in answer to that difference in treatment enshrined in the above mentioned
constitutional amendments are pertinent, in other words reasonable, and
legitimate.
As the Court has already indicated, those grounds of justification cannot lend
legitimacy to the restrictions introduced by the same constitutional
amendments to the right to participate in the government of one’s country,
and the right not to be compelled to be part of an association (supra,
paragraphs 107 – 11 and paragraphs 114 -115).
It is the view of the Court that the same grounds of justification do not
legitimise the restrictions to not be discriminated against and the right to
equality before the law. The Court therefore concludes that there has been
violation of articles 2 and 3(2) of the Charter.
...
126. In conclusion:
Having found the applications admissible and that the Court has jurisdiction
to consider the applications, the Court by majority finds:
1. In respect of the first applicants the Court holds:
That the respondent has violated articles 2, 3, 10 and 13(1) of the Charter.
2. In respect of the second applicant, the Court holds:
That the respondent has violated articles 2, 3, 10 and 13(1) of the Charter.
3. The respondent is directed to take constitutional, legislative and all
other necessary measures within a reasonable time to remedy the violations
found by the Court and to inform the Court of the measures taken.
4. In accordance with rule 63 of the Rules of Court, the Court grants leave
to the second applicant to file submissions on his request for reparations
within 30 days hereof and the respondent to reply thereto within 30 days of
the receipt of the second applicant’s submissions.
5. In accordance with rule 30 of the Rules of Court, each party shall bear
its own costs.
488 African Court on Human and Peoples’ Rights

Zongo v Burkina Faso, Judgment on reparations

[Application 013/2011 (2015)]

In the merits judgment in Zongo v Burkina Faso, the Court held that Burkina Faso
had failed to investigate alleged extrajudicial executions of an investigate
journalist and his companions with due diligence. It is the practice of the Court to
deliver a separate reparations judgment after the merits judgment when it has
found violations.

...
50. In the context and circumstances of the instant case, there is no doubt
that many people suffered morally, in varying degrees, from the lack of due
diligence on the part of the authorities of the respondent state in
apprehending, prosecuting and putting to trial the perpetrators of the
quadruple assassination; but one may reasonably consider that those who
acted (directly or by representation) on the very front line in this respect and
suffered the most from the situation are the spouses, children, fathers and
mothers of the deceased. These are therefore the persons who, in the instant
case, may claim the status of victim, and therefore lay claim to reparation …
...
100. Relying on its own jurisprudence … the Court is of the opinion that as a
measure of satisfaction, the respondent state, should within six months from
the date of this judgment, publish: (i) the official summary of this judgment
drafted by the Registry of the Court in French, once in the official gazette,
and once in a widely read national Daily; (ii) the same summary on an official
internet website of the respondent state, and maintain the publication for
one year.
...
103. On the application for resumption of investigations into the murder of
Norbert Zongo and his three companions, the Court notes that this is not
really a measure of non-repetition, but rather one of cessation of a violation
already established.
104. Be that as it may, the Court is of the opinion that this is indeed a
legitimate measure likely to forestall the continued violation of article 7 of
the Charter in this case.
...
109. ... the Court grants the applicants’ request to order the respondent
state to reopen the investigations with a view to prosecute and bring to trial
the perpetrators of the murder of Norbert Zongo and his three companions,
and thus shed light on this matter and do justice to the families of the victims.
 CHART OF RATIFICATIONS:
AU HUMAN RIGHTS TREATIES

Position as at 31 December 2021

Compiled by: I de Meyer
Source: http//www.au.int (accessed 9 June 2022)

African AU African Protocol Protocol African

Charter on Conven- Charter on to the to the Charter on
Human tion the Rights African African Demo-
and Governing and Charter on Charter on cracy,
Peoples’ the Welfare of the the Rights Elections
Rights Specific the Child Establish- of Women and
Aspects of ment of Gover-
Refugee an African nance
Problems Court on
in Africa Human
and
Peoples’
Rights
COUNTRY Ratified/ Ratified/ Ratified/ Ratified/ Ratified/ Ratified/
Acceded Acceded Acceded Acceded Acceded Acceded
Algeria 01/03/87 24/05/74 08/07/03 22/04/03 20/11/16 10/01/17
Angola 02/03/90 30/04/81 11/04/92 30/08/07 08/06/21
Benin 20/01/86 26/02/73 17/04/97 10/06/14 30/09/05 28/06/12
Botswana 17/07/86 04/05/95 10/07/01
Burkina Faso 06/07/84 19/03/74 08/06/92 31/12/98* 09/06/06 26/05/10
Burundi 28/07/89 31/10/75 28/06/04 02/04/03
Cameroon 20/06/89 07/09/85 05/09/97 09/12/14 13/09/12 24/08/11
Cape Verde 02/06/87 16/02/89 20/07/93 21/06/05
Central 26/04/86 23/07/70 24/04/07
African
Republic
Chad 09/10/86 12/08/81 30/03/00 27/01/16 11/07/11
Comoros 01/06/86 02/04/04 18/03/04 23/12/03 18/03/04 30/11/16
Congo 09/12/82 16/01/71 08/09/06 10/08/10 14/12/11
Côte d’Ivoire 06/01/92 26/02/98 01/03/02 07/01/03 05/10/11 16/10/13
Democratic 20/07/87 14/02/73 31/01/17 09/06/08
Republic of
Congo
Djibouti 11/11/91 03/01/11 02/02/05 02/12/12
Egypt 20/03/84 12/06/80 09/05/01
Equatorial 07/04/86 08/09/80 20/12/02 27/10/09
Guinea
Eritrea 14/01/99 22/12/99
Ethiopia 15/06/98 15/10/73 02/10/02 18/07/18 05/12/08
Gabon 20/02/86 21/03/86 18/05/07 14/08/00 10/01/11
The Gambia 08/06/83 12/11/80 14/12/00 30/06/99* 25/05/05
Ghana 24/01/89 19/06/75 10/06/05 25/08/04* 13/06/07 06/09/10
Guinea 16/02/82 18/10/72 27/05/99 16/04/12 17/06/11
Guinea- 04/12/85 27/06/89 19/06/08 4/10/21* 19/06/08 23/12/11
Bissau
Kenya 23/01/92 23/06/92 25/07/00 04/02/04 06/10/10
Lesotho 10/02/92 18/11/88 27/09/99 28/10/03 26/10/04 30/06/10
Liberia 04/08/82 01/10/71 01/08/07 14/12/07 23/02/14
Libya 19/07/86 25/04/81 23/09/00 19/11/03 23/05/04
Madagascar 09/03/92 30/03/05 12/10/21 23/02/17
Malawi 17/11/89 04/11/87 16/09/99 09/09/08* 20/05/05 11/10/12
Mali 21/12/81 10/10/81 03/06/98 10/05/00* 13/01/05 13/08/13
Mauritania 14/06/86 22/07/72 21/09/05 19/05/05 21/09/05 07/07/08
Mauritius 19/06/92 14/02/92 03/03/03 16/06/17
Mozambique 22/02/89 22/02/89 15/07/98 17/07/04 09/12/05 24/04/18
Namibia 30/07/92 23/07/04 11/08/04 23/08/16
Niger 15/07/86 16/09/71 11/12/99 17/05/04* 04/10/11
Nigeria 22/06/83 23/05/86 23/07/01 20/05/04 16/12/04 01/12/11
Rwanda 15/07/83 19/11/79 11/05/01 05/05/03 25/06/04 09/07/10
Sahrawi Arab 02/05/86 27/11/13 27/11/13
Democratic
Rep.
São Tomé 23/05/86 18/04/19 18/04/19 18/04/19
and Príncipe
Senegal 13/08/82 01/04/71 29/09/98 29/09/98 27/12/04
Seychelles 13/04/92 11/09/80 13/02/92 09/03/06 12/08/16
Sierra Leone 21/09/83 28/12/87 13/05/02 03/07/15 17/02/09
Somalia 31/07/85
South Africa 09/07/96 15/12/95 07/01/00 03/07/02 17/12/04 24/12/10
South Sudan 04/12/13 13/04/15
Sudan 18/02/86 24/12/72 30/07/05 19/06/13
Swaziland 15/09/95 16/01/89 05/10/12 05/10/12
Tanzania 18/02/84 10/01/75 16/03/03 07/02/06 03/03/07
Togo 05/11/82 10/04/70 05/05/98 23/06/03 21/10/05 24/01/12
Tunisia 16/03/83 17/11/89 21/08/07* 23/08/18
Uganda 10/05/86 24/07/87 17/08/94 16/02/01 22/07/10
Zambia 10/01/84 30/07/73 02/12/08 02/05/06 31/05/11
Zimbabwe 30/05/86 28/09/85 19/01/95 15/04/08
TOTAL 54 46 49 33 42 36
NUMBER OF
STATES

Ratifications after 31 December 2021 are indicated in bold

* State parties to the Protocol to the African Charter on the Establishment of an
African Court on Human and Peoples’ Rights that have made a declaration under
article 34(6) of this Protocol, which is still valid.
 Useful Websites 491

Useful websites
African Commission on
Human and Peoples’ Rights www.achpr.org

African Committee on www.acerwc.africa

the Rights and Welfare
of the Child

African Court www.african-court.org

African Human Rights

Case Law Analyser caselaw.ihrda.org

African Peer Review

Mechanism www.aprm-au.org

African Union www.au.int

Afrimap www.afrimap.org

Centre for Human Rights,

University of Pretoria www.chr.up.ac.za

Institute for Security

Studies www.issafrica.org

NEPAD www.nepad.org

Pan-African Parliament www.pan-african-parliament.org

University of Minnesota,
Human Rights Library http://www1.umn.edu/humanrts/regional.htm
492 Selected Bibliography

Selected Bibliography
Ankumah, E (1996) The African Commission on Human and Peoples’ Rights:
practice and procedures The Hague: Martinus Nijhoff
Ayeni, VO (2016) The impact of the African Charter and the Maputo Protocol
in selected African states Pretoria: Pretoria University Law Press (PULP)
Banda, F ‘Blazing a trail: The African Protocol on women’s rights comes into
force’ (2006) 50(1) Journal of African law 72 - 84
Baricako, G ‘La mise en œuvre des décisions de la Commission africaine des
droits de l’homme et des peuples par les autorités nationales’ in JF Flauss
& E Lambert-Abdelgawad (dir) (2004) L’application nationale de la Charte
africaine des droits de l’homme et des peuples Bruxelles: Bruylant
Bekker, G ‘The African Court on Human and Peoples' Rights: safeguarding the
interests of African states’ (2007) 51(1) Journal of African Law 151 - 172
Biegon, J & Killander, M ‘Human rights developments in the African Union
during 2009’ (2010) 10 African Human Rights Law Journal 212-232
Durojaye, E & Murungi, LN ‘The African Women's Protocol and sexual rights’
(2014) 18(7-8) The International Journal of Human Rights 881 - 897
Evans, M & Murray, R (eds) (2006) The African Charter on Human and Peoples’
Rights – The System in Practice 1986 - 2006 Cambridge: Cambridge
University Press
Heyns, C & Killander, M (2009) ‘The African regional human rights system’ in
Gomez Isa & de Feyter (eds) International human rights law in a global
context Bilbao: University of Deusto
Heyns, C & Stefiszyn, K (2006) Human rights, peace and justice in Africa: A
reader Pretoria: Pretoria University Law Press
Heyns, C & Van der Linde, M (eds) (2004) Human Rights Law in Africa Leiden:
Martinus Nijhoff
Kamto, M ‘L’application nationale de la Charte africaine des droits de
l’homme et des peuples: articulations respectives’ in J-F Flauss &
E Lambert-Abdelgawad (dir) (2004) L’application nationale de la Charte
africaine des droits de l’homme et des peuples Bruxelles: Bruylant
Killander, M & Abebe, A ‘Human rights developments in the African Union
during 2010 and 2011’ (2012) 12 African Human Rights Law Journal 199-
222
Killander, M (2010) ‘African human rights law in theory and practice’ in
Joseph, SL & MacBeth, A (eds) Research handbook on human rights
Cheltenham: Edward Elgar 388-413
Lloyd, A & Murray, R ‘Institutions with responsibility for human rights
protection under the African Union’ (2004) 48 Journal of African Law 165
Manby, B ‘The African Union, NEPAD, and human rights: The missing agenda’
(2004) 26 Human Rights Quarterly 983
Mbaye, K (1992) Les droits de l’homme en Afrique Paris: Pédone
Memzur, BD ‘The African Children’s Charter versus the UN Convention on the
Rights of the Child: A zero sum game? (2008) 23 SA Publiekreg/Public Law
14 - 28
 Selected Bibliography 493

Mubiala, M (2005) Le Système régional africain de protection des droits de

l’homme Bruxelles: Bruylant
Mugwanya, GW (2003) Human rights in Africa: Enhancing human rights
through the African regional human rights system Ardsley, NY:
Transnational publishers
Murray, R & Long, D (2015) The implementation of the findings of the African
Commission on Human and Peoples' Rights Cambridge: Cambridge
University Press
Murray, R (2000) The African Commission on Human and Peoples’ Rights and
International Law Oxford: Hart
Murray, R (2004) Human Rights in Africa: from the OAU to the African Union
Cambridge: Cambridge University Press
Musila, GM ‘The right to an effective remedy under the African Charter on
Human and Peoples’ Rights’ (2006) 6 African Human Rights Law Journal
442
Mutua, M ‘The African Human Rights Court: A two-legged stool?’ (1999) 21
Human Rights Quarterly 342
Nmehielle, VOO (2001) The African human rights system: Its laws, practice,
and institutions The Hague: Martinus Nijhoff
Okafor, OC (2007) The African human rights system: Activist forces and
international institutions Cambridge: Cambridge University Press
Onoria, H ‘The African Commission on Human and Peoples’ Rights and the
exhaustion of local remedies under the African Charter’ (2003) 3 African
Human Rights Law Journal 1
Österdahl I (2002) Implementing human rights in Africa Uppsala: Iustus Förlag
Ouguergouz, F (2003) The African Charter on Human and Peoples’ Rights: A
comprehensive agenda for human rights The Hague: Kluwer Law
International
Quashigah, K ‘The African Charter on Human and Peoples’ Rights: Towards a
more effective reporting mechanism’ (2002) 2 African Human Rights Law
Journal 261
Rudman, A ‘The protection against discrimination based on sexual orientation
under the African human rights system’ (2015) 15(1) African Human Rights
Law Journal 1 - 27
Sloth-Nielsen, J & Mezmur, BD ‘A dutiful child: The implications of article 31
of the African Children's Charter’ (2008) 52(2) Journal of African Law 159
– 189
Sloth-Nielsen, J (ed) (2008) Children’s rights in Africa: A legal perspective
England: Ashgate Publishing Limited
Sloth-Nielsen, J ‘Children’s rights litigation in the African region: Lessons
from the communications procedure under the ACRWC’ (2015) Litigating
the Rights of the Child Springer: Netherlands 249 - 265
Ssenyonjo, M (ed) (2012) The African regional human rights system Leiden:
Martinus Nijhoff
Stefiszyn, K ‘The African Union: challenges and opportunities for women’
(2005) African Human Rights Law Journal 358
494 Selected Bibliography

Umozurike, O (1997) The African Charter on Human and Peoples’ Rights The
Hague: Kluwer Law International
Van der Linde, M & Louw, L ‘Considering the interpretation and
implementation of article 24 of the African Charter on Human and
Peoples’ Rights in light of the SERAC communication’ (2003) 3 African
Human Rights Law Journal 167
Van der Mei, AP ‘The advisory jurisdiction of the African Court on Human and
Peoples’ Rights’ (2005) 5 African Human Rights Law Journal 27
Viljoen, F & Louw, L ‘State compliance with the recommendations of the
African Commission on Human and Peoples’ Rights, 1993-2004’ (2007) 101
American Journal of International Law 1
Viljoen, F & Louw, L ‘Status of the findings of the African Commission on
Human and Peoples’ Rights’ (2004) 48 Journal of African Law 1
Viljoen, F ‘A human rights court for Africa, and Africans’ (2004) 1 Brooklyn
Journal of International Law 30
Viljoen, F ‘From a cat into a lion? An overview of the progress and challenges
of the African human right system at the African Commission's 25 year
mark’ (2013) 17 Law, Democracy & Development 298
Viljoen, F ‘Promising profiles: an interview with the four new members of the
African Commission on Human and Peoples’ Rights’ (2006) 6 African
Human Rights Law Journal 237
Viljoen, F ‘The African Charter on Human and Peoples’ Rights: The travaux
préparatoires in the light of subsequent practice’ (2004) 25 Human Rights
Law Journal 313
Viljoen, F ‘The Special Rapporteur on Prisons and Conditions of Detention in
Africa: Achievements and possibilities’ (2005) 27 Human Rights Quarterly
125
Viljoen, F International human rights law in Africa (2012) Oxford: Oxford
University Press
Wachira, GM & Ayinla, A ‘Twenty years of elusive enforcement of the
recommendations of the African Commission on Human and Peoples’ Rights: A
possible remedy’ (2006) 6 African Human Rights Law Journal 465